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

8