Manley v. Hallbauer (Court of Appeals)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,531

LORI LEANN MANLEY, Individually and as Special Administrator for the
ESTATE OF DARREN R. MANLEY, Deceased,
AMANDA TUBBS, and DERRICK MANLEY,
Appellants,

v.

STEVEN B. HALLBAUER and KATHIE M. HALLBAUER,
Appellees.


SYLLABUS BY THE COURT

A landowner whose property abuts a rural intersection owes no duty to passing
drivers to trim or remove trees or other vegetation on the property.

Review of the judgment of the Court of Appeals in 53 Kan. App. 2d 297, 387 P.3d 185 (2016).
Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed August 10, 2018.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Angela L. Spigarelli, of The Spigarelli Law Firm, of Pittsburg, argued the cause, and Fred
Spigarelli, of the same firm, was on the briefs for appellants.

Vince P. Wheeler, of Hite, Fanning & Honeyman L.L.P., of Wichita, argued the cause and was on
the brief for appellees.

The opinion of the court was delivered by

LUCKERT, J.: After a deadly two-car accident at a rural intersection, the estate and
heirs of a deceased driver sued the owners of property located at one corner of the
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intersection. The estate alleged an overgrowth of trees and vegetation obstructed the view
at the intersection and contributed to the accident. The estate's ability to recover depends
on whether the landowners owed a common-law duty to passing drivers to correct a
natural condition on their property that affected road visibility at the rural intersection.
We hold the landowners owed no common-law duty to the drivers under those
circumstances.

FACTS AND PROCEDURAL BACKGROUND

Darren Manley died after his truck collided with John Patton's truck at the
intersection of two gravel roads: Anderson Road and 20000 Road in Labette County.
The intersection of the two roads had no traffic signs.

Officers investigating the accident found no evidence suggesting that either driver
tried to brake or to avoid the collision. The officers testified trees located on land abutting
the southeast corner created a blind spot. One of the investigating officers testified the
trees made it impossible for northbound traffic to see approaching westbound traffic and
for westbound traffic to see approaching northbound traffic. Patton testified he did not
have a clear view of Anderson Road south of the intersection because of the tree row and
underbrush and did not see Manley before entering the intersection. In the opinion of
Manley's engineering expert, "The lack of proper signage and site distance caused the
accident which resulted in the death of Darren Manley."

About five years before the accident, Steven and Kathie Hallbauer purchased the
property abutting the southeast corner of the intersection—the property with the trees that
created the blind spot. The tree growth remained largely unchanged from the time the
Hallbauers purchased the property until the accident, although the Hallbauers had cleared
some trees. Steven testified that the view of the intersection was obstructed from around
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50 to 60 feet away when traveling north or west. Kathie agreed with Steven's testimony.
Both Hallbauers agreed that the intersection would be safer with a stop sign.

Manley's estate and heirs (Manley) filed a wrongful death lawsuit against Labette
County, Patton, and the Hallbauers. Manley settled with Patton and Labette County. The
Hallbauers moved for summary judgment, arguing they could not be held liable under
Kansas law for the failure to remove trees or other vegetation. The district court granted
summary judgment and certified the judgment as final under K.S.A. 2017 Supp. 60-
254(b).

A Court of Appeals panel affirmed the district court's grant of summary judgment.
The panel focused on the existence of a common-law duty, which it tied to whether "a
reasonable landowner [would] have foreseen a probability of harm to motorists from the
obstructed view?" Manley v. Hallbauer, 53 Kan. App. 2d 297, 299-302, 387 P.3d 185
(2016). The panel considered two Kansas Supreme Court cases the Hallbauers relied on
but ultimately held they did not control. 53 Kan. App. 2d at 303. Finding no binding
Kansas authority on whether the landowners owed a duty to passing drivers, the panel
turned to the American Law Institute's Restatements of Torts, which restate the law in a
manner useful to courts, lawyers, scholars, and others. But these Restatements are not
state-specific and do not necessarily reflect the law of Kansas.

The panel noted the answer to the question of a landowner's duties to passing
motorists differed depending on whether it consulted the Restatement (Second) or the
Restatement (Third) of Torts. Under the Restatement (Second), a rural landowner
generally is not liable to someone who, while off the property, is injured by a natural
condition of the land, like trees. But under the Restatement (Third), a landowner could be
held liable if the landowner knew of the risk or the risk was obvious. The panel adopted
the Restatement (Second) view, noting the Restatement (Second) had been applied by the
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Kansas Supreme Court many times and the Restatement (Third) differs from Kansas law
in its analytical approach to negligence. The caselaw of other jurisdictions also persuaded
the panel; these cases found no duty under similar circumstances. 53 Kan. App. 2d at
304-06. The panel summarized its conclusion:

"[A]lthough there is a potential argument for the plaintiff based on the Third
Restatement, we have concluded that the Second Restatement's position that there is no
duty on a rural landowner in this situation is the most consistent with Kansas law. Our
foreseeability analysis, the holdings of [the two Kansas Supreme Court cases cited by the
Hallbauers], the rulings from other states, and the traditional common-law rule all suggest
that the Hallbauers did not owe a duty to Manley to trim the naturally occurring trees and
vegetation on their land that obstructed visibility at the intersection." 53 Kan. App. 2d at
307.

We granted Manley's petition for review.

ANALYSIS

This case arises from the district court's grant of summary judgment. We apply our
well-established standard of review:

"'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 trial 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, we apply the same rules and when we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
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must be denied.' Bank v. Parish, 298 Kan. 755, Syl. ¶ 1, 317 P.3d 750 (2014)."
Drouhard-Nordhus v. Rosenquist, 301 Kan. 618, 622, 345 P.3d 281 (2015).

Generally, granting summary judgment in negligence cases must be done with
caution. But "[a]n exception . . . applies when the only question presented is one of law."
Apodaca v. Willmore, 306 Kan. 103, 106, 392 P.3d 529 (2017). And, here, the issue—
whether Kansas law imposes a duty on a land possessor or property owner for natural
conditions growing on the land that impede visibility of passing traffic at a rural
intersection—is a question of law. See Berry v. National Medical Services, Inc., 292 Kan.
917, 920, 257 P.3d 287 (2011). Questions of law are subject to de novo review. Apodaca,
306 Kan. at 106.

A plaintiff asserting a negligence claim must prove: "(1) a duty owed to the
plaintiff, (2) breach of that duty, (3) causation between the breach of duty and the injury
to plaintiff, and (4) damages suffered by the plaintiff." Patterson v. Cowley County,
Kansas, 307 Kan. 616, 622, 413 P.3d 432 (2018). We are concerned here with the first
element, the duty owed to a plaintiff. And, as the Court of Appeals panel correctly noted:
"Where a duty exists, a person generally has the duty to act as a reasonably prudent
person would act in similar circumstances. See Fieser v. Kansas Bd. of Healing Arts, 281
Kan. 268, 272, 130 P.3d 555 (2006); Wozniak v. Lipoff, 242 Kan. 583, 607, 750 P.2d 971
(1988)." Manley, 53 Kan. App. 2d at 300.

Kansas law limits the person or persons to whom a duty extends, however. "To
find a legal duty to support a negligence claim, (1) the plaintiff must be a foreseeable
plaintiff and (2) the probability of harm must be foreseeable." Berry v. National Medical
Services, Inc., 292 Kan. 917, Syl. ¶ 1, 257 P.3d 287 (2011). But foreseeability does not
end the analysis: "This court may choose not to recognize a duty if the duty is contrary to
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public policy." Berry, 292 Kan. at 922. As a corollary to that principle, we recognize a
new duty only when the duty is consistent with public policy.

Under the traditional rule applying to the circumstances of this case, "the owner of
land is under no affirmative duty to remedy conditions of purely natural origin upon his
land[;] . . . the duty is upon the motoring public to observe obstructions to view and to
exercise reasonable care for their own safety and protection." Annot. 69 A.L.R.4th 1092,
§ 3; see also § 2[a]. The Restatement (Second) of Torts § 363(1) (1965) also recognizes
the traditional rule: "[N]either a possessor of land, nor a vendor, lessor, or other
transferor, is liable for physical harm caused to others outside of the land by a natural
condition of the land." See Restatement (Second) of Torts § 363 (1965), comment b
("'Natural condition of the land' is . . . used to include the natural growth of trees, weeds,
and other vegetation upon land not artificially made receptive to them."). But § 363(2)
recognizes an exception that imposes liability on a possessor of land in urban areas "for
physical harm resulting from his failure to exercise reasonable care to prevent an
unreasonable risk of harm arising from the condition of trees on the land near the
highway." The Restatement's comment explained the reason for the exception:

"It requires no more than reasonable care on the part of the possessor of the land to
prevent an unreasonable risk of harm to those in the highway, arising from the condition
of the trees. In an urban area, where traffic is relatively frequent, land is less heavily
wooded, and acreage is small, reasonable care for the protection of travelers on the
highway may require the possessor to inspect all trees which may be in such dangerous
condition as to endanger travelers. It will at least require him to take reasonable steps to
prevent harm when he is in fact aware of the dangerous condition of the tree."
Restatement (Second) of Torts § 363, comment e (1965).

The Restatement (Second) expresses no opinion whether this exception could apply in
rural areas.
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Our court first addressed the issue in two 1920s cases—Goodaile v. Cowley
County, 111 Kan. 542, 207 P. 785 (1922), and Bohm v. Racette, 118 Kan. 670, 236 P. 811
(1925). In both cases, plaintiffs argued tort liability should be imposed based on Kansas
statutes. And in both cases, we followed the traditional rule and declined to impose civil
tort liability on the landowners. Each case used slightly different language in reaching its
conclusions.

Goodaile framed the issue as liability in the syllabus:

"The owners of land permitted high hedges to grow along public roads which
crossed at the corner of their property; the hedges obstructed the view of one road from
the other; a woman driving a horse and buggy along the road approached the crossing;
the horse became frightened at an automobile which suddenly appeared at the crossing of
the roads; the woman was thrown out and injured. Held, that the owners of the land are
not liable in damages for the injuries sustained by her." 111 Kan. 542, Syl.

The woman asked the Goodaile court to find a duty on the part of the landowners because
of three statutes—one that required landowners to keep hedge fences along the highway
trimmed down, one that authorized county commissions to cut hedge fences at
intersections, and another that allowed the commission to require the landowner to do the
cutting or pay a fine.

The Goodaile court determined these provisions imposed a statutory duty to cut
the hedges. But the statutes did not "declare the hedges nuisances nor say that the
defendants shall be liable in damages for their failure to trim the hedges." 111 Kan. at
544. The court noted that the statutes applied only to hedges. And, significant to our
analysis, the court reasoned: "Buildings, woodland, or tall crops would have obstructed
the vision from one road to the other the same as the hedges, but it cannot be contended
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that such obstructions would render the owners of the land liable for accidents occurring
at the crossing of the highways." 111 Kan. at 544.

The Goodaile court found no basis, even given the Kansas statutes, to distinguish
between the duty that would apply simply because a hedge caused the obstruction—as
opposed to a building, woodlands, or tall crops—and recognized that the landowner
would not be liable. In fact, if a condition other than a hedge had caused the obstruction,
"it cannot be contended" the landowners would be "liable." While the court used the word
"liable" rather than the term "duty," the context of the discussion related to the woman's
contention that the landowners owed her a duty. 111 Kan. at 544. In this context, the
court's holding conveyed that no duty arose.

After discussing duty, the Goodaile court turned its analysis to causation—a
different element the woman had to establish. The court acknowledged the possibility
that the hedges contributed to the accident, but concluded they were not the proximate
cause. Instead, "[t]he horse was frightened by an automobile. That was what caused the
accident." 111 Kan. at 545. The court affirmed the district court's dismissal of the case
because the woman's "petition did not state a cause of action against the owners of the
land." 111 Kan. at 545.

This court again confronted the possibility of a landowner's liability for hedges
growing on land adjoining the highway in Bohm, 118 Kan. at 670-71. There again hedges
were higher than the statutorily allowed height. But the Bohm court added little to
Goodaile's analysis. It simply rejected Bohm's attempt to distinguish Goodaile factually,
concluding, "That action was based on negligence of the owner for not trimming the
hedge as required by law, and the principle there declared controls here." 118 Kan. at
671.

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We read these two 1920s cases as adopting the traditional view that a landowner
owes no affirmative duty to passing motorists to remedy conditions of purely natural
origin. These cases also reject the argument that Kansas statutes support departing from
the traditional view based on the statutes imposing a duty to trim overgrowth and
allowing for fines when landowners fail to comply after being given notice by authorities.
These early cases established that Kansas public policy does not support imposing tort
liability on landowners to correct natural conditions occurring entirely on their property
that infringe on visibility of an intersection of public highways.

Our approach deviates from the Court of Appeals panel's analysis of these cases.
The panel discounted the similarities between this case and Goodaile and Bohm because
the earlier cases involved allegations of a statutorily imposed duty. Manley, 53 Kan. App.
2d at 302-03. Though true, this does not necessarily render the cases irrelevant. In fact,
the Goodaile court recognized the general rule when it stated that "it cannot be
contended" an obstruction caused by woodland or crops would cause the abutting
landowners to be liable. Goodaile, 111 Kan. at 544. And even with statutory
requirements to trim hedges, both courts refused to deviate from the traditional rule.
Thus, we disagree with the panel's conclusion that these cases' reliance on the statutes
makes them "not all that similar to our case." Manley, 53 Kan. App. 2d at 302.

The panel was also reluctant to rely on these cases because they were not
explicitly about duty. The panel found the cases unclear because they "did not focus on
whether the lack of liability was based on a finding of no duty or no proximate cause."
53 Kan. App. 2d at 303. We disagree with this characterization of Goodaile, which
contains two separate and distinct analyses—one addressing liability (sometimes referred
to by the court as "duty") and another addressing proximate cause. In addressing liability
separately from causation, the court provided alternative rationales, each sufficient to
support the court's conclusion not to impose liability on the landowner. Admittedly,
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Bohm does speak broadly of negligence rather than duty: "That action was based on
negligence of the owner for not trimming the hedge as required by law, and the principle
there declared controls here." 118 Kan. at 671. But that should not necessarily be read as
a broad conclusion addressed to all elements of negligence. As this court has explained,

"the word 'negligence,' standing alone, refers to only two of the four elements required in
a civil action for damages caused by negligence. Those two elements are: (1) the
existence of a duty and (2) an act or omission in breach of that duty. Kansas decisions
also use 'negligence' or 'negligent act' to mean duty and breach." Fieser, 281 Kan. at 272.

Thus, negligence as used in Bohm should be understood to include duty and breach, but
not causation.

Having concluded Kansas law reflects a public policy not to impose tort liability
on the landowner, we now consider whether this court should adopt the approach from
the Restatement (Third) of Torts. Manley argues we should and challenges the reasons
the Court of Appeals panel chose to continue applying the traditional rule.

As we have detailed, the traditional approach would not impose an affirmative
duty on a rural landowner to clear a natural condition of the land. See Restatement
(Second) of Torts § 363 (1965); see also Annot. 69 A.L.R.4th 1092, §§ 2[a], 3; Prosser &
Keeton, The Law of Torts § 57 (5th ed. 1984). In contrast, the approach suggested by the
Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 54 (2012)
opens the door to imposing liability here:

"(b) For natural conditions on land that pose a risk of physical harm to persons or
property not on the land, the possessor of the land . . . has a duty of reasonable care only
if the possessor knows of the risk or if the risk is obvious."

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Comment c to that section acknowledges the Restatement (Second) discussion of natural
conditions, noting the urban-rural distinction has been influential. And comment e
specifically addresses situations involving intersections:

"Adjacent highways. This Section applies to those on highways adjacent to
private property. Section 368 of the Second Restatement addressed the liability of a land
possessor for harm to those on adjacent highways. As the Second Restatement
recognized, there is nothing unique about a highway, as opposed to other types of
adjacent public or private land, that should affect the duty of a land possessor. The
existence of a highway may affect the magnitude of the foreseeable risk of certain
conduct by the land possessor, but that would ordinarily go to whether there is a breach
of the duty, not to the existence of a duty. This Section also replaces § 368."

The panel declined to adopt the Restatement (Third) for a few reasons. See
Manley, 53 Kan. App. 2d at 304-05. First, this court has repeatedly applied the
Restatement (Second). See Manley, 53 Kan. App. 2d at 304 (collecting cases). And
second, the Restatement (Third) departs from the formulation of duty used by Kansas
courts by moving away from foreseeability as part of the duty analysis. 53 Kan. App. 2d
at 304-05; see Restatement (Third) of Torts: Liability for Physical & Emotional Harm
§ 7, comment j (2010); Restatement (Third) of Torts: Liability for Physical & Emotional
Harm § 54, comment a (2012).

The Restatement (Third) makes a case for omitting foreseeability of risk from the
duty analysis. In particular, it criticizes the use of foreseeability in a duty analysis as
invading the function of the jury as fact-finder. Restatement (Third) of Torts: Liability
for Physical & Emotions Harm § 7, comment j (2010). The Restatement (Third) therefore
advocates that courts should limit "no-duty rulings to articulated policy or principle in
order to facilitate more transparent explanations of the reasons for a no-duty ruling."
Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 7, comment j
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(2010). We take the policy and principle approach in this case. And we leave for another
day the decision whether to adopt other aspects of the Restatement (Third), in particular
whether we should abandon foreseeability as a consideration when analyzing a person's
duty to another. See Zipursky, Foreseeability in Breach, Duty, and Proximate Cause, 44
Wake Forest L. Rev. 1247, 1257-66 (2009) (questioning whether omission of
foreseeability restates law or advocates change in law of most jurisdictions); see also
Cardi, Purging Foreseeability: The New Vision of Duty and Judicial Power in the
Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739 (2005). We agree with the
panel that doing so would deviate from our caselaw.

As our primary policy consideration, this court adheres to precedent "'unless
clearly convinced that the rule was originally erroneous or is no longer sound because of
changing conditions and that more good than harm will come by departing from
precedent.'" Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004) (quoting
Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 356, 789 P.2d 541 [1990]).
Manley does not persuade us to abandon the traditional rule that a landowner owes no
duty in the circumstances of this case. We conclude the determination of the existence of
a duty is better resolved by following our precedent that embraces the traditional rule,
especially because of the public policy that underlies that rule. See Restatement (Third)
of Torts: Liability for Physical & Emotional Harm § 7, comment j (2010).

We thus decline to follow the Restatement (Third) view for different reasons than
the panel. In part this is because our reading of Goodaile differs and, in part, because the
panel's foreseeability analysis shows the perils the Restatement (Third) and scholars
caution against namely, blending the elements of duty and breach as well as usurping the
trier-of-fact's function. See Restatement (Third) of Torts: Liability for Physical &
Emotional Harm § 7, comment j (2010); see also Cardi, 58 Vand. L. Rev. at 755 ("[I]n
some cases, foreseeability seems so closely tied to the concept of duty that a ruling on
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foreseeability proves determinative of the duty element."). And, in this way, the panel
raises the broader question of whether we will shift all of Kansas law about how courts
determine a common-law duty. We need not to answer that question here because of the
independent policy reasons that underlie the traditional rule recognized in Goodaile, 111
Kan. at 544.

In discussing foreseeability, the panel noted other factors it found affect the
foreseeability analysis. But these factors are equally persuasive, and perhaps even more
so, when considering whether public policy favors imposing liability on the landowners
here. These factors provide additional policy reasons for our decision. Specifically, the
panel emphasized the drivers' responsibility to drive with caution when conditions result
in obstructed visibility. Manley, 53 Kan. App. 2d at 301 (citing Toumberlin v. Haas,
236 Kan. 138, 144, 689 P.2d 808 [1984]). It also found informative the traditional rule in
premises liability that landowners have no duty to protect against open and obvious
dangers. Instead, individuals have a responsibility to protect themselves from such
conditions. 53 Kan. App. 2d at 301. These rules provide strong support for limiting
liability under the circumstances of this case because the active participants in the
accident can take steps to avoid a collision given that drivers should drive with caution to
protect themselves and others at intersections, especially those with decreased visibility.

Additional factors weigh toward a determination that sound public policy would
not impose this duty in Kansas. In our state, tall crops and natural conditions often
obstruct a driver's view at a rural intersection. See Goodaile, 111 Kan. at 544 (noting rule
for crops, woodlands, and hedges). And rural landowners often have many miles of
property to maintain. Some of these considerations underlie the distinction between rural
and urban landscapes recognized in both the Restatement (Second) and (Third) as
influencing court decisions. See Restatement (Third) of Torts: Liability for Physical &
Emotional Harm § 54, comment c (2012); Restatement (Second) of Torts § 363(2)
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(1965). And many decisions of our sister states support maintaining the traditional
approach. See Manley, 53 Kan. App. 2d at 305-06 (collecting cases). See generally
Annot. 69 A.L.R.4th 1092.

Kansas statutes confirm our view that Kansas public policy imposes no duty on
landowners here. Our Legislature has conferred responsibility for care and maintenance
of our roads "'for the safe passage of persons and property'" on various government
entities. See Patterson, 307 Kan. at 626-27 (quoting Finkbiner v. Clay County, 238 Kan.
856, 861, 714 P.2d 1380 [1986]). Kansas law recognizes landowners have some duty to
maintain their property so that trees, plants, shrubs, or other obstructions create no traffic
hazard by obstructing the view of passing drivers. K.S.A. 8-2011(a). But the
responsibility for determining whether a traffic hazard exists falls to the secretary of
transportation or a local authority. K.S.A. 8-2011(b). And the statute imposes a penalty
only if a landowner fails to respond to one of those authorities' notice. K.S.A. 8-2011(c).
Had the Legislature wished to effect a different public policy than that articulated by this
court and impose additional civil tort liability on the landowner, it has had more than 90
years in which to do so.

Our sister courts have found different rules could apply in different circumstances.
For example, a different rule may be appropriate for urban areas. See Restatement
(Second) of Torts § 363(2) (1965) & Rptrs. Note (collecting cases). Or a different rule
may be appropriate when natural growth on the property extends outside the bounds of
the property. E.g., Williams v. Davis, 974 So. 2d 1052, 1054 (Fla. 2007). But we are not
faced with those situations today. Here, the accident occurred in a location that is
undisputedly rural. There is no indication any part of the trees or overgrowth extend
outside the property bounds.

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We conclude the traditional rule embraced in Goodaile finds support in public
policy. We, thus, hold a landowner whose property abuts a rural intersection owes no
duty to passing drivers to trim or remove trees or other vegetation on the property.

In summary, although we depart from the reasoning of the Court of Appeals panel,
we conclude it and the district court reached the correct result by concluding the
Hallbauers owed Manley no duty of care under Kansas law.

Judgment of the district court is affirmed. Judgment of the Court of Appeals is
affirmed.

STEGALL, J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1








1 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 115,531
vice Justice Stegall under the authority vested in the Supreme Court by K.S.A. 20-2616.