Carr v. Vannoster

281 P.3d 1136

Cyndi CARR, Appellant,

v.Rodney VANNOSTER, Mary Vannoster, his wife, and Jim Vannoster, Appellees.

No. 106,177.

Court of Appeals of Kansas.

Aug. 3, 2012.

Syllabus by the Court

1. In a negligence action the breach of the duty of due care is an issue of fact, but whether such a duty exists is an issue of law for the court.

2. As a general rule, a landlord not in possession of the leased premises owes no duty of due care to third parties subject to the following exceptions: (1) when there are dangerous conditions known to the lessor and unknown to the lessee; (2) when there are conditions dangerous to persons outside of the premises; (3) when the premises are leased for admission of the public; (4) when parts of the land are retained in the lessor's control which the lessee is entitled to use; (5) when the lessor contracts to repair the premises; and (6) when the lessor is negligent in making repairs.

3. Under the theory of strict liability in tort, one who possesses or harbors a domestic animal that one knows or has reason to know has dangerous propensities abnormal to its class is subject to liability for harm done by the animal to another, although one has exercised the utmost care to prevent it from doing the harm.

4. The Restatement (Second) of Torts is not a compilation of Kansas law. Nevertheless, the Kansas Supreme Court has regularly relied upon it for authoritative guidance in defining the scope of an actor's duty and related liability issues when a plaintiff alleges the existence of a special relationship between the parties.

Sarah A. Mills, of The Spigarelli Law Firm, of Pittsburg, for appellant.

Norman R. Kelly, of Norton, Wasserman, Jones & Kelly L.L.C., of Salina, for appellee Jim Vannoster.

Before GREEN, P.J., MALONE and McANANY, JJ.

McANANY, J.

On May 20, 2009, Cyndi Carr was injured when she was bitten on the ankle by a pit bull owned by Rodney Vannoster while she was on the premises occupied by Rodney. She sued Rodney and Rodney's wife, Mary Vannoster.

In her amended petition Carr also asserted negligence claims against Rodney's father, Jim Vannoster, claiming that Jim, who owned the property where Rodney and Mary lived and kept the dog, was negligent in: (1) failing to act on his knowledge that Rodney's dog was dangerous; (2) failing to direct Rodney to properly restrain the dog; (3) failing to direct Rodney to properly pen the dog; (4) failing to direct Rodney to post a warning sign announcing the presence of the dog; and (5) failing to exercise his rights as owner of the premises to expel Rodney or the dog or both of them from the property. Carr did not make a specific claim against Jim for strict liability as the possessor or harborer of a dangerous animal, though she later asserted that as a basis for denying the summary judgment Jim later requested.

Carr moved for summary judgment against Rodney and Mary and was awarded a judgment against them in the amount of $325,000.

The issues now before us came to a head when Jim moved for summary judgment on Carr's claims against him. While Jim asked that the case be dismissed for failure to state an actionable claim, he couched his request in the form of a summary judgment motion because he asked the court to consider facts beyond the face of Carr's pleading. The court granted Jim summary judgment on Carr's claim against him, finding that Carr failed to state an actionable claim against Jim. It is the propriety of this ruling that Carr asks us to review.

Review Standards

The district court based its summary judgment ruling upon Carr's failure to state an actionable claim as it would in the case of a motion to dismiss. But this does not affect our review. The motion was one for summary judgment. Jim relied on facts beyond the face of Carr's pleading and enumerated them in his statement of claimed uncontroverted facts. Accordingly, we review Jim's motion for what it was: a motion for summary judgment.

The standards courts apply in summary judgment proceedings are well established. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any supporting affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 2011 Supp. 60–256(c)(2). In opposing a defendant's summary judgment motion, the plaintiff may not rely merely on allegations in the petition. To the contrary, the plaintiff must establish by affidavits or facts in the record that there exists a genuine issue of material fact for trial. See K.S.A. 2011 Supp. 60–256(e)(2).

The court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom summary judgment is sought. In order to preclude summary judgment, the facts subject to the dispute must be material.

“ ‘An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. The disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact. [Citation omitted.]’ ” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).

Summary judgment is not appropriate if reasonable minds can differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011); see Supreme Court Rule 141 (2011 Kan. Ct. R. Annot. 232). On appeal, we apply these same rules de novo. Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).

The central issue in this case is whether Jim owed a duty of due care to Carr. Carr had the burden of proving that Jim owed her this duty. While the breach of a duty is an issue of fact, whether a duty exists is an issue of law for the court. See Schmidt v. HTG, Inc., 265 Kan. 372, 396–97, 961 P.2d 677,cert. denied525 U.S. 964, 119 S.Ct. 409, 142 L.Ed.2d 332 (1998). Carr also raises the issue of strict liability for Jim possessing or harboring a dangerous animal.

Uncontroverted Facts

The following facts set forth in the memorandum supporting Jim's motion are uncontroverted. In her response to Jim's motion, Carr set forth additional claimed uncontroverted facts. Because we have in the record no response from Jim regarding these additional facts, we accept them as also being uncontroverted. They are as follows:

Jim lived in a house located on 80 acres he acquired over 20 years before this May 20, 2009, incident. Jim was retired. His address was 2612 County Road 3500, Independence, Kansas.

Jim's son, Rodney, suffered a spinal cord injury in a stock car race in approximately 2000. As a result, Rodney was disabled and confined to a wheelchair.

For about 5 years before this incident, Rodney lived in a home with 4 acres owned by Jim. Jim purchased the property in about 2000 as a home for Rodney. The address of the property was 3337 County Road 2800, Independence, Kansas. This is approximately 1 mile from Jim's residence. Jim built a wheelchair ramp for Rodney and paid the liability insurance premium on this property as well as the property taxes. Jim described the arrangement as “more or less kind of a rental.” There was no written lease agreement between Jim and Rodney. Rodney said in his deposition the rent was $350 per month. Jim said in his deposition the rent was $300 per month. Rodney had not paid Jim any rent for over 1 year before the May 20, 2009, incident.

Rodney repaired lawnmowers as a hobby in the garage located at his residence. However, some people paid Rodney for his repair work. Rodney had people stopping by his shop from time to time. Jim visited Rodney once or twice a week and sometimes helped Rodney with his lawnmower activities.

Rodney acquired the pit bull 3 years before this incident. The dog was never at Jim's residence during the time Rodney owned her. Jim never owned, possessed, kept, or cared for the dog. (He claimed that he never “harbored” the dog, but Carr disputed this.) Jim never transported the dog in one of his vehicles and never took the dog away from the house and 4 acres that Rodney occupied. Whenever Jim visited Rodney, the dog was running loose without any enclosure.

Rodney's pit bull was approximately 3 years old at the time of this incident and had recently had a litter of pups. Sometime before the current incident the dog had nipped a neighbor on the back of his pant leg. Jim knew that the dog had “extremely dangerous propensities” because pit bulls were banned in the City of Independence. (The properties in question were located outside the city.)

On May 20, 2009, Rodney's dog attacked and injured Carr in Rodney's driveway approximately 50 feet from the garage where Rodney was working on lawnmowers.

Analysis

Liability for Negligence as a Landlord

Whether Jim was a Landlord

Jim relied on Colombel v. Milan, 24 Kan.App.2d 728, 952 P.2d 941 (1998), as support for his summary judgment motion. In Colombel, this court was called upon to decide whether “a landlord may be held liable under Kansas law for the injuries a third party suffers due to the actions of his or her tenants' vicious dog on the leased property.” 24 Kan.App.2d at 729–30, 952 P.2d 941. The court in Colombel dealt with the issue at the pleading stage (the defendant had moved to dismiss for failure to state a claim), rather than in a summary judgment motion following discovery.

The Colombel court discussed Borders v. Roseberry, 216 Kan. 486, 532 P.2d 1366 (1975), in which our Supreme Court considered a landlord's liability to a tenant's guest who fell on ice that had accumulated on the leased property. The Borders court held that a landlord not in possession of the premises owed no duty of due care to third parties, subject to certain exceptions which we will discuss later. The Colombel court determined that the Borders exception relied upon by the...