                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                       March 29, 2018
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
PHYLLIS N. GREGORY,
individually and as the personal
representative of the estate of
RICHARD D. GATES, deceased,

       Plaintiff - Appellant,
                                                    No. 17-3168
v.                                         (D.C. No. 6:15-CV-01207-EFM)
                                                      (D. Kan.)
CREEKSTONE FARMS PREMIUM
BEEF, LLC,

       Defendant - Appellee.
                      _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
                  _________________________________

      This appeal involves an award of summary judgment to the defendant

on claims involving premises liability. For these claims, the defendant had

only limited duties for dangers that are considered “open and obvious.”

This limitation lies at the center of this appeal: The victim was killed by

cattle, and the danger from cattle is ordinarily open and obvious. Here,

though, the cattle were contained in a pen that had been configured in a

*
      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But this order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
way that allegedly increased the danger. The fact-finder could reasonably

view the configuration, called a “blind alley,” as a defect that was not

“open and obvious.” As a result, a genuine issue of material fact existed on

the openness and obviousness of the danger. In light of this issue of

material fact, we reverse the award of summary judgment.

I.    Mr. Gates’s Death at Creekstone

      The plaintiff’s son (Mr. Richard Gates) was a truck driver who

delivered cattle to a processing plant (Creekstone Farms Premium Beef,

LLC). Mr. Gates arrived at Creekstone and was ready to deliver the cattle

into one of two receiving pens. But both were occupied at the time. So

Creekstone’s employee, Mr. Jeremy Irvin, worked to clear the west pen. To

do so, he walked between the two pens in a so-called “handler’s alley,”

moving the cattle toward the exit for the west pen. Mr. Gates tried to help,

entering the west pen behind the cattle.

      After Mr. Irvin cleared the west pen, he set out to move the cattle out

of the east pen. He started by walking south in the handler’s alley to try to

move the cattle toward the exit. Mr. Gates entered the east pen behind the

cattle, trying again to help Mr. Irvin.

      Mr. Gates may have known that entering the east pen, with nearby

cattle, was dangerous. But he apparently did not know that the cattle might

not see any way to leave the east pen. The plaintiff’s theory is that this



                                          2
inability to see the exit is why one animal turned around and ran northward

in the east pen, plunging into Mr. Gates and killing him.

      Invoking this theory, the plaintiff alleged that Creekstone had

negligently configured the east pen to create a blind alley, had failed to

establish safety rules for the unloading of cattle, and had failed to provide

enough staff to receive deliveries and move the cattle out of the receiving

pens. On all claims, the district court granted summary judgment to

Creekstone, holding that it owed no duty to Mr. Gates because the danger

from the cattle was open and obvious.

      In our view, this rationale overlooks the significance of the alleged

blind alley. The danger from a blind alley might not have been open and

obvious. If not, Creekstone’s duty to Mr. Gates would have encompassed

the danger. Thus, an open and obvious danger from cattle could not alone

justify an award of summary judgment to Creekstone.

II.   Standard of Review

      In reviewing this award, we engage in de novo review. See Pompeo v.

Bd. of Regents of Univ. of N.M., 852 F.3d 973, 981 (10th Cir. 2017).

Summary judgment is appropriate only if the movant establishes that

(1) there is no genuine dispute of a material fact and (2) the movant is

entitled to judgment as a matter of law. Lenox MacLaren Surgical Corp. v.

Medtronic, Inc., 762 F.3d 1114, 1118 (10th Cir. 2014).



                                      3
       We apply the summary-judgment standard against the backdrop of

Kansas’s substantive law. See US Fax Law Ctr., Inc. v. iHire, Inc., 476

F.3d 1112, 1118 (10th Cir. 2007) (“Federal courts sitting in diversity

typically apply the substantive law of the forum state.”). To ascertain

Kansas’s substantive law, we “endeavor to predict how [the Kansas

Supreme Court] would rule.” Johnson v. Riddle, 305 F.3d 1107, 1118-19

(10th Cir. 2002).

III.   Duty of Care When the Danger is Open and Obvious

       The Kansas Supreme Court defines negligence as the lack of due care

that a reasonable person would exercise under the circumstances. Rowell v.

City of Wichita, 176 P.2d 590, 595 (Kan. 1947). Thus, recovery for

negligence requires proof of a duty of care. Id. Generally, everyone bears a

duty to exercise reasonable care to avoid injuring others. See Striplin v.

Kan. Gas & Elec. Co., 461 P.2d 825, 828 (Kan. 1969). But under premises-

liability principles, this duty does not ordinarily extend to open and

obvious dangers. Scales v. St. Louis-S.F. Ry. Co., 582 P.2d 300, 306 (Kan.

Ct. App. 1978); see Miller v. Zep Mfg. Co., 815 P.2d 506, 514 (Kan. 1991)

(“Generally, a possessor of land is under no duty to remove known and

obvious dangers.”).

       The Kansas Supreme Court has not squarely decided whether the

existence of an open and obvious danger involves an issue of law or fact.

But in an unpublished opinion, the Kansas Court of Appeals regarded the

                                      4
existence of an open and obvious danger as an issue generally reserved for

the jury as a factual question. See Walker v. Mustang Enters., Inc., No.

114,029, 2016 WL 3570483, at *3 (Kan. Ct. App. July 1, 2016) (per

curiam) (unpublished) (“[D]eciding whether a particular condition

constitutes a ‘known or obvious’ danger is generally a factual question

reserved for the jury.”). 1 Though unpublished, this opinion provides useful

guidance in how the Kansas Supreme Court might treat the issue. See

Grinnell v. Mut. Reinsurance Co. v. Schwieger, 685 F.3d 697, 703 n.5 (8th

Cir. 2012) (stating that unpublished decisions of a state appellate court can

be persuasive when interpreting state law).

     Most courts employ a similar approach, treating the existence of an

open and obvious danger as a factual issue. 2 These opinions also shed light


1
      And in another unpublished opinion, the Kansas Court of Appeals
observed that determining “whether a dangerous condition is patent or
latent” is a factual question in most instances. White v. Junghans Agency,
Inc., No. 105,242, 2012 WL 603266, at *7 (Kan. Ct. App. Feb. 10, 2012)
(unpublished).
2
      See, e.g., Goodman v. Staples the Office Superstore, LLC, 644 F.3d
817, 823 (9th Cir. 2011) (“In Arizona, whether a hazard is open and
obvious is almost always a jury question.”); Freeman v. Case Corp., 118
F.3d 1011, 1014 (4th Cir. 1997) (“Whether a hazard is open and obvious is
a question of fact, and should be left to the jury when ‘the evidence [is] in
conflict.’” (alteration in original) (quoting Morgen Indus., Inc. v. Vaughan,
471 S.E.2d 489, 492-93 (Va. 1996))); Barnwell v. CLP Corp., __ So. 3d __,
2017 WL 1422478, at *5 (Ala. Apr. 21, 2017) (stating that whether a
danger is open and obvious is generally a fact question); Olmanson v.
LeSueur Cty., 693 N.W.2d 876, 881 (Minn. 2005) (“Generally, whether a
condition presents a known or obvious danger is a question of fact.”);

                                      5
on how the Kansas Supreme Court would treat the issue. See Van Zanen v.

Qwest Wireless, L.L.C., 522 F.3d 1127, 1132 (10th Cir. 2008) (treating the

existence of a substantial majority view as useful guidance on how the

state supreme court would decide the issue).

      In light of the Kansas Court of Appeals’s unpublished opinion and

the approach ordinarily taken elsewhere, we predict that the Kansas

Supreme Court would regard the existence of an open and obvious danger

as a question of fact.

IV.   Principles of Premises Liability

      Ms. Gregory acknowledges that the district court considered her

claims of premises liability. But Ms. Gregory contends that the district

Groleau v. Bjornson Oil Co., 676 N.W.2d 763, 770 (N.D. 2004) (“The
determination of whether a dangerous condition is open and obvious,
limiting the landowner’s duty, is generally a question of fact for the trier
of fact, and becomes a question of law only when reasonable minds could
reach but one conclusion.”); Tagle v. Jakob, 763 N.E.2d 107, 110 (N.Y.
2001) (“While the issue of whether a hazard is latent or open and obvious
is generally fact-specific and thus usually a jury question, a court may
determine that a risk was open and obvious as a matter of law when the
established facts compel that conclusion and may do so on the basis of
clear and undisputed evidence.” (citations omitted)); Sholer v. Erc Mgmt.
Grp., LLC, 256 P.3d 38, 44 (Okla. 2011) (“[I]t is well established in our
jurisprudence that, where conflicting evidence is presented on the issue of
the open and obvious nature of a defect, the question must be resolved by
the trier of fact.” (emphasis omitted)); Carrender v. Fitterer, 469 A.2d
120, 124 (Pa. 1983) (“Although the question of whether a danger was
known or obvious is usually a question of fact for the jury, the question
may be decided by the court where reasonable minds could not differ as to
the conclusion.”); see also Osontoski v. Wal-Mart Stores, Inc., 143 F.3d
1027, 1028-29 (6th Cir. 1998) (stating that the existence of an open and
obvious defect constitutes an issue of fact).

                                      6
court erred by failing to consider her claims of ordinary negligence. For

this contention, Ms. Gregory relies on Cardenas v. KanCo Hay, L.L.C., No.

14-1067-SAC, 2016 WL 3881345 (D. Kan. July 18, 2016) (unpublished). In

Cardenas, the plaintiff sued a landowner for injuries sustained while

tarping a load of hay on the landowner’s property. 2016 WL 3881345 at *2.

These injuries led the plaintiff to sue under theories of premises liability

and general negligence. The district court concluded that the plaintiff

could pursue the claim under general principles of negligence, explaining

that “the Kansas Supreme Court has held that a landowner is subject to

liability if its direct negligence causes injury to an independent

contractor’s employee while the employee is working on the landowner’s

property.” Id. at *4. Ms. Gregory’s reliance on Cardenas is misguided for

three reasons.

      First, Cardenas is a district court case, and we “owe no deference to

district court adjudications of state law.” Leavitt v. Jane L., 518 U.S. 137,

145 (1996); see also Cty. of Santa Fe v. Pub. Serv. Co., 311 F.3d 1031,

1035 (10th Cir. 2002) (engaging in de novo review of a district court’s

conclusions on state law).

      Second, Cardenas misapplied Kansas precedent. The court cited

Herrell v. National Beef Packing Co., 259 P.3d 663 (Kan. 2011).

Cardenas, 2016 WL 3881345 at *4. But in Herrell, the Kansas Supreme

Court had recognized a duty of care for creating a hazardous condition on

                                      7
the property, specifying that this was a “premises cause of action alleging

direct negligence.” Herrell, 259 P.3d at 673. Thus, Cardenas relied on an

opinion applying principles of premises liability.

      Third, Kansas courts regularly use principles of premises liability

when addressing negligence claims for activities conducted on the

defendant’s property. For example, the Kansas Supreme Court has

explained that

           “[p]remises liability law is not limited to cases where there is a
            physical defect in the premises” and

           “‘[a] possessor of land is subject to liability to his invitees for
            physical harm caused to them by his failure to carry on his
            activities with reasonable care for their safety . . . .’”

South ex rel. South v. McCarter, 119 P.3d 1, 11 (Kan. 2005) (emphasis in

original) (quoting Restatement (Second) of Torts § 341A (1964)); see also

Walters v. St. Francis Hosp. & Med. Ctr., Inc., 932 P.2d 1041, 1044 (Kan.

Ct. App. 1997) (stating that when the plaintiff fainted and was injured after

assisting doctors in the care of his fiancé, “premises liability principles

and the relevant standards of care govern the liability for activities”).

      For these three reasons, we conclude that principles of premises

liability apply and that the existence of an open and obvious danger would

affect all of the plaintiff’s claims.




                                        8
V.   The Existence of an Open and Obvious Danger

     Under principles of premises liability, a landowner owes all invitees

a duty of reasonable care. 3 See Herrell v Nat’l Beef Packing Co., 259 P.3d

663, 675 (Kan. 2011). But a landowner does not ordinarily owe a duty of

care for open and obvious dangers on the property. See Scales v. St. Louis-

S.F. Ry. Co., 582 P.2d 300, 306 (Kan. Ct. App. 1978). 4

     The resulting issue is whether the entirety of the danger to Mr. Gates

was open and obvious. If it was, Creekstone had only a limited duty to Mr.

Gates. But if the danger was not open and obvious, Creekstone owed Mr.

Gates a duty to act with reasonable care under the circumstances.

     Creekstone points out that the danger of unloading and moving cattle

was open and obvious to Mr. Gates. He had experience in delivering cattle

and had worked with cattle from a young age. Thus, the cattle presented an

open and obvious danger. See Borth v. Borth, 561 P.2d 408, 415 (Kan.


3
      “An invitee is one who enters or remains on the premises of another
at the express or implied invitation of the possessor of the premises for the
benefit of the inviter, or for the mutual benefit and advantage of both
inviter and invitee.” Gerchberg v. Loney, 576 P.2d 593, 596 (Kan. 1978),
overruled on other grounds by Bowers v. Ottenad, 729 P.2d 1103 (Kan.
1986). For purposes of the summary-judgment motion, the parties agreed
that Mr. Gates was an invitee.
4
      An exception exists when the landowner should anticipate the harm
even though it is obvious. Miller v. Zep Mfg. Co., 815 P.2d 506, 514 (Kan.
1991). Ms. Gregory invokes this exception, but we need not address the
applicability of this exception in light of a genuine factual dispute on the
openness and obviousness of the danger.

                                      9
1977) (“The risk of injury by the cattle . . . is . . . one that is open and

apparent.”). But Creekstone defines the danger too broadly by focusing

only on the cattle. The cattle created a danger, but this danger could have

been unknowingly exacerbated by the creation of a blind alley. Thus, a

fact-finder could reasonably infer that Mr. Gates had not recognized the

probability and gravity of the danger.

      An expert witness testified about this danger, stating that the east

pen contained “a design flaw described as a blind alley that occasionally

results in cattle balking. A blind alley is one in which the cattle’s

perspective does not reveal to them that the alley leads to an exit.”

Appellant’s App’x at 264. The expert witness added that “[t]he blind alley

and the water puddling at the South end of the receiving [pen] represent

design flaws that appear to bear the brunt of the blame for animals

periodically bunching up and balking at or near the exit from the East

receiving [pen].” Id. at 265.

      For a danger to be open and obvious, the invitee must not only know

about the condition or activity itself but also appreciate the danger

involved. Restatement (Second) of Torts § 343A cmt. b (Am. Law. Inst.

1965); see Wellhausen v. Univ. of Kan., 189 P.3d 1181, 1184 (Kan. Ct.

App. 2008) (citing § 343A cmt. b). Thus, a danger is open and obvious

only if the plaintiff appreciated “the probability and gravity of the

threatened harm.” Restatement (Second) of Torts § 343A cmt. b.

                                       10
      On this issue, the plaintiff’s evidence indicated that Mr. Gates had

not appreciated the probability and gravity of the danger. He may have

known that unloading and moving cattle was dangerous. And, as

Creekstone points out, Mr. Gates may have known that cattle sometimes

bunch up or hesitate to leave their pens. But there is no evidence that Mr.

Gates was aware of the blind alley 5 or the increased risk that cattle would

balk because of their inability to see the exit. Without such awareness, Mr.

Gates could not appreciate the “the probability and gravity of the

threatened harm.” Id.; see Balagna v. Shawnee Cty., 668 P.2d 157, 169

(Kan. 1983) (concluding that landowners incur a duty of care when dangers

are hidden to invitees).

                                    * * *

      A fact-finder could reasonably infer that Mr. Gates could not

appreciate the probability and gravity of the danger because of the alleged

blind alley. Thus, the district court erred in awarding summary judgment to

Creekstone based on the existence of an open and obvious danger. 6


5
      Creekstone states that Mr. Gates knew that a blind alley would cause
the cattle to bunch up. But Creekstone does not cite any evidence that Mr.
Gates knew of the blind alley or its impact on the cattle.
6
      Creekstone denies the existence of evidence that the blind alley
caused the cattle to bunch up and balk when Mr. Gates entered the east
pen. But the district court declined to decide Creekstone’s motion for
summary judgment on causation grounds. And Creekstone did not brief
causation as an alternative ground for affirmance. Thus, we leave this issue

                                     11
VI.   Conclusion

      Creekstone’s duty to Mr. Gates encompassed dangers that were not

open and obvious, and a fact-finder could reasonably conclude that the

danger from a blind alley would not have been open and obvious. Thus, we

reverse the district court’s grant of summary judgment to Creekstone.

                                      Entered for the Court



                                      Robert E. Bacharach
                                      Circuit Judge




for the district court to decide on remand. See Pac. Frontier v. Pleasant
Grove City, 414 F.3d 1221, 1238 (10th Cir. 2005) (“Where an issue has
been raised, but not ruled on, proper judicial administration generally
favors remand for the district court to examine the issue initially.”).

                                     12
