IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 93,066
ISAAC JOHN SOUTH,
a minor, by and through his parents and next friends
JOHN SOUTH and LINDA SOUTH
Appellants,
v.
JAMES JOHNSON AUBREY MCCARTER, a minor, and
MARK MCCARTER and JILL MCCARTER, his natural guardians;
JOSHUA ALLEN MILLS, a minor, and
LORETTA KAY TINDELL and MICHAEL ALLEN MILLS, his natural guardians;
AMERICAN FAMILY MUTUAL INSURANCE COMPANY;
and S AND J INVESTMENTS OF TOPEKA, INC.,
Appellees.
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 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, the court applies the same rules and where it finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.
2. In a negligence action, summary judgment is proper if the only questions presented are questions of law. To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.
3. It is a generally recognized rule in Kansas that in the absence of a special relationship a person has no duty 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, and the possessor of land and licensees.
4. A landlord has a duty to exercise reasonable care to protect its tenants from a third party's criminal attack if such an attack was reasonably foreseeable and within the landlord's control.
5. It is only where the frequency and severity of criminal conduct substantially exceed the norm or where the totality of the circumstances indicates the risk is foreseeably high that a duty should be placed upon the owner of the premises to provide security. The duty to provide security is determined under the reasonable person standard.
6. Foreseeability, for the purpose of proving negligence, is defined as a common-sense perception of the risks involved in certain situations and includes whatever is likely enough to happen that a reasonably prudent person would take it into account. 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.
7. Whether the risk of harm is reasonably foreseeable is a question to be determined by the trier of fact. It is only when reasonable persons could arrive at only one conclusion that the court may determine the question as a matter of law.
8. Under Restatement (Second) of Torts § 323 (1964), Negligent Performance of Undertaking to Render Services, a defendant's agreement or affirmative act indicating a willingness to provide services is a threshold requirement for a duty to arise. The extent of the undertaking defines the scope of the duty.
Appeal from Shawnee district court, CHARLES E. ANDREWS, JR., judge. Opinion filed September 9, 2005. Affirmed.
Frank D. Taff, of Topeka, argued the cause and was on the briefs for appellant.
Leonard R. Frischer, of Frischer & Associates, Chtd, of Overland Park, argued the cause, and Michael L. Hughes, of the same firm, was with him on the brief for appellees S and J Investments, Inc., of Topeka.
No appearance by appellees James Johnson Aubrey McCarter, Mark McCarter, and Jill McCarter.
The opinion of the court was delivered by
DAVIS, J.: Isaac John South, a minor, was injured during a physical altercation with defendants Joshua Mills and James McCarter in the mobile home park where both Isaac and Joshua lived with their parents. Isaac's parents brought suit on behalf of their son against Joshua and James, their parents, American Family Mutual Insurance Company, and the owner/manager of the mobile home park, defendant-appellee S and J Investments of Topeka, Inc., (S and J). Relevant to this appeal, the district court granted summary judgment in favor of S and J, finding it was not negligent as a matter of law and was not the legal cause of Isaac's injuries. The Court of Appeals granted the plaintiffs' application to take a civil interlocutory appeal, and the case was transferred to this court pursuant to K.S.A. 20-3017. On September 3, 2001, plaintiffs Linda and John South entered into a "Rental Agreement for Manufactured Home Site" (rental agreement) with the owners of Green Acres Mobile Home Park (Green Acres), defendant S and J. Although the rental agreement was signed only by John and Linda, their minor son, Isaac South, was listed on the agreement as a resident of the home in Green Acres. In the agreement, Linda and John agreed to abide by all of the Green Acres Community Guidelines (community guidelines).
Section 5, Installation of New & Existing Mobile Homes, provides in relevant part: "The management reserves the right to (1) refuse admittance and accommodations to anyone without stating any cause or reason, (2) decline to allow any space to be occupied, or (3) refuse to accept further rent."
Section 8, "Liability of Management," provides in part:
"(a) It is understood and agreed by the residents that all common areas furnished by Green Acres Community such as automobile parking spaces, streets and recreational facilities shall be deemed gratuitously furnished and that if the Resident or any other person used the same, it shall be at the user's [sic] own risk. All persons using any facilities do [sic] so at their own risk."
Section 14, entitled "Noise," provides:
"(a) Avoid excessive noise. Play radios, televisions and stereos softly. Have respect for your neighbors. Residents must be responsible for the conduct of their guest. The property is privately owned and the right to evict any objectionable person or persons who may cause a disturbance or become a nuisance is reserved. The management shall be the sole judge of the existence or cause of such action."
On May 11, 2002, plaintiffs and defendants Joshua Mills and his parents Michael Mills and Loretta Tindell lived in the Green Acres Mobile Home Park owned by defendant S and J. That evening, Isaac drove past the Mills home on his way home from work. Joshua and James testified that Isaac was staring at them as he drove by. Joshua testified that he asked Isaac why he was staring at him, and they had a conversation where Isaac threatened them. Isaac testified that they starting cussing at him as he was driving by. Isaac drove home, changed his clothes, and walked back to the Mills' residence to see what their problem was.
Joshua and James were standing in the Mills' yard when Isaac arrived. The three minors offered conflicting accounts of what happened next. Isaac testified that Joshua was holding a BB gun and told him to leave. They exchanged words and Joshua took a swing at Isaac, James punched Isaac in the face, knocking out his tooth, and Isaac fell to the ground where James and Joshua kicked him. Isaac retreated to the road but returned near the Mills' vehicle to retrieve his hat. When he was leaning over to pick up his hat, James punched him in the mouth and broke his jaw.
Joshua and James characterized Isaac as the aggressor who swung at Joshua first. Joshua's father Michael Mills heard cussing and came outside and twice told Isaac to go home but he refused. Loretta Tindell also came outside. When Isaac came back into the yard to retrieve his hat, James saw a knife, so he punched Isaac in self-defense. Michael Mills also testified that he saw a knife in Isaac's hand and he found a knife in the yard the next morning. After James punched Isaac, Isaac walked home.
Isaac's father, John South, testified that when Isaac arrived home he looked as if he had been beaten because his jaw was hanging down and he was bleeding. Isaac said he had been "jumped," and his father took him to the emergency room. Isaac had emergency surgery to wire his jaw back together, and then he had subsequent surgeries that required two bone grafts from his bottom jaw. His medical expenses were approximately $30,000 at this point, and he will require further medical treatment.
Nearly 2 years before this incident occurred, Jack Benge, a shareholder of S and J, received a complaint from a Green Acres tenant's babysitter that two boys were cussing in the mobile home park and asked if something could be done. The tenant explained that she thought one of the boys lived up the street. Benge spoke with John Carey, an officer of S and J and owner and operator of Modern Mobile Home Sales, a neighboring mobile home park. Carey identified one of the boys as a resident of Modern Mobile Home Sales who was being evicted, and he identified the other possibly as James McCarter.
At Benge's direction, his attorney Jerold Berger sent James a letter dated July 18, 2000, which provided in relevant part:
"It has been brought to my attention that you have been coming on the property even though the owners and operators have requested that you stay off the property.
"Please consider this a formal request to stay off of the property known as Green Acres Mobile Home Community. Should you continue to violate this request you will be guilty of a criminal trespass. It is our intentions to fully follow through with prosecuting you if you continue to trespass on this property."
In his deposition, Benge denied knowing where the information for the substance of this letter was obtained, nor did he know of anyone who had spoken with James. James' father, Mark McCarter, signed a sworn declaration that he reviewed this letter after his son received it in the mail. Mark spoke with the park manager about the letter, and the park manager said the letter resulted from information she had that James might have been involved in a fight on the premises. Mark told the manager that James was not involved in a fight and that James had an aunt who lived on the premises. The manager agreed to allow James back on the premises because she did not have any evidence that James was involved in a fight and because his aunt lived on the premises.
Nancy Ketter, the operations manager at the time, denied having this conversation with Mark McCarter. Ketter had no knowledge of James being seen on the Green Acres property until the day of the subject fight, and she testified that no additional letters or further action had been taken against James. Ketter received no reports that James was on the property after the July 18, 2000, letter was sent, and she did not inform the other tenants that he had been advised to stay off of the premises.
The plaintiffs filed an action against James and his parents Mark and Jill McCarter, Joshua and his parents Michael Mills and Loretta Tindell, and American Family Mutual Insurance. The district court allowed the plaintiffs to amend the petition to add S and J as a defendant. Relevant to this appeal, the plaintiffs alleged in the amended petition:
"37. That notwithstanding the judgment of defendant S AND J INVESTMENTS INC. OF TOPEKA that defendant McCarter was an 'objectionable person or persons who may cause a disturbance or become a nuisance,' the former [allowed] the latter to continue to come on the premises to associate with defendant Tindell and her son, the minor defendant Joshua Allen Mills.
"38. That neither at the time plaintiffs entered into the said landlord-tenant agreement, nor at anytime thereafter, were they aware of the aforesaid judgment having been made by defendant S and J Investments of Topeka, Inc., or that it was suffering the minor defendant McCarter to continue to come on the premises to associate with Loretta Kay Tindell and her son, the minor defendant Joshua Allen Mills, or that these residents constituted a danger to the safety and welfare of other tenants of the mobile home park.
"39. That defendant S AND J INVESTMENTS INC. OF TOPEKA knew or should have known that Loretta Kay Tindell and minor defendant Joshua Allen Mills were allowing the minor defendant James Aubrey McCarter to come onto the premises and that the two minor defendants presented a danger to the safety and welfare of the residents, including the plaintiffs.
"40. That by the common law of this state, the owner of a business has a duty to provide security for patrons or customers on the premises when 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.
"41. That defendant S AND J INVESTMENTS INC. OF TOPEKA breached its duty to plaintiffs by failing and refusing to take further action to prevent the minor defendant James Johnson Aubrey McCarter from coming on the premises; and that said breach is the proximate cause of the injuries and losses suffered by the plaintiff, as is more fully set out above.
"42. That defendant S AND J INVESTMENTS INC. OF TOPEKA breached its duty to plaintiffs by failing and refusing to evict Loretta Kay Tindell and her son, the minor defendant, Joshua Allen Mills from the premises; and that said breach is the proximate cause of the injuries and losses suffered by the plaintiff, as is more fully set out above."
On September 25, 2003, the district court granted Loretta Tindell's motion for summary judgment and stayed the proceedings against Michael Mills because he had filed for bankruptcy. The court reasoned that the plaintiffs failed to show that Joshua acted willfully or maliciously or that he intended to cause injury to Isaac necessary for a claim under K.S.A. 38-120 (recovery from parents for malicious or willful acts by certain children), that Loretta exercised reasonable care by taking steps to end the fight, and that she was, thus, not liable for a failure to intervene. The court found that had Michael not filed for bankruptcy, his motion for summary judgment would have also been granted.
On January 8, 2004, the district court granted summary judgment to Joshua because he did not cause Isaac's injuries. As to defendants Mark and Jill McCarter, the court found that a genuine issue existed as to whether their son James had acted willfully or intended to cause injuries to Isaac. However, because the plaintiffs did not present evidence that the injuries were the result of parental neglect on the part of the McCarters, the court granted them partial summary judgment by limiting their liability to $5,000 under K.S.A. 38-120.
S and J filed a motion for summary judgment arguing that it was not liable for Isaac's injuries because it could not have reasonably foreseen that Isaac would go to the Mills' residence and fight with Joshua and James, nor could it have provided reasonable security to prevent it from happening. As reasonable persons could only arrive at one conclusion, that the fight was not foreseeable, it argued that summary judgment should be granted as a matter of law.
The plaintiffs' response to the summary judgment motion raised several arguments: (1) The attack occurred in a common area reserved for control by S and J; (2) S and J was aware of James' propensities and failed to warn the plaintiffs; (3) this case was distinguishable from Gragg v. Wichita State Univ., 261 Kan. 1037, 934 P.2d 121 (1997); Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991); and Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 856 P.2d 1332 (1993), where no landlord-tenant relationship existed and the case was more analogous to the university/student relationship in Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993); (4) S and J was ignoring its prior knowledge and efforts (by letter) to keep James out of Green Acres and credibility issues arose regarding the contents of the letter; (5) conflicting evidence was presented regarding the material fact of whether S and J had allowed James back on the premises after the letter was sent; (6) a special relationship was created through the rental agreement which provided S and J with the sole right to prevent James from coming on the premises, which was similar to the student-university relationship in Nero; (7) S and J undertook a duty for a third party, Isaac, under Restatement (Second) of Torts § 324A (1964); and (8) a special relationship existed under Restatement (Second) of Torts § 314A (1964); and Fortney v. Hotel Rancroft, Inc., 5 Ill, App. 2d 327, 125 N.E.2d 544 (1955), because the rental agreement required S and J to exercise vigilance for the security of the plaintiffs; a question of fact exists on whether S and J was negligent in carrying out its responsibilities once having assumed the duty to keep troublemakers off the premises under Restatement (Second) of Torts § 323 (1964), Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 657 P.2d 532 (1983), and Cunningham v. Braum's Ice Cream & Dairy Stores, 276 Kan. 883, 80 P.3d 35 (2003).
S and J responded, arguing the letter written 2 years prior to the incident did not constitute foreseeability, S and J had no prior knowledge that Isaac would confront Josh and James and engage in a fight, the plaintiffs misinterpreted Section 14 of the rental agreement which applies to noise caused by tenants, S and J did not breach its contract because the agreement reserves the right to "evict" any person and not "eject" any objectionable person as argued by the plaintiffs, and the fight was not foreseeable under the totality of the circumstances.
On August 13, 2004, the district court granted S and J's motion for summary judgment, reasoning:
"As a matter of law, Defendant S and J Investments was not negligent. First, Defendant did not have a duty to evict the Tindell family under the facts when viewed in light most favorably for Plaintiff. Second, neither Joshua Tindell, Loretta Tindell, nor S and J Investments were the legal cause of Plaintiff's injuries. See September 25, 2003 Memorandum Decision and Order and January 8, 2004 Memorandum Decision and Order. Finally, because Plaintiff's evidence is susceptible to only one legal inference, the question of proximate cause is a question of law. Cullip by & Through Pitts v. Domann by & Through Domann, 266 Kan. 550, 556 (1999). Accordingly, the Court finds no liability on Defendant S and J Investments."
The plaintiffs filed a motion for additional findings and for amendment of the judgment in favor of S and J to allow application to the Court of Appeals for an interlocutory appeal and for a stay. The plaintiffs argued that the trial court had misconstrued their claim by resting its ruling on the conclusion that the plaintiffs' claim against S and J was based solely upon its failure to evict the Tindell (Mills) family. The plaintiffs pointed to their claims in the second amended petition that S and J breached its duty to the plaintiffs by failing to take further action to prevent James from coming on the premises after he had earlier been banished from the mobile home park. The plaintiffs reiterated their arguments under Restatement (Second) of Torts § 323 and § 324A.
S and J responded that the motion included additional arguments not raised in the plaintiffs' response to its motion for summary judgment. The trial court agreed, ruling that a surreply was not allowed under Shawnee County Rule 3.202(b). However, it granted the motion for interlocutory appeal and stay under K.S.A. 60-2102, reasoning:
"This Court has made a finding that, as a matter of law, S & J Investments was not negligent. This Court feels this finding creates a substantial ground for difference of opinion. While this Court feels there was no duty to plaintiff by S & J, it is conceivable that an Appellate Court may view this controlling question of law differently. The law generally does not support summary proceedings against a party seeking such redress. Failure to stay these proceedings could lead to trial which is not economically wise for the parties."
The plaintiffs filed an interlocutory appeal with the Court of Appeals. This court granted the plaintiffs' subsequent motion to transfer the case to the Supreme Court pursuant to K.S.A. 20-3017.
On appeal, the plaintiffs argued the trial court failed to carefully analyze and apply the Restatements and Kansas case law in granting summary judgment to S and J. They contend that S and J owed them a duty and was negligent in rendering the service it recognized as necessary for the protection of the South family under the landlord-tenant rental agreement and the "Community Guidelines" under both Restatement (Second) of Torts § 323 (1964) and Restatement (Second) of Torts § 324A (1964). Additionally, the plaintiffs contend that S and J is liable under various provisions of the Restatement addressing premises liability, including Restatement (Second) of Torts § 341A (1964), Restatement (Second) of Torts § 314A, and Restatement (Second) of Torts § 344.
"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 where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]" Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
"'In a negligence action, summary judgment is proper if the only questions presented are questions of law. To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.'" Schmidt v. HTG, Inc., 265 Kan. 372, 396-97, 961 P.2d 677, cert. denied 525 U.S. 964 (1998) (quoting Honeycutt v. City of Wichita, 251 Kan. 451, Syl. ¶ 8, 836 P.2d 1128 [1992]).
In Kansas, a plaintiff in a negligence action must first prove the existence of a duty owed to him or her by the defendant. The existence of a duty is a question of law over which this court's review is unlimited. Roe v. Kansas Dept. of SRS, 278 Kan. 584, 592, 102 P.3d 396 (2004).
Premises Liability
The plaintiffs argue that S and J is liable under various provisions of the Restatement addressing premises liability. They cite several cases discussing these Restatement principles which they argue are analogous to this case. S and J argues it is not liable under a premises liability theory and urges this court to disregard many of these arguments because they are being raised for the first time on appeal.
Examination of the pleadings below, specifically the plaintiffs' response to the motion for summary judgment, reveals that the plaintiffs did make some premises liability arguments below concerning special relationships formed under § 314A and that the relationship here was similar to the university/student relationship in Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993), which discussed the applicability of § 344. Although the arguments on appeal expand upon those arguments raised below, we reject S and J's contention that the plaintiffs' arguments are raised for the first time on appeal. Moreover, the trial court did not address all the questions regarding the existence of a duty but concluded that no duty arose under the rental agreement to evict the Tindell (Mills) family, whom James was visiting at the time of the incident giving rise to this lawsuit.
The prevailing rule in Kansas is 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. D.W. v. Bliss, 279 Kan. __, __, 112 P.3d 232 (2005). "'A special relationship may exist between parent and child, master and servant, the possessor of land and licensees.'" Gragg v. Wichita State Univ., 261 Kan. 1037, 1045, 934 P.2d 121 (1997) (quoting C.J.W. v. State, 253 Kan. 1, 8, 853 P.2d 4 [1993]). Restatement (Second) of Torts § 314A (1964) sets forth the basis for the existence of a special relationship in cases involving a possessor of land:
"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
. . . .
"(2) An innkeeper is under a similar duty to his guests.
"(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."
Citing § 314A, the plaintiffs point to Fortney v. Hotel Rancroft, Inc., 5 Ill. App. 2d 327, 125 N.E.2d 544, reh. denied (1955), where the Illinois Appellate Court found that an innkeeper owes his or her guest a very high degree of care and must protect his or her guest while at the inn against injuries from third persons. Fortney provides little support for the plaintiffs' position, however, as the duty owed by an innkeeper to a guest in Illinois ("very high degree of care") is different from the reasonable care standard owed by a landlord to a tenant in Kansas, as discussed below.
In this case, the plaintiffs hinge a good portion of their argument on the fact that a special relationship and therefore a duty existed by reason of the rental agreement requiring S and J to exercise vigilance for the security of the South family. They emphasize the agreement's reservation of the exclusive right to determine who was an objectionable person and to eject any such person from Green Acres with or without cause. The plaintiffs cite several cases in support of their argument; however, review of the rental agreement and community guidelines do not support a finding that a contractual duty to provide security existed in this case.
The plaintiffs cite Bundy v. Sky Meadows Trailer Park, 1989 WL 125379 (Oh. Ct. App. 1989), where the plaintiff was bitten by a dog owned by another resident of a trailer park owned and operated by Sky Meadows. The plaintiff sued Sky Meadows and the dog's owners for negligence resulting in the dog bite. Facts were established to indicate that Sky Meadows had actual knowledge that the dog ran freely around the trailer park and had bitten other children in the past. Furthermore, Sky Meadows had a rule stating that "animals must not run at large," which was never enforced against the owners of this particular dog, despite its past attacks on children. 1989 WL at *1-2.
The Bundy court first distinguished a mobile home trailer park from an apartment complex because the common premises of the park and the residents' conduct may be restricted or controlled by park rules. The court held that Sky Meadows had a duty to enforce the rules and regulations of the trailer park; hence, by contract, Sky Meadows had a duty to prevent animals from roaming the premises of the park. Further, the court stated a "special relation" existed due to the fact that Sky Meadows had knowledge of the dog's vicious propensities and promulgated rules prohibiting animals from running at large. Notice and knowledge of a dog's propensity to roam and attack children obligates the trailer park operator to take affirmative action. 1989 WL at *2-3.
In order for Bundy to have relevance to this case, the plaintiffs must establish that the defendants in this case undertook to provide security for the plaintiffs. Two Kansas cases are important in this regard. In Beshears v. U.S.D. No. 305, 261 Kan. 555, 930 P.2d 1376 (1997), Beshears was a high school student who was injured in an after-school-hours, off-school-premises, prearranged fight with another troubled disruptive student who had warned the school counselor and assistant principal 2 days before the fight about the problem between them because he was worried about getting expelled. The district court found no duty existed and granted summary judgment in favor of the school district in a negligence action.
On appeal, Beshears argued in part that the school district breached its duty to him during school hours, when a special relationship existed between them, to follow its own policy of giving in-school suspension for after-school fights even if the fight occurred off school premises, if it was based on statements made at school. The school district's expulsion policies did not mandate suspension or expulsion but left the decision to the school's discretion. This court found that the policy did not show that the school district undertook to protect its students from unknown prearranged off-school-premises fights and its efforts to regulate after-school fighting did not impose an absolute duty to control off-school-premises fighting. 261 Kan. at 563.
In Parker v. Dillon Co. Inc.,