Opinion
Case No. 99-4050-RDR
April 12, 2001
MEMORANDUM AND ORDER
This case is now before the court upon defendant's motion for summary judgment. The following facts appear to be uncontroverted. Plaintiff slipped and fell off an icy public sidewalk onto Adams Street in Junction City, Kansas on January 18, 1998, a Sunday, at approximately 8:30 p.m. She broke her left leg in the fall. The west half of the sidewalk was clear; the east half was icy. The sidewalk bordered the east side of property owned by defendant and used by a United States Post Office. The public entrance to the post office is on the south side of the building along Seventh Street. Adams Street runs along the east side of the Post Office. Prior to falling, plaintiff had parked her car on Adams Street parallel to the sidewalk in question and walked to the Post Office. She fell as she was returning to her car. The ice on the sidewalk accumulated during a winter storm which passed on Saturday night, January 17, 1998. Defendant did nothing to create the accumulated snow and ice. To reiterate, defendant does not own the sidewalk or the property underneath the sidewalk.
Plaintiff asserts that defendant was negligent because it failed to clear the snow and ice from the sidewalk. Defendant asserts that summary judgment is warranted because, among other reasons, it had no duty to clear the ice from the sidewalk. Plaintiff contends that defendant's voluntary efforts to clear the sidewalk created a duty to perform the job without negligence.
We do not decide defendant's other arguments for summary judgment in this order.
This case is brought under the Federal Torts Claim Act, 28 U.S.C. § 1346(b), 2671 et seq. As such, Kansas law governs so that defendant is liable "in the same manner and to the same extent as a private individual under like circumstances . . ." 28 U.S.C. § 2674.
In considering the defendant's motion for summary judgment, the court must examine all the evidence in the light most favorable to the plaintiff. Barber v. General Electric Co., 648 F.2d 1272, 1276 n. 1 (10th Cir. 1981). Summary judgment is proper only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under this rule, the initial burden is on the moving party to show the court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party's burden may be met when that party identifies those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323.
After careful review, the court believes summary judgment is appropriate in this case because defendant did not owe a duty to clear the sidewalk where plaintiff fell.
As defendant notes, Judge Lungstrum of this district has held that under Kansas law an abutting landowner does not have a duty to remove natural accumulations of ice or snow that existed on a public sidewalk next to the landowner's property. Collins v. American Drug Stores, Inc., 878 F. Supp. 182, 183 (D.Kan. 1995) (citing Wilson v. Goodland State Bank, 611 P.2d 171 (Kan.App. 1980)).
Plaintiff does not dispute this statement of the law, but asserts that it does not apply here because defendant undertook the duty to keep the abutting public sidewalk free of ice and snow. For the purposes of this motion, defendant does not deny that it employed persons who customarily cleared snow and ice from the sidewalk in question. Also, defendant does not deny that the sidewalk was only half cleared at the time plaintiff fell.
To support the legal distinction plaintiff is attempting to draw, plaintiff cites the Restatement of Torts (Second) §§ 323 and 324A and the following cases: Cessna Aircraft Company v. Metropolitan Topeka Airport Authority, 940 P.2d 84 (Kan.App. 1997); Circle Land and Cattle Corp. v. Amoco Oil Corp., 657 P.2d 532 (Kan. 1983); and C.J.W. v. State of Kansas, 853 P.2d 4 (Kan. 1993).
We do not believe these authorities support plaintiff's legal claim. Section 323 of the Restatement of Torts (Second) states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.
Section 324A of the Restatement of Torts (Second) states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
We do not believe the Kansas Supreme Court would apply either of these sections to these facts to find a duty of care by defendant to plaintiff in this case. We find these passages to be inapplicable to these facts for the followings reasons.
First, defendant is not alleged to have undertaken to clear snow and ice specifically for plaintiff or Junction City, Kansas. The Kansas cases cited by plaintiff which apply these restatement provisions involve situations in which there was a contract to provide fire and police protection to a tenant (Cessna Aircraft, 940 P.2d at 92) or a verbal agreement to analyze oil used in irrigation engines manufactured by defendant (Circle Land Cattle Corp., 657 P.2d at 538). In another Kansas case where § 324A was applied, an explicit agreement to render services also existed. See Schmeck v. City of Shawnee, 651 P.2d 585 (Kan. 1982). The case at bar does not have the kind of affirmative act or agreement to render services to another which Kansas courts have considered necessary to produce a duty of care. See P.W. v. Kansas Department of Social and Rehabilitation Services, 877 P.2d 430, 435 (Kan. 1994).
The third case cited by plaintiff for its inferential influence (C.J.W. v. State, 853 P.2d 4 ((1993)) does not discuss §§ 323 or 324A of the Restatement of Torts (Second). It involves facts wherein a special duty of care was owed by a prison to protect a 12-year-old juvenile inmate from physical harm by older inmates. Obviously, there is no such special relationship in this case.
Second, it cannot be reasonably argued that the partial clearing of the sidewalk increased the risk of harm to plaintiff.
Third, the court does not believe Kansas law would recognize a reliance interest upon these facts. There is no claim that defendant knew that plaintiff specifically would be relying upon defendant to clear the sidewalk. Furthermore, plaintiff saw the condition of the sidewalk before she walked to and from the post office. Plaintiff stated in her deposition that the area was well-lighted and that she saw the icy conditions when she walked to the post office from her car and as she returned. Unlike other cases involving these restatement provisions, she did not go forward upon a false impression that an undertaking (e.g., fire protection or oil analysis) had been accomplished for her benefit.
Fourth, Comment C to § 323 of the Restatement states that an actor may terminate gratuitous efforts if, in doing so, he does not place other persons in a worse position than before the actor began the undertaking. The comment states:
The fact that the actor gratuitously starts in to aid another does not necessarily require him to continue his services. He is not required to continue them indefinitely, or even until he has done everything in his power to aid and protect the other. The actor may normally abandon his efforts at any time, unless, by giving the aid, he has put the other in a worse position than he was in before the actor attempted to aid him. His motives for discontinuing the services are immaterial.
Accordingly, the restatement does not advocate a duty in this instance to clear the entire sidewalk as long as doing half the job or less did not place plaintiff in a worse position than she was before. As mentioned, we believe there is no reasonable claim that defendant's alleged efforts to clear the sidewalk worsened the danger presented to plaintiff in any way.
Finally, case law from other jurisdictions has not applied the restatement sections in similar situations. See LaFond v. United States, 781 F.2d 153 (8th Cir. 1986) (applying Minnesota law); Ward v. First Indiana Plaza Joint Venture, 725 N.E.2d 134 (Ind.App. 2000); Morin v. Traveler's Rest Motel, Inc., 704 A.2d 1085, 1088-89 (Pa.Super. 1997). Nor have courts otherwise found a duty of care in this situation. See Lahren v. United States, 438 F. Supp. 919 (D.N.D. 1977) (fall on public sidewalk by postal patron); New Highland Recreation Inc. v. Fries, 229 A.2d 89, 92 (Md.App. 1967) (fall on partially cleared sidewalk); Woodworth v. Brenner, 244 N.W.2d 446, 447 (Mich.App. 1976) (fall where ice reformed on sidewalk after it was cleared). Indeed, there is a line of cases which holds that the law should not discourage the "industry" of persons who make voluntary efforts to even partially remove snow and ice from walkways. See Riccitelli v. Sternfeld, 115 N.E.2d 288, 290 (Ill. 1953); Halkias v. Gary National Bank, 234 N.E.2d 652, 654-55 (Ind.App. 1968); Weider v. Goldsmith, 91 N.W.2d 283, 284 (Mich. 1958); Kelley v. Park View Apartments, 330 P.2d 1057, 1064-65 (Ore. 1958).
In conclusion, the court agrees with defendant that under Kansas law there was no duty of care which was violated in this case. Therefore, the motion for summary judgment shall be granted.
IT IS SO ORDERED.