Opinion
No. 109,089.
2013-09-13
Maria ROCHA, Appellant, v. Ralph RUDY, d/b/a Sheriac Town Homes, Appellee.
Appeal from the Sedgwick District Court; William Sioux Woolley, Judge. Jim Lowing, of Wichita, for appellant. Craig W. West and Stephen M. Kerwick, of Foulston Siefkin LLP, of Wichita, for appellee.
Appeal from the Sedgwick District Court; William Sioux Woolley, Judge.
Jim Lowing, of Wichita, for appellant. Craig W. West and Stephen M. Kerwick, of Foulston Siefkin LLP, of Wichita, for appellee.
Before BRUNS, P.J., HILL, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Maria Rocha was leaving her daughter's rented townhome when she slipped in a puddle of water in a common area and fell. She sued Ralph Rudy, d/b/a Sheriac Town Homes, her daughter's landlord, for her injuries on a premises liability theory. The district court granted the landlord summary judgment. Rocha appeals.
Factual and Procedural Background
The parties developed the evidence in this case through pleadings and depositions. This narrative summarizes the evidence in the record when the district court granted summary judgment.
Diana Pena rented townhome 301 at Sheriac Townhomes in Wichita, Kansas, in July 2008 and occupied it at all times relevant in the case. Ralph Rudy has owned the Sheriac Townhomes at all times relevant. At around 8:45 a.m. on September 22, 2010, Pena's mother, plaintiff Maria Rocha and her husband, Adolfo Rocha (Adolfo), briefly stopped at Pena's townhome to pick up Pena's child. As they approached Pena's residence, Rocha and Adolfo noticed that water had pooled on the sidewalk at the base of the townhome steps. On her way up to the townhome, Rocha grabbed onto a porch rail and stepped over the puddle. Rocha testified that she did not consider the puddle dangerous.
The family departed the townhome shortly thereafter. Adolfo and Pena, with the child, jumped from the porch over the pooled water and onto the sidewalk. Rocha locked the door and followed. Rocha said she was physically unable to jump the water so she just stepped into it. Rocha said the puddle was not deep, but when she put her foot down it slid out from under her and she fell. Rocha broke her leg in the fall.
Rocha acknowledged that she did not ask her husband or daughter to help her off the porch. She had seen water pooled in front of her daughter's townhome before, after it had rained, but did not recall on how many occasions she saw it. She had noticed ice at that location during the winter. Rocha stated that she believed Rudy's lawn sprinklers caused this particular puddle, although she did not see them in operation. Rocha had never had problems traversing the puddles at that location in the past.
Rocha's family members also did not perceive any danger from the pooled water. Pena recalled that she had occasionally seen pooled water in front of her porch, but she did not recall how many times. She also did not know whether such accumulations were due to natural weather or sprinklers. Pena had not paid attention to the occasional water accumulation and never perceived it as a safety hazard. Likewise, Adolfo had been in and out of the townhome many times. He noticed pooled water on occasions, but he did not perceive the water to be dangerous and had not previously encountered any problems because of it.
Pena, Rocha, and Adolfo confirmed that none of them had ever complained to Rudy, his maintenance manager, or anyone on Rudy's staff about the pooling of water outside the townhome. Pena was not aware of anyone working for Rudy who knew about the pooling of water in front of her townhome. Pena did testify that she observed that workers cleared the areas around her townhome first when there was snow or ice in the winter, but she acknowledged she did not know why they started where they did. Pena said that Rudy had warned her to be careful of a slope near her home if there was ice or snow. However, Pena confirmed that the slope had nothing to do with the puddle where Rocha fell.
Rudy denied knowledge of any sidewalk defect in front of Pena's townhome. Rudy testified that he provides the tenants in the complex a phone number that can be called 24 hours per day to contact maintenance. Rudy denied that he had ever been advised, prior to Rocha's fall, that there was any issue with mud collecting or water pooling in front of Pena's townhome. After the accident, Pena contacted Rudy and told him of her mother's fall. In her deposition, Pena testified that Rudy told her that they had been overseeding and were watering more than usual. Rudy recalled talking to Pena about her mother's fall, but he denied talking to her about the overseeding or watering. Rudy does keep the grass watered with a sprinkler system on a timer. He stated that the sprinklers run for 10 to 12 minutes early in the morning.
On February 13, 2012, Rocha filed a civil action against Rudy seeking monetary damages resulting from her fall. She alleged that Rudy had negligently created and maintained a hazardous area that allowed water to pool where people were required to walk.
Six months later Rudy filed a motion for summary judgment and memorandum in support citing 24 uncontroverted facts. Those facts are included in the background above. Rudy first argued that the puddle did not constitute a defect. Rudy also argued that even if the puddle might be a defect, Rudy did not know of it and would not have discovered that it was a defect by the exercise of reasonable care. Rocha did not controvert Rudy's statement of uncontroverted facts as required by Rule 141 (2012 Kan. Ct. R. Annot. 247). However, she did counter by filing additional facts she claimed were also uncontroverted, and she disputed Rudy's legal authorities. Rudy disputed most of Rocha's additional facts. Rocha's countering factual contentions are included in the above narrative.
The district court heard oral arguments on October 26, 2012. The parties did not include a transcript of the full hearing in the record on appeal. The district court announced its decision at the conclusion of the arguments. The district court declined Rudy's request for a finding that the puddle was not even a defect. The district court ruled there were sufficient material facts in dispute to deny summary judgment on that issue, indicating that a decision on whether the pooled water condition was “dangerous or defective” was an issue of fact.
Then the district court stated what it considered to be the real issue: “[D]id the defendant know of the defect or in the exercise of reasonable care should the defendant have known of the defect,” The district court reviewed the uncontroverted facts and testimony and held that there was no evidence that Rudy had actual knowledge of “a dangerous condition being caused by a pool of water.” The court next referred to Rocha's lack of evidence supporting Rudy's constructive notice of the alleged defect. The district court noted that none of Rocha's witnesses, including herself, viewed the pooled water as dangerous. The district court stated, “But plaintiff has not presented evidence on how defendant should have known of the puddling in the exercise of reasonable care.” The district court granted Rudy's motion for summary judgment. The district court executed a journal entry of judgment which incorporated into it a transcript of the court's announced decision.
Rocha timely appeals.
Analysis
In its grant of summary judgment to Rudy the district court found that Rocha had failed to demonstrate a factual dispute on whether Rudy knew or should have known of the pooling water condition Rocha alleged to be hazardous. Since there were no material disputed facts that supported Rudy's actual or constructive notice of the condition, the court granted summary judgment. Rocha challenges this determination by arguing that there were sufficient facts to raise an inference that Rudy had that actual knowledge. In addition, she argues that, since there was evidence that the puddle was a hazard created by Rudy's watering of the grass, notice should have been imputed to Rudy.
An appellate court's standard when reviewing the granting of a motion for summary judgment is well established. As recently restated in Kansas One–Call System v. State, 294 Kan. 220, Syl. ¶ 1, 274 P.3d 625 (2012):
“When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The trial court is required to resolve all facts and inferences [that] may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to conclusions drawn from the evidence.”
To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law, and whether a duty has been breached is a question of fact. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 220–21, 262 P.3d 336 (2011). Summary judgment should be granted with caution in negligence actions. See Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). Nevertheless, summary judgment is proper in a negligence action if the defendant shows there is no evidence indicating negligence. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047 (2007). A landlord's duty of reasonable care in common areas
A landowner's duty to both invitees and licensees is one of reasonable care under all the circumstances. Wrinkle v. Norman, 297 Kan. 420, 422, 301 P.3d 312 (2013). A landlord is not the insurer of the safety of the tenant or third persons. Colombel v. Milan, 24 Kan.App.2d 728, 732, 952 P.2d 941 (1998). Traditionally the lessee in possession of land bore the burden of maintaining the land in a reasonably safe condition. Social policy has generated exceptions to this rule. One such exception applies here: A landlord owes a duty of reasonable care for those portions of the property such as sidewalks, hallways, and common entrances reserved for the use of different tenants and guests. Borders v. Roseberry, 216 Kan. 486, 490–491, 532 P.2d 1366 (1975). In this case, the parties do not dispute that the sidewalk where Rocha fell constitutes a common area reserved and maintained by Rudy.
With respect to reserved areas, a landlord's duty to tenants and persons present with the tenant's permission is to exercise reasonable care to keep the reserved common areas in a safe condition for the purposes intended. Burch v. University of Kansas, 243 Kan. 238, 243, 756 P.2d 431 (1988). The Burch court referred favorably to the description of the landlord's common-area duties in the Restatement (Second) of Torts §§ 360 and 361 (1964), which provide as follows:
“ § 360. Parts of Land Retained in Lessor's Control Which Lessee is Entitled to Use
“A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.”
“ § 361. Parts of Land Retained in Lessor's Control but Necessary to Safe Use of Part Leased
“A possessor of land who leases a part thereof and retains in his own control any other part which is necessary to the safe use of the leased part, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care
“(a) could have discovered the condition and the risk involved, and
“(b) could have made the condition safe.”
Kansas courts instruct juries on the common-area rule by using PIK Civ. 4th 126.33. That instruction incorporates the grounds for landlord liability in Restatement § 361 above. That instruction is titled “Landlord's Duty—Notice of Defect as to Reserved Parts” and states:
“A landlord is liable to a tenant and someone present with the tenant's consent for an injury that results from a defect on the part of the premises reserved for the common use of tenants when:
1. The landlord knew of the defect, or by the exercise of reasonable care should have known of the defect; and
2. The landlord had a reasonable opportunity to repair it before the injury was sustained.”
The district court specifically referred to PIK Civ. 4th 126.33 as the starting point for its summary judgment analysis. The court stated,” You have to prove there is a defect; the landlord knew of the defect, or in the exercise of reasonable care should have known of the defect, and had a reasonable opportunity to repair the defect .” This is an adequate paraphrase of the pattern instruction and an accurate statement of the law.
On appeal Rocha contends there was a genuine issue of fact as to whether Rudy knew or should have known of the dangerous condition.
There is no dispute that, prior to the accident, neither Pena, her husband, or the Rochas told Rudy or anyone on his staff that water tended to pool in front of the Penas' townhouse. Rocha did not controvert Rudy's uncontroverted fact No. 24, which averred that neither Rudy nor his maintenance manager had any knowledge of any sidewalk defect, mud collecting, or water pooling issues in front of the Penas' townhome. However, Rocha argues that such actual knowledge can be inferred. Rocha points to Pena's testimony that Rudy treated the area around the Penas' townhome first whenever there was ice or snow in the winter. Rocha contends that this establishes Rudy's actual knowledge that water collected there, creating a dangerous condition.
However, the actual testimony contained in the record does not support Rocha's contention. Pena did state in her deposition that the area near her townhome was generally cleared first by the landlord when there was ice or snow. However, she admitted that she did not know why the landlord cleared that area first. Pena, then, provided no support for an inference that Rudy cleared her area first because he knew it was a dangerous area. Pena also testified that Rudy had warned her to be careful around a sloped area near her townhome if there was ice or snow. Rocha does not explain why Rudy would warn of one known hazard but not another. Moreover, this sloped area is not adjacent to the porch area where Rocha fell. Pena specifically stated that the slope Rudy warned her about had nothing to do with the water pooling in the area of Rocha's fall.
The trial judge rejected Rocha's contention that this was a material fact in dispute regarding Rudy's actual knowledge:
“But one thing I want to point out is I agree with the way this case has been argued, ice and snow in the winter time, there's no proof that it's the same or similar condition to water pooling in the summer. But I also agree with the defendant that the mere fact it was a slip and fall in water doesn't create an inference of negligence.”
The trial court also rejected any contention by Rocha there was any material fact in dispute concerning Rudy's constructive knowledge of the alleged hazard. As the district court stated, “[T]he plaintiff would have to come forward with a material factual dispute on whether the defendant should have known that water was pooling and that it was dangerous.” The district court noted that none of Rocha's witnesses, including herself, viewed the pooled water as dangerous. If Rocha and her witnesses, who viewed the puddle firsthand, did not view it as a hazard, then it is not reasonable to expect that Rudy should have known of it or that it was somehow a danger.
We agree with the trial court. That the landlord may have cleared snow from Pena's property before other properties does not give rise to an inference that Rudy knew of a dangerous potential condition in the summer. Pena's testimony about snow and ice removal in the winter fails to create a reasonable inference that Rudy had actual knowledge of or should have known of the pooling of water in warm weather. The trial court acknowledged Rocha's evidence that water would pool after the landlord would “run the sprinkler.” But the presence of a puddle does not give rise to an inference that the landlord should have known that was dangerous, especially when Rocha and her witnesses did not perceive it as such. Since Rocha came forward with no evidence that could demonstrate Rudy's actual or constructive notice of the alleged defect, Rocha was unable to show that Rudy had a duty to remedy the alleged defect.
Again, we agree with the trial court. There was no genuine issue as to any material fact. Rudy was entitled to judgment as a matter of law. Accordingly, the district court correctly granted summary judgment. Imputed notice of a dangerous condition
Rocha contends that she did not need to show Rudy's actual or constructive knowledge of the hazard because Rudy created that condition by watering the grass. Rocha emphasizes Pena's deposition testimony that Rudy, when told of Rocha's fall, stated that area had been overseeded and was being watered more than usual. Rocha relies on a part of PIK Civ. 4th 126.04, which refers to an exception to the rule requiring actual or constructive notice of a defect: “When a dangerous condition is created or maintained by the owner, or by one for whose acts the owner is responsible, knowledge of the condition is implied.”
The trial court did not explicitly address this argument. Again, it determined that, in this case, Rocha was required to come forward with proof of actual or constructive notice to Rudy of the alleged defect in this common area of the leased premises.
The cases cited by Rocha do not support her claim that, on the facts here, knowledge that Rudy was creating a dangerous condition by watering the grass should be imputed to him. Rocha cites Schrader v. Great Plains Electric Co-op Inc., 19 Kan.App.2d 276, 282, 868 P.2d 536,rev. denied 255 Kan. 1003 (1994). Imputing notice of a dangerous condition was not an issue in the case. The suit was maintained by the survivors of a 14–year–old driver who lost control of her vehicle, drove into a ditch, struck a utility pole and its supporting guy wire, all of which caused her to suffer fatal injuries. This court on appeal reversed a jury verdict for the survivors. The court held that, in the absence of evidence of prior accidents in the area, it was not foreseeable that a driver would leave the road at that location. Therefore, no foreseeable dangerous condition existed on the facts in the case, so the utility had no duty to the deceased or her survivors. 19 Kan.App.2d at 282.
The following statements from Schrader are relevant to the analysis here:
“In negligence cases, ‘duty’ has been defined as ‘an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.’ Prosser and Keeton on Torts § 53, p. 356 (5th ed.1984). An act is wrongful, or negligent, only if a prudent person would perceive the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. The existence of negligence in a given case will depend upon the particular circumstances which surround the parties at the time of the occurrence on which the controversy is based. Durflinger, 234 Kan. at 489; see Blackmore v. Auer, 187 Kan. 434, 440–41, 357 P.2d 765 (1960).” 19 Kan.App.2d at 278.
“Negligence must be predicated upon what one should anticipate rather than merely on what actually happened. Hellman v. Julius Kolesar, Inc., 399 N.W.2d 654, 656 (Minn.App.1987). That someone, after an accident, can think of things which, if done, might have made the accident less likely does not constitute proof of negligence. Wasson v. Brewer's Food Mart, Inc., 7 Kan.App.2d 259, 265, 640 P.2d 352,rev. denied 231 Kan. 802 (1982).” 19 Kan.App.2d at 282.
Rocha also cites Jackson v. K–Mart Corp., 16 Kan.App.2d 716, 721, 828 P.2d 941,aff'd251 Kan. 700, 840 P.2d 463 (1992), a slip and fall case analyzing the “mode of operation” doctrine. Under that doctrine, knowledge of foreseeable but dangerous conditions created on the store's premises by its customers can be imputed to a retail store owner. See 261 Kan. 700, Syl. ¶¶ 2–4; Little v. Butner, 186 Kan. 75, 80, 348 P.2d 1022 (1960), likewise involves a slip and fall allegedly caused by the conduct of other retail store customers leaving debris on the store's floor.
Here Rocha testified she did not notice any defects in the actual sidewalk in front of her daughter's townhome. The testimony as to how frequently water pooled in front of the townhome was vague. Rocha testified she might have seen pooled water there about 10 times during her daughter's 2–year tenancy. However, it is uncontroverted that Rocha, Adolpho, and Pena all saw the puddle before Rocha stepped into it and slipped and fell. None of them regarded, let alone reported, the puddle as a dangerous condition.
Rocha's cited cases generally concern the liability of store proprietors for foreseeable slips and falls by customers who, for one reason or another, did not see the dangerous condition. Rocha was not shopping in a store when she failed to see the pool of water in which she stepped, slipped, and then fell. Whether the puddle was caused by sprinklers or rain, Rocha saw the same puddle she says Rudy knew or should have known was dangerous and stepped right into it. Although the district court did not decide this case on the lack of a duty to warn, we point out that, generally, a landlord does not have a duty “to warn of known and obvious dangers.” Wellhausen v. University of Kansas, 40 Kan.App.2d 102, Syl. ¶ 1, 189 P.3d 1181 (2008); see Tillotson v. Abbott, 205 Kan. 706, 711, 472 P.2d 240 (1970).
On the facts here, Rocha is not entitled to rely on the exception to the knowledge rule that would impute notice of this alleged hazard to Rudy. We agree that the rule the district court applied on the uncontroverted facts here was the correct one: In this common-area case, the rule requires that the landlord have actual or constructive notice of the alleged dangerous condition before liability for the condition can attach.
Rocha has failed to demonstrate that the district court erroneously entered summary judgment.
Affirmed.