30 F. Supp. 3d 1085
D. Kan.2014Background
- Plaintiff Jamie Bell was struck and seriously injured when an unlicensed 14‑year‑old (C.M.) mistakenly accelerated into the sidewalk in front of a Pantry, Inc. convenience store; plaintiff sued for premises negligence under Kansas law alleging failure to install bollards or other protective measures.
- Defendant Pantry operates ~1,650 stores and was aware of “100+” vehicle‑incursion incidents at its stores nationwide and of a 2009 curb‑jump incident at the same Gardner, Kansas location. Defendant installs bollards at newly constructed stores but not older stores absent code mandates.
- Experts were disclosed by both sides; the court conducted Daubert/Kumho gatekeeping on multiple experts and excluded certain opinions (e.g., reliance on nonapplicable Johnson County zoning regs; a 41% pedal‑error statistic derived largely from media reports; some future medical procedure opinions).
- The court denied summary judgment for defendant, holding foreseeability and proximate cause are factual questions for a jury given the totality of the circumstances, prior similar incidents, and the company’s industry knowledge.
- The court applied Kansas negligence and foreseeability principles (Restatement §344 influence), concluding defendant could reasonably have known of a general likelihood of vehicle incursions and thus summary judgment was inappropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of defense expert Blomberg | Blomberg lacks industry‑specific qualifications and relied on irrelevant/unreliable materials | Blomberg is experienced in pedestrian/parking safety and may testify; criticisms go to weight | Court: Blomberg qualified generally; excluded opinions relying on Johnson County zoning and NACS PowerPoint; excluded opinion that bollard‑absence is industry standard and that defendant is "safety conscious"; other opinions admitted. |
| Admissibility of plaintiff experts (Reiter, Vander Helm, Gamboa, Lampton) | Experts are reliable to show foreseeability, dangerous design, and economic/life‑care losses | Defendant challenges methodology/data (e.g., Reiter’s statistics, reliance on media reports) and some speculative future care items | Court: Qualified experts may testify; excluded Reiter/Vander Helm opinions relying on a 41% pedal‑error stat from media; excluded Lampton opinions on left knee replacement and hip surgery; other opinions admissible. |
| Foreseeability / duty to protect patrons from vehicle incursions | Pantry had notice (100+ incidents and a 2009 incident at same store) and thus should have foreseen risk and taken precautions (e.g., bollards) | The specific criminal/negligent acts of third parties (unlicensed teen driving) were unforeseeable; no per se duty to protect against runaway vehicles | Court: Under Kansas law foreseeability is a fact issue; prior incidents and company knowledge create triable issues — summary judgment denied. |
| Superseding/intervening cause (third‑party conduct) | Defendant’s failure to mitigate was a proximate cause; third‑party acts may be concurrent but do not necessarily supersede defendant’s negligence | Conner/Hartman/C.M. criminal/negligent acts were independent, unforeseeable superseding causes absolving Pantry | Court: Whether intervening acts supersede is for jury; reasonable minds could differ — summary judgment denied. |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (gatekeeping standard for expert admissibility)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (trial court gatekeeping extends to non‑scientific experts)
- Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083 (district court discretion in Daubert procedure)
- Conroy v. Vilsack, 707 F.3d 1163 (expert admissibility two‑part test: qualification and reliability/relevance)
- Smith v. Kansas Gas Serv. Co., 285 Kan. 33 (duty and foreseeability under Kansas negligence law)
- Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540 (business owner not insurer of invitee safety; duty may arise when owner should have foreseen risk above ordinary)
- George v. Breising, 206 Kan. 221 (intervening cause and foreseeability test for proximate cause)
- Davey v. Hedden, 260 Kan. 413 (proximate cause and when intervening acts defeat liability)
- Hale v. Brown, 287 Kan. 320 (proximate cause ordinarily a jury question)
- Gould v. Taco Bell, 239 Kan. 564 (prior incidents and jury consideration in foreseeability analysis)