Landowners Beware the Current Status of Premises Liability in Kansas
| Jurisdiction | Kansas,United States |
| Citation | Vol. 64 No. 01 Pg. 18 |
| Pages | 18 |
| Publication year | 1995 |
64 J. Kan. Bar Assn. January, 18 (1995). LANDOWNERS BEWARE THE CURRENT STATUS OF PREMISES LIABILITY IN KANSAS
January, 1995
Brian F. Stayton [FNb]
Copyright (c) 1994 by the Kansas Bar Association; Donald W. Giffin and Brian F. Stayton
The potential liability of landowners or occupiers of premises has been significantly altered over the last few years. Among other rulings, the Supreme Court of Kansas has eliminated the traditional tripartite distinction of licensees, invitees and trespassers, adopted the "mode of operation" rule, and expanded the potential liability of landowners for criminal acts by third parties. This article will attempt to provide a succinct review of the most recent cases and will comment about some anticipated effects.
*19 I. SETTING THE STANDARD: THE NEW RULES.
The Kansas Supreme Court eliminated the traditional rules for defining the duty owed by possessors of premises to those who entered upon their property.
In Jones v. Hansen, [FN1] the Kansas Supreme Court abandoned the traditional distinction in premises liability between trespassers, invitees and licensees. Effective as of the date of the opinion -- January 21, 1994 -- the duty owed by an occupier of land to both invitees and licensees is now one of reasonable care under all the circumstances. [FN2]
Previously, Kansas practitioners were all aware of the three different levels of duty imposed upon a landowner to protect against injuries, each of which depended upon the status of the injured party. A trespasser was defined as one who entered the premises of another without any right, lawful authority, or the express or implied invitation of the landowner. The possessor of the premises owed such a trespasser only the duty to refrain from wilful, wanton or reckless injuries. [FN3] A licensee was defined as one who entered or remained on the premises of another by virtue of either express or implied consent, or by operation of law, so that he or she was not a trespasser. The possessor of premises owed a licensee only the duty to refrain from wilfully or wantonly injuring him or her. [FN4] An invitee was defined as one who entered or remained on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the possessor or for their mutual benefit. The possessor of premises owed the invitee a higher degree of care, that of reasonable or ordinary care for the invitee's safety: "This duty is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated." [FN5]
Plaintiff Mrs. Jones had been invited to play bridge in the defendants' home. Plaintiff took a stroll through the house examining the defendants' art work and as she walked around an adjacent room looking at the paintings, she fell down a flight of stairs and was severely injured. [FN6] Although the Court noted that it had been confronted with the issue of the retention or rejection of the common law classification repeatedly over the years, the Court in Jones held that the artificial classifications "no longer fit contemporary society":
We invest judges and juries as the ultimate authority to resolve disputes in our society. We trust the system, and over the years that system has proven admirable in resolving complex problems in tort cases entrusted to its care. Both judges and juries are familiar with and able to apply ordinary negligence standards. Studies suggest that abolition of the distinctions between the duty owed to an invitee and that owed to a licensee has not altered greatly the results reached, has not left the juries without direction or standards by which to judge the action of the occupier of lands, and has resulted in outcomes that would probably be the same as if the status rules had been applied. [FN7] The Court held that the occupier of land "owes a duty of reasonable care" under the circumstances to all entrants on the property who are present with the occupier's consent. [FN8] Included in the factors that are to be considered in determining whether, in the maintenance of his or her property the land occupier exercised reasonable care under all the circumstances, are the foreseeability of harm to the entrant, the magnitude of the risk of injury to others in maintaining such a condition of the premises, the individual and social benefit of maintaining the condition on the premises, and the burden upon the land occupier, in terms of inconvenience or cost, in providing adequate protection.
II. THE MODE-OF-OPERATION RULE FOR BUSINESSES.
The Kansas Supreme Court in Jackson v. K-Mart Corp. [FN9] altered the requirements for placing liability upon business operators.
In Jackson [FN10] the Kansas Supreme Court adopted the "mode of operation rule" as a basis of liability for a business proprietor. Under the new rule a proprietor can be held liable for damages to customers if he or she could reasonably anticipate that hazardous conditions would regularly arise from his or her operation and failed to take reasonable precautions against the conditions.
The plaintiff, Ms. Jackson, was walking down an aisle in a K-Mart store in Manhattan when she slipped and fell near a clothing rack. After her fall, a K-Mart employee found a can of avocado juice near the spill and surmised
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that the plaintiff had slipped on the substance. K-Mart operated an in-store cafeteria and allowed cafeteria patrons to remove food and drink from the cafeteria area. The plaintiff testified that K-Mart sold cans of avocado juice at the cafeteria. The District Court granted summary judgment in favor of K-Mart, reasoning that the defendant had neither actual notice that the spill had occurred nor enough evidence to suggest constructive notice regarding the length of time the spill was in existence. Based upon the general rules that a proprietor can only be liable for conditions traceable to other persons upon a showing of actual notice or that the condition existed for such a length of time as to constitute constructive notice, the District Court held that no breach of the duty of ordinary care could be established.
The Court of Appeals, after examining Elrod v. Walls, Inc., [FN11] and Little v. Butner, [FN12] announced that the "mode of operation rule" was part of Kansas premises liability law. The Kansas Supreme Court examined both Little and Elrod as well as cases from other jurisdictions adopting the mode of operation rule, and upheld the Court of Appeals' focus on the reasonable foreseeability of a dangerous occurrence, thus eliminating the previous requirement of notice or constructive notice. [FN13]
K-Mart argued the adoption of the mode of operation rule would transform business operators into insurers of the safety of their premises. The Supreme Court did not agree, paraphrasing the mode of operation rule as one of limited exception:
A proprietor would not be liable for a dangerous condition on his premises caused by a third party absent actual or constructive notice of the condition, except where, based on the mode of operation, the proprietor could reasonably foresee that the dangerous condition would regularly occur. [FN14] The Supreme Court held that the requirement of showing notice of a defect in one's place of business was eliminated if defendant could have anticipated that juice would be spilled on its floor by its customers. [FN15] The case was therefore remanded for determination of two questions of fact: whether K-Mart could have reasonably foreseen that customers would regularly spill beverages on the floor and, if so, whether K-Mart failed to exercise reasonable care under the circumstances. [FN16]
Combined, Jones v. Hanson and Jackson v. K-Mart could have a significant impact upon future Kansas decisions. Under Jackson, a proprietor is liable for any condition that could reasonably be anticipated based upon business operations which might occur. Thus, in effect, every grocery store which allows self-service from open bins is now, from the date of the decision, on constructive notice (to borrow a phrase) that such a mode of operation leads to the potential of injury from spills and items on the floor. The requirement of notice to the proprietor is removed, and the focus is now on reasonable care for the customers based upon the assumed knowledge.
Since Jones v. Hanson, summary judgment seems increasingly unlikely for any private landowner. As Justice McFarland pointed out in her dissent, homeowners now face the potential of liability for hardwood floors, toys left by children, stairways without handrails, and throw carpets and rugs, all of which have basically been eliminated from the commercial sector. [FN17]
III. THE OBLIGATION TO PROTECT AGAINST CRIMINAL ACTS OF THIRD PARTIES.
Landowners and other occupiers of premises in Kansas, throughout the last two and one-half decades, have been increasingly exposed to liability to victims of criminal acts perpetrated by third parties while on the premises of the landowners.
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