Man Clothes-Lined by Calf Sues Land Owners

In Kansas, the old distinction of different levels of the duty of care owed to licensees versus invitees entering the land of another was eliminated in the 1990s by a Kansas Supreme Court opinion, and a uniform standard of reasonable care was implemented.  However, the duty owed to trespassers, who come onto another’s property without permission, remained the same. For trespassers, land owners have a duty only to refrain from willfully or wantonly harming the trespasser.

Sometimes because of the immediacy of the need to act, persons must enter the land of another without permission to prevent harm to other persons, property, or things. This is considered a privileged necessity. In a recent case, the Kansas Supreme Court determined that persons entering another’s property without permission, but pursuant to this privilege, should be entitled to the same reasonable care standard of protection by the land owner that other invited entrants receive.

In this case, the issue started when the plaintiff noticed the defendants’ cows were wandering loose and heading toward the highway. To prevent harm to the cattle or passing motorists, the plaintiff and a friend herded the cattle back to the defendants’ yard. The gate to the pen was open, so the plaintiff herded them past the gate and into the pen. While doing so, a calf became tangled with a clothesline in the defendants’ yard and started choking. The plaintiff freed the calf. Once freed, the calf took off running toward the pen, but caught the clothesline somehow and knocked the plaintiff over. The plaintiff landed on his back on a cement pad, the force of which broke his back. The plaintiff sued the cows’ owners for negligence.

At the trial court, the defendants sought summary judgment. The key issue was whether the plaintiff was a trespasser for whom no duty was owed or whether he was a licensee or invitee for whom the defendants owed a duty of reasonable care. The plaintiff argued he entered the land under a private necessity privilege to prevent harm to the cattle by returning them. The trial court disagreed and granted summary judgment to the defendants. It held the plaintiff was a trespasser when he entered the yard without the defendant’s permission to return the cows and, therefore, the defendant did not breach any duty owed to the plaintiff.

The defendant appealed. The Court of Appeals affirmed and held the private necessity privilege did not grant a duty of greater care than that owed to a trespasser after the distinction between licensee and invitee was abolished in Kansas. The defendant sought further review from the Kansas Supreme Court, which was granted.

The Kansas Supreme Court accepted the plaintiff’s invitation to adopt two sections of Restatement (Second) of Torts §§197 and 345 to iterate the privilege necessity doctrine in Kansas jurisprudence. Specifically, §197 creates a privilege to enter the land without permission in the event of necessity to prevent serious harm to another person, land, or property unless the harm is the result of the person’s own tortious conduct. The Court modified the exception portion to be analyzed under comparative fault principles. Section 345 states that a person who enters land in the exercise of a privilege is to be treated as a licensee. The Court modified this section to be analyzed under the principles of reasonable care to the entrant.

Because the trial court’s summary judgment ruling was decided based on the determination that the plaintiff was a trespasser, the Court remanded the case to the district court for further proceedings under the reasonable care standards as expressed in the opinion.

A dissent was filed in the case. The dissent agreed with the adoption of the Restatement sections, but disagreed that the case should be remanded. The dissent argued the relevant undisputed facts did not show any negligence on the part of defendants. The dissent noted that the clothesline was an obvious danger. Legally, the landowners had no duty to remove obvious dangers from their property. The dissent also stated that alternatively the negligently hung clothesline was not the proximate cause of plaintiff’s injuries; it was the calf running loose. Based on this, the dissent argued the case should not have been remanded, but instead, summary judgment should have been upheld on alternative grounds. Wrinkle v. Norman, No. 103,373, 2013 Kan. LEXIS ____ (Kan. Sup. Ct. May 16, 2013).