Hammond v. San Lo Leyte VFW Post

466 P.3d 886

Jeffrey Alan HAMMOND, Appellant,

v.SAN LO LEYTE VFW POST #7515, Appellee.

No. 118,698

Supreme Court of Kansas.

Review of the judgment of the Court of Appeals in an unpublished opinion filed September 28, 2018. Opinion filed July 2, 2020.

Larry G. Michel, of Kennedy, Berkley, Yarnevich & Williamson, Chartered, of Salina, and Klint A. Spiller, of the same firm, were on the brief for appellant.

Michelle R. Stewart, of Hinkle Law Firm LLC, of Overland Park, and Jennifer R. Johnson, of the same firm, were on the brief for appellee.

The opinion of the court was delivered by Wilson, J.:

This personal injury case arises from a bar fight at the San Lo Leyte VFW Post #7515 in Clyde, Kansas, (VFW) between Jeffrey Hammond, plaintiff, and a third party patron of the bar, Travis Blackwood. On appeal, a panel of the Court of Appeals reversed the district court's summary judgment in favor of the VFW. In turn, the VFW petitioned this court for review, arguing it owed Hammond no duty at the time he sustained his injuries. For the reasons set forth below, we find that summary judgment was not warranted, affirm the decision of the Court of Appeals, and remand the case to district court for further proceedings.

FACTS

Given the nature of summary judgment, the facts established in this case are limited. The Court of Appeals panel compiled the following combined uncontroverted facts submitted by both parties in their respective motion for summary judgment and response. The panel's recitation of facts was accepted by both parties upon petition for review.

"1. At approximately 10 p.m. on February 20, 2016, plaintiff Jeffrey Alan Hammond, a resident of Lee's Summit, Missouri, visiting Clyde, Kansas, went with his wife to the Clyde VFW.

"2. While at the VFW, Hammond went to the restrooms located in the rear of the club, where he encountered Travis Blackwood.

"3. Hammond and Blackwood had a verbal argument in the bathroom, and according to Hammond, Blackwood wanted to beat him up in the bathroom but Hammond left the bathroom so that anything that occurred would be in public view. Hammond does not concede that he ‘in any way caused or was a willing participant' in the argument.

"4. Neither Blackwood nor any of his friends laid hands on Hammond inside the VFW.

"5. After he left the bathroom, Hammond returned to his table at the club to finish his beer.

"6. After he finished his beer, Hammond walked up to the bar and ordered another beer.

"7. While he was at the bar, the VFW club manager, James Nease, approached Hammond from the back of the bar where Nease had been standing with Blackwood.

"8. When Nease reached Hammond, Nease told Hammond to leave the bar.

"9. Nease told Hammond he was barred from the Clyde club for life. Hammond responded, ‘What are you talking about? I've only been here less than 20 minutes.’ Nease responded that Hammond had been arguing with customers. At this point, Hammond said, ‘This is bullshit.... This is B.S.’ Blackwood and his companions crowded behind Nease and began to help the manager escort Hammond outside.

"10. Before Nease approached Hammond to banish him from the club, Hammond observed Blackwood and his companions communicate with Nease. Blackwood and his companions followed Nease as Nease approached Hammond. Shari Hammond overheard one of them say, ‘ "Your husband's about to get kicked out of here." ’ Blackwood and his companions crowded around behind Nease as Nease announced Hammond's banishment from the VFW. Blackwood and his companions celebrated Nease's announcement of Hammond's banishment, as Hammond heard one of them say, ‘ "Yeah, he's out of here. He's out of here." ’ Hammond agreed to leave, and Nease pushed him out the door of the club. Blackwood and his companions also moved toward the door. They moved closely behind Nease and helped escort Hammond outside the VFW.

"11. Once outside of the bathroom, and until Nease and Blackwood and his companions escorted Hammond out of the club, Blackwood made no attempt to hit Hammond while Hammond was in the VFW.

"12. According to Hammond, Hammond, Nease, Hammond's wife, Blackwood, and several of Blackwood's friends exited the club.

"13. According to Hammond, Blackwood and his friends surrounded him and said something like, ‘ "You're a mouthy son of a bitch." ’

"14. Hammond testified that his wife, Shari Hammond, then came out and pushed Blackwood back and said, ‘ "You two need to f'n grow up." ’

"15. Shari Hammond testified that while the manager, Nease, was still outside, she saw Blackwood push her husband against the wall. In response, she pushed Blackwood and then someone pulled her off. According to Shari Hammond, they all got pulled apart and separated. At that point, Shari followed the manager inside because ‘it seemed like it had calmed down.’

"16. According to Hammond's testimony, Shari Hammond and Nease then went back inside the VFW.

"17. Shari Hammond did not see anyone strike her husband.

"18. After Hammond's wife and Nease went back inside the VFW, and while on the sidewalk in front of the VFW, Hammond testified Blackwood head-butted him, pushing him against the wall so that his head hit the wall.

"19. Hammond made his way to his truck parked in the street in front of the VFW, and Blackwood and his friend started kicking him.

"20. After kicking Hammond in the street, Blackwood and his friend went back inside the VFW.

"21. When Hammond's wife went back inside the VFW, she started talking with some of the girls who had gone outside with the group and about 5 to 10 minutes later, ‘ "one of the guys comes up to [her] and says ‘Your husband's laying [sic ] in the middle of the street.’ " ’

"22. Hammond's wife went outside and investigated, saw her husband was bloody, and then called 911.

"23. Prior to February 20, 2016, Blackwood had only been involved in one physical altercation at the VFW which occurred in 2013. Blackwood instigated that fight. That assault occurred on January 31, 2013 after Bradley Czapanskiy arm wrestled Travis Blackwood's brother, Cody Blackwood. During their arm wrestling match, Czapanskiy's and Cody Blackwood's arms ended up falling off the edge of the table causing them both to stand up. At that point, Czapanskiy's mother, Deborah Czapanskiy, witnessed Travis Blackwood run across the room and ‘ "blindside" ’ Bradley Czapanskiy with a punch, dropping Czapanskiy to the floor. After Bradley Czapanskiy was on the floor, Travis Blackwood and his two brothers proceeded to kick Czapanskiy, who was lying on the ground curled up in a ball. At no point did the staff of the VFW attempt to help the Czapanskiys during the assault, according to the Czapanskiys.

"24. Blackwood was banned from the VFW for a period of 90 days following the incident in 2013. James Nease was generally aware of the incident involving Blackwood in 2013 but had never observed Blackwood behave in a physically aggressive manner in the VFW since Nease began working there in late 2014." Hammond v. San Lo Leyte VFW Post #7515 , No. 118,698, 2018 WL 4655891, at *1-3 (Kan. App. 2018) (unpublished opinion).

ANALYSIS

The VFW argues that summary judgment was proper because any duty it might have owed Hammond ended as soon as Hammond left the VFW-owned premises and it is undisputed by both parties that the injury took place on the public sidewalk just outside the VFW building.

On the other hand, Hammond argues that despite the injury occurring off VFW-owned premises, the VFW's duty to protect Hammond from the assault—and the subsequent breach of that duty—arose while Hammond and Blackwood were both still inside the bar. This argument was accepted by the Court of Appeals panel when it reversed summary judgment, finding that negligence could have arisen when all parties were on the VFW's premises.

Standard of Review

In an appeal from the district court's ruling on a summary judgment motion, the appellate court considers the motion de novo. Martin v. Naik , 297 Kan. 241, 246, 300 P.3d 625 (2013). This court applies all the same standards of the district court:

" ‘ "Summary judgment is appropriate 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. The trial court is required to resolve all facts and inferences which 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, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied." [Citations omitted.]’ " Warner v. Stover , 283 Kan. 453, 455-56, 153 P.3d 1245 (2007).

See Osterhaus v. Toth , 291 Kan. 759, 768, 249 P.3d 888 (2011).

For purposes of this appeal, we resolve all facts and inferences which may reasonably be drawn from the evidence in Hammond's favor. We also recognize that summary judgment should be granted with caution in negligence cases. Apodaca v. Willmore , 306 Kan. 103, 106, 392 P.3d 529 (2017) ; Fettke v. City of Wichita , 264 Kan. 629, 632, 957 P.2d 409 (1998). Ultimately, whether a duty exists is a question of law over which this court's review is unlimited. Sall v. T's, Inc. , 281 Kan. 1355, 1360, 136 P.3d 471 (2006). Whether a duty has been breached is a question of fact. South v. McCarter , 280 Kan. 85, 94, 119 P.3d 1 (2005).

Discussion

The Restatement (Second) of Torts § 344 (1965), defines the scope of liability of owner/operators of commercial enterprise:

"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for

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