United States District Court, D. Kansas
COLLEEN M. KROM, Plaintiff,
BRAUM'S, INC., Defendant.
MEMORANDUM AND ORDER
ERIC F. MELGREN, District Judge.
Plaintiff Colleen Krom filed this suit against Defendant Braum's, Inc., alleging that she slipped and fell at Defendant's restaurant in Great Bend, Kansas, as a result of Defendant's negligence. Before the Court is Defendant's Motion for Summary Judgment (Doc. 41). Defendant argues that it is not liable for Plaintiff's injuries because the "slight defect rule" under Kansas law bars Plaintiff's claim. The Court agrees with Defendant, and for the following reasons, the Court grants Defendant's motion.
I. Factual and Procedural Background
On October 20, 2010, Plaintiff entered the parking lot of Defendant's restaurant in Great Bend, Kansas. Plaintiff exited her vehicle, intending to enter the restaurant as a customer and purchase food. To enter the restaurant, Plaintiff walked on a walkway consisting of a concrete path that connected with brick tiles or pavers. As Plaintiff was walking along that walkway, she tripped and fell, resulting in a fractured hip that required surgery to repair. At the time of Plaintiff's fall, the walkway was clean and dry, and there was no dirt, grease, or other substance covering it.
Plaintiff alleges that she fell because of a lip between the concrete and brick pavers on the walkway in front of Defendant's restaurant. Plaintiff estimates that the lip between the cement and brick pavers is one-half inch in height. At her deposition, Plaintiff testified that she saw the brick pavers when she got out of her car and stepped onto the cement. She also testified that there was nothing obstructing her view that day from the time she stepped onto the cement portion of the walkway until the time she fell.
Plaintiff filed this suit on August 2, 2012, alleging that Defendant is negligent for failing to maintain a safe entrance walking area, failing to repair an uneven, eroding walkway, and failing to warn Plaintiff of the dangerous condition. Defendant now moves for summary judgment on Plaintiff's claim.
II. Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. A fact is "material" when it is essential to the claim, and issues of fact are "genuine" if the proffered evidence permits a reasonable jury to decide the issue in either party's favor. The movant bears the initial burden of proof, and must show the lack of evidence on an essential element of the claim. If the movant carries this initial burden, the nonmovant that bears the burden of persuasion at trial may not simply rest on its pleading but must instead "set forth specific facts" that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant. These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits-conclusory allegations alone cannot survive a motion for summary judgment. The Court views all evidence and reasonable inferences in the light most favorable to the party opposing summary judgment.
To succeed on a personal injury action based on negligence, a 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." Negligence cases typically present factual determinations for a jury, not legal questions for the court. However, questions regarding the existence of the duty element are purely legal determinations. Therefore, if a court concludes that a defendant did not have a duty to act in a certain manner toward the plaintiff, then the defendant cannot be liable, and the court may properly grant summary judgment in the defendant's favor.
Defendant contends that the Court should grant summary judgment in its favor because the "slight defect rule" under Kansas law bars Plaintiff's claim. The slight defect rule is a judicially created rule "that negates the existence of a duty that might otherwise exist." Under the rule, "slight variances in the level of sidewalk surfaces, whether caused by projections, depressions or otherwise, are not sufficient to establish actionable negligence in the construction or maintenance of the sidewalk." Although the Kansas Supreme Court initially applied the rule in a municipal liability case, it has since stated that the rule applies equally in actions involving individuals or private corporations. The Kansas Court of Appeals reinforced this principle in Barnett-Holdgraf v. Mutual Life Insurance Co. of New York,  when it held that the rule applied to a private sidewalk running between two privately-owned commercial office buildings.
A. The Slight Defect Rule is Applicable to the Walkway at Issue in This Case.
Plaintiff contends that the slight defect rule is inapplicable in this case because the area at issue is a "walkway, " and not a "sidewalk, " and because the rule only applies to sidewalks that run alongside a road and are "open to the public." Plaintiff's argument rests primarily on the Kansas Supreme Court's decision in Elstun v. Spangles.  In that case, the court affirmed the Kansas Court of Appeal's ruling that the slight defect rule did not apply to defects in parking lots. Citing the Court of Appeals opinion, the Kansas Supreme Court noted three main differences between sidewalks and parking lots that demonstrated why the slight defect rule should not be applied to parking lots:
(1) Sidewalks are built for foot traffic, while parking lots are built to withstand both human traffic and heavy motor vehicles; (2) sidewalks are usually made of several concrete slabs or bricks, while parking lots are built to withstand both human traffic and heavy motor vehicles; and (3) sidewalks are ...