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South v. McCarter9/9/2005
, summary judgment is proper if the only questions presented are questions of law. 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. Whether the duty has been breached is a question of fact.'" Schmidt v. HTG, Inc., 265 Kan. 372, 396-97, 961 P.2d 677, cert. denied 525 U.S. 964 (1998) (quoting Honeycutt v. City of Wichita, 251 Kan. 451, Syl. 8, 836 P.2d 1128 ).
In Kansas, a plaintiff in a negligence action must first prove the existence of a duty owed to him or her by the defendant. The existence of a duty is a question of law over which this court's review is unlimited. Roe v. Kansas Dept. of SRS, 278 Kan. 584, 592, 102 P.3d 396 (2004).
Premises Liability
The plaintiffs argue that S and J is liable under various provisions of the Restatement addressing premises liability. They cite several cases discussing these Restatement principles which they argue are analogous to this case. S and J argues it is not liable under a premises liability theory and urges this court to disregard many of these arguments because they are being raised for the first time on appeal.
Examination of the pleadings below, specifically the plaintiffs' response to the motion for summary judgment, reveals that the plaintiffs did make some premises liability arguments below concerning special relationships formed under § 314A and that the relationship here was similar to the university/student relationship in Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993), which discussed the applicability of § 344. Although the arguments on appeal expand upon those arguments raised below, we reject S and J's contention that the plaintiffs' arguments are raised for the first time on appeal. Moreover, the trial court did not address all the questions regarding the existence of a duty but concluded that no duty arose under the rental agreement to evict the Tindell (Mills) family, whom James was visiting at the time of the incident giving rise to this lawsuit.
The prevailing rule in Kansas is that in the absence of a "special relationship" there is no duty on a person to control the conduct of a third person to prevent harm to others. D.W. v. Bliss, 279 Kan. __, __, 112 P.3d 232 (2005). "'A special relationship may exist between parent and child, master and servant, the possessor of land and licensees.'" Gragg v. Wichita State Univ., 261 Kan. 1037, 1045, 934 P.2d 121 (1997) (quoting C.J.W. v. State, 253 Kan. 1, 8, 853 P.2d 4 ). Restatement (Second) of Torts § 314A (1964) sets forth the basis for the existence of a special relationship in cases involving a possessor of land:
"Special Relations Giving Rise to Duty to Aid or Protect
"(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
"(2) An innkeeper is under a similar duty to his guests.
"(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation."
The reporter's notes to § 314A contain statements of the drafters as to the provisions in issue. Comment e explains:
"The duty in each case is only one to exercise reasonable care under the circumstances. The defendant is not liable where he neither knows nor should know of the unreasonable risk. . . . He is not required to take precautions against a sudden attack from a third person which he has no reason to anticipate."
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