McANANY, J.
On May 20, 2009, Cyndi Carr was injured when she was bitten on the ankle by a pit bull owned by Rodney Vannoster while she was on the premises occupied by Rodney. She sued Rodney and Rodney's wife, Mary Vannoster.
In her amended petition Carr also asserted negligence claims against Rodney's father, Jim Vannoster, claiming that Jim, who owned the property where Rodney and Mary lived and kept the dog, was negligent in: (1) failing to act on his knowledge that Rodney's dog was dangerous; (2) failing to direct Rodney to properly restrain the dog; (3) failing to direct Rodney to properly pen the dog; (4) failing to direct Rodney to post a warning sign announcing the presence of the dog; and (5) failing to exercise his rights as owner of the premises to expel Rodney or the dog or both of them from the property. Carr did not make a specific claim against Jim for strict liability as the possessor or harborer of a dangerous animal, though she later asserted that as a basis for denying the summary judgment Jim later requested.
Carr moved for summary judgment against Rodney and Mary and was awarded a judgment against them in the amount of $325,000.
The issues now before us came to a head when Jim moved for summary judgment on Carr's claims against him. While Jim asked that the case be dismissed for failure to state an actionable claim, he couched his request in the form of a summary judgment motion because he asked the court to consider facts beyond the face of Carr's pleading. The court granted Jim summary judgment on Carr's claim against him, finding that Carr failed to state an actionable claim against Jim. It is the propriety of this ruling that Carr asks us to review.
The district court based its summary judgment ruling upon Carr's failure to state an actionable claim as it would in the case of a motion to dismiss. But this does not affect our review. The motion was one for summary judgment. Jim relied on facts beyond the face of Carr's pleading and enumerated them in his statement of claimed uncontroverted facts. Accordingly, we review Jim's motion for what it was: a motion for summary judgment.
The court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom summary judgment is sought. In order to preclude summary judgment, the facts subject to the dispute must be material.
Summary judgment is not appropriate if reasonable minds can differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011); see Supreme Court Rule 141 (2011 Kan. Ct. R. Annot. 232). On appeal, we apply these same rules de novo. Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).
The central issue in this case is whether Jim owed a duty of due care to Carr. Carr had the burden of proving that Jim owed her this duty. While the breach of a duty is an issue of fact, whether a duty exists is an issue of law for the court. See Schmidt v. HTG, Inc., 265 Kan. 372, 396-97, 961 P.2d 677, cert. denied 525 U.S. 964, 119 S.Ct. 409, 142 L.Ed.2d 332 (1998). Carr also raises the issue of strict liability for Jim possessing or harboring a dangerous animal.
The following facts set forth in the memorandum supporting Jim's motion are uncontroverted. In her response to Jim's motion, Carr set forth additional claimed uncontroverted facts. Because we have in the record no response from Jim regarding these additional facts, we accept them as also being uncontroverted. They are as follows:
Jim lived in a house located on 80 acres he acquired over 20 years before this May 20, 2009, incident. Jim was retired. His address was 2612 County Road 3500, Independence, Kansas.
Jim's son, Rodney, suffered a spinal cord injury in a stock car race in approximately 2000. As a result, Rodney was disabled and confined to a wheelchair.
For about 5 years before this incident, Rodney lived in a home with 4 acres owned by Jim. Jim purchased the property in about 2000 as a home for Rodney. The address of the property was 3337 County Road 2800, Independence, Kansas. This is approximately 1 mile from Jim's residence. Jim built a wheelchair ramp for Rodney and paid the liability insurance premium on this property as well as the property taxes. Jim described the arrangement as "more or less kind of a rental." There was no written lease agreement between Jim and Rodney. Rodney said in his deposition the rent was $350 per month. Jim said in his deposition the rent was $300 per month. Rodney had not paid Jim any rent for over 1 year before the May 20, 2009, incident.
Rodney repaired lawnmowers as a hobby in the garage located at his residence. However, some people paid Rodney for his repair work. Rodney had people stopping by his shop from time to time. Jim visited Rodney once or twice a week and sometimes helped Rodney with his lawnmower activities.
Rodney acquired the pit bull 3 years before this incident. The dog was never at Jim's residence during the time Rodney owned her. Jim never owned, possessed, kept, or cared for the dog. (He claimed that
Rodney's pit bull was approximately 3 years old at the time of this incident and had recently had a litter of pups. Sometime before the current incident the dog had nipped a neighbor on the back of his pant leg. Jim knew that the dog had "extremely dangerous propensities" because pit bulls were banned in the City of Independence. (The properties in question were located outside the city.)
On May 20, 2009, Rodney's dog attacked and injured Carr in Rodney's driveway approximately 50 feet from the garage where Rodney was working on lawnmowers.
Jim relied on Colombel v. Milan, 24 Kan.App.2d 728, 952 P.2d 941 (1998), as support for his summary judgment motion. In Colombel, this court was called upon to decide whether "a landlord may be held liable under Kansas law for the injuries a third party suffers due to the actions of his or her tenants' vicious dog on the leased property." 24 Kan.App.2d at 729-30, 952 P.2d 941. The court in Colombel dealt with the issue at the pleading stage (the defendant had moved to dismiss for failure to state a claim), rather than in a summary judgment motion following discovery.
The Colombel court discussed Borders v. Roseberry, 216 Kan. 486, 532 P.2d 1366 (1975), in which our Supreme Court considered a landlord's liability to a tenant's guest who fell on ice that had accumulated on the leased property. The Borders court held that a landlord not in possession of the premises owed no duty of due care to third parties, subject to certain exceptions which we will discuss later. The Colombel court determined that the Borders exception relied upon by the plaintiff did not apply and affirmed the district court's dismissal for failure to state an actionable claim. 216 Kan. at 494, 532 P.2d 1366.
In her response to Jim's motion, Carr contended that Jim was liable either on a negligence theory based on his status as a landlord, on a general negligence theory, or on a strict liability theory based upon Jim having harbored a dangerous animal. With respect to Carr's first negligence theory, Carr claimed there was a genuine issue of material fact as to whether Jim actually was Rodney's landlord. Her first position was that Jim was not Rodney's landlord and so the general rule of no liability for landlords in Borders did not apply.
In considering Jim's motion, we are required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of Carr, the party against whom summary judgment was sought. See Osterhaus, 291 Kan. at 768, 249 P.3d 888. Jim claims he was Rodney's landlord and the no-liability rule of Borders applies. In resisting Jim's motion Carr claims that summary judgment cannot be awarded based on the Borders no-liability-for-landlords rule because there is a genuine issue as to whether Jim was a landlord.
Jim's assertion that he was a landlord protected by the principle in Borders makes the facts surrounding the landlord/tenant issue material. Therefore, in determining whether there remains an issue for trial, we are required on this issue to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of there being no landlord/tenant relationship, the position Carr, the nonmoving party, asserts on this issue.
We need not recount all the uncontroverted facts outlined above on this point. It is clear that Jim and Rodney did not have a typical landlord/tenant relationship. Jim referred to the property that Rodney lived on as "more or less kind of a rental property." There was no written lease or rental agreement. Jim and Rodney claim they had an oral agreement to pay monthly rent, but they disagreed on the amount of the monthly rent. The tenant's obligation for periodic rent is a
It would seem that viewing the evidence in the light more favoring Carr's position on this point it is possible that a jury could determine that there was no landlord/tenant relationship. The contested issue of Jim's status vis-a-vis Rodney remains. But the real question is, regardless which way a jury might resolve this issue, would Jim ultimately prevail at trial based on the current state of the law? To answer this question we need to turn to the issue of the Borders exceptions to the rule of no liability for landlords.
The court in Borders enumerated six exceptions to the no-liability-for-landlords rule. Carr contends that there is evidence to support two of these exceptions and, therefore, there remains a genuine issue of material fact that must be resolved at trial before Jim's liability for Rodney's dog can be determined. The Borders exceptions are:
Carr relies on the following exceptions:
Of course, a Borders exception can apply only if there is a landlord/tenant relationship. Jim claimed he was Rodney's landlord, but Carr denied this claim and contended there is a genuine issue of material fact regarding Jim's status.
We have determined that Jim's status as a landlord remains an issue for trial. The sub-issue of the Borders exceptions comes into play only if Jim is found to be a landlord. If Carr prevails on her original contention that Jim was not a landlord, then she must premise her liability claim against Jim on some other theory, because Borders and its exceptions only apply to landlords.
To successfully preserve for trial the claim that Borders exceptions (3) and (4) apply, Carr is in the interesting position of having to infer from the evidence that a landlord/tenant relationship existed, the exact opposite of her earlier position. To determine whether there is a genuine issue of material fact as to whether Borders exceptions (3) and (4) apply, we now have to view the evidence from the perspective favoring the existence of a landlord/tenant relationship, the position advanced by Carr, the nonmoving party, on this point.
Under Borders the general rule of no liability for landlords does not apply:
With respect to exception (3), we must determine whether, viewing the evidence in the light more favoring Carr, there remains a triable issue as to whether the premises were leased to Rodney for admission of the public. While Rodney characterized his work on lawnmowers as a hobby, he also testified that he received payment for his work on occasion and had visitors at his garage in connection with that activity.
Borders exception (4) applies "when parts of the land are retained in the lessor's control which the lessee is entitled to use." Colombel, 24 Kan.App.2d at 731, 952 P.2d 941. In her brief in opposition to Jim's motion for summary judgment, Carr argues that this exception applies because
We also find no facts from which one could reasonably infer that Jim, as the landlord, leased the house to his son but retained a possessory interest in the driveway. The fact that Jim frequently visited his son and, we presume, used the driveway in doing so, does not raise the inference that he retained a possessory interest in the driveway. Carr asserts that the driveway was the entrance to Jim's land. But this was land that Jim rented to Rodney. Jim's separate residence was about a mile away from Rodney's rented house. Carr cites nothing in the record that suggests that the driveway served any property other than Rodney's rented house and garage.
In her brief in opposition to Jim's motion for summary judgment, Carr argued further: "Because Defendant Rodney was living rent-free and his father, Defendant Jim, was allowing his son to live rent-free, Defendant Jim, as a landlord and father, had almost exclusive control over the premises where Plaintiff was attacked." We cannot make this inference of control based upon Rodney's failure to pay rent. The premise for Carr's contention that Borders exception (4) applies is that a valid landlord/tenant relationship existed. We must infer from the existence of such a relationship that Rodney had exclusive control of the rented premises, and Carr provides no evidence to the contrary.
We find no evidence to support the application of Borders exception (4). Carr, the nonmoving party, was required to come forward with some evidence on this point; she cannot rely on mere allegations. We find no facts from which one could reasonably infer that Jim exercised control over Rodney, or that the driveway where Carr was bitten served any property other than Rodney's rented house and garage.
Carr contends, in essence, that the Borders exceptions to the rule of no landlord liability should be expanded consistent with holdings from other jurisdictions such as Uccello v. Laudenslayer, 44 Cal.App.3d 504, 512, 118 Cal.Rptr. 741 (1975); Park v. Hoffard, 315 Or. 624, 632, 847 P.2d 852 (1993);
Jim also relied upon the Restatement (Second) of Torts as support for his summary judgment motion. The court in Colombel considered the application of the strict liability principle found in the Restatement (Second) of Torts § 509(1) (1977), which provides:
Carr does not contend that Jim possessed the dog. There certainly is no evidence that he did. But liability is not limited solely to a possessor. The Colombel court noted that § 514 of the Restatement recognizes that one who harbors a vicious animal bears the same strict liability as one who possesses the animal. This is the alternative Carr asserted to her claim that Jim was liable as a landlord. She stated in her brief in opposition to Jim's motion: "If Defendant Jim is not held to be a landlord, he is strictly liable to Plaintiff as a `harborer' of Defendant Rodney's dog because he permitted Defendant Rodney, his son, to keep the dog on his property." She argued that there remained a genuine issue of material fact as to whether Jim harbored the pit bull and, thus, was liable as if he were its possessor.
The court in Colombel found Comment a following Restatement § 514 to be helpful. The comment states:
The Colombel court concluded: "Kansas follows the common law of injury-by-animal. Under the common law, no one but an owner, possessor, keeper, or harborer of an animal can be held liable for its actions." 24 Kan. App.2d at 732, 952 P.2d 941.
Restatement (Second) of Torts § 514, Comment a, presents a strikingly apropos scenario:
This example fits the facts now before us.
As noted in Nichols v. Kansas Political Action Committee, 270 Kan. 37, 43, 11 P.3d 1134 (2000), the Restatement "is not a compilation of Kansas law." Nevertheless, as our court recently recognized in Estate of Belden v. Brown County, 46 Kan.App.2d 247, 271-72, 261 P.3d 943 (2011):
Jim was not a harborer of Rodney's dog as described in the Restatement. Rodney was not a member of Jim's household. Rodney maintained his own household on the premises where he lived with his wife. The home where he kept his dog was not the home or premises occupied "as the home of the family group of which [Jim was] the head." The two homes were about a mile apart. Carr does not provide us with any evidence in the record that Rodney was ever physically present in his father's house after he took up residence with his wife in the separate house where he kept the dog.
We find no facts from which, with the guidance of the Restatement, we can reasonably infer that Jim harbored the dog. The court in Colombel found the Restatement view of harboring to be persuasive. We do too. We conclude that summary judgment in favor of Jim is appropriate on Carr's claim of strict liability based on the theory that Jim is liable for possessing or harboring a dangerous dog.
To briefly summarize our analysis, Jim was either a landlord or he was not. If Jim was a landlord, then the general rule of no liability for landlords announced in Borders applied to insulate him from liability for the injury caused by a dog owned by his tenant and kept on the leased property.
But Carr asserted that if Jim was a landlord, he was subject to two exceptions to the no-liability-for-landlords rule. Our analysis of the two Borders exceptions Carr relied on led us to conclude that neither applied. Thus, if Jim was a landlord, based on the analysis in Colombel and the uncontroverted facts before us, Jim was entitled to judgment as a matter of law on Carr's claim that he was liable for Carr's injuries caused by his tenant's dog.
Carr argued for the application of theories advanced in some other states for imposing liability on a landlord under certain special circumstances. Having determined that those cases do not reflect the law of Kansas on this subject, we concluded that if Jim was a landlord he had no liability to Carr for her injuries and he was entitled to judgment as a matter of law.
If Jim was not a landlord, he could be held liable for Carr's injuries if he was found to have either possessed or harbored the dog.
The district court found that Jim was entitled to summary judgment, and in our de novo review we do too.
Affirmed.