Mostert v. CBL & Associates

An Internal Records. Hospital’s covery of article and constructive

excellent Hyg, Hospital is Hall subject

confined Reports: Proceedings

Committee Status, 1 AmJ.Law and Medi Legal

Their

cine

CONCLUSION of defend- favor

Summary judgment reversed, hospital is doctor and

ants to the district court remanded

the case is consistent with this proceedings further

opinion. (Dutch) MOSTERT, Rep Personal

Gerrit Estate of Kumi Maria

resentative Mostert, Behalf of Dutch

for and on (Plaintiff), Appellant Kay Mostert, and American & ASSOCIATES

CBL Cinema, Inc., Appellees

Multi (Defendants).

No. 86-220. Wyoming.

Supreme Court

Aug. foreseeable, dangerous consequences leaving their the theatre and mall com-

plex and traveling city streets which proximately caused by the death drown- ing of a year girl, seven old and severe injury parents?” to her The status of appellees is substantially Therefore, different. we will address the following issues. Pickering Henry Bailey,

Robert G. and F. Bailey, Pickering, Welch, Jr. of Stock & I Cheyenne, appellant (plaintiff). for Whether liability imposed should be Peter K. Michael and Nicholas G. Kalo- against a theatre owner negli- for [AMC] Uchner, of Lathrop Cheyenne, kathis & for gently failing to restrain or patrons warn (defendant) appellee CBL & Associates. foreseeable, of the dangerous conse- quences of their Greg leaving Weston W. Reeves and M. theatre. Carlson Murdock, Casper, appellee Reeves & for (defendant) Cinema, American Multi Inc. II Whether the court incorrectly converted C.J., BROWN, THOMAS, Before a motion to by dismiss filed CBL into a MACY, CARDINE, URBIGKIT and JJ. summary motion for judgment. BROWN, Chief Justice. (Dutch) Appellant Mostert, Gerrit person- III al representative of the estate of Kumi liability Whether imposed should be Maria Mostert and on behalf of Dutch and against complex owner Mostert, Kay complaint filed a alleging which the theatre is [CBL], located for negligence willful, and/or wanton and reck- negligently failing to restrain or warn part less conduct on the of appellees, Fron- foreseeable, patrons of the dangerous owners, tier complex Mall CBL & Associ- consequences leaving of their the mall (CBL) Cinema, ates and American Multi complex. (AMC), Inc. after Kumi Maria Mostert part, We part reverse affirm in tragically drowned when the vehicle in remand to disposition the trial court for which riding she was engulfed conformity opinion. with this grant- flood waters. Before trial the court evening 1,1985, On August appellee ed Gerrit AMC’s motion to dismiss with (Dutch) Kay daugh- Mostert and their prejudice granted and also appellee CBL a ter, Maria, patrons Kumi summary judgment. appellee were appeal, appellant On (AMC) American’s Frontier Six urges Theatres following issues: located in complex the Frontier Mall owned 1. incorrectly “Whether the court con- by appellee (CBL), CBL & Associates verted motion to dismiss filed one of Cheyenne, Wyoming. the defendants into a motion for [CBL] summary judgment?” During evening, Cheyenne experi- imposed “Whether should be enced a severe thunderstorm which caused against a Service, theatre owner and the the National Weather civil defense [AMC] complex authorities, owner of the in which the the- and local law offi- enforcement [CBL], atre is located thunderstorm, both of whom had cials to issue severe flash knowledge (and warnings flash flood warnings. flood and tornado As the storm (cid:127) city demand by worse, officials that stay citizens became progressively local emer- off the gency management streets avoid from se- officials demanded that flooding), vere negligently flash stay fail- citizens indoors in a safe area off ing to restrain being injured or warn their streets to avoid or killed. severity of the aware of Appellees were 1, 1985, storm; aware of the

August Appellant alleges that the trial defense, Service, civil National Weather complaint court erred when it dismissed the warnings, as against enforcement AMC for a claim local law failure to state granted pursuant relief can occurring in flooding the severe well as 12(b)(6), to Rule W.R.C.P. However, during the movie. Cheyenne aware of the family never became Mostert According our standard of review we severity because warnings of the storm only complaint will sustain dismissal of a theatre, they and on its face they plaintiff inside AMC’s if it shows was were to relief not entitled under set of facts. attending the movie other and Casualty Surety v. Aetna & Co. Johnson not warned. (1980). Wyo., Hartford, 608 P.2d 1299 movie, left the Mosterts After the the considering motion, In such the “facts leading directly through an exit theatre complaint alleged in the and are admitted They lot. traveled east- parking into the allegations light must in the the be viewed Boulevard, Range and at some Del on ward plaintiffs.” favorable to Moxley most the vehicle was on the road Mosterts’ point Builders, Inc., P.2d Wyo., Laramie 600 attempted In an by flood waters. struck 733, (1979). 734 is a drastic rem- Dismissal Thereafter, Maria escape, Kumi drowned. sparingly granted. edy, is Harris v. filed, alleging negligence complaint was Grizzle, (1979). 599 In Wyo., P.2d 580 willful, reckless con- wanton and Control, and/or Wyo., Lewis v. State Board of appellees. 822, part (1985), 824 duct on both 699 P.2d we said: “ * * * reviewing In under a dismissal motion to dismiss Appellee AMC filed a 12(b)(6) [W.R.C.P.], Rule this court will duty existed to grounds that no only such if the com sustain dismissal pa- of its protection or act for the warn plaintiff plaint shows on its face that the trons, alleging that the family, the Mostert v. Aet is not entitled relief. Johnson upon Mosterts failed state a claim Casualty Surety Co. Hart na 12(b)(6), granted Rule relief could be under Conn., Wyo., ford, 608 P.2d Wyoming Rules of Procedure. Civil 514, 630 P.2d cert. appeal remand after against July on action AMC dismissed was 961, 1118, 454 U.S. 102 S.Ct. denied 17, 1986. L.Ed.2d 105 455 U.S. reh. denied 102 S.Ct. L.Ed.2d 157 Thereafter, dismiss the CBL moved to Therefore, true all we treat as complaint. The affi- CBL motion contained allegations complaint. of contestants’ employees, davits of Frontier two Mall Inc., Builders, Wyo., Moxley v. Laramie deposi- portions of Mr. and Mostert’s Mrs. (1979).” Appellant opposed tion. motion to dis- miss, ruling appel- but based on court’s Because the trial court dismissed ruling that dismiss, sug- complaint on the narrow appellant lant’s AMC’s motion to dis- legal duty, no limit our AMC had we gested that an the motion granting order fleeting only cussion make An order expedite appeal.1 be entered to negli- ingredients to other reference granting was summary judgment CBL a duty, proximate gence such as violation of ap- August Appellant entered on 1986. injury. cause and A peals appellees. the orders as to both by filed appeal final amended notice Historically, landowners no owed August 5, prevent action harm to appellant on warn or take Cinema, 18,. 1986, July appellant 1. On letter to the sion relative to American Multi in a judge proba- trial against court stated: case CBL & Associates might expe- "Although oppose bly I I Motion to Dismiss be dismissed also. So that appeal process, filed Defendant CBL & Associates I would therefore dite the my Opposition same basic reason your granting set forth in appreciate entry of an Order to American Multi to Dis- Cinema’s Motion CBL’s Motion at this time.” miss, recognize, deci- on the Court’s based considerations, out- including invitees where the risks involved were magnitude However, premises. impre- side their risk involved in defendant’s con “duty” simple no cise term has definition duct, the burden of requiring defendant applicable that is in all circumstances. One against risk, to guard and the conse commentator has said: quences placing that burden *“ * surprising It is therefore not defendant. Nelson Ta [Citations.]” problem duty find that the is broad tum v. Compa Commonwealth Edison negligence, the whole law and that 655, 662, ny, Ill.App.3d 80 Ill.Dec. it universal test for ever has been 465 N.E.2d formulated. It a shorthand statement Richardson, Gates v. conclusion, of a rather than an aid to 193,196 (1986),this quoted court Prosser & in itself. analysis Yet is embedded far Keeton, (1984): Torts 54 at 357-358 discarded, firmly too our law *“ * * Duty itself, is not sacrosanct in it, satisfactory substitute for which only expression but an of the sum total responsibility may the defendant’s be of those of policy considerations which limited, has it been devised. But should * * * say leads the to plaintiff law is recognized ‘duty’ an only is protection.” entitled to expression of the of sum total those con- policy It is siderations which lead the law stated in Collins v. Memorial Hos protection. “ * * * say [T]he courts have ^[*] (Í plaintiff ^{[*] [*]} merely is entitled to ‘reacted pital 1339, importance, necessity, the doctrine of stare decisis “ * * * 1341 Sheridan [t]he (1974), writer County, Wyo., freely and concedes the * * * strength 521 P.2d is in way the situation in which unable to react,’ relations parties unconscious be made than that the courts doubtedly have been changes with them. Various nience of constantly others. venting attached to great sons would duties. No where, and that mass of mankind future Changing change administration, capacity bear recognize to the better weight, injuries, general, wrongdoer, the law as to duties general social conditions lead loss, our recognition it given including and the moral blame ideas reasonable statement policy agree conscious customarily factors and will of human of new conve- And, that it find a many pre- per- can un- 596 P.2d Wis.2d er rule which not utilize this the continuance of of those who common law its unchanged for centuries.” not remain static. The common law is “ * * * “ * * ^[*] * ^{[*] [*]} 1, court if thing Lewis v. 705, 114 Inherent [t]he doctrine N.W.2d of chiseled marble 706 is main characteristic of the operates Bielski Wolf, (1979), in the an suffer tortious 105, dynamism. 122 unfair common law to the detriment v. justification 110 Ariz.App. Schulze, and improp- It does be left said: 567, is a for 16 Torts, principle grow exists.” dynamic Prosser & Keaton on which allows 53, pp. (5th 1984). changing 357-359 ed. itself to and tailor meet § “ * * * decisis, needs the doctrine of stare within judge’s function understood, which, correctly not complex determination involves consider prevent static and did not legal forever ations of policies and social which reversing courts from themselves directly affect the essential determi principles of applying from common law government pro nation of the limits to * ** need arose. If tection. new situations as the Consequently, imposi so, scope legal tion not to a depend of a this were we must succumb only ‘long let judge ent not rule that a should others factor of foreseeabil ity ([Cunis 372, problems 56 v. Brennan Ill.2d dead unaware of ] lives, 617) thinking age he do his N.E.2d but involves other quences community the court Douglas, Deci- ‘Stare Justice him.’ Mr. availability, system, and cost Review 736. Law sis’ 49 Columbia ^{[*] [*]} yy prevalence of insurance for the risk in Regents volved. v. Universi Tarasoff depart from a do not hesitate We ty California, 17 Cal.3d 131 Cal. rule in order to meet historic or traditional 334, 342, Rptr. 83 A.L.R.3d clarify inap- correct and changing needs or Richardson, (1976).” Gates v. su rule. of a traditional propriate application pra, p. at Wyo., 666 P.2d Tottenhoff, v. McClellan purposes determining pro- For the action, priety appellant’s dismissal of we foregoing upon the Based alleged complaint in the assume the facts factors, we find it balancing a number circum- to be true. We now relate these depart from the traditional appropriate to eight out stances to the factors set has no to warn a landowner rule that Richardson, 'sagra. Gates the landowner’s risks off an invitee of foreseeability 1. The factor—AMC was premises. aware of a severe thunderstorm and the Husky Company, Oil In Yalowizer v. presence flooding of tornadoes and flash quoted P.2d we vicinity. outside the mall and in the It (Second) ap- Torts 331 with Restatement the storm was also aware that became proval: city progressively and that offi- worse “ ‘(1) public either a invitee An invitee is stay cials had demanded that citizens off * * * (3) A busi- or a business visitor. injury. the streets to avoid person is a who is invited ness visitor injury The closeness factor—the suf- 2. purpose for a enter or remain on land by appellants fered was not remote. indirectly directly or connected with busi- only min- Kumi Marie Mostert drowned (cid:127) dealings possessor ness in not in- utes after AMC’s dereliction ” land.’ forming patrons. theatre undeniably in the business of (that AMC was degree certainty factor 3. The pictures public since showing motion injury) injury plaintiff had suffered —the showings such and the Mos- advertised family the Mostert was the suffered paid opportuni- an terts admission for such injury death of greatest possible —the Therefore, classified ty. the Mosterts are Kumi Marie. as business visitor-invitees. Mostert The moral factor—the blame family invitee of AMC business appellants, determining AMC’s storm. AMC was and unaware of the visitor-invitees, note the as business we storm, flooding and attend- aware of the Richardson, supra, quot- case of Gates v. city dangers. AMC was aware that ant ing University v. Regents of Tarasoff stay had demanded that citizens officials 425,131 California, Cal.Rptr. 17 Cal.3d injury. Despite off the streets to avoid (1976), 551 P.2d 83 A.L.R.3d 1166 stat- superior knowledge, AMC did noth- this ing numerous that a court must balance ing patrons. its warn determining factors when the existence of preventing future harm particular policy Those factors 5. The each case. managers rule that are as factor—a business follows: “ * * * knowledge to pass on have (1) forseeability of harm to [t]he dangers regarding off-premises invitees (2) plaintiff, of the con the closeness future. If busi- injury reduce conduct nection between the defendant’s duty, they nesses understand have suffered, degree and the they they likely patrons tell what would certainty plaintiff inju suffered off-premises risks. know about ry, (4) the moral attached to the blame conduct, (5) on defendant factor—the policy pre defendant’s 6. The burden superior knowl- venting harm, (6) passing AMC’s future the extent of the burden regarding the flood defendant, (7) edge patrons on to burden the conse appears be minimal. find Tatiana, Theatres warnings were delivered. simple way pass on to all Ultimately, patient went to the young kinds of information. While we cannot woman’s residence and killed her. AMC, the financial costs to we do assess The Supreme Court of California held overly not foresee them to be excessive. although there special was no relation- Moreover, the chance of a natural disas- ship between Tatiana and therapist, ter is rare. a relationship there was pa- between the consequences 7. The to community and tient and the therapist. defendant Based consequences courts factor—the of a on relationship, the court held that the “duty community rule” on the and court therapist owed a to warn the endan- system is a neutral factor. gered (Tatiana) party or those who could 8. The insurance factor —we do not have been reasonably expected notify know cost insurance or its avail- her danger. ability risk for the involved here. Even available, if insurance were not that sin- In Piedalue v. Clinton Elementary gle dispositive factor should not be 32, Mont., School District No. this case. 22-23 the court said: Although we have not found di- a case “ ** * ground true of a [T]he rectly point, there are some cases that proprietor to an inju- invitee for off-premises address risks. ries sustained on the is the su- In Garrett v. Grant School No. District 124, Ill.App.3d 569, perior knowledge of proprie- the business 93 Ill.Dec. tor over that of the business invitee of N.E.2d 699 the court said that dangerous proprie- condition and the “ * * * particular standard of care give warning tor’s failure to of the risk. imposed on those involved in the four ‘special relationships’ scribed in section 314A of the Restate- are de- « ^{[*] [*]} (Restatement (Second) ment. of Torts application rule, “In the of that it has (1965). special 314A The four § relation- duty occupier been held that the of an of ships give duty to protect rise a to premises beyond premises to the en (1) another from harm are: carrier-pas- premis trances into and from exits such senger, (2) innkeeper-guest, (3) business duty es and it his to warn his custom invitor-invitee, (4) voluntary custo- upon, ers hidden hazards or around protectee dian under certain limited cir- premises, if beyond his he would reason added.) cumstances.”2 (Emphasis ably expect by use of adjacent an area case Regents Univ Tarasoff v. his customer connection with the invi ersity California, supra, ap cited with tation. To incur to a business proval by this court in Gates v. Richard invitee, it is not necessary that the owner failure, son, supra, was concerned to or occupier or or ingress own control warn of off-premises There, an risk. a egress occupi exits or that the or owner therapist by patient, told during was his hazard, er if create the hazard cre treatment premises session on the of Co- ated a foreseeable risk of harm to busi well Hospital, Memorial he that intended to occupier kill ness invitees and the owner or Although Tatiana Tarasoff. the thera pist supervisors presence and the knew of its predicted pa and should have presented danger tient precautions a serious of violence taken to reasonable eliminate «* * * (Second) 2. Restatement Torts 314A Special Giving Duty Relations Rise to "(3) to Aid possessor open A who land holds it Protect. public duty is under a similar to members "(1) duty A common carrier is its under a public response who enter to his passengers to take reasonable action invitation. “(a) protect against them unreasonable harm, physical risk of by posting warnings such measures as II ^{[*] [*]} tt Appellant claims that he did not re adequate ceive notice of conversion of says: A Kansas case “ * * * CBL’s motion to dismiss into a motion for possessor on summary judgment; unfairly that he was higher which an invitee enters owes a inappropriately surprised, he care, degree of reasonable or had known of such request conversion no ordinary safety. for the care invitee’s expedite appeal would have been positive. This is active and It in- According appellant, made. the court protect an cludes warn had the discretion to consider the motion danger against any may invitee only under standards set out in Rule reasonably anticipated. [Citations.]” 12(b)(6),W.R.C.P., and abused its discretion 446, 449, Loney, 223 Gerchberg v. Kan. when it converted CBL’s motion to dismiss into a summary judgment. motion for We Allegations appellant's taken from com- agree. do not AMC, plaint through duly establish that its 12(b),W.R.C.P., Rule applicable states in appointed employees, officers and was part: flooding occurring aware that outside “* * * following defenses at [T]he the mall and that the storm had become option pleader by be made worse, progressively reaching point * * * (6) motion: failure to state a claim city where officials demanded that citizens * * upon granted which relief can be *. stay off the streets to or death avoid objection No defense or by is waived by flooding. severe flash This occurred * * * being joined with one to dismiss during p.m. August the 7:45 movie on for pleading failure of the to state a claim granted, which relief can be Balancing the factors set out in Gates v. pleading matters outside are Richardson, supra, pub- we do not detect a presented to and not excluded policy against imposing lic on AMC court, the motion shall be treated as to advise off-premises dangers. one summary judgment and dis- The risks to family which the Mostert posed provided in Rule and all exposed outweighed far the minimal bur- parties given oppor- shall be reasonable placed den knowledge AMC reveal its tunity present all material made patrons. to its pertinent to such a motion Rule 56.” added). (Emphasis appellee We conclude that AMC owed the family Mostert Although an affirmative to exer- CBL’smotion was denominated cise ordinary Dismiss,” reasonable or care for their as a “Motion to supported it was safety obligation which includes an to ad- depositions affidavits and filed concur- off-premises danger vise them of rently that with the motion. The motion also might reasonably be additionally foreseeable. We are stated “and genuine there is no suggesting by not question our determination that of material as to fact this defend- Therefore, AMC had a to restrain its ant.” undisputable it is that even a them pleadings advise what to do. matters outside the were not The only as we see it only contemplated, is to reveal what but in fact AMC knew to its presented customers.4 trial court for considera- also, Byron Open See v. knowledge Fresh Pond Air The 4. Determination of what AMC actu- atre, 121, (1955); 333 Mass. 128 N.E.2d 785 ally possessed concerning the inclement weath- Freedman, v. 328 Mass. N.E. 103 resulting dangers conjunction Greenfield er and (1952); League 242 Shaw v. Boston American AMC, any part failure of remain Co., Baseball 325 Mass. 90 N.E.2d 840 proven matters in issue to be at trial. (1950); Co., McIntosh v. Linder-Kind Lumber Mont., (1964); 393 P.2d 782 v. Stan Rockefeller Company California, Wash.App. dard Oil 520, 523 P.2d 1207 in Torrey Twiford, v. tion. As stated While the order did not specifically say (1986): Wyo., 713 P.2d 1162-1163 that an occurred, automatic conversion had the order was apprise sufficient to appel- judge actually “If a trial considers mat impending lant of the circumstances. pleadings ters other than the aon motion spite of the fact that no is necessary notice pursuant 12(b)(6), to dismiss Rule his in instances of automatic conversion from summary judg decision is converted to a 12(b)(6) Rule summary judgment, Newberg ment. See discussion in trial specifically court ordered appel- Dryer Corporation, American lant have ten days in respond. which to (E.D.Pa.1961). F.Supp. The conver actually court did not enter the dismis- automatic, may sion be as when the sal order until seven days later. This is judge considers affidavits connection notice, appellant “reasonable” had the 12(b)(6)motion, Greaser v. with a Rule present opportunity to perti- all material Williams, (1985); Wyo., 703 P.2d 327 In nent to his defense of the motion. Longshoremen’s ternational and Ware Kuntz, housemen’s Union v. 334 F.2d Ill Cir.1964), (9th or the conversion Having accomplished by summary determined judg- be motion of one of the * * *” proper ment was the parties. vehicle for considera- tion against CBL, of the case we note that We hold that the conversion from Rule our oft-cited standard of appeal review on 12(b)(6) summary judgment proper. summary from judgment governed by Documents which could have been filed summary judg- fundamental rule that pursuant summary to a motion for judg properly only ment issues the dual ment, but were filed with the motion to finding no genuine question of materi- dismiss, moving indicated that party prevailing al fact exists and party that the expected to have the motion pursu decided judgment is entitled to as a matter of law. Therefore, ant to Rule W.R.C.P. there Q. Hotels, Inc., Rompf v. John Hammons was no error in converting the motion to Wyo., (1984); 685 P.2d 25 and Matter of dismiss into a summary judg motion for Brosius, Wyo., Estate 683 P.2d 663 . ment W.R.C.P., According 56(c), to Rule Furthermore, it has been stated: summary judgment *“ * * “* * party When a files an affidavit shall rendered if forthwith judge considers under a Rule pleadings, depositions, answers inter- 12(b)(6)motion, rogatories, file, court treat the to- admissions motion as summary judg- gether affidavits, a motion for any, with the shows subject ment requirements genuine time that there is no issue as to Rule whether or not the record dem- party material fact and that the is enti- parties onstrates had other no- judgment tled to as matter law. propriate surprise otherwise normally tice supra, at 1134. Twiford, * * * ” (Emphasis added.) Torrey v. demonstrates conversion, to either nonmoving party. unless the record unfair party inap- is, tions of eliminate formal the formal # # purpose ft law allegations are involved, summary judgment trials where and reach the merits Johnson v. Soul and to only pierce ques tois controversy of a where no material issue appellant this case prop- was afforded Fowler, Wyo., Siebert v. present. fact is er and unfairly inap- notice therefore not or (1981). question aWhen propriately surprised by the trial court’s genuine as arises to whether or not issue action. He day received the ten notice exists, case, in material fact we requirement respond appel- which to quoted follow our oft standard: 56, W.R.C.P.; lee CBL’s motion. Rule 302, Rule Uniform reviewing summary judgment Rules for the District “When Courts of the Wyoming. appeal, judgment State of on we review the in the 1098 court, using Yet, employee the weather conditions. an district light as the

same Randolph Gilpa v. reported the thunderstorms to each information. CBL same Inc., Company, tenant, including Additionally, the trick Construction AMC. (1985); and Lane 142 P.2d Wyo., through 702 Mosterts left the theatre a door- Inc., Development, v. Busch Company way by directly controlled AMC into the (1983). party A mov 419 Wyo., 662 P.2d parking lot. These sufficient materials are summary judgment has bur ing for to meet the movant’s burden and to make a of a the nonexistence proving den of prima showing genu- facie that there is no Dudley fact. of material genuine issue ine issue of material fact. Development Company, Ridge v. East Appellant supply any did not evidence to (1985). fact 113 Material Wyo., P.2d 694 CBL, oppose appellee the motion of which, proved, as one has defined been therefore did not meet his burden show- establishing or the effect would have ing genuine mate- that there was a issue of element of the refuting essential an genuine ques- rial fact. We find that no asserted or defense of action cause existed, tions of material fact and will now 8, Mares Post No. parties. Samuel appellee determine whether CBL should be Wyo Legion, Department American judgment entitled to as a matter of law. County Commission ming v. Board of Converse, Wyo., County ers of care owed an owner (1985). Upon examination 1040 upon dependent to an entrant his land is summary judgment, we view of a person entering upon the status of the vantage point most fa record from premises. Husky v. Oil See Yalowizer motion, party opposing the vorable Co., Casper, supra; City and Maher v. inferences which giving him all favorable (1950). Again, Wyo., P.2d 125 accord 219 from the facts. may be drawn Bancroft (Second) 314A ing to Restatement Torts § (1980).” P.2d 819 Wyo., 611 Jagusch, v. (1965), relationships” give rise “special four Simmons, Wyo., P.2d England v. (1) from harm: protect to a another 1137, (1986). (3) (2) innkeeper-guest; carrier-passenger; Furthermore, Sterling, Stundon under certain voluntary protectee custodian noted we Wyo., 736 P.2d circumstances; in- business limited vitor-invitee, is the case here. “ * * is on the mov- initial burden [t]he the owner or general rule is that genuine is no show that there ant to duty to property owes a occupier of real Steger, Fiedler v. issue of material fact. to maintain the visitor-invitees P.2d 773 Once Wyo., 713 reasonably safe condition. premises in a made, upon showing is incumbent Co., Wyo., 255 P. Loney v. Laramie Auto to come party opposing the motion Dudley v. Mont As stated specific to show that facts forward Co., P.2d Wyo., 192 gomery &Ward genuine of material fact. there is a issue Penney Co. v. quoting from J.C. in are Conclusory affidavits [Citations.] Robison, 193 N.E. 128 Ohio St. specific facts must be sufficient and (1934): 403, 100 A.L.R. 705 v. Davis Oil Com shown. Blackmore “ (1983).” Cooley P.2d 334 pany, succinctly stated ‘The rule is (3d Ed.) Torts, viz.: p. 1259 Yol. from affidavits In this case CBL showed “ * * * owner or he When [the the court depositions submitted to invites by implication expressly lessor] motion, that its status connection with its premises, his wheth- others to come that of significantly than different purpose, or for other er for business possessor of the not the AMC. CBL was reasonably sure that his to be it is Mosterts; and patronized by the theatre danger, and inviting into not them he is premises further, the Mosterts were ordinary exercise end he must to that had by AMC. CBL exclusively controlled to render the prudence care enter the right duty as landlord to ” visit.”' reasonably for the safe patrons about and AMC’s theatre warn ’* * ” However, property 741.) real Cal.Rptr. when is Vander tenant, duty maintain to a the to Alpha leased most v. Company, Beta 164 Cal. instances, to lessee.5 In these App.3d 771, shifts the Cal.Rptr. (Cal. duty, the lessor is under a somewhat lesser App. Dist.1985). CBL, As to we find duty person to as a in act reasonable breach duty. circumstances, including of all the view the conclusion, dowe not believe that our others, injury likelihood of to the serious respect determination appellees with to injury, of the the ness burden AMC and CBL is inconsistent. We hold respective parties to risk. Hall v. avoid duty AMC has a special because of its Co., Quivira Inc., Square Development 9 relationship to family the Mostert as busi- Kan.App.2d Gen invitees, ness superior knowledge and the erally, suspended liability as soon possessed it off-premises of the risks. possession landlord surrenders and control findings coupled These are with the mini- premises good of the in condition mal part inconvenience on the to AMC lessee. 49 Am.Jur.2d Landlord and Tenant any superior knowledge share might it p. 888 have had with the Mosterts. in Given the circumstances this Conversely, did special CBL not have a case, of duty by we find no breach CBL to relationship Mosterts, with the nor it did family inform warn the Mostert have an opportunity warn the Mosterts dangers. off-premises Appellee con CBL’s of the improperly intruding flood without community fell duct well within the stan theater, into the AMC which exclusive- was Assuming dards reasonable conduct. ly possession in Any duty of AMC. of the storm because and flood that CBL have had was satisfied when foreseeable, appel- we do not find its advised tenants the thunderstorm possessed necessary lee CBL control flooding. opportunity or had an warn Accordingly, we reverse and remand to appellee AMC, Mosterts. Here as a tenant to appellee trial court as AMC and possession of CBL had exclusive of the to appellee affirm as CBL. property complete and retained control Finally, the theatres. of practical because THOMAS, J., opinion, filed an considerations, we find that if this court concurring dissenting in part in impose liability a landlord for part. injuries proper off sustained the landlord’s case, ty, as this it would be difficult to CARDINE, J., opinion, filed an place any practical upon limitation such concurring part dissenting liability. Extending liability the cir under THOMAS, J., joins. part, in which cumstances here a landlord stretches URBIGKIT, J., specially filed a legal theory too A far. land concurring opinion. expected to lord cannot be be an absolute THOMAS, Justice, concurring safety every insurer of of each and dis- person upon property senting. who enters which is

exclusively possession in the and control of affirming agree majority I with the his tenant. summary judgment granted favor agree

We are satisfied the did trial court not CBL & Associates. cannot granting judgment ap- against err in claim Ameri- summary disposition “ Inc., Cinema, pellee CBL. and I would affirm determination that a can Multi ‘[T]he ruling precondi care exists is an on the motion essential trial court its negligence. tion founded on dismiss. There is no owed (Hooks espoused the ma- Southern Cal. Permanente invitees such as that Group Cal.App.3d jority. Medical exception applies

5. An lessor to common and its customers in retains generally by areas used tenants control. both lessor’s 1100 majority opin- jority opinion articulated in the

The rule then as to American Multi Cinema, salutary upon that, a effect espouses ion have the Inc. a rule with invitees, Wyoming. respect in the State of Peo- to proprietor vernacular business the complain sometimes of what now has of a business must ple danger warn them of phrase parting place a common of “Have which is remote from the become of business on, From day.” proprietor a nice now owners of and over which the has no con- Wyoming instructing quantum leap very will be trol. This businesses much resem- employees say to to each jump their customer bles the effort of Evil to Knieval the “Now, premises Gorge motorcycle. leaves the let’s be Snake River on his who His (I failed, acknowledge para- out there.” the effort he was careful saved his below, popular suggest from a serial chute. As I paraphrase perhaps television our years.) judges provide para- recent astute trial chute for our court in instances such as disappointing majority is is It this. present found in not to the antithesis Oregon Galicich v. Short Line Rail- In opinion. says Court’s The Court with re- “ ** Company, road Wyo. 123, 54 87 spect P.2d 27 to CBL & Associates [W]e approval this court cited with Re- impose find that if this court were to liabili- statement of the Law Torts ty injuries a landlord sustained off § legal concept That now is found Restate- case, property, landlord’s as in this (Second) ment Torts herein- place any practical § difficult to would be after cited as Restatement 2d: upon liability. Extending limitation such upon under the circumstances here “The fact the actor realizes or legal theory part a landlord stretches the should realize that action on his is duty espouses necessary protection for another’s aid or too far.” Yet the Court a impose upon duty does not of itself him imposes upon rule that American Multi Cin- ema, to take such action.” its Inc. a to warn dangerous premises. conditions off its d, 314, In Restatement 2d Comment it is § said: analysis leading

Even of the case applies “The rule stated in this Section upon by opinion majority relied is unac only peril where the the actor which v. Re ceptable. discussing In Tarasoff placed knows that the other is is not due gents University California, active force which is under the 334, Cal.Rptr. Cal.3d 551 P.2d actor’s control. If force is within the (1976), majority says A.L.R.3d 1166 control, actor’s his failure to control it is that it “was concerned with failure to warn though actively treated as he di- off-premises My reading of an risk.” recting it and not a breach nothing that case demonstrates that it had steps prevent take affirmative con- its premises liability to do with or business (see Comments a tinuance § application simply invitees. It involved the c).” special duty respect of a knowl edge acquired by therapist danger of the I perceive that this is the rule is propensities patient. circumstances, precisely applicable ous The cir these consequently, upon cumstances of that case are as far removed the reliance dealing from is from this case as Wamsutter New authorities with business City. occupier York or the land of no owner is resolving efficacy problem. this addressing owed recognize The court should it is visitor-invitees, majority accurately adopting philosophy found the latter Dudley Montgomery quotes, Ward from part following language from Re- Company, & Comment c: 2d statement concept that when one invites premises, others to come “The result of the rule has a series his business been reasonably he has to the effect that one sure that he of older decisions being, seeing inviting danger. not The ma- human a fellow man dire them into

HOI peril, legal obligation wrongful, subjecting person is under aid the third him, dock, may sit on the smoke liability; comparison his a degree of of cigar, the other Such and watch drown. culpability reaches same result. When by legal been condemned decisions have the true of cause this unfortunate loss is sense, revolting any moral writers considered in context of Cox v. Ver they but thus remain the law. far It nieuw, Wyo., P.2d 1353 there is that, later, appears sooner or inevitable additional reason to negli conclude that no morally such cases of extreme out- gence was committed American Multi rageous and indefensible conduct will Cinema, Inc. arise that there will be further inroads suspect I am so of the wisdom of induc- rule.” the older ing appellant this may believe that there structuring If this court is committed to for prospect recovery be because of the duty outrage, because of moral the court failure majority to warn which the struc- exactly Perhaps say that. it is not should duty case, tures in perhaps as a this I outrage particu- is not a said because moral hypercritical. have I per- become do not larly premise upon adjust sound which any ceive possibility recovery, and struc- people. relationships One of the between turing duty simply permit the case to genius of legal manifestations of the our go extremely forward is unfortunate. The system pragmatism. is its essential As only prospect of appellant assistance to the demonstrates, case which this rules are in this combination of circumstances developed outrage may moral out of not be in some way the defendant will intimi- be essentially pragmatic. dated may into settlement or conclude that imposition The usual for the basis defending costs of exceed value for duty performance is that of that will which the case be settled. do not harm little avoid to others. It makes sense represents progress jurispru- think that in legal to structure a which cannot be a Wyoming. dence in the State of Conse- Buckley cause harm to another. v. quently, though outrage may even moral Bell, P.2d 1089 histor present, depart I would not from the concept intervening ical and the cause proprietor rule that well-established concept as in articulated Restatement 2d is only a business to his owes invitees facts, discussed in detail. articu dangerous protecting them from plaintiffs in in complaint, lated this premises. agree conditions on I cannot instance demonstrate that the doctrine of danger- about there is a warn intervening any cause should re foreclose places ous which exist at remote conditions court, covery by appellant. The trial premises, particularly from and off the likelihood, all have to direct a verdict dangerous arise out when those conditions Cinema, appli for American Multi An Inc. of natural forces. 2d, cation Restatement demon legislature may correct wish to this clearly strates forces cou natural judicial legislation by adopting a measure traveling in pled with the conduct of such statute limits similar to the which in superseding conditions result cause as a instanc- voluntary assistance in certain matter of law. The intervention of those 1-1-120, (Cum.Supp. es. Section W.S.1977 bring forces did about harm different 1987). might kind than what otherwise have re sulted; operation clearly those CARDINE, Justice, concurring and dis- consequences ap forces and the thereof THOMAS, Justice, senting, whom pear extraordinary after the event to be joins. normal; intervening rather than forces 1, 1985, August seven-year-old Kumi On operate independently did situation Mostert when the drowned vehicle negligence created some act of Cinema, swept Inc.; passenger she was a stalled and was part of American Multi Dry part, they per a third into the main flood channel of Creek were attributable to Cheyenne, Wyoming. act The trial court son’s or failure to act and would be Cinema, “Q. you Multi moved granted appellee Range, American When onto Del (AMC) preju- you dismiss with weren’t concerned that the motion to six inches Inc.’s dangerous. Frontier Mall on the surface granted appellee water dice and (CBL), your owners’, testimony? & Associates Is that complex CBL Appellant summary judgment. motion for “A. Yes. appeals.

Gerrit Mostert “Q. Okay. Besides, court, “A. there was one decision letter hundred The district its case, other cars there. dismissing stated: * * unable to cite “Plaintiffs have been any authority proposition for the that an “Q. Now, you kept driving wa- occupier legal owner or of land has got deeper? ter them, duty to warn to business invitees Right.” “A. leaving premises, prior to their Ranger pickup Their Ford continued on dangers point some that exist at about two miles from the mall when premises it and remote from the between Dry stalled as Mr. Mostert drove into the patrons’ if such dan- destination even Creek floodwaters. As the truck car- was gers owner/occupier are known to the downstream, attempted ried Mr. Mostert and unknown to the business invitee.” carry safety, Kumi to but was unable to do affirm- concur the decision of the court Appellant alleges so and she drowned. ing summary judgment as to CBL but dis- appellee severity that AMC knew of the respect to sent with reversal dismis- storm, negligently failed to warn sal of AMC. patrons prevent pa- its and failed to leaving the trons from theatre. FACTS majority, opinion, candidly in its ad- evening August On the mits that: seven-year-old daugh- Mosterts and their “Historically, duty no landowners owed ter, Kumi, patrons were of American Fron- prevent to warn or take action to harm to tier Six Theatres in the Frontier com- Mall the risks invitees where involved were plex Cheyenne. While the Mosterts premises.” outside their viewing p.m. showing the 7:45 of “Eu- court, apparently adopting philoso- This ropean Vacation,” radio announcements phy every that holds that misfortune made the national weather service that man there must be a third befalls warned of a severe thunderstorm and flash pay, party who should undertakes to over- flooding. Civil defense and law enforce- legislate rule all of the common law and to requested ment officials that all citizens society. what it thinks best for That neat Farris, Cheryl remain indoors. em- CBL legislating accomplished by simply bit of ployee, flooding Dry did not know the stating duty has ever existed where However, Creek. she of adverse had heard before, appropriate depart “we find it weather conditions and communicated that from rule the traditional landowner information to AMC and other mall ten- duty has no to warn an invitee of risks off ants. The theatre did not owners advise premises.” the landowner’s warnings. their of the weather suggests support The court from cases approximately When the movie ended at precedent precedent cited as that are not at p.m., park- 9:45 the Mosterts exited into the all, ignoring duty to find a established law ing began lot and home. If drive it was clearly where none exists. We have stated night, light- a dark the mall area was well for condition the law landowner ed; flood, year and if this a 100 be premises that a business be owner Perhaps only no one knew it at that time. driving deep those around in the water “owes a to those he has whom might predicted expressly impliedly could have the storm cause invited to come on Mostert, year premises reasonably a 100 his flood. Mrs. her sure deposition, inviting danger, stated: he is not them into ordinary pru- he must exercise care and 456 N.E.2d 361 and cases premises dence to render his reasonably cited therein. * * * safe to visit. store owner A few courts have held of a ordinary must keep prem- use care to possessor of premises may extend condition, charged ises a safe and he is to an area off which is used protect with an affirmative visi- possessor’s invitees for immediate against dangers tors known to him and ingress egress premises. E.g., against dangers might which he discover Hyatt Banks v. Corp., 722 F.2d reh. by use of Buttrey reasonable care.” (5th denied Cir.1984) 731 F.2d (entrance Coulson, Food Wyo., Stores Division v. way 549, 552, to hotel door); four feet from 20 A.L.R.4th 419 Ollar v. Spakes, 269 Ark. 601 S.W.2d 868 (1980) (dangerous property adja must be The store owner’s to an invitee does cent); dangerous not extend to conditions Piedalue v. outside Clinton Elementary premises. Hawkins, his Johnson v. 32, Mont., School Dist. No. 692 P.2d 20 (1984) (ditch next to driveway); Annot., 39 (1971). typified The unanimous A.L.R.3d 579 single rule is But not a juris Sted Spiros, 69,161 man Ill.App.2d v. 23 N.E.2d diction required has possessor business 590 guest a case in which a at a warn his of dangers beyond invitees known lodge lodge left the property and walked the area of ingress immediate egress. or park onto a state where there was a cliff Apple Orthmann v. Campground, River offering spectacular view of the sur Inc., (7th Cir.1985); 151 F.2d 909 Stedman rounding countryside. guest fell off Spiros, supra, v. 596; 161 N.E.2d at precipice, dropping the fifty more than v. Mineola Hotel and Restau Brunsfeld feet, lodge and sued failing the for to warn rant, Inc., supra, 456 N.E.2d at 366. See danger. Id. 161 N.E.2d at 593. Af also Prosser & Keeton on Torts 61 at 424 § pointing ter out innkeeper that an has the (Second) and Restatement Torts guests same any to his other busi 314A comment c and 332 comment 1 § invitees, nessman to his noting and also lodge that the owner had no control over park, the state granted the Illinois court The court single has not cited a case in judgment lodge to the owner as a matter of possessor which a of land has been held law, stating: failing liable for to warn his invitees of presented “The issue here is how far dangerous conditions on land not under the beyond premises the over which the de- Instead, possessor’s control. the cases cit possession fendant had and control does majority opinion ed in the involve the con defendant’s of due care extend to who, dangerous persons, duct of after leav provide a reasonably safe in- means of ing premises, the cause harm to others. gress egress plaintiff. Clearly, for persons represent These the instrument of precipice the of step brink the were a danger and the cause of the harm. Divi or door, two from the defendant’s Corrections, Dept. sion Health & patio from the stone to which defend- Neakok, Alaska, Social 721 Services opened, ant’s door we would have a dif- (1986) (parolee); P.2d 1121 v. Re Tarasoff presented ferent case than is now to us. * * * gents University California, 17 334, Cal.Rptr. Cal.3d 131 551 P.2d not, course, “Defendant could be ex 1166, (1976); 83 A.L.R.3d Petersen v. pected against to warn the innumerable State, (1983) Wash.2d 671 P.2d dangers hidden in a seven hundred acre (mental patient); Tottenhoff, McClellan v. park, expected light nor could he be (1983) (minor Wyo., liquor dangerous those same potentially places Here, purchaser). the of dan instrument during visibility the darkness or when ger premises was a condition of miles two restricted.” Id. at 597-598. See also nothing from the theatre. The cases have v. Mineola Hotel and Restau Brunsfeld rant, Inc., Ill.App.3d premises liability. Ill.Dec. to do with court, thus, relying upon especially light cases hav- of the fact that hundreds ing nothing premises liability, to do travelling of cars were Range on Del Bou- opinion by incorrectly seeks buttress Cheyenne. levard and all over considering support, again from a case 5. The policy fifth consideration is a premises having nothing to do with liabili- preventing light future harm. of what ty, key policy factors listed as: four, paragraph has been said in it is “(1) foreseeability of harm to the policy doubtful that this would be affected. (2) plaintiff, the closeness of the connec- 6. The extent of upon the burden tion between the defendant’s conduct and defendants. The liability by extension of suffered, (3) degree boggling. the decision of this court is mind certainty plaintiff inju- suffered future, In the apply every it will busi- (4) ry, the moral blame attached to the mall, every ness in Chey- conduct, (5) policy pre- defendant’s enne, every person having any business venting harm, (6) future the extent of the relationship subject with another. It will defendant, (7) burden the conse- persons potential injuries quences community court miles, from accidents that occur ten two system, availability, cost and miles, perhaps hundreds of miles from the prevalence of insurance for the risk in- conditions, business because of blizzard Richardson, volved.” Gates v. closures, rains, tornadoes, icing, heavy road perhaps even construction work Although seriously question propriety the business be aware. The business considering policy these factors find- proprietor will have no control over ing case, a review of those occurs, where the accident proves interesting suggests factors ability right remedy defect, result different from that reached the no control over the actions or risks under- majority. taken his customer. 1. Foreseeability plain- of harm to the consequences community 7. The tiff. The theatre was not warned of flood- system. long and the court It has been a ing. Would patron it have foreseen that a practice join party every as a defendant Boulevard, Range would drive onto Del person any potential liability inju- for running six inches of water and crowded Thus, ries suffered in an accident. an cars, with hundreds of and drive miles two accident, auto it has been common for suit down the deepening road into water and against only to be filed not the drivers of finally into a flooded creek bed and this city posting the cars involved but the for accident I result? think not. warning signs, or traffic Wyo- the state of 2. The closeness the connection be- ming for highways, construction of its tween the inju- defendants’ conduct and the manufacturer of the car for de- defective ry suffered. I would conclude that sign, component and manufacturers of place being of this accident more two than parts of expect the cars. Now I we theatre, miles from the the defendants’ joined see mall owners and also businesses conduct was remote from injury suf- parties for failure to warn in all acci- fered. any way dents which is in in- weather volved. degree

3. The certainty plain- tiffs questioned. suffered is not cost, availability, prevalence The of insurance for

4. The the risk involved. It is moral blame attached to defend- doubtful whether ants’ conduct. It insurance exists for this cannot be claimed that exist, liability, kind of if deliberately theatre owners it does it will withheld plaintiffs. exceedingly expensive. information to cause harm When the the- thunderstorms, warnings, pay expensive premi- Severe weather atre must insurance hail, tornadoes, claims, ums to money blizzards and ice are com- cover these must monplace Wyoming. It only is doubtful that come from The place somewhere. it a warning difference, any would have made can come from is theatre tickets. We have

HQ5 they seen of ski lift tickets ascend from the cost fore exited into a parking dark lot for just a few seasons. It is $12.00 $35.00 upon roadways, travel unknowing of their not unreasonable believe the cost serious risk for the homebound journey. might if triple theatre tickets double or One would think warning that with af- might theatre owners be held liable forded, opportunity to at least listen to the rain accidents that result from storms or radio, telephone car homes, to their ten, twenty, thirty blizzard conditions life that was lost a flooded road nearby pa- from away miles the theatre after the might have been saved. I see this as a trons left to return home. have subject for jury review. The issue was not factors, Balancing all of the above it off-premises liability for per- I theater. the journey seems that which this a duty ceive of host to business invitee to expanding liability court now embarks in is communicate his knowledge of facts un- justified by not the review of factors patron known to the of unusual and unex- determine effect and not the best inter- pected danger. exit-time The home of society. est of knowledge and needed communication was issue in real this case whether theater, in the it and was there that the Wyoming Supreme Court should overrule occurred, tort if it did. It simply does not precedent its own and the common law matter whether the clear and obvious dan- create a unknown in other Ameri- ger inculcated in to advise arises jurisdiction. thought can The trial court adjacent a gunfight door, from to the north agree. we not. should arrive, or, here, a tornado about to flood- I would affirm. shopping ed conditions on center access roadways.

URBIGKIT, Justice, specially concur- ring. plaintiff pro- Whether would have night dark, came; the rains if differently ceeded he had told been what some say one-in-a-hundred-years flood shopping center and manage- theater theater, was to have been. Within ment knew is here not disclosed. The child exposed only to make believe of the silver later drown in the flooded road was flicks, the audience was unwarned opportunity denied avoidance which would anger of nature displayed. outside have existed available information had Shopping manage- Who knew? center not withheld. been knew, ment and shop told owners. Theater Assumptive the in character of the knew, management perforce not told present disposition not case which does af- among one its paying patrons who other- significance ford same and breadth wise were not be as forewarned. Then trial, information be at I later to disclosed believe, expired film by make jury a consider believe should whether they side reality door with were extruded duty responsibilities zone of host to a as an endangered by ignorance audience invitee, partic- under whatever missing to by contributed de- information may ular as circumstances have been exis- signedly withheld. here, life-protecting tent when information concur, recognize I specially case invitee, was not otherwise available as what it is: a pleading dismissal legal responsibili- be could denied without presented appellate review, here for as to ty. incompletely may issue be charac- clearly be definable in well-established warn, than, duty as a as I terized rather duty negligence, rules of and not ade- it, perceive a societal as a reasonable quately discernible in moralistic character- obligation your guest care of notification to ization, applied pro whether to con. or you he know and does not what The subject should be tailored common recognizable danger. departure constitute a sense and a theater owner —whether you should This is the “tell what tell his them know” care one-in-a-hun- dred-years flood had occurred outside be- standard. cases, negligence may be duty,

“A obligation, to law defined as an MAYFLOWER RESTAURANT effect, recognition to con- give COMPANY, Appellant standard of conduct particular form to a (Defendant), Keeton, Prosser and another.” toward Kutsulis, (Defendants), P. et al. Louis Torts at Law of v. enjoy sophistication of differ- I do not GRIEGO, Henry Richard on-premis- the flood entiating gunfight (Plaintiff). Appellee creating off-premises as es guests they furnish information when Henry GRIEGO, Richard will, exposed to the upon departure, be (Plaintiff), Appellant only to the host. danger known v. relationship give special A sufficient MAYFLOWER RESTAURANT COMPA clearly present duty to act was rise to the NY, Wyoming corporation, and John result theater at that time in that Lambousis, (Defendants), Appellees (Second) of Restatement flood. 315; Regents Univ Torts § Tarasoff (Defendants). Kutsulis, Louis P. et al. 425, 131 ersity California, 17 Cal.3d 86-279, Nos. 86-280. (1976); com Cal.Rptr. 551 P.2d 334 Cabrera, pare generally Negligence Liabil Supreme Wyoming. Court of ity Occupiers Landowners Aug. Another: On a Criminal Conduct of Day in One Can Foresee Clear California Forever, 23 Cal.W.L.Rev. 165 con

sidering subject the somewhat different premise liability.

criminality injury agree

I with this court concurrence opinion, jury that a should make the

negligence violation assessment by erratically

rather than decision em-

ployed unjustified in differenti- rules of law danger exposure

ation to the real world of Tader, protection.

and needed Tader v. Consequently, judgment concur in reversal of the Multi-Cinema, Inc.,

granted to American

order to their jury invite construction

composite good judgment and common Analysis

sense. of lack of or exercised due pose jury

care does not an insurmountable

responsibility.

Case Details

Case Name: Mostert v. CBL & Associates

Court Name: Wyoming Supreme Court

Date Published: Aug 14, 1987

Citation: 741 P.2d 1090

Docket Number: 86-220

Court Abbreviation: Wyo.