Mosqueda v. BBR Investments, LLC et al
Filing
49
MEMORANDUM AND ORDER denying 28 Motion to Dismiss by defendant Sonic. Signed by District Judge Julie A. Robinson on 5/9/2013. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES MOSQUEDA,
)
)
)
)
)
)
)
)
)
)
_
Plaintiff,
v.
SONIC OF NEWTON, INC. and
MICHELLE CRAWFORD
Defendants.
Case No. 12-1450-RDR
MEMORANDUM AND ORDER
This is a personal injury action brought on the basis of
diversity jurisdiction.
Plaintiff alleges that he was riding a
bicycle on a sidewalk when he was struck by a vehicle driven by
defendant Michelle Crawford as she was exiting as a business
visitor from a Sonic restaurant owned by defendant Sonic of
Newton,
Inc.
negligent
adjacent
(“Sonic”).
by
to
creating
an
Plaintiff
or
alleges
maintaining
adjoining
building
“a
which
that
Sonic
driveway
forced
was
immediately
its
business
visitors operating motor vehicles to exit the premise[s] in such
a
manner
that
the
motorists
had
a
‘blind
spot’
and
were
physically unable to observe northbound pedestrians utilizing
the sidewalk.”
that
Sonic
business
‘blind
Doc. No. 23, ¶ 23.
“negligently
visitors
spot’
or
or
failed
to
pedestrians
hazardous
Plaintiff further alleges
utilize
signs
warning
using
the
sidewalk
condition
it
created
of
its
the
and/or
maintained;
other
and
safety
negligently
device[s]
failed
that
to
use
would
safety
enable
mirrors
motorists
or
or
pedestrians to properly observe one another at this blind spot.”
Id. at ¶ 24.
Plaintiff also makes a claim for punitive damages,
alleging that Sonic knew or should have known of the hazardous
situation
failure
it
to
created
warn
and
that
constituted
its
creation
gross
negligence
reckless disregard for the safety of others.
This
dismiss
case
for
FED.R.CIV.P.
is
before
failure
to
the
court
state
12(b)(6).
a
The
of
motion
hazard
and
and
wanton
and
Id. at ¶¶ 27-30.
upon
claim
a
Sonic’s
brought
motion
to
pursuant
to
attacks
plaintiff’s
negligence claim against Sonic primarily upon the grounds that
Sonic did not owe a duty to protect persons on the sidewalk
against the negligence of exiting business invitees.
The motion
also argues that plaintiff’s punitive damages claim should be
dismissed for the same reason and because it is not stated with
sufficient particularity.
The court shall deny Sonic’s motion because the complaint
states a claim for a breach of duty recognized by Kansas courts
and because the punitive damages claim is adequately pled.
I.
FED.R.CIV.P. 12(b)(6) standards
In ruling upon a motion to dismiss brought pursuant to
FED.R.CIV.P.
pleaded
12(b)(6),
factual
the
allegations
court
in
2
assumes
the
as
complaint
true
and
all
well-
determines
whether they plausibly give rise to an entitlement of relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A complaint must
contain sufficient factual matter to state a claim which is
plausible - - and not merely conceivable - - on its face.
“A
claim
has
facial
plausibility
when
the
plaintiff
Id.
pleads
factual content that allows the court to draw the reasonable
inference
alleged.”
that
the
Id.
defendant
The
court
is
liable
need
not
for
accept
allegations which state only legal conclusions.
the
as
misconduct
true
Id.
those
Plaintiff
must make allegations which show more than a sheer possibility
that a defendant has acted unlawfully - - it is not enough to
plead facts that are “merely consistent with [a] defendant[‘s]
liability.”
II.
Id.
The complaint adequately pleads a breach of duty by Sonic.
Sonic asserts that plaintiff’s complaint fails to state a
negligence claim because the facts do not establish that Sonic
owed a duty of care to plaintiff.
Accepting the allegations in
the amended complaint as true, Sonic created and maintained a
driveway adjacent to a building on adjoining property (owned,
the
court
assumes,
by
a
non-party
to
this
action)
so
that
business visitors exiting Sonic’s premises had a “blind spot”
when they looked south to observe if pedestrians were using the
sidewalk.
In addition, Sonic posted no warning signs or mirrors
to mitigate the danger of the “blind spot.”
3
Sonic argues that it has no duty to control the negligent
conduct of its patrons as they drive away from the restaurant
and that the State of Kansas has a law, K.S.A. 8-1555, requiring
drivers, as they emerge from a driveway, to stop immediately
prior
to
driving
onto
a
sidewalk
or
extending across a road or driveway.
by plaintiff or the court.
onto
the
sidewalk
area
Neither point is disputed
But, neither point, in the court’s
opinion, is inconsistent with plaintiff’s claim that defendant
has a duty to avoid creating a hazardous condition.
Defendant
also cites case authority from jurisdictions other than Kansas.1
But, these cases do not involve obstructions to vision and are
more relevant to the proposition (not disputed by plaintiff)
that defendant had no duty to control the negligent driving of
its business visitors.
Plaintiff
duties
are
at
asserts
issue
that
in
this
the
following
matter:
1)
legally
recognized
a
as
duty
a
land
occupier to refrain from creating view obstruction which might
cause foreseeable harm to users of a public right of way –
citing
Boudreaux
v.
Sonic
Industries,
Inc.,
729
P.2d
514
(Okla.App. 1986); 2) a duty as an owner of land adjacent to a
sidewalk to construct and maintain structures so that they do
not endanger the safety of lawful sidewalk users – citing P.I.K.
1
Pulka v. Edelman, 358 N.E.2d 1019 (N.Y. 1976); Loconti v. Creede, 564
N.Y.S.2d 823 (N.Y.S.Ct. 1991); Gelbman v. Second National Bank of Warren, 458
N.E.2d 1262 (Ohio 1984).
4
Civil 4th § 126.50 and three Kansas cases2; 3) a duty as a land
occupier to act with reasonable care in maintaining the land –
citing P.I.K. Civil 4th § 126.02 and Boudreaux; 4) a duty as a
land
owner
keeping
and
the
business
business
operator
place
to
safe
use
and
reasonable
to
warn
of
care
in
dangerous
conditions – citing P.I.K. Civil 4th § 126.03 and Justice v. CSX
Transportation, Inc., 908 F.2d 119 (7th Cir. 1990); and 5) a duty
as
the
outside
possessor
of
the
caused
land
land
to
by
prevent
a
physical
structure
or
harm
other
to
those
artificial
condition which involves an unreasonable risk of harm – citing
Restatement
(Second)
of
Torts
Section
364
and
cases
from
jurisdictions other than Kansas.
Sonic
does
not
dispute
that
Kansas
courts
follow
the
principles set forth in the P.I.K. sections and Kansas cases
cited by plaintiff.
Sonic contends, however, that the legal
duties described by plaintiff are not applicable here because
the cases cited in support involve visual obstructions or other
hazards
holder.
constructed
upon
the
property
of
the
alleged
duty
In this case, we assume the building which allegedly
obstructed
the
premises
was
however,
in
vision
not
on
accordance
of
drivers
Sonic’s
with
exiting
property.
the
2
amended
We
Sonic’s
further
complaint,
business
assume,
that
the
Durst v. Wareham, 297 P. 675 (Kan. 1931); Bennett v. Citizen’s State Bank,
163 P. 625 (Kan. 1917); Schrader v. Great Plains Electric Co-op, Inc., 868
P.2d 536 (Kan.App. 1994).
5
alleged “blind spot” did not exist until Sonic constructed its
exit driveway close to the building.
Thus, Sonic is alleged to
have used its land or created a condition upon its land in a
manner
which
adjacent
allegedly
property.
endangered
This
is
recognized by Kansas courts.
an
the
safety
alleged
of
breach
persons
of
a
on
duty
See Durst, 297 P. at 676 (citing
rules against the creation of a nuisance or hazard to persons
traveling on abutting or adjacent highways) and P.I.K. Civil 4th
§§
126.02,
126.03
and
126.50.
Therefore,
the
court
denies
Sonic’s argument to dismiss plaintiff’s negligence claim.
III.
Plaintiff’s punitive damages claim is adequately pled.
Sonic argues that plaintiff’s claim for punitive damages
should be dismissed for two reasons.
same
argument
claim.
that
Sonic
made
against
First, Sonic makes the
plaintiff’s
negligence
The court rejects this argument for the reasons already
discussed.
Second, Sonic contends that plaintiff’s punitive damages
claim is not pleaded with the required particularity.
asserts
that
plaintiff’s
allegations
are
Sonic
insufficient
to
describe a claim for punitive damages because plaintiff merely
adds allegations of “gross negligence,” “wanton disregard” and
“reckless disregard” to the other allegations of negligence that
are contained in the complaint.
relying
upon
information
and
Sonic also accuses plaintiff of
allegations
6
that
should
not
be
considered
by
the
court
when
assessing
the
adequacy
of
a
complaint upon a Rule 12(b)(6) motion.
The court shall reject Sonic’s arguments.
As plaintiff
contends, the complaint contains allegations which, assumed to
be true, support a claim of wanton conduct that would suffice to
support punitive damages.
of punitive damages.
Wanton conduct will support a claim
K.S.A. 60-3702(c).
Wanton conduct may be
shown by evidence that an act was performed with a realization
of the imminence of danger and that the act was performed with a
reckless
disregard
or
complete
consequences of the act.
(Kan. 2012).
indifference
to
the
probable
Adamson v. Bicknell, 287 P.3d 274, 281
FED.R.CIV.P. 9(g) provides that an item of special
damages,
such
stated.”
This has been termed a “relatively liberal standard”
which
may
be
as
punitive
satisfied
if
damages,
a
“must
complaint’s
be
specifically
allegations
“’are
definite enough to enable the opposing party to prepare his or
her responsive pleading and a defense to the claim.’”
A.H. v.
Knowledge
(D.Kan.
Learning
Corp.,
2011
WL
2084143
*2
5/24/2011)(quoting 5A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1311 at 354-55 (3d ed. 2004)).
Plaintiff has alleged facts in the amended complaint which make
it plausible to believe that Sonic knew or should have known
that it created a hazardous situation which forced its business
invitees to exit Sonic’s premises so that they drove past a
7
“blind spot” preventing them from seeing northbound pedestrians
using the sidewalk.
These allegations are sufficient in the
court’s opinion to state a plausible punitive damages claim.
See Cerretti v. Flint Hills Rural Elec. Co-op. Ass’n, 837 P.2d
330,
345-46
(Kan.
1992)(sustaining
punitive
damages
award
against an electric utility which was aware of its hazardous
power line strung too low over a lake which hosted sailboats);
Gruhin
v.
City
of
Overland
Park,
836
P.2d
1222,
1225-26
(Kan.App. 1992)(evidence that golf club employees had knowledge
of a deep and hazardous hole on the course and took few steps to
prevent cart drivers from striking the hole, was sufficient to
support claim of wanton negligence and reckless disregard).
IV.
Conclusion
For the above-stated reasons, defendant Sonic’s motion to
dismiss (Doc. No. 28) shall be denied.
IT IS SO ORDERED.
Dated: May 9, 2013
s/
Julie A. Robinson
United States District Judge
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