Downing v. Kingsley

1

No. 101,490


IN THE COURT OF APPEALS OF THE STATE OF KANSAS


ANN G. DOWNING, ADMINISTRATOR OF THE ESTATE OF
JOSEPH B. DOWNING, DECEASED; AND ANN G. DOWNING,
HEIR-AT-LAW OF JOSEPH B. DOWNING,
Appellants,

v.

JANET S. KINGSLEY,
Defendant,

and

ROBERT W. BULIS, INDIVIDUALLY,
Appellee.


ANN G. DOWNING, ADMINISTRATOR OF THE ESTATE OF
JOSEPH B. DOWNING, DECEASED, et al.,
Appellants,

v.

UNIFIED SCHOOL DISTRICT NO. 266,
Appellee.



SYLLABUS BY THE COURT


1.
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
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genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law.

2.
An issue of fact is not genuine unless it has legal controlling force as to the
controlling issue. A disputed question of fact which is immaterial to the issue does not
preclude summary judgment. If a disputed fact, however resolved, could not affect the
judgment, it does not present a genuine issue of material fact.

3.
Summary judgment should be granted with caution in negligence actions.
However, summary judgment is proper in a negligence action if the only questions
presented are questions of law.

4.
A court should be cautious in granting a motion for summary judgment when
resolution of the dispositive issue requires a determination of the state of mind of one or
both of the parties.

5.
In order to establish a negligence claim, the plaintiff must establish the existence
of a duty, a breach of that duty, an injury, and proximate cause, which means a causal
3

connection between the duty breached and the injury. The general rule is that whether a
duty exists is a question of law, but whether the duty has been breached is a question of
fact.

6.
Under the facts of this case in which a school bus driver signaled to another
motorist to cross an intersection, which resulted in a collision with a third motorist, the
district court did not err in granting summary judgment in favor of the school bus driver
and his employer on the issue of liability.

Appeal from Sedgwick District Court; PAUL W. CLARK, judge. Opinion filed
December 24, 2009. Affirmed.

Terry J. Torline, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita,
for appellants.

Stephen E. Robison and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch,
L.L.C., of Wichita, for appellees.

Before GREENE, P.J., MALONE, J., and KNUDSON, S.J.

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MALONE, J.: Ann G. Downing (Downing), administrator of the estate of
Joseph B. Downing, and an heir-at-law, appeals the district court's decision granting
summary judgment to Robert W. Bulis and Unified School District No. 266 (U.S.D. 266)
following a motor vehicle accident in which Joseph died after colliding with a vehicle
driven by Janet S. Kingsley. For the reasons set forth herein, we affirm the district court's
judgment.

On the morning of October 25, 2005, Bulis was operating a school bus for U.S.D.
266, and he was traveling north in the inside lane of Ridge Road in Wichita. The school
bus came to a stop at the intersection of Ridge Road and 37th Street North in order to
make a left turn onto 37th Street North. At that time, a vehicle driven by Kingsley was
stopped at the same intersection facing east on 37th Street North. Kingsley's vehicle
prevented Bulis from being able to make a wide left turn with the school bus. After a
while, Bulis gestured with his hands for Kingsley to cross the intersection so that Bulis
could make his turn. After seeing Bulis make the hand gesture, Kingsley proceeded to
cross the intersection and collided with Joseph's vehicle which was traveling north in the
outside lane of Ridge Road. Joseph died in the collision. Bulis continued to drive the
children to school and did not remain at the scene of the accident.

Downing sued Kingsley and Bulis for Joseph's wrongful death, including a claim
for damages sustained by his estate. The petition alleged that Bulis "negligently made
hand signals to defendant Kingsley indicating to Kingsley that it was safe to cross the
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intersection." Downing later filed a petition against U.S.D. 266, contending it was
vicariously liable for Bulis' alleged negligence. The two cases were consolidated by
agreement of the parties. After completion of discovery, Bulis and U.S.D. 266 filed a
joint motion for summary judgment which the district court granted. The district court
found that by gesturing to Kingsley, Bulis did not assume a duty to ensure her safe
passage across the intersection. The district court concluded that Kingsley had a duty to
yield the right-of-way and that her duty could not be delegated to Bulis by reliance upon
his hand gesture.

Summary judgment pleadings

In their joint motion for summary judgment, Bulis and U.S.D. 266 set forth the
following statements of uncontroverted facts relevant to the motor vehicle collision:

"1. Defendant Robert W. Bulis began working as a school bus
driver for U.S.D. 266 (Maize school district) in the spring of 2005.
"2. On the morning of October 25, 2005, Bulis was driving Bus 25
for U.S.D. 266. After all of the students are picked up, the normal route for
Bus 25 is to proceed north on Ridge Road and then west on 37th Street to
Maize Middle School.
"3. At the intersection of Ridge Road and 37th, Ridge Road has two
northbound lanes and two southbound lanes. As Bulis approached the
intersection, he was in the inside (left) northbound lane of Ridge Road so
that he could turn left (west) onto 37th Street.
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"4. It was approximately 7:00 a.m. when Bulis approached the
intersection of Ridge Road and 37th Street and it was dark outside.
"5. As Bulis approached the intersection, he noticed a row of cars
stopped at the stop sign on 37th Street facing east. The first vehicle in the
row was a white minivan driven by defendant Janet Kingsley and also
occupied by her fifth-grade daughter Holly Lewandowski who was ten
years old at the time.
"6. It was Kingsley's intention to proceed east on 37th Street across
Ridge Road to her home at 6007 West 37th Street.
"7. As she sat at the intersection, Kingsley observed that traffic on
Ridge Road was 'mild to moderate' in both directions.
"8. At the intersection, there were cement abutments on either side
of 37th Street due to a culvert that ran under the road.
"9. It was Kingsley's habit when traveling east on 37th Street to stop
at the stop sign on Ridge Road and then pull ahead a little farther to see past
a mound of dirt that partially obstructed the view of traffic on Ridge Road
to her right.
"10. On the day in question, Bulis observed that the position of
Kingsley's van was such that he could not, with his 40-foot long school bus,
execute a left turn that would clear Kingsley's vehicle without striking the
cement abutment.
"11. Bulis made a hand gesture directed toward Kingsley. He then
slid open the window to his left to get a better view of the cement abutment
and gestured again to Kingsley.
"12. According to Bulis, he intended his gesture to indicate to
Kingsley that he could not execute his turn, that they were at an impasse
and that if she proceeded through the intersection first, he would not hit her.
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"13. While sitting at the intersection, Bulis did not check his outside
rearview mirror to determine if any traffic was coming up behind him in the
outside northbound lane of Ridge Road.
"14. Ten-year-old Holly Lewandowski saw Bulis's gesture and told
her mother that the bus driver was waving them across the intersection.
Kingsley replied, 'are you sure?'
"15. Kingsley then observed Bulis's gesture and interpreted it as a
motion to proceed across the intersection and that it was clear for her to
cross.
"16. Kingsley felt she could rely upon Bulis's motion because he
was 'high up' and had 'good mirrors.'
"17. Kingsley does not recall making eye contact with Bulis and she
did not see him check his mirrors before gesturing to her.
"18. After observing Bulis's gesture, Kingsley looked to the left and
then leaned forward and looked to the right, checking for traffic on Ridge
Road. Holly Lewandowski saw her mother look each direction twice.
"19. Kingsley looked to her right long enough to satisfy herself that
there was no traffic coming from that direction.
"20. Kingsley proceeded east across Ridge Road in front of the bus
driven by Bulis and into the path of a Wichita Municipal Transit Authority
wheelchair transport bus operated by Joseph B. Downing that was traveling
north on Ridge Road in the outside (right) lane.
"21. After the impact, the city bus skidded for a period of time
before overturning. Downing ejected from his seat out the folding entry
doors and was crushed by the bus."

Downing filed a response to the summary judgment motion, and she attempted to
controvert several facts proposed by Bulis and U.S.D. 266. Many of the attempts did not
8

actually controvert the statements but, in fact, either supplemented or expounded on
them:

"11. Controverted. Bulis testified during his video-recorded
deposition as to the motion he made to Kingsley. According to Bulis's
demonstration, he merely shrugged, with both palms facing up, as if to
indicate 'what's going to happen?' or 'what are we going to do?' Bulis also
testified that he did not believe his hand was outside the window when he
made that motion. 'You know, the habit is just to put your hand on the
window sill.'
"Kingsley demonstrated during her video-recorded deposition the
motion made by Bulis. As demonstrated by Kingsley, Bulis moved his left
hand and forearm in an upward arc motion, with his left palm facing up.
Kingsley testified that Bulis had put his left hand and arm outside the
window of the bus when motioning to her.
"At least one of the students aboard the school bus has stated under
oath: 'I observed the school bus driver wave to the van by putting his left
hand out of the window of the school bus. The school bus driver was
waving at the van to go across the intersection.' Sarah Craneck
demonstrated on video the motion made by Bulis. As demonstrated by
Craneck, Bulis moved his left hand and forearm in an upward arc motion,
with his left palm facing up. Other students on the bus reported similar
observations.
"12. Controverted. It is uncontroverted that Bulis so testified. But
see Response to Paragraph 11 and exhibits cited therein, which show that
there is genuine factual dispute as to what Bulis's actions were. Bulis's
intent may be implied based on his actions, which are in dispute and must
be determined by the finder of fact. In other words, Bulis's self-serving
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testimony regarding his subjective intent is not conclusive under the facts
of this case.
. . . .
"16. Controverted in part. Although it was significant that Bulis
was seated high in the bus and it had large mirrors, there were additional
reasons that Kingsley relied on Bulis's signaling her to cross the
intersection. As Bulis testified in his deposition, the bus he was driving
was a '40-foot big behemoth.' It was not possible for Kingsley to see any
traffic that was obstructed by the bus. Kingsley's view was further
obstructed by the commercial van/truck immediately behind the school bus.
'And because I couldn't see clearly, when the bus driver waved me across,
to me, that was like . . . a signal, a crossing signal.' Kingsley also testified
that she knew school bus drivers had special training and licensing.
"Finally, Kingsley and Bulis were at an impasse. 'I knew I wasn't
going to be going until the bus [i.e., school bus] turned.' And Bulis testified
that 'I could see that I wasn't going to be able to turn. . . .'
"17. Controverted in part. Kingsley testified that she did not recall
making eye contact with Bulis, but it is unlikely that she did. Bulis could
not see inside Kingsley's van, as stated in plaintiffs' response to Paragraph
4, because it was dark outside. Kingsley was able to see Bulis because the
lights were on inside the school bus, and could see the 'front side' of his
face.
"18. Controverted in part. It is uncontroverted that Kingsley
checked for traffic that was in her line of sight. Obviously, Kingsley could
not see traffic to the extent her vision was blocked by Bulis's school bus or
the vehicles behind it. Kingsley testified: 'I don't think it was possible for
me to see' the bus Downing was driving.
"19. Controverted. Kingsley testified that she looked to the right
'long enough to see that it looked clear to me.'"
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In her response to the summary judgment motion, Downing also asserted the
following additional statements of fact:

"29. Bulis made a statement to police at 4:30 in the afternoon of the
day of the accident. According to a transcript of the recorded statement,
Bulis said that he '[l]ooked at the van and kind of waved my hands and said
ah there's no place I can go I can't turn left. . . . At that point I'm sitting
there waiting and . . . I knew there were cars behind me but they were
waiting too. . . . And for whatever reason the . . . van shot out there in front
of me.'
"30. Bulis made a written statement in which, among other things,
he says: 'The white van was blocking the turn I needed to make so I tried to
indicate to the driver of the white van that I was at an impasse and that they
would need to go first.'
"31. In a statement to EMC Insurance Company on November 10,
2005, Bulis stated, among other things, that after stopping at the 37th Street
intersection:
'[W]e were just sitting there, even at that point and still not moving
and I'm thinking to myself, well do I go up to 45th—I know I can stay on
Ridge and go up to 45th and make the left there, but I'd already told her she
could go and I'm thinking now if I pull out from—and she hits me I'm
gonna be in trouble cause I'm saying you move forward.'
"32. Bulis estimated that it was 'probably 10-15 seconds' from the
time that he pulled up to the intersection to the time of the accident.
"33. Witnesses to the accident reported that the school bus Bulis
was driving obstructed Kingsley's view of Downing's city bus. John Cole
stated 'white Chrysler van cross [i]ntersection going east did not see the city
van because of school bus.' Similarly, Mike Curtis stated in part that
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Kingsley 'probably did not see vehicle coming because school bus might
have blocked its view.' Russell Atwater reported that a 'service truck' was
immediately behind the school bus, also obstructing Kingsley's view."

Bulis and U.S.D. 266 did not attempt to controvert Downing's additional statements of
fact.

After hearing arguments of counsel, the district court adopted Bulis' and U.S.D.
266's statements of uncontroverted facts along with Downing's additional statements of
fact. The district court granted summary judgment in favor of Bulis and U.S.D. 266. In
its conclusions of law, the district court stated:

"In particular, pursuant to the Kansas Supreme Court's decision in
Dawson v. Griffin, 249 Kan. 115 [,816 P.2d 374] (1991), the Court
concludes that by gesturing to Kingsley, Bulis did not assume a duty to
insure her safe passage across the intersection. Rather, Kingsley had a duty
to yield the right away [sic] and that that duty could [not] be delegated
away by reliance upon a hand gesture."

Downing subsequently reached a settlement and dismissed her claim against
Kingsley. This appeal follows.

Downing claims the district court erred by granting summary judgment in favor of
Bulis and U.S.D. 266. She first contends that the district court erroneously resolved
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disputed questions of fact in favor of the defendants. Downing also asserts that the
district court erroneously applied the law in Kansas regarding the duty of care. Finally,
Downing contends that the district court failed to consider whether Restatement (Second)
of Torts § 324A (1964) applied to the facts of the case.

Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The district court is required to resolve all facts and inferences which
may reasonably be drawn from the evidence in favor of the party against whom the ruling
is sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, the same rules apply; summary judgment must be denied if
reasonable minds could differ as to the conclusions drawn from the evidence. Miller v.
Westport Ins. Corp., 288 Kan. 27, 32, 200 P.3d 419 (2009).

An issue of fact is not genuine unless it has legal controlling force as to the
controlling issue. A disputed question of fact which is immaterial to the issue does not
preclude summary judgment. If a disputed fact, however resolved, could not affect the
judgment, it does not present a genuine issue of material fact. Mitchell v. City of Wichita,
270 Kan. 56, 59, 12 P.3d 402 (2000).
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Summary judgment should be granted with caution in negligence actions.
Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). However, summary
judgment is proper in a negligence action if the only questions presented are questions of
law. Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007). Finally, a
court should be cautious in granting a motion for summary judgment when resolution of
the dispositive issue requires a determination of the state of mind of one or both of the
parties. Brennan v. Kunzle, 37 Kan. App. 2d 365, 378, 154 P.3d 1094, rev. denied 284
Kan. 945 (2007).

In order to establish a negligence claim, the plaintiff must establish the existence
of a duty, a breach of that duty, an injury, and proximate cause, which means a causal
connection between the duty breached and the injury. Hale v. Brown, 287 Kan. 320, 322,
197 P.3d 438 (2008). The general rule is that whether a duty exists is a question of law,
but whether the duty has been breached is a question of fact. Deal v. Bowman, 286 Kan.
853, 858, 188 P.3d 941 (2008).

Were there genuine issues of material facts?

Downing first contends the district court erred in granting summary judgment
because it erroneously resolved disputed questions of fact in favor of Bulis and U.S.D.
266. Downing acknowledges that Bulis testified he only intended his gesture to mean
that he would not hit Kingsley if she proceeded through the intersection first. However,
14

Downing claims that Bulis' credibility was placed in issue due to "numerous inconsistent
and conflicting statements he provided related to his involvement with this accident."
According to Downing, Bulis' credibility issues should have precluded the district court
from granting summary judgment in favor of Bulis and U.S.D. 266.

On appeal, Downing provides numerous examples of alleged inconsistent
statements made by Bulis. However, there are three problems with Downing's efforts to
establish genuine issues of material facts. First, the examples cited by Downing do not
generally establish the clear-cut inconsistency in Bulis' story that Downing contends they
do. Second, most of the cited testimony does not implicate the material issue in this case;
that is, whether Bulis assumed a duty to other drivers on the roadway when he signaled to
Kingsley to cross the intersection. Third, many of the examples of alleged disputed facts
were not asserted by Downing in district court in response to the summary judgment
motion.

For example, Downing cites to two exchanges during Bulis' deposition wherein he
is asked about the specific gesture he made to Kingsley:

"Q: . . . At any time did you put your arm out or have your arms in a
waving motion to the van driver?
"A: No sir.
. . . .
"Q: And there's no way you stuck your left arm out the window and
made a waving motion to the van driver; is that true?
15

"A: No. That's true."

Downing also refers to the testimony of Craneck and another student on the bus who
claimed that Bulis put his hand outside the window and waved for Kingsley to cross the
intersection.

Downing compares this testimony with a written statement Bulis provided after
the accident: "I told the officer, in trying to let the driver of the mini van know that I
would not be able to turn left until they did something—I did wave my hands in some
manner." Downing also refers to a statement Bulis made to an insurance company
wherein he admitted that he waved his hand toward Kingsley to cross the intersection.

Downing apparently believes this evidence establishes that Bulis was inconsistent
about whether or not he waved his hands at Kingsley. But when the testimony is read
carefully, the only disputed fact is whether Bulis put his hands outside the bus window
when he gestured toward Kingsley. Bulis never denied making some kind of hand
gesture directed toward Kingsley. Bulis' and U.S.D. 266's statements of uncontroverted
facts clearly acknowledged that "Bulis made a hand gesture directed toward Kingsley.
He then slid open the window to his left to get a better view of the cement abutment and
gestured again to Kingsley."

16

Downing also argues that Bulis contradicted himself about whether he looked at
the outside rearview mirrors to check for traffic. Bulis testified in his deposition that he
did not look at the outside rearview mirrors to see whether traffic was coming. However,
in a statement to the insurance company, Bulis indicated: "So I'm looking in the mirror,
I'm looking at the—and I think I remember the 2 cars coming from the north up there, I
could see the headlights on there—it's dark, I can see the lights from both directions and
there's cars behind me."

Again, a careful reading of the testimony does not necessarily indicate that Bulis
was checking his outside rearview mirrors for traffic. He noted that there were two cars
coming from the north (the front of the bus) and he was aware there were cars behind
him, although it is not clear if he is indicating those cars are directly behind him in his
lane or the outside lane. In any event, Paragraph 13 of the statement of uncontroverted
facts alleged that Bulis did not check his outside rearview mirror to determine whether
any traffic was coming behind him in the outside northbound lane of Ridge Road. In
response, Downing merely stated, "Uncontroverted that Bulis so testified." Downing
failed to adequately controvert Paragraph 13 of the statement of uncontroverted facts in
the summary judgment pleadings.

Next, Downing cites to a phrase in Bulis' statement to the insurance company: "I
won't be able to go, so you can go first, everything will be fine." According to Downing,
the jury could infer from this statement that when Bulis signaled for Kingsley to proceed,
17

he intended to mean that it was safe for her to cross the intersection. According to
Downing, this created a fact issue sufficient to preclude summary judgment in favor of
Bulis and U.S.D. 266.

There are two problems with Downing's argument. First, when Bulis' entire
statement to the insurance company is read in context, it appears that Bulis was
merely indicating to Kingsley that he was unable to proceed and she needed to go
first. Bulis never explained what he meant when he said "everything will be fine."
Second, and more importantly, Downing did not assert this specific evidence in
response to the summary judgment pleadings in order to create a genuine issue of
material fact.

Finally, Downing asserts that the fact that Bulis left the scene following the
collision is "highly probative of his state of mind at the time of the accident. A
jury could reasonably conclude that Bulis left the scene in order to conceal his
involvement in causing the accident." Bulis contended he left the scene of the
accident out of concern for the children on the bus and because he did not feel he
had any involvement in the collision.

Downing is correct that she is entitled to any reasonable inference to be
drawn from the evidence. In some circumstances, a party's flight from the scene
may lead to a reasonable inference of consciousness of guilt. But here the issue is
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whether Bulis assumed a duty to other drivers on the roadway when he signaled to
Kingsley to cross the intersection. No inference can be drawn that Bulis assumed
a duty to other drivers based on the evidence that he left the scene. This evidence
does not establish a disputed material fact precluding summary judgment.

In summary, there is no dispute that Bulis made some kind of hand gesture
directed toward Kingsley. However, the key to this lawsuit is whether Bulis
assumed a duty to other drivers on the roadway when he signaled to Kingsley to
cross the intersection. Downing's claims of disputed testimony involve facts that
are not material to the existence of a duty. Based upon the summary judgment
pleadings, we conclude the district court did not erroneously resolve disputed
questions of material fact in granting summary judgment in favor of Bulis and
U.S.D. 266.

Dawson v. Griffin

The district court relied on Dawson v. Griffin, 249 Kan. 115, 816 P.2d 374 (1991),
to conclude that Bulis did not assume a duty to other drivers on the roadway, including
Joseph Downing, when he signaled to Kingsley to cross the intersection. Dawson is the
seminal "signaling" case in Kansas. Accordingly, a detailed discussion of the facts and
the court's analysis in Dawson is necessary to resolve Downing's appeal.

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Dawson filed a personal injury action against Griffin and American Family
Mutual Insurance Company (American Family) arising from an automobile accident
between Dawson and Griffin. Dawson named American Family as a defendant because
Griffin had claimed that a phantom truck driver motioned for her to turn in front of
Dawson, causing or contributing to the collision. The uncontroverted facts established
that Griffin was operating her vehicle westbound on Sante Fe Street in Olathe. She
stopped her vehicle at the Chester Street intersection intending to turn left. Dawson was
traveling eastbound in the outside lane of Sante Fe. Prior to the collision, a truck was
stopped in the inside lane of eastbound Sante Fe at the Chester Street intersection directly
facing Griffin. According to Griffin, the driver of the truck motioned for her to turn left
in front of him, an offer which she initially declined. Griffin testified that the two drivers
made eye contact and the truck driver looked in his rearview and side view mirrors and
again motioned for her to go ahead. Griffin turned left in front of the truck and collided
with Dawson. The truck left the scene. 249 Kan. at 117.

The trial court granted summary judgment in favor of American Family. The trial
court concluded "that the only reasonable inference from the wave by the phantom truck
driver to Griffin was 'Go ahead. I'll stay here.'" 249 Kan. at 117. The trial court also
found that, as a matter of law, the phantom driver owed no duty of care to Dawson. 249
Kan. at 117.

On appeal, the Kansas Supreme Court began its analysis by noting:
20

"Dawson relies upon the oft quoted phrase of Justice Cardozo: 'It is ancient
learning that one who assumes to act, even though gratuitously, may
thereby become subject to the duty of acting carefully, if he acts at all.'
Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275 (1922) 23 A.L.R.
1425." 249 Kan. at 118.

The court then analyzed "signaling" cases from other jurisdictions and discovered
that "[c]ourts that have recognized a duty have required the plaintiff to show that the
signal was intended to mean it was safe to proceed rather than merely an intention to
yield the right-of-way out of courtesy." 249 Kan. at 118. The court also noted that in
making this determination, some courts "have looked at the signaler's ability to ascertain
whether it was safe to proceed." 249 Kan. at 118.

The court next discussed Perret v. Webster, 498 So. 2d 283 (La. App. 1986),
which Dawson described as his "best case." Dawson, 249 Kan. at 118. There, the
question of whether the signaling driver assumed a duty to a third person on the roadway
was allowed to go to the jury when there was a question of fact regarding whether the
signaling driver was in a position to ascertain whether it was safe to proceed. The court
also noted there was independent testimony provided by a passenger in the signaling
vehicle that the driver looked in his side view mirror to check for traffic. Perret, 498 So.
2d at 285.

The court also reviewed cases cited by American Family, including Kerfoot v.
Waychoff, 501 So. 2d 588 (Fla. 1987) (signaling driver could not determine the status of
21

other traffic); Harris v. Kansas City Public Service Co., 132 Kan. 715, 297 Pac. 718
(1931) (motorman owed no duty of care to a pedestrian when he was in no better position
than she to observe the traffic); Government Emp. Ins. Co. v. Thompson, 351 So. 2d 809
(La. App. 1977) (signaling driver's gesture was a courtesy and did not relieve the third
driver of his obligation to keep a proper lookout for oncoming traffic); Van Jura v. Row,
175 Ohio St. 41, 191 N.E.2d 536 (1963) (statutory obligation to exercise due care to
ascertain that a movement can be made with reasonable safety cannot be delegated to
another). 249 Kan. at 119-22.

American Family asked the court to adopt the Van Jura rationale and cited K.S.A.
8-1527, which requires a vehicle intending to turn left within an intersection to yield the
right-of-way to any vehicle approaching from the opposite direction. According to
American Family, the statute created a nondelegable duty for a driver to yield the right-
of-way to oncoming traffic. 249 Kan. at 122. After reviewing the statute, the court
stated: "We agree that the duty imposed by K.S.A. 8-1527 cannot be delegated; however,
Van Jura is not a persuasive precedent for a total resolution of the instant case." Dawson,
249 Kan. at 122.

After discussing the cases from other jurisdictions and K.S.A. 8-1527, the
Supreme Court concluded its analysis as follows:

22

"In the case at bar, there was no verbal communication. In our view,
any reliance on the alleged hand wave as a guaranty of safety, in the instant
case, was unjustified as a matter of law. Perhaps the trucker meant one
thing and Griffin assumed another. We will never know.

"What we do know is this: Griffin had a nondelegable duty to yield
to oncoming traffic while making a left turn; and the only reasonable and
safe thing to assume from a hand wave is, 'I won't hit you.'

"Other cases will present other facts and in a comparative negligence
state, such as ours, each case will necessarily stand or fall on those unique
facts. There may be a case where more can be safely understood from a
hand wave. This, however, is not such a case." 249 Kan. at 122-23.


Application of Dawson v. Griffin


Downing contends that Dawson is distinguishable from the present case.
Downing points out that Kingsley and Bulis were at 90 degree angles whereas in
Dawson, Griffin and the phantom driver were facing each other. According to Downing,
Griffin had the option to simply decline the courtesy of the hand wave from the phantom
driver and let him pass by. In the present case, however, Kingsley and Bulis were at an
impasse and Bulis could not turn the bus until Kingsley proceeded first. Downing points
out that "Bulis had a much better ability to ascertain the traffic in the right lane of Ridge
Road than Kingsley did, partly because he was up high and had larger mirrors at his
disposal, and his view was not obstructed." Finally, Downing claims that, considering
the evidence in the light most favorable to her, a jury could conclude that Bulis' gesture
was more than just a courteous hand wave.
23

Bulis and U.S.D. 266 argue that, like Griffin, Kingsley had a nondelegable duty to
yield the right-of-way to Joseph. They cite Wichita City Code ' 11.36.040(b):

"Except when directed to proceed by a police officer or traffic-
control signal, every driver of a vehicle approaching a stop intersection
indicated by a stop sign shall stop as required in Section 11.36.020, and
after having stopped shall yield the right-of-way to any vehicle which has
entered the intersection from another highway or which is approaching so
closely on said highway as to constitute an immediate hazard during the
time when such driver is moving across or within the intersection."


Bulis and U.S.D. 266 also contend that the facts indicating a lack of a duty on the
part of the signaling driver are stronger in the present case than in Dawson. First, unlike
the drivers in Dawson, Kingsley and Bulis did not make eye contact and she did not see
him check his mirrors. Second, there was no direct evidence from the phantom driver in
Dawson regarding his intent, but the Supreme Court nevertheless found Griffin's reliance
on his hand wave was unreasonable. 249 Kan. at 122. Here, Bulis explicitly testified he
never intended to suggest to Kingsley that the intersection was clear for her to cross;
rather, he only intended to convey that he was allowing her to proceed before him.

Dawson has not been substantively cited or revisited in Kansas since the decision
was issued. Although the court in Dawson discussed several cases from other
jurisdictions, the court did not rely upon any single case in reaching its decision. The
court in Dawson held that any reliance by Griffin on the alleged hand wave as a
guarantee of safety was unjustified as a matter of law. 249 Kan. at 122. It appears from
24

the court's analysis that Griffin's interpretation of the hand gesture was not a fact issue
which precluded summary judgment. As the court simply stated: "Perhaps the trucker
meant one thing and Griffin assumed another. We will never know." 249 Kan. at 122.
The court focused most on the fact that Griffin had a nondelegable duty to yield to
oncoming traffic while making a left turn.

The facts in Dawson are substantially similar to the facts in the present case. In
both cases, there was no verbal communication between the drivers on the roadway.
Also, in both cases, the driver making the hand gesture was in a superior position to
observe traffic approaching in the adjacent lane. Contrary to Downing's argument, this
factor does not appear to control the issue of whether the signaling driver owes a duty to
other drivers on the roadway. In fact, Dawson is even a stronger case than this one for
imposing a duty on the person making the gesture because in Dawson (1) there was eye
contact between the drivers, and (2) Griffin actually saw the truck driver check his
rearview mirrors for other traffic. Yet in Dawson the court determined the phantom
driver assumed no duty to other drivers on the roadway when he signaled to Griffin to
make a left turn. 249 Kan. at 122.

Dawson remains the only word on signaling cases in Kansas. This court is duty
bound to follow Kansas Supreme Court precedent, absent some indication the court is
departing from its previous position. Buchanan v. Overly, 39 Kan. App. 2d 171, 175-76,
178 P.3d 53, rev. denied 286 Kan. 1176 (2008). If the signaling driver owed no duty of
25

care to the plaintiff in Dawson, we are hard-pressed to find that Bulis assumed a duty of
care to Joseph Downing when he signaled to Kingsley to cross the intersection. Without
the existence of a duty, Downing cannot establish a negligence claim against Bulis and
U.S.D. 266. Under the facts of this case, which are substantially similar to the facts in
Dawson, we conclude the district court did not err by granting summary judgment in
favor of Bulis and U.S.D. 266 on the issue of liability.

Restatement (Second) of Torts § 324A


Finally, Downing argues that the district court erred in not finding that
Restatement (Second) of Torts § 324A (1964) applied to the present case. The district
court did not address this argument. Restatement (Second) of Torts § 324A (1964) was
adopted by Kansas in Schmeck v. City of Shawnee, 232 Kan. 11, 24-28, 651 P.2d 585
(1982). This section provides:

"'One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to liability to the third
person for physical harm resulting from his failure to exercise reasonable
care to protect his undertaking, if

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

26

"'(b) he has undertaken to perform a duty owed by the other to the
third person, or

"'(c) the harm is suffered because of reliance of the other or the
third person upon the undertaking.'" Restatement (Second) of
Torts ' 324A (1964).

Bulis and U.S.D. 266 argue that § 324A cannot be applied to a signaling case
without straining the language of the section. They maintain that one motorist's hand
signal to another cannot reasonably be regarded as an undertaking "to render services to
another." They also argue that such a gesture cannot be transformed into an obligation
"for the protection of a third person" as required by the Restatement.

We agree with Bulis and U.S.D. 266 that Restatement (Second) of Torts § 324A is
not applicable to the present case. This section of the Restatement has never been applied
in Kansas to a signaling case. We note that in Hoekman v. Nelson, 614 N.W.2d 821, 824
(S.D. 2000), the Supreme Court of South Dakota rejected a plaintiff's attempt to employ §
324A to impose a legal duty on the part of a signaling motorist. Here, Bulis' hand gesture
to Kingsley cannot reasonably be interpreted as an undertaking "to render services to
another . . . as necessary for the protection of a third person." We conclude that
Restatement (Second) of Torts § 324A provides no basis upon which to deny summary
judgment in favor of Bulis and U.S.D. 266.


27

Conclusion

In Dawson, the Kansas Supreme Court left the door open for plaintiffs such as
Downing by emphasizing that "each case will necessarily stand or fall on [its own]
unique facts." 249 Kan. at 122. But the facts in this case are not appreciably different
from the facts in Dawson. Given our duty to follow current Supreme Court precedent in
Dawson, we conclude the district court's decision granting summary judgment to Bulis
and U.S.D. 266 must be upheld. Perhaps our Supreme Court may see fit to review this
case and take the opportunity to reconsider, or at least to clarify, the law in Kansas on this
subject.

Affirmed.