 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Cunningham v. Braum's Ice Cream and Dairy Stores12/12/2003
Affirmed.
Plaintiffs Barbara Cunningham and Wanda Yandell ask us to reverse the district court's summary judgment in favor of defendant Braum's Ice Cream and Dairy Stores (Braum's) in this personal injury action. They sued Braum's after its employees shooed them out of the Parsons ice cream store and, as it turned out, into the path of a tornado. Cunningham and Yandell were injured while driving home, when the tornado threw a truck into their car.
We must decide whether Braum's owed Cunningham and Yandell a legal duty to inform them of a tornado warning and to offer them shelter from the storm.
Summary judgment is appropriate when there remains no genuine issue of material fact for trial and the moving party is entitled to judgment as a matter of law. K.S.A. 2002 Supp. 60-256(c); see also Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).
In this negligence action, the first element Cunningham and Yandell must prove is the existence of a duty of care owed them by Braum's. The question of whether a duty exists is a question of law, and the district court's decision that there was no duty under the circumstances presented is reviewable by this court de novo. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). Both the district court and this court are required to view the available evidence in the light most favorable to the nonmoving party, i.e., Cunningham and Yandell. All facts and inferences that may reasonably be drawn from that evidence must be drawn in their favor. Bergstrom v. Noah, 266 Kan. 847, 871, 974 P.2d 531 (1999).
With this standard in mind, the evidence shows that Braum's employees were aware at the time they told Cunningham and Yandell and other customers to leave the store that there was a tornado warning in effect. Braum's employees also were aware, by means of telephone calls from persons outside the store, that there were reports of a tornado sighting in the area.
Braum's has an emergency action plan. Although no copy of the plan is included in the record, Braum's admits that the plan states: " f a tornado is sighted, or a Civil Defense warning sounds, anyone not wishing to leave should be directed to the "milk room." The milk room is an interior refrigerated area inside the store.
Again, viewing the evidence in the light most favorable to Cunningham and Yandell, we accept for purposes of this appeal Cunningham's and Yandell's deposition testimony that Braum's employees told them only that a storm was coming, not that there was a tornado warning. The parties agree that they were not told that a tornado had been sighted in the area or that customers had the option of remaining inside the store and going into the milk room. Without this information, Cunningham and Yandell left the Braum's store at the employees' insistence. They heard no sirens sounding at the time, and they observed nothing ominous about the weather until it was too late.
Cunningham and Yandell advance two arguments to support the existence of a duty on these facts.
The first argument is that this matter should be decided under Kansas law governing premises liability and that Braum's employees failed to abide by the requirement that they act with reasonable care in all of the circumstances. See Jones v. Hansen, 254 Kan. 499, Syl. 2, 3, 867 P.2d 203 (1994).
Second, they argue that a duty arose under the Restatement (Second) of Torts (1964), quoting § 323 and citing § 324A.
We address each of these arguments in turn.
Premises Liability
Cunningham and Yandell argue that Braum's had a duty as the possessor of land to war
Page 1 2 3 4 5 6 7 8 Kansas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|