Sall Ex Rel. Sall v. T's, Inc. , 34 Kan. App. 2d 296 ( 2005 )

McAnany, J.,

dissenting: This case comes to us following the district court’s entry of summary judgment in favor of SGC. In arriving at this judgment the district court was required to view the evidence in the hght most favorable to the Sails and resolve all reasonable inferences in their favor. Viewed from this perspective the evidence discloses the following:

SGC has had a system in place to warn golfers of dangerous weather conditions since 1989. The warning system consists of monitoring the weather and sounding a warning horn when dangerous weather is approaching. Because the approach of a dangerous storm cannot always be detected by unaided human observations, SGC uses a television tuned to the Weather Channel to provide live doppler images of approaching storms, a weather radio, and a computer link to the internet. It is SGC’s policy to make a visual check for weather in the area every 10 to 15 minutes. SGC personnel also periodically check the weather on the internet and keep the television and weather radio turned on at all times during business hours to monitor weather activity. Jeff Tull, the manager on duty on the afternoon in question, testified by deposition that on days when there were storms in the area it was his practice to check on the weather more frequently.

On the day in question the course had been closed for a time due to dangerous storms and lightning in the area. The course was reopened at approximately 4 p.m. Patrick Sail left his home sometime around 4 p.m. to play golf with Chris Gannon. When Patrick’s mother questioned him about the weather, he responded, “Mom, don’t worry; they wouldn’t be open if it wasn’t safe.”

Tull, SGC’s manager, did not check for weather information from approximately 3:50 p.m. until approximately 5 p.m. At 4:25 p.m. a weather advisory was issued on weather radio warning that fast-moving thunderstorms were approaching the area. SGC failed to take note of this warning, however, since the weather radio was apparently set on the “alert mode,” which only sounds a warning in the event of a tornado or large hail. Had the radio been properly set, it is likely that SGC would have heard the 4:25 p.m. weather advisory.

Patrick and Chris paid their greens fee and teed off at the first hole between 4:45 p.m. and 4:50 p.m. Chris saw two hghtning strikes off to the west before the warning sounded. Leslie Lemon, a meteorologist specializing in radar, calculated that Tull sounded the storm warning horn at 5:04 p.m. Patrick was struck by hghtning at 5:06 p.m. It took Chris 5 to 10 minutes to get back to the clubhouse after Patrick was struck.

I am troubled by the fact that the majority opinion does not always focus on the facts most favorable to the nonmoving party and refers to conflicts in the testimony of opposing experts. The district court’s and our perspective at this stage of the proceedings is always from the vantage most favoring the nonmoving party. Further, the conflicts in testimony that raise issues of material fact demonstrate the need for a juiy trial to resolve them.

I am more troubled, however, by the majority opinion’s conclusion that a hghtning strike at SGC was not foreseeable. First, the majority opinion would require not merely foreseeability of harm on SGC’s premises, but foreseeability that the hghtning would strike on a particular fairway. This is not a fair reading of Maussner v. Atlantic City Country Club, Inc., 299 N.J. Super. 535, 552, 691 A.2d 826 (1997), cited in the majority opinion, where this concept is discussed. Second, it ignores the fact that even SGC foresaw that the approaching storm presented a danger to its patrons. That, after ah, is why TuU sounded the warning. The issue is not whether the storm’s danger was foreseeable, but when was it foreseeable and when should the warning have been sounded. SGC undertook to sound a warning. Having undertaken this task, the real question is whether SGC did so in a timely fashion or in an untimely, negligent fashion.

Restatement (Second) of Torts § 323 (1964) provides:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.”

This section of the Restatement correctly states Kansas law. See Cunningham v. Braum’s Ice Cream & Dairy Stores, 276 Kan. 883, 891, 80 P.3d 35 (2003). I am not a proponent of an expansion of the common law at the margins by imposing an absolute duty upon golf course operators to protect their patrons from lightning strikes. However, there is a clear, logical place in the interstices of the common law for applying the Restatement to the facts before us. That was done in Maussner when the court announced: “We find that when a golf course has taken steps to protect golfers from hghtning strikes, it owes the golfers a duty of reasonable care to implement its safety precautions properly.” 299 N.J. Super. at 553.

Similarly, although the court in Seelbinder v. County of Volusia, 821 So. 2d 1095, 1097 (Fla. 2002), found no liability based on a lack of causation (the storm that produced the lightning was not the storm the defendant undertook to warn against), the court recognized: “If any duty to warn exists, it arises from the County’s having undertaken to provide warnings of lightning to beachgoers. Having undertaken this responsibility, the County was obliged to exercise reasonable care in so doing.”

I have no view on the ultimate outcome of this case. Obviously, there are issues of comparative fault. I am convinced, however, that the many conflicts in the testimony of the lay and expert witnesses should be resolved by a jury, not summarily by the district court.

Finally, the majority opinion concludes that the Restatement rule does not apply because SGC is not negligent. I confess I am not wise enough to arrive at this conclusion regarding negligence without the opportunity to weigh the credibility of the witnesses on the various conflicting factual contentions and expert opinions. I defer to the jury on those issues, and so should the district court. Further, if one must show negligence before the Restatement rule applies, the Restatement rule becomes utterly meaningless since to establish negligence there must be the breach of a duty. To the contrary, the Restatement rule is simply a vehicle for recognizing a duty which, but for the conduct of the defendant, the law would otherwise not impose. The Restatement rule clearly applies to the facts of this case. Once the duty is established, it is up to the jury to sort out the facts and determine if SGC was negligent.

Because there remains a genuine issue material fact as to whether the conduct of SGC was negligent in the timeliness of its warning, having undertaken the task of warning golfers of the threat of approaching storms, I respectfully dissent.