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South v. McCarter9/9/2005
ull autopsy was performed. 239 Kan. at 481-82. The Cunningham court quoted from Burgess as follows:
"'"In most of the cases finding liability, the defendant has made the situation worse, either by increasing the danger, by misleading the plaintiff into the belief that it has been removed, or by depriving him of the possibility of help from other sources. Many of the decisions state that some such element is necessary, and that there can be no liability where the conduct in no way aggravates the situation or misleads the plaintiff, and he is left no worse off than he was before. . . ."' 239 Kan. at 481 (quoting Prosser and Keeton on Torts, § 56, pp. 381-82 [5th ed.1984])." 276 Kan. at 892-93.
In finding the evidence to support a § 323 duty wanting, the Cunningham court found that the only evidence of an undertaking, the emergency action plan, did not compel any particular action by the employees under the facts of this case. Additionally, it distinguished Circle Land and Burgess, where the defendant's behaviors induced the plaintiffs' detrimental reliance, by holding no duty arose under § 323 because no evidence was presented that the plaintiffs relied upon the emergency action plan. The court concluded that the plaintiffs "cannot demonstrate that they looked to [defendant] for services they now argue [the defendant] had a legal obligation to provide." 276 Kan. at 895-96.
In this case, the plaintiffs argue "there is no factual question as to whether S and J undertook to render services to the South family." As under the premises liability analysis, S and J continues to rely upon the contractual obligations under the rental agreement and the community guidelines. However, as discussed above, these provisions did not impose a duty upon S and J to provide protection for the tenants of Green Acres. As such, we conclude that the rental agreement and the community guidelines themselves do not demonstrate an undertaking to render services.
However, the question we determine is whether S and J's actions in contacting an attorney and directing him to send a letter to James banning him from the premises constituted an undertaking to render services. A defendant's agreement or affirmative act indicating a willingness to provide services is a threshold requirement for such a duty to arise. Cunningham, 276 Kan. at 894. The extent of the undertaking defines the scope of the duty. McGee v. Chalfant, 248 Kan. 434, 442, 806 P.2d 980 (1991).
In making this determination, we have looked at how the "undertaking" language is applied in both § 323 and § 324A cases. Aside from Circle Land and Burgess, in most cases we have not found an undertaking sufficient to give rise to a duty. See, e.g., Roe v. Department of SRS, 278 Kan. 584, 595, 102 P.3d 396 (2004) (SRS undertaking to monitor services provided by the Bureau of Indian Affairs and county mental health center was only a limited or incidental undertaking which did not give rise to a § 324A duty); Cunningham, 276 Kan. at 896 (emergency action plan was not a sufficient undertaking where it did not speak to the situation presented); Honeycutt v. City of Wichita, 251 Kan. 451, 466-67, 836 P.2d 1128 (1992) (school district's handbook that safety patrol should be stationed at railroad crossing as needed was not an affirmative assumption of a duty to provide safety patrol at railroad so as to constitute an undertaking); Geiger-Schorr v. Todd, 21 Kan. App. 2d 1, 901 P.2d 515 (1995) (KAAMCO had not undertaken to inform nondirectly insured physicians about certain malpractice coverage).
Likewise in this case, even when viewing the facts in the light most favorable to the plaintiffs, the only evidence of any undertaking is
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