Jоhn and Donna Wellhausen (the Wellhausens) appeal the district court’s order granting summary judgment in favor of the University of Kansas (University). The Wellhausens claim the district court erred in finding their wrongful death claim was barred by the discretionary function and design immunity ex *103 ceptions to the Kansas Tort Clаims Act (KTCA), K.S.A. 75-6104(e) and K.S.A. 75-6104(m), respectively.
We hold the district court properly granted summary judgment in favor of the University based upon the application of the discretionary function exception, K.S.A. 75-6104(e). The University owed no duty to warn the Wellhausens’ son, who was a tenant in a University dormitory, of the open and obvious danger that would result from crawling out of the narrow window opening of his seventh-floor dormitory room, and attempting to drop down to a 2-foot-wide concrete ledge several feet below the window, 45 to 50 feet above the ground. Further, we can find no obligation on the part of the University to protect students from their own reckless and negligent acts.
Additionally, the district court did not err in granting summary judgment on any claims relating to the design of the dormitory building, as such claims are barred by the design immunity exception, K.S.A. 75-6104(m).
Factual and procedural background
In September 2003, the Wellhаusens’ son, Eric WeUhausen, was a freshman at the University. Eric resided in a seventh-floor room at Oliver Hall, a dormitory on the University’s campus. Each dormitory room has a casement window located 4 feet 10 inches above a 2-foot-wide concrete “eyebrow ledge” thаt runs along the exterior of each floor of Oliver Hall. The casement windows open only 15.75 inches toward the eyebrow ledge; further, each window has an interior screen fastened with clips screwed into the aluminum window frame.
Pursuant to University policy, Eric and his mother signed a student-housing contract under which Eric agreed to abide by the policies and regulations printed in the University’s student-housing handbook. The handbook prohibited students “at all times” from removing casement window screens, exiting the building through windows, or being on window ledges. Eric also agreed to follow the terms of a “Safe and Secure” poster mounted in each dorm room that directed students not to remove the window screens and never to exit tire room through the window.
*104 On September 12, 2003, Eric climbed through the casement window of his seventh-floor room, approximately 50 fеet, 9 inches above ground, and stepped onto the eyebrow ledge to smoke a cigarette. He fell off the ledge, resulting in his death. A medical examiner determined Eric’s blood-alcohol level at the time of his death was .16, significantly impairing his motor coordination аnd judgment.
Eric’s parents, the Wellhausens, commenced a wrongful death suit against the University, alleging the eyebrow ledge presented a dangerous condition and the University was negligent for fading to correct tire condition or adequately warn Eric of the danger.
The district court granted summary judgment for the University, finding the Wellhausens’ claims were barred by two exceptions to the general rule of liability under the KTCA — the design immunity exception, K.S.A. 75-6104(m), and the discretionary function exception, K.S.A. 75-6104(e). The court further found the Wellhausens faded to establish that the alleged negligеnce by the University was the proximate cause of Eric’s death. Finally, the district court concluded no reasonable jury could find that the University’s negligence exceeded 50 percent.
On appeal, the Wellhausens argue the district court erred in granting summary judgment becausе neither the discretionaiy function exception nor the design immunity exception bars their claims. Further, they claim genuine issues of material fact preclude summary judgment.
‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissiоns on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entided to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the сonclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from dre evidence, summary judgment must be denied.’ ” ’ [Citations omitted.]” Korytkowski v. City of Ottawa,283 Kan. 122 , 128,152 P.3d 53 (2007).
*105
To establish a claim for wrongful death based on negligence, thе Wellhausens must prove the existence of a duty, a breach of that duty, injury, and a causal connection between the breach of the duty and the injury suffered. Whether a duty exists is a question of law, but whether the duty has been breached is a question of fact. Appellate cоurts apply a de novo standard when reviewing whether a duty exists.
Robbins v. City of Wichita,
As is often stated, under the KTCA, liability is the rule and immunity the exception. See K.S.A. 75-6103; K.S.A. 75-6104. Further, it is the obligation of the governmental entity to prove it is entitled to application of any of the exceptions in K.S.A. 75-6104.
Nero v. Kansas State University,
Application of KS.A. 75-6104(e)
The district court found thе Wellhausens’ wrongful death claim to be barred by the discretionary function exception to the KTCA, K.S.A. 75-6104(e), which bars claims against a government entity or employee “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.”
The Wellhausens point out that K.S.A. 75-6104(e) does not apply when “there is a clearly defined mandatory duty or guideline.”
Nero,
1) Knoion and obvious danger
The University concedes that as a landlord, it owes a duty of reasonable care to its student-tenants. However, it points out that this duty does not require it to warn of known and obvious dangers such as the danger presentеd by Eric’s actions here. See
Tillotson
*106
v. Abbott,
Citing Restatement (Second) of Torts § 343A, comment b (1964), the Wellhausens counter that the University failed to demonstrate that the danger of stepping out onto the ledgе was known or obvious because the University did not show that Eric appreciated the danger. However, the Restatement advocates an objective test to determine whether a danger is known and obvious. See Restatement (Second) of Torts § 343A, comment b (no obligation to protect against dangers of which the invitee/reasonable person knows or has reason to know). Clearly, even if Eric lacked actual knowledge of the danger, he had reason to know of the open and obvious danger which might result from climbing out of a seventh-floor dormitory room window in order to stand upon a 2-foot-wide ledge several feet below the window.
Because the danger facing Eric was known and obvious, we find the University was not obligated to warn him of the danger.
2) Affirmative duty to minimize risk
Alternatively, the Wellhausens argue that even if the danger wаs known and obvious, the University nevertheless had an affirmative duty to warn or protect against the danger because it was foreseeable that Eric’s accident might occur. They point to evidence the University knew students accessed the dormitory ledges, including reported violations of the University’s policy against removing the window screens and prior accidents involving students falling from dormitory ledges or roofs.
In
Miller v. Zep Mfg. Co.,
*107 For instance, in Miller, the plaintiff was injured when he inadvertently walked into a concrete pit while sealing the floors of an industrial building. Although the plaintiff was aware of the danger, the court applied the stricter duty because the employer had reason to suspect the plaintiff “would be distracted and forget to protect himself from the dangerous condition of the open pit.” 249 .Kan. at 45.
The court in
Miller
relied upon
Scales,
Further, in
Crowe,
In contrast to Miller and Scales, the evidence here does not indicate that Eric was distracted or inadvertently failed to appreciate the danger of his actions. While the University may have known of other incidents involving students taking similar risks in the past, the evidеnce does not indicate that any of these other incidents involved inadvertent or distracted actions by students. Further, unlike the plaintiff in Crowe, Eric undoubtedly could have avoided the risk he affirmatively undertook here.
The evidence established that Eric was intoxicated and decided to smoke a cigarette by crawling out of the narrow opening of his *108 seventh-floor dorm room window, and then dropping down approximately five feet to a 2-foot-wide ledge, some 45 to 50 feet above the ground. Under these circumstances, we conclude the University, as a landlord, did not owe its student-tenants any higher duty than that of reasonable care, and was not required to take further steps to further minimize the risk of this obvious danger.
Moreover, as the University points out, the Wellhausens’ argument implies that the University has an obligation to proteсt students from themselves. However, we can no longer base a University’s liability on the doctrine of
in loco parentis.
In
Nero,
our Supreme Court rejected that doctrine as “outmoded and inconsistent with the reality of contemporary collegiate life.”
Under the facts of this case, we conclude that while the University, like any landlord, had a duty to act reasonably to protect the safety of its student-tenants, it did not have an affirmative duty to prevent Eric Wellhausen from acting irrеsponsibly. Eric knew or should have known of the danger presented by his actions. Accordingly, the district court did not err in finding the Wellhausens’ claim was barred by the discretionaiy function exception, K.S.A. 75-6104(e).
Application of KS.A. 75-6104(m)
The Wellhausens also claimed the district court erred in concluding the design immunity exception, K.S.A. 75-6104(m), precluded their claim that the University “created the dangerous condition . . . permitted the dangerous condition to exist and failed to correct the dangerous condition.” K.S.A. 75-6104(m) provides governmental immunity for claims regarding:
“the plan or design for the construction of or an improvement to public property ... if the plan or design is approved in advance of the construction or *109 improvement by the governing body of the governmental entity or some other body or employee exercising discretionary authority to give such аpproval and if the plan or design was prepared in conformity with the generally recognized and prevailing standards in existence at the time such plan or design was prepared.”
The Wellhausens do not suggest that Oliver Hall was not constructed in conformity with the recognized standards of the time. Instead, they argue the statute does not apply because they presented claims independent of the design of the building. See, e.g.,
Dunn v. U.S.D. No. 367,
Thus, while the district court correctly found that the design immunity exception precludes any claim made by the Wellhausens regarding the design of the dormitory building, that exception does not preclude any independent clаims regarding a failure to warn or to minimize the risk of a defective design. However, as discussed above, the University had no affirmative duty to warn in this case, and even if the district court erred in applying the design immunity exception, summary judgment was appropriate under the discretionary function exception.
The district court did not err in granting summary judgment in favor of the University on the Wellhausens wrongful death claim.
Affirmed.