Jones v. Hansen

The opinion of the court was delivered by

Davis, J.:

This is a premises liability action. Plaintiff, while a social guest in the home of the defendants, fell down a flight of stairs, severely injuring herself. She appeals from a summary judgment entered in favor of the defendants. Summary judgment was based upon the undisputed facts and the court’s conclusion that defendants did not breach the duty to refrain from wilfully, wantonly, or recklessly injuring plaintiff.

The question presented is whether this court should change Kansas law regarding the duty owed by an occupier of land to a social guest licensee by adopting a standard of reasonable care under all the circumstances. Under present Kansas law, the duty owed to an entrant upon property is dependent upon the status of the entrant. A majority of this court believes that a partial change in our premises liability law is warranted as more reflective of modern social mores and as a more reasonable method of fault determination in our society.

Before addressing plaintiff’s question, we must deal with defendants’ contention that the issue of change in Kansas law was not properly preserved because it was not presented to the trial court. There is no dispute that the issue was raised before the trial court during oral argument, but the parties disagree about whether the question was sufficiently raised so as to preserve it for appeal. See, e.g., Schmeck v. City of Shawnee, 232 Kan. 11, 35, 651 P.2d 585 (1982). In Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 822 P.2d 617 (1991), we declined to consider an appellant’s claim that res ipsa loquitur supported her negligence claim when she raised it only at oral argument on appellee’s motion to dismiss. Res ipsa loquitur was not included as a theory in the pretrial order and no instructions were requested in Enloto. 249 Kan. at 737-38. Similarly, in this case the plaintiff raised her claim only upon oral argument to the trial court. She did not allege her position in her petition, nor did she argue it in her written reply to defendants’ motion for summary judgment.

However, this case differs from Enloto in that the plaintiff in this case seeks a determination that present Kansas law should be changed. This is clear from the argument plaintiff presented in opposition to defendants’ motion for summary judgment:

“MR. LITTRELL [Plaintiff’s counsel]: There are a number of policy issues that are issues that we cannot address in the District Court level. But in times past the doctrines of contributory negligence have been overturned by the court, the guest statutes have been repealed by the legislature. We think that we’ve got an equally unfair situation that exists here in premises liability laws as they exist in the State of Kansas and that it’s time that the court — higher court needs to consider changing and adopting the Restatement of Torts, which is a much more realistic view of the way the world works and especially insurance law, and what one guards against and who is able to pay the best. . . .

“MR. PIGG [Defendant’s counsel]: . . . Plaintiff also argues that the law — premises liability law of Kansas should be changed. That’s been argued several times in the not too distant past and has always been rejected. There’s always been some dissent. Justice Prager [is] gone, he was generally the strongest dissent proponent of eliminating traditional premises liability laws, and the probability that that law will continue as it presently is is strong. . . .

“THE COURT: Well, even if there was a home tour, there was no activity that involved the defendant Mrs. Hansen. The plaintiff was the one that was involved in the home tour and her injury was not caused by an activity brought about by defendant Mrs. Hansen. Mrs. Jones’ testimony on page 20 of her deposition says ‘So Mrs. Plansen said there were paintings in the other room? Yes. What did you do then? I said “May I look at them?” and she said yes.’ That doesn’t sound like an invitation to me, but rather a response to a request to take this home tour. ... It may be ordinary negligence, it may not be. It’s certainly unfortunate, but the discovery record in this case in no way suggests total indifference to the consequences and reckless disregard for the rights of others or a realization of the imminence of danger. You’ll have an opportunity to argue the policy decisions to the higher court, Mr. Littrell.”

Typically, a party may not raise an issue on appeal that was not presented to the trial court. We have, however, recognized an exception when the issue raised is a question of law that may be decided on established facts. See Board of Sedgwick County Comm’rs v. Kiser Living Trust, 250 Kan. 84, Syl. ¶ 8, 825 P.2d 130 (1992). The issue argued before the trial court in this case fits within that exception because it is a question of law that may be decided on established facts. Moreover, the plaintiff did argue this issue before the trial court, but that court was duty bound to follow existing Kansas law. The defendants were given a full and fair opportunity to brief and argue the issue before this court. We conclude that the issue was considered by the trial court sufficiently to preserve the issue for appeal.

The facts in this case are not in dispute. Plaintiff was invited to play bridge in the defendants’ home. When plaintiff had the dummy hand, she began looking at defendants’ art work. Mrs. Hansen told her that there were more paintings in another room. That room was adjacent to the one in which bridge was being played, and it was dimly lit. Plaintiff testified she had to be within a foot of the paintings to see them. She did not ask the defendants where the light switch was located. There were two table lamps, one floor lamp, and eight ceiling floodlights available in the room. Only the floor lamp was lit. It was the first time plaintiff had been in the defendants’ home. As plaintiff walked sideways around the room looking at the paintings, she fell down a flight of stairs and was severely injured.

The stairwell was blocked off on two sides with a 33-inch-high bookcase which defendants placed there to prevent people from just walking into the stairwell. There were three paintings hung on the wall above the stairwell. The paintings had hung at that location since 1977, and no one other than the plaintiff has been injured on the stairway.

KANSAS LAW

Under Kansas law, the common-law classifications of trespassers, licensees, and invitees are used to determine the duty owed by an occupier of land to the entrants on the land. The duty owed is dependent upon the status of the entrant. This classification system has deep roots in Anglo-American jurisprudence as well as in Kansas law. In Gerchberg v. Loney, 223 Kan. 446, 448-49, 576 P.2d 593 (1978), this court summarized the duty of care owed to the classes of injured parties coming upon property:

“Under the present law of Kansas a trespasser is one who enters on the premises of another without any right, lawful authority, or an express or implied invitation or license. The possessor of premises on which a trespasser intrudes owes a trespasser the duty to refrain from wilfully, wantonly, or recklessly injuring him. (Frazee v. St. Louis-San Francisco Rly. Co., [219 Kan. 661, 549 P.2d 561 (1976)]. See also PIK 2d [Civil] 12.20 and 12.21.)

“A licensee is one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor of the premises, or by operation of law, so that he [or she] is not a trespasser thereon. The possessor of premises on which a licensee intrudes owes a licensee the duty to refrain from wilfully or wantonly injuring him [or her]. (Graham, v. Loper Electric Co., 192 Kan. 558, 561, 389 P.2d 750 [1964]; Weil v. Smith, 205 Kan. 339, 469 P.2d 428 [1970]. See also PIK 2d [Civil] 12.10 and 12.11.)

"Under the law in this jurisdiction a social guest has the status of a licensee and his [or her] host owes him [or her] only the duty to refrain from wilfully, intentionally, or recklessly injuring him [or her]. (Ralls o. Caliendo, 198 Kan. 84, Syl. ¶ 1, 422 P.2d 862 [1967]; Duckers v. Lynch, 204 Kan. 649, 465 P.2d 945 [1970].)

“An invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both inviter and invitee. The possessor of premises on which an invitee enters owes 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. (Weil v. Smith [205 Kan. 339], Syl. ¶ 3; Graham v. Loper Electric Co., [192 Kan. at 563], See also PIK 2d [Civil] 12.01 and 12.02.)”

Plaintiff was a social guest in defendants’ home. Based on the law existing at the- time of plaintiff’s injury, defendants owed plaintiff only a duty to refrain from wilfully, intentionally, wantonly, or recklessly injuring her. Under existing Kansas law, the trial court properly granted defendants’ motion for summary judgment based upon its finding that the “discovery record ... in no way suggests total indifference to the consequences and reckless disregard for the rights of others.”

Despite several invitations since Gerchberg, the majority of this court has elected to maintain the common-law classification of tort plaintiffs as trespassers, licensees, and invitees. Bowers v. Ottenad, 240 Kan. 208, 729 P.2d 1103 (1986); Britt v. Allen County Community Jr. College, 230 Kan. 502, 638 P.2d 914 (1982); Zuther v. Schild, 224 Kan. 528, 581 P.2d 385 (1978). This case is the first time in seven years that we have been asked to reevaluate whether our premises liability law should continue to base the occupier’s duty of care upon the status of the entrant. Advocates for change argue that a standard of reasonable care under all the circumstances is a more realistic standard in modern society; one that is easily understood and applied because it is used in almost all other tort actions. They argue that a reason may have existed in feudal times and even beyond for the protection of vested property interests, but that modern times demand a recognition that requiring all to exercise reasonable care for the safety of others is the more humane approach. Finally, they argue that the present common-law classifications are rigid and mechanical in application and overly protective of property interests at the expense of human safety.

However, both before and after our decision in Bowers v. Ottenad, several jurisdictions elected to modify the duty owed by occupiers of land to persons coming on the property. A majority of jurisdictions still retain the common-law classifications and duties arising from those classifications. Some of those that have changed abolished altogether the classifications and adopted negligence standards calling for the occupier of the lands to exercise reasonable care for the safety of persons coming on their property. Other jurisdictions have elected to retain the classification of trespasser with concomitant duties, but have abandoned the distinction between invitees and licensees. These jurisdictions require an occupier of land to exercise reasonable care under the circumstances for any person entering upon the premises with the express or implied permission of the occupier of the property. For a comprehensive discussion and analysis of those jurisdictions retaining, modifying, and abandoning the common-law classifications, see Annot., 22 A.L.R.4th 295.

Those jurisdictions that reject altogether the common-law status classifications and require an occupier of land to exercise reasonable care under all the circumstances accept the principle that the foreseeability of the injury rather than the injured party’s status is the controlling factor in determining liability. See 22 A.L.R.4th at 303-07. Those jurisdictions that have adopted an intermediate position by abolishing the common-law distinctions between the duties owed to licensees and invitees, while retaining the common-law rules regarding trespassers, generally agree that the foreseeability of the injury ought to be the foundation of liability. See 22 A.L.R.4th at 307-10. We believe that this intermediate position is sound.

The majority of jurisdictions considering this issue have retained the common-law classifications, reasoning that the interest in judicial certainty advanced by the maintenance of well-established and predictable allocations of liability under the common law is best for society. See 22 A.L.R.4th at 310-14. Some courts rejecting change have reasoned that replacement of a stable and established system of loss allocation results in the establishment of a system devoid of standards for liability. It also has been suggested that the harshness of the common-law rules has been ameliorated by the judicial grafting of exceptions and that the creation of subclassifications ameliorated the distinctions between active and passive negligence.

We note that the common-law status distinctions between licensees and invitees have not been adopted by the United States Supreme Court in admiralty law. Kermarec v. Compagnie Generale, 358 U.S. 625, 636, 3 L. Ed. 2d 550, 79 S. Ct. 406 (1959). Moreover, England, by passage of the Occupiers’ Liability Act of 1957, 5 & 6 Eliz. II, c. 31, abrogated the distinction between licensees and invitees, imposing upon occupiers of land a common duty of care towards all visitors except trespassers.

Fifteen years ago, in Gerchberg v. Loney, 223 Kan. 446, this court refused to adopt the standard of reasonable care under all the circumstances for licensees. Not unlike other jurisdictions that have rejected change, we said that such a standard

“would have to be applied by the jury to the specific facts of each case. Can a lay jury be expected to consider the proper relative effect of natural and artificial conditions on the premises which are or may be dangerous, the degree of danger inherent in such conditions, the extent of the burden which should be placed on the possessor of the premises to alleviate the danger, the nature, use, and location of the condition or force involved, the foreseeability of the presence of tire plaintiff on the premises, the obviousness of such dangerous condition or the plaintiff’s actual knowledge of the condition or force which resulted in injury? It would appear these considerations should be imparted to the jury if it is to be placed in a position to decide whether reasonable care was exercised by the possessor of the premises. Otherwise the jury will have a free hand to impose or withhold liability.” 223 Kan. at 450.

Based upon the same reasoning, we again rejected change in Britt v. Allen County Community Jr. College, 230 Kan. 502. Quoting at length from Hawkins, Premises Liability After Repudiation of the Status Categories: Allocation of Judge and Jury Functions, Utah L. Rev. 15 (1981), the majority in Britt reasoned that it seemed apparent from 80 cases surveyed in that article that courts would still find it necessary to fix the limits of premises liability even after they had repudiated the status categories of entrants on land. 230 Kan. at 507.

However, even the majority in Britt notes that Hawkins concludes: “ In a majority of the cases surveyed the outcome would probably be the same as if the status rules had been applied.’ Utah L. Rev. at 56.” 230 Kan. at 507. The majority opinion further quotes Professor Hawldns in his conclusions resulting from the survey of 80 cases involving a change from those jurisdictions abolishing classification:

“ T. The preceding discussion reveals that there has not been wholesale abandonment of premises liability cases to jury caprice. Of eighty cases surveyed in jurisdictions that have abolished the status categories, thirty were withheld from juries by directed verdicts or other summary disposition.

“ ‘2. The techniques of case-by-case determination most often used to withhold cases from juries after repudiation of the status categories were: (1) that the defendant owes the plaintiff no duty of reasonable care or that the duty does not extend to the particular risk; and (2) that there was insufficient evidence of negligence. These techniques are well developed in general negligence practice. Occasional resort to the murky dialectic of “proximate cause” is regrettable but no more of a problem in premises liability cases than it is in negligence cases generally.

“ ‘3. Those cases that have been withheld from juries after repudiation of the status categories cannot be explained simply by reference to the type of entrant, the type of landowner or .possessor or the type of premises on which the injury occurred. If there is a feature that tends to explain these cases, it would have to be stated very generally in terms of the risk situation. Compared with the fifty cases that reached juries, the thirty cases withheld from them involved proportionately higher frequencies of third-party hazards, natural condition hazards, common and obvious conditions, plaintiff’s risky conduct, or bizarre events and proportionately lower frequencies of hidden or latent conditions, and hazards created immediately by defendant’s active operations. Since these differences are only relative, it is probably necessary to take into account the court’s assessment of further considerations such as the magnitude of the risk, the gravity of harm, the burden of prevention and the significance of the plaintiff’s contributory conduct in the particular circumstances of each case. If that is so, the disposition of the cases appears to be consistent with the handling of negligence cases generally, and the incidence of jury control is consistent with the reform logic that the nature of the entrant’s conduct should be considered in evaluating the risk situation, and not just the status of the entrant.’ Utah L. Rev. at 53-56.” Britt, 230 Kan. at 506-07.

Professor Hawkins’ conclusion is that our judicial system uses those techniques that are well developed in general negligence practice in handling and applying a standard of “reasonable care under the circumstances.” As noted by Justice Prager:

“The point of Professor Hawkins is not that there is no justification for the abolition of the status classifications. His point is that the abolition of the classifications has not resulted in uncontrolled findings of liability on the part of property owners, because, in applying the reasonable man standard, the court has applied the usual protections and safeguards customarily applied in other types of negligence cases.” Britt, 230 Kan. at 511 (Prager, J., dissenting).

In Britt, Justice Prager highlights one of the main criticisms of basing liability on the status of the entrant rather than upon the assessment of the duty of due care of the occupier of the premises. He states:

“The manifest injustice of the distinction between invitees and licensees is well illustrated by the present case. If the plaintiff, Ella May Britt, had been on the premises attending a lecture sponsored by the junior college on another evening and had been injured as the result of the negligence of its employee, she could have recovered for those personal injuries. Her trouble is that she went to the auditorium on the wrong night. Although she may have been injured in the same way by the negligence of an employee of the junior college, the majority have held that she is completely without remedy because she did not have the status of an invitee, since the program was not being sponsored by the junior college. The inherent injustice of the invitee-licensee differentiation becomes quite obvious in this case.” Britt, 230 Kan. at 511 (Prager, J., dissenting).

This criticism is similar to the following quote from Rowland v. Christian, 69 Cal. 2d 108, 118, 70 Cal. Rptr. 97, 443 P.2d 561 (1968), the first case abolishing common-law classifications:

“A man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty.” (Emphasis added.)

Our most recent case dealing with this question highlights another criticism leveled by courts rejecting or partially rejecting the common-law status classification. Adoption of a true negligence standard eliminates the complex, confusing, and unpredictable state of law created by courts’ attempts to avoid the harshness resulting from rigid application of the traditional rule by increasing the number of classifications. See 22 A.L.R.4th at 299. In Bowers v. Ottenad, 240 Kan. 208, plaintiff, a social guest at a dinner party hosted by one of the defendants, was severely burned when the host prepared a flaming Irish coffee. A bottle of alcohol used in preparation for the Irish coffee ignited and fire burst forth in the form of a “fireball.” Justice Holmes wrote the majority opinion and traced the development of the doctrine of “active” negligence in the Kansas law of premises liability. He noted in this case that “appellant’s injuries were not the result of any defective or dangerous property conditions existing at the Ottenad residence. Rather, the injuries were the result of the activity of appellant and appellees mixing the flaming drinks.” 240 Kan. at 213. In arriving at the conclusion that the “active” negligence doctrine was the law of Kansas based upon a historical analysis, Justice Holmes noted:

“An active negligence exception to the premises liability doctrine, as more fully explained in the opinion, is recognized as the law in Kansas and when a licensee, whose presence is known or should be known, is injured or damaged by activity conducted upon the property by the occupier of the property, the duty owed to such person is one of reasonable care under the circumstances. When the injury or damage results from the condition of the premises as opposed to the activity thereon, the duty of the occupier to the licensee is only to refrain from willfully or wantonly injuring the licensee.” 240 Kan. 208, Syl. ¶ 4.

Justice Holmes concludes:

“We recognize that there will be instances when it will be difficult to determine whether the alleged negligence falls within the area of an activity carried on by the occupier of the property or is due to the condition of the premises. However, the fact that some cases may he difficult for determination is no justification for refusing to recognize-a proper nde of law. Our prior eases, including Britt v. Allen County Community Jr. College, 230 Kan. 502; and Gerchberg v. Loney, 223 Kan. 446, are overruled to the extent that they are inconsistent with the views expressed in this opinion.” (Emphasis added.) 240 Kan. 222-23.

The same may now be said in this case: “[T]he fact that some cases may be difficult for determination is no justification for refusing to recognize a proper rule of law.” 240 Kan. at 222-23. That rule does away with the artificial classifications and distinctions arising therefrom between licensee and invitees, classifications that we have recognized no longer fit contemporary society. Adoption of this rule places the focus where it should be rather than upon allowing the duty in a particular case to be determined by the status of the person who enters upon property. We invest judges and juries with 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 ordináry 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. We believe 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 occupiers consent.

We hold that in Kansas, the duty owed by an occupier of land to licensees shall no longer be dependent upon the status of the entrant on the land; the common-law classification and duty arising from the classification of licensees shall no longer be applied. The duty owed by an occupier of land to invitees and licensees alike is one of reasonable care under all the circumstances. Included in the factors that arp to be considered in determining whether, in the maintenance of his or her property, the land occupier exercises reasonable care under all 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 such a condition, and the burden upon the land occupier and/or community, in terms of inconvenience or cost, in providing adequate protection.

At the same time, the effect of the common-law classification of a tort plaintiff as a trespasser is to remain unchanged. A trespasser is defined under Kansas law as one who enters the premises of another without any right, lawful authority, or an express or implied invitation of license. A possessor of the premises upon which a trespasser intrudes owes a trespasser a duty to refrain from wilfully, wantonly, or recklessly injuring him or her. See PIK Civ. 2d 12.20 and 12.21 and comments therein. We have determined that the status of a trespasser retains significance in our contemporary society.

In applying the duty of reasonable care under all the circumstances to licensees as well as invitees, we are mindful that Kansas has recognized that there are limits to “reasonable care.” For example, in Agnew v. Dillons, Inc., 16 Kan. App. 2d 298, 300, 822 P.2d 1049 (1991), the Court of Appeals determined that a business proprietor had a duty to use ordinary care to keep those portions of the premises which can be expected to be used by business invitees in a reasonably safe condition. However, the Court of Appeals noted that a proprietor or operator of a trade or business is not an absolute insurer of the safety of the customers. Agnew determined “that a business proprietor, absent unusual circumstances, does not breach the duty of ordinary care by not removing snow or ice from outdoor surfaces during a storm and a reasonable time thereafter.” 16 Kan. App. 2d at 304. Agnew concluded that “[a] requirement that a business proprietor continually expend effort, during a winter storm, to remove frozen precipitation from outdoor surfaces would essentially be a requirement to insure the safety of invitees and is a burden beyond that of ordinary care.” 16 Kan. App. 2d 298, Syl. ¶ 3.

We believe that the Agnew rationale and those cases cited in support of the Agnew rationale are supported by sound public policy. Because we have adopted a standard of reasonable care under all circumstances with respect to all persons who are on property with the occupier’s consent, we believe that the Agnew case and reasoning therein applies with equal force and will help define the duty of “reasonable care” in future premises liability cases involving licensees.

Perhaps the rationale of our decision may be best expressed through the words of Justice Cardozo:

“I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. . . . There should be greater readiness to abandon an untenable position when the rule to be discarded may not reasonably be supposed to have determined the conduct of the litigants, and particularly when in its origin it was the product of institutions or conditions which have gained a new significance or development with the progress of the years. ... If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.” Cardozo, The Nature of the Judicial Process, pp. 150-52 (1921).

In the words of Justice Prager:

“A cardinal principle of tort law today is that all persons should be required to use ordinary care under the circumstances to prevent others from being injured as the result of their conduct. Although it is true that some exceptions have been made to this general principle, no such exception should be made unless clearly supported by some sound public policy.” Gerchberg v. Loney, 223 Kan. at 456 (Prager, J., dissenting).

Having adopted a new rule by adopting a standard of reasonable care under all the circumstances for licensees and invitees in premises liability cases, we conclude that this new rule is to be applied prospectively from the date of this decision. Prior to this decision, all citizens were on notice of premises liability law in the State of Kansas. We deem it, therefore, fair to apply this new rule prospectively, with the exception of the parties to this action.

Upon remand, it remains an open question whether the facts of this particular case would warrant a summary judgment under the new rule adopted by this court. Defendants note in their brief before the trial court: “It is questionable whether plaintiff’s evidence is sufficient to present a question of negligence of the defendants.” The trial court in its decision noted: “It may be ordinary negligence, it may not be.” Because of the law in existence at the time this matter was argued on motion for summary judgment, the only question was whether the defendants’ actions were wanton. The parties did not present or argue whether the defendants’ actions under all the circumstances were negligent. It remains for determination by the trial court whether, under the new rule adopted by this court, the defendants are entitled to summary judgment.

Reversed and remanded for further proceedings consistent with this opinion.