261 Kan. 1037
(934 P2d 121)
No. 76,618
BARBARA GRAGG, et al., Appellants, v. WICHITA STATE UNIVERSITY, et al., Appellees.
SYLLABUS BY THE COURT
1. 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.
2. A possessor of land who holds it open to the public is under a duty to members of the public who enter in response to his or her invitation to take reasonable action to protect them against unreasonable risk of physical harm. The duty in each case is only one to exercise reasonable care under the circumstances.
3. To hold a party liable for failure to keep premises in a reasonably safe condition, the party must be the owner, occupier, or possessor of the premises. A possessor of land is one who is in occupation of the land with the intent to control it.
4. In a premises liability case, in order to be liable, the party charged must have control over the premises in question. Without control, the responsibility for the dangerous or hazardous condition cannot exist. A party may not be held responsible for a condition which he or she did not cause and which he or she has no ability to remedy.
5. No liability exists simply because one is a sponsor of a public event, absent some proof the sponsor had direct control over hazardous conditions. Under the facts of the present case, no sponsor had the requisite control over the premises to the extent it could be considered a possessor of land for purposes of imposing a duty.
6. The owner of a business is not the insurer of the safety of its patrons or customers. The owner ordinarily has no liability for injuries inflicted by the criminal acts of third parties, as the owner has no duty to provide security. Such a duty may arise, however, where circumstances exist from which the owner could reasonably foresee a risk of peril above and beyond the ordinary and that appropriate security measures should be taken.
7. The duty to provide security is determined under the reasonable person standard. Thus, the duty to provide security and the level of such security must be reasonable. If, because of the totality of the circumstances, the owner has a duty to take security precautions by virtue of the foreseeability of criminal conduct, such security measures must also be reasonable under the totality of the circumstances.
8. An injury is foreseeable so as to give rise to a duty of care where a defendant knows or reasonably should know that an action or the failure to act will likely result in harm.
9. Under the present facts, Wichita State University owed no duty to protect or warn the decedent, as the criminal attack by a third person was not foreseeable and the security provided was reasonable under the totality of the circumstances.
10. Under the present facts, the actions of Wichita State University (WSU) and its police department in providing security for a public event on the campus clearly invoke the police protection exception of K.S.A. 1996 Supp. 75-6104(n). The determination by WSU as to how to provide police protection was immune from liability under the Kansas Tort Claims Act. A state entity is not liable because of the methods it adopts for police protection. Both the duty to protect and the duty to warn, on the facts alleged, fall within the police protection exception.
11. Granting summary judgment prior to the completion of discovery is a matter within the trial court's discretion and will be upheld, unless clearly erroneous.
Appeal from Sedgwick district court; C. ROBERT BELL, judge. Opinion filed March 14, 1997. Affirmed.
Charles T. Engel, of Cosgrove, Webb & Oman, of Topeka, argued the cause, and John T. Houston, of the same firm, was with him on the briefs for appellants.
Jeff C. Spahn, Jr., argued the cause, and Michael G. Jones, of Martin, Pringle, Oliver, Wallace & Swartz, L.L.P., of Wichita, were on the brief for appellees Wichita State University and Wichita State University Intercollegiate Athletic Association, Inc.
John C. Nettels, Jr., of Morrison & Hecker, L.L.P., of Wichita, argued the cause for the remaining appellees, and Dwight D. Dumler, of the same firm, was with him on the brief for appellee Cessna Aircraft Company.
M. Duane Coyle, of Wallace, Saunders, Austin, Brown, & Enochs, Chartered, of Wichita, was on the briefs for appellee Blockbuster Entertainment Corp.
William Tinker, Jr., Sharon A. Werner, and Alisa M. Arst, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, were on the brief for appellee TB of America, Inc., Taco Bell Corp., and New West Radio, Inc., formerly d/b/a KNSS Radio and/or KRZZ Radio.
J. Michael Kennalley, of Hershberger, Patterson, Jones & Roth, L.C., of Wichita, was on the brief for appellee Major Video of Kansas, Inc.
William P. Tretbar, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, was on the brief for appellee Chronicle Publishing Company d/b/a KAKE-TV.
Bryan W. Smith, of Fisher, Cavanaugh & Smith, P.A., of Topeka, was on the brief for amicus curiae Kansas Trial Lawyers Association.
The opinion of the court was delivered by
LARSON, J.: This is a wrongful death and survival action brought by the heirs of Barbara Gragg, who was shot and killed by Anthony Scott at the Celebrate '93 fireworks display held on the campus of Wichita State University (WSU). The defendants are WSU, its athletic corporation, and the corporate sponsors of the event. The Gragg children claimed the defendants failed to provide adequate security for the event, failed to install adequate lighting on the campus, and failed to warn of the potential for crime on or near the campus.
The trial court granted the defendants summary judgment on the grounds they owed no legal duty to protect Gragg from or warn her of the criminal acts of a third party and the Kansas Tort Claims Act (KCTA) provides immunity to all the defendants from the plaintiffs' claims.
Statement of facts.
The trial court essentially accepted, while recognizing that some statements were conclusory, the Graggs' statement of uncontroverted facts for the purpose of ruling on the summary judgment motion. The defendants' statements of the uncontroverted facts, except those few disputed by the Graggs, were also accepted. These facts were essentially the following:
An Independence Day program of "Celebrate" has been held annually in Cessna Stadium on the WSU campus from 1976 through 1993, with the exception of 1990, when it was held elsewhere due to the condition of the Cessna Stadium bleachers. Celebrate was considered a community event to benefit the people of Wichita and its goal was to create an atmosphere of celebration on the Fourth of July.
The cost of the Celebrate programs has been underwritten by local corporate sponsors, which have varied from year to year, with only KAKE-TV having been a sponsor since inception. The sponsors of Celebrate '93 were Chronicle Broadcasting Co. d/b/a KAKE-TV, New West Radio, Inc. d/b/a KRZZ/KNSS Radio, T B of America, Inc., Taco Bell Corp., Blockbuster Entertainment Corp., Major Video of Kansas, Inc., and Cessna Aircraft Co. The sponsors helped select "hometown heroes" for the event; provided television and radio coverage or made financial payments; and helped the committee design Celebrate '93 items such as T-shirts, signs, and letterheads. The retail business sponsors sold admittance buttons.
Celebrate '93 was primarily produced by a coordinating committee which met numerous times prior to the event. Amy Schafer, the WSU Director of Community Relations and Special Events, served as executive producer of Celebrate '93. She prepared the coordinating committee and public safety committee agendas and minutes, put together a security manual, and had general supervision and control over the event. Each sponsor assigned one or more individuals to the Celebrate '93 coordinating committee. None of the sponsors or the coordinating committee members were paid for their services, with the exception of Schafer, who received $400 from Celebrate '93.
The coordinating committee's duties were to plan, promote, and produce Celebrate '93 and to approve its budget. Security was discussed at most meetings, and a public safety subcommittee met to discuss a wide range of security issues on June 22, 1993. Captain John Davis, a salaried employee of the WSU police department (WSUPD), has been involved in the security of all prior Celebrate events. Captain Davis prepared the security plan for Celebrate '93, developed the security arrangements, and made a report at each coordinating committee meeting. Captain Davis' plan had remained virtually unchanged for the past 10 Celebrate events.
The coordinating committee received and reviewed the Celebrate '93 security plan. No suggestions relating thereto were made, although the use of mounted officers at the event had been a suggestion from members of a prior coordinating committee. While members of the committee could voice opinions regarding any subject, the sponsors believed they had no authority to tell the WSUPD how to handle security for Celebrate '93.
WSU's president granted authority to use Cessna Stadium and for skydivers to land on the campus. Celebrate '93 did not lease the stadium or any of the surrounding university property. Numerous employees of WSU and its affiliate, the Wichita State University Intercollegiate Athletic Association, Inc. (WSUIAAI), participated in planning and producing the event, but no cash funds were provided by WSU. Various WSU departments billed Celebrate '93 for supplies or services. Funds for Celebrate '93 were held in a special account maintained by the WSU Board of Trustees. All bills for Celebrate '93 were forwarded to the WSU public relations office and were paid from this account after Schafer submitted them to the WSU Board of Trustees. Celebrate '93 security officers were paid from this account. Captain Davis was paid for 36 hours of work.
The Celebrate '93 account had a beginning balance of $9,835.83. The planned budget for Celebrate '93 projected a balance after the event of $16,336.90; this included an extra $17,500 in sponsor donations and $11,600 in button sales than were actually received. Celebrate '93 was not registered in Kansas as a corporation and paid no income taxes. Checks from sponsors were made payable to Celebrate '93 and numerous invoices listed the purchaser as Celebrate '93. Celebrate '93 paid sales tax on items it purchased. Celebrate '93 ended up with a budget deficit, and four of the sponsors, but not WSU, each contributed $1,792.97 in order for the event to break even.
Celebrate '93 was open to the public. To gain admission to the stadium, it was necessary to purchase a button; however, the public could watch the fireworks display from the WSU campus at no charge. The coordinating committee obtained permission from the Wichita City Council to close off part of a street adjoining Cessna Stadium. About 19,819 admittance buttons were sold to the public.
The WSUPD is the statutorily recognized police department serving the WSU campus. However, the Wichita Police Department (WPD) also has jurisdiction over the campus. Security for Celebrate '93 was a cooperative effort between the WSUPD and the WPD, yet Captain Davis was in charge of the overall security of Celebrate '93. The planned security force for the event included over 80 commissioned and noncommissioned WSUPD officers and off-duty WPD officers, plus WPD traffic section officers and Sentinel Patrol private security officers, 27 WPD reserve officers, and 6 horse mounted officers. Sentinel Patrol officers were assigned to the gates to check coolers for alcoholic beverages. The WPD reserve officers worked in conjunction with the WPD traffic division to control traffic and patrol the parking lots.
A supervisors' meeting was conducted at 6 p.m. in which assignment sheets were passed out. The WSUPD and WPD off-duty officers assembled at a 6:30 p.m. meeting and were given their assignments. The reserve officers were also given specific instructions regarding their assignments. Not all of the officers signed the sign-in sheet, and Sentinel Patrol officers left before the display ended. No records indicated whether the remaining security personnel actually stayed until midnight.
Anthony Scott, a member of the Insane Crips gang, had been the victim of three different drive-by shootings in 1993. Scott came to Celebrate '93 looking for members of the Junior Boys gang he thought were responsible for shooting him.
Barbara Gragg had purchased an admission button to Celebrate '93. The fireworks display began at 10 p.m. and lasted for 15 to 17 minutes. When the display began, the lights in the stadium were turned off, although the lights on the rest of the campus remained on. The lights were turned back on in the stadium after the fireworks display was over. After the display, Gragg left the stadium and was walking with Anthony Robinson through the dark grassy field on campus south of Henry Levitt Arena, which was formerly a football practice area. Scott shot and killed Gragg and Robinson while they were walking through the grassy field. After hearing gunfire, two mounted officers 75 yards away were the first to respond. Scott was apprehended near the scene and later convicted of murdering both Gragg and Robinson. To the plaintiffs' knowledge, neither Captain Davis, Schafer, any coordinating committee member, nor any other police or security officers knew that Scott was on campus with a weapon or that gang members intended to commit violence on the campus.
Other than the July 4, 1993, shooting, no shootings or violent assaults have occurred during or after a Celebrate event. On September 2, 1991, Anthony Jones was shot and killed in a parking lot at the Black Arts Festival held on another area of the WSU campus. No other shootings or violent assaults resulting in death have occurred at a public event on the WSU campus since 1968.
Captain Davis was aware that gang activity has occurred within a half mile of the campus and that crime incidents were higher in the area west of campus. A vice-president at WSU stated that WSU's enrollment decreased in 1991 due to violent crime and gangs in the area. Concerns about security, walking through the area west of Hillside, and fears that gangs could be a problem were discussed at the Celebrate '93 public safety subcommittee meeting.
Barbara Gragg's three children sued WSU, all the sponsors, and many individuals, alleging that under the totality of the circumstances reasonable security was not provided, the area was inadequately lighted and guarded, and Gragg had not been warned of crime in the surrounding area. Numerous individual defendants, including all of the sponsors' representatives serving on the coordinating committee, Schafer, Davis, the City of Wichita, and the city council members have been dismissed. At this point, only the sponsors of Celebrate '93, WSU and its affiliate, WSUIAAI, remain as defendants.
After WSU, WSUIAAI, and the sponsors were granted summary judgment on the grounds they owed no duty to Gragg and that the KTCA provided immunity, the plaintiffs appealed. We have jurisdiction pursuant to K.S.A. 20-3018(c).
Scope of Review
This case comes to us after grants of summary judgment on behalf of all of the defendants. Before we consider the questions raised as to the nature and extent of the duty owed to Barbara Gragg and the foreseeability of the tragic acts which befell her or the exemptions from liability which are statutorily available, we first set forth the basic rules relating to the granting and review of summary judgments under which we operate.
A party is entitled to summary judgment if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." K.S.A. 60-256(c).
"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. 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." Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).
On appeal, we are required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom summary judgment was entered. McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991). Where reasonable minds could differ as to the conclusions to be drawn from the evidence, summary judgment should be denied. However, in McGee, we also noted: "The existence of a legal duty is a question of law to be determined by the court." 248 Kan. at 437. We have unlimited review of questions of law. T.S.I. Holdings, Inc. v. Jenkins, 260 Kan. 703, 716, 924 P.2d 1239 (1996).
The defendants did not owe a legal duty to Barbara Gragg to protect her from the criminal act of an unknown third party.
We first address the issue of the relationship and the existence of a legal duty of the various named defendants to Gragg to warn her of the potential danger and to protect her from the criminal acts of Scott. In Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983), this court said:
"Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence. [Citation omitted.] An accident which is not reasonable to be foreseen by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. . . . Robertson v. City of Topeka, 231 Kan. 358, recognized a special relationship between certain persons could give rise to a duty. Whether a duty exists is a question of law [Citations omitted.]. Whether the duty has been breached is a question of fact." (Emphasis added.)
It is our generally recognized rule in Kansas 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. "A special relationship may exist between parent and child, master and servant, the possessor of land and licensees." C.J.W. v. State, 253 Kan. 1, 8, 853 P.2d 4 (1993).
The Graggs argue that the required special relationship exists between a possessor of land and licensee or invitees, relying on Restatement (Second) of Torts §§ 316-320 (1964). The specific provision of the Restatement in issue is § 318, "Duty of Possessor of Land or Chattels to Control Conduct of Licensee," which states:
"If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor
(a) knows or has reason to know that he has the ability to control the third person, and
(b) knows or should know of the necessity and opportunity for exercising such control."
The reporter's notes to § 318 provide in comment b:
"The rule stated in this Section is applicable where the possessor of a chattel or of land is present when the chattel is being used or the activity is being carried on with his permission, and when, therefore, he has not only the ability to control the conduct of the third person as possessor, but also the opportunity to do so."
In the circumstances of this case, it is uncontroverted that none of the defendants had any knowledge of Scott's intentions or even that it was likely that he or someone like him would present an unreasonable risk to the participants in Celebrate '93. Thus, as the defendants lacked sufficient knowledge to control Scott's actions, § 318 does not appear to apply.
Although not specifically argued by the Graggs, an earlier provision of the Restatement (Second) of Torts § 314A (1964) sets forth the basis for the existence of a special relationship in cases involving a possessor of land. It states:
"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
. . . .
"(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."
This provision of the Restatement appears to relate directly to a party who is deemed to be a "possessor of land."
Additionally, Restatement (Second) of Torts § 344 (1964), which is entitled "Business Premises Open to Public: Acts of Third Persons or Animals," provides:
"A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
"(a) discover that such acts are being done or are likely to be done, or
"(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."
The comments give an explanation of the section:
"f. Duty to police premises. Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual."
Again, this provision is directed to the party who is the possessor of land.
Had this claim not involved the criminal acts of an unknown party, our recent rule of Jones v. Hansen, 254 Kan. 499, 867 P.2d 303 (1994) (ignoring the prospective nature of such ruling), would teach us that the duty owed by the possessor of land to invitees and licensees alike is one of reasonable care under all the circumstances.
Jones further instructs:
"Included in the factors to be considered in determining whether, in the maintenance of his or her property, the land occupier exercises reasonable care under all the circumstances are foreseeability of harm to the plaintiff entrant, the magnitude of the risk of injury to others in maintaining such a condition on 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." 254 Kan. 499, Syl. ¶ 3.
Although Gragg clearly was an invitee on the WSU campus, the provisions we have cited raise the larger and wider question of whether the sponsors, by their involvement in Celebrate '93, also became "owners, occupiers, or possessors of the premises" so that any relationship Gragg enjoyed with WSU could be extended to them. For all of the reasons we hereafter state, we hold that none of the sponsors had control of or were owners, occupiers, or possessors of the premises and that no duty that might exist as to WSU may be extended to any of the sponsors.
The Graggs attempt to burden the sponsors with the requisite duty by three distinct, yet closely related, theories. First, they argue the sponsors, through their participation in Celebrate '93, became occupiers and possessors of the WSU campus and thus owed a duty to Gragg as an invitee. Second, the Graggs claim all of the sponsors and WSU had entered into a joint venture to produce Celebrate '93 and through it owed a duty to Gragg. Finally, the Graggs suggest that by being represented on the Celebrate '93 coordinating committee, the sponsors had sufficient control to become possessors of the land.
In Miller v. Zep Mfg. Co., 249 Kan. 34, 41-42, 815 P.2d 506 (1991), Justice Six, writing for the court stated:
"To hold a defendant liable for failure to keep premises in a reasonably safe condition, the defendant must be the owner, occupier, or possessor of the premises. Summers v. Montgomery Elevator Co., 243 Kan. 393, 400, 757 P.2d 1255 (1988); Hall v. Quivira Square Development Co., 9 Kan. App. 2d 243, 244, 675 P.2d 931, rev. denied 235 Kan. 1041 (1984).
"Restatement (Second) of Torts § 328E (1964) defines a 'possessor of land,' in part, as: one who is in occupation of the land with the intent to control it. In determining the liability of a possessor of land, we have applied the occupation with intent to control principle. Summers, 243 Kan. at 400; Hall, 9 Kan. App. 2d at 244."
This statement is consistent with the Restatement definition of "duty," which makes clear that no duty exists if the actor has no right of control over the condition causing the injury. Restatement (Second) of Torts § 4, Comment a (1965) states:
"The duty which is defined in this Section is a duty that the actor shall conduct himself or not conduct himself in a particular manner. It therefore imposes no obligation which is not within the actor's ability to perform, since it relates only to the actor's conduct over which as such he has no control."
Several recent Kansas cases in addition to Miller have expanded on the holding of lack of liability unless one is the owner, occupier, or in control as the possessor of the premises. In Rogers v. Omega Concrete Systems, Inc., 20 Kan. App. 1, 883 P.2d 1204 (1994), summary judgment was deemed proper in a premises liability case where there was no evidence that Omega controlled the premises. This case was based on the condition of the premises and not on the criminal acts of some unknown or unexpected party, but in discussing the requirement that before a duty exists or liability could be predicated in a premises liability case, the Court of Appeals quoted 62 Am. Jur. 2d, Premises Liability § 6, p. 353, which provides:
"'Occupation, or possession, and control is usually one of the attributes that must be shown as a basis for liability on the part of an owner or occupant of premises for injuries resulting from the condition of the premises. The liability of an occupant of real estate for injuries caused by a dangerous or defective condition of the premises depends generally upon his control of the property, whether or not he has title thereto and whether or not he has a superior right to possession of property which is in the possession and control of another.' (Emphasis added.)" 20 Kan. App. 2d at 5.
The Rogers opinion goes on to hold:
"Omega did not own any of the real estate on which the private road and crossing were located. The issue presented is one of control, not ownership. In a premises liability case, in order to be liable, the party charged must have had control over the premises in question. It is obvious that, without control, the responsibility for the dangerous or hazardous condition cannot exist. To put it another way, a party may not be held responsible for a condition which he or she did not cause and which he or she has no ability to remedy." 20 Kan. App. 2d at 5.
In Fountain v. Se-Kan Asphalt Services, Inc., 17 Kan. App. 2d 323, 332-33, 837 P.2d 835, rev. denied 251 Kan. 937 (1992), the court found that the defendant road contractor owed no duty to the plaintiff to keep a county road free from dust which contributed to a head-on collision. The court held that the duty to maintain county roads was statutorily imposed on the county so that the contractor could have no control over the road.
In Hall v. Quivira Square Development Co., 9 Kan. App. 2d 243, 244, 675 P.2d 931, rev. denied 235 Kan. 1041 (1984), it was determined that absent any showing of control over the common area of a mall, a store owner was not liable for an accident in the parking lot.
The facts regarding the involvement of each of the sponsors in Celebrate '93 are not in dispute. All each sponsor did was contribute a sum of money or provide some service and send a representative to the coordinating committee chaired by Schafer, a WSU employee, who had general supervision and control over the event. Aside from the benefits of being advertised as a sponsor of a public event, no sponsor received any payment from Celebrate '93 or expected to share in any profit from the event.
The WSU campus was not leased to Celebrate '93 or to any sponsor. The authority to approve events and the responsibility for preparing the campus remained in WSU. There is absolutely no evidence that any sponsors or their representatives had the authority to direct Captain Davis how to provide security on the premises.
There is no genuine issue of any material fact showing that any of the sponsors became an occupier or possessor of the WSU campus or that any of them either controlled or intended to control the premises so that th