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In Gregory v. Creekstone Farms Premium Beef, LLC, No. 17-3168, (10th Cir. March 29, 2018), the United States Court of Appeals for the Tenth Circuit, addressed the question in a wrongful death case filed by the survivors of the deceased.

The Plaintiff’s son Richard Gates (“Gates”) was a truck driver who delivered cattle to a processing plant, Creekstone Farms Premium Beef, LLC (“Creekstone”). 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, a Creekstone employee worked to clear the west pen. Gates tried to help and was killed when one animal ran at Gates. On all claims, the district court granted summary judgment to Creekstone, holding that it owed no duty to Gates because the danger from the cattle was open and obvious.

This Court was concerned about the alleged blind alley. The danger from a blind alley might not have been open and obvious. If not, Creekstone’s duty to 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.

Summary judgment is appropriate only if the movant establishes that there is no genuine dispute of a material fact and the movant is entitled to judgment as a matter of law. The Kansas Supreme Court defines negligence as the lack of due care that a reasonable person would exercise under the circumstances. Thus, recovery for negligence requires proof of a duty of care. Generally, everyone bears a duty to exercise reasonable care to avoid injuring others. But under premises liability principles, this duty does not ordinarily extend to open and obvious dangers. Most courts treat the existence of an open and obvious danger as a factual issue.  Under principles of premises liability, a landowner owes all invitees a duty of reasonable care. But a landowner does not ordinarily owe a duty of care for open and obvious dangers on the property.

The resulting issue is whether the entirety of the danger to Gates was open and obvious. If it was, Creekstone had only a limited duty to Gates. But if the danger was not open and obvious, Creekstone owed Gates a duty to act with reasonable care under the circumstances.

A fact-finder could reasonably infer that 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. This Court reverses the district court’s grant of summary judgment to Creekstone.

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