Opinion
No. 111,682.
2014-12-19
Eric G. KUNZE, Appellant, v. WAL–MART CORPORATION, et al., Appellees.
Appeal from Shawnee District Court; Larry D. Hendricks, Judge.Eric G. Kunze, appellant pro se.Bradley S. Russell and Tracy M. Hayes, of Sanders Warren & Russell, LLP, of Overland Park, for appellees.
Appeal from Shawnee District Court; Larry D. Hendricks, Judge.
Eric G. Kunze, appellant pro se. Bradley S. Russell and Tracy M. Hayes, of Sanders Warren & Russell, LLP, of Overland Park, for appellees.
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Claiming he was unaware that Wal–Mart had banned him from all its stores, Eric G. Kunze sued Wal–Mart for negligence because he is presently facing aggravated burglary charges in Johnson County District Court for entering a Wal–Mart store. Wal–Mart banned Kunze from entering all Wal–Mart stores because of his shoplifting in a Topeka store in 2011. In this lawsuit, he contends the Kansas criminal trespass statute creates a statutory duty that compels Wal–Mart to notify anyone that they have been banned from all stores. While it is true that the trespass law permits the criminal prosecution of anyone entering or remaining on land in defiance of an order not to enter or to leave the premises, that criminal statute creates neither a civil duty to warn nor a private cause of action for damages if no such warning is given. We hold Kunze's arguments should be made in his criminal prosecution, not in this pro se civil lawsuit. We affirm the district court's dismissal of the case. The saga begins in Topeka.
In February 2011, Wal–Mart asset protection associate Chris Custenborder apprehended Kunze as he tried to shoplift from the North Topeka Wal–Mart store. Kunze apparently suffered some consequences for this shoplifting attempt, but according to his pleadings, no one told him orally or in writing that he was permanently banned from all Wal–Mart stores.
In his amended petition, Kunze alleged that Custenborder caught Kunze shoplifting in the North Topeka Wal–Mart but failed to inform Kunze that the shoplifting incident would result in a ban from all Wal–Mart stores. Kunze claimed that: (1) he never received any notice from Custenborder regarding the ban from Wal–Mart; (2) Custenborder failed to follow Wal–Mart procedures and policies when banning Kunze from the property; (3) Wal–Mart failed to ensure that Custenborder complied with those same internal procedures; and (4) both Custenborder and Wal–Mart breached a duty to the public by not following the internal protocol.
Kunze alleged that these failures also served to negate the “without authority” element of his Johnson County aggravated burglary charge. See K.S.A.2011 Supp. 21–5807(b). Kunze sought damages, costs, and declaratory and injunctive relief.
Wal–Mart admitted that Custenborder is a Wal–Mart employee and that Kunze was indeed arrested for shoplifting at the North Topeka Wal–Mart in February 2011. It denied substantially all of Kunze's allegations. Wal–Mart also raised a number of other defenses. At the same time, Wal–Mart asked the district court to dismiss the case for Kunze's failure to state a claim.
In a thorough ruling, the district court determined that Kunze's claim should be construed as a negligence action, which accrued when Wal–Mart “failed to follow its own policies and procedures” for banning Kunze from the property. The court reasoned that even if it accepted as true the fact that Kunze never received notification of the ban, Kunze failed to establish a key component of a negligence action: namely, that Wal–Mart owed him any sort of duty.
Moreover, the district court determined that the issue of whether Kunze should have been charged with aggravated burglary based on the ban was one that belonged in Kunze's criminal case in Johnson County, not in Shawnee County civil court.
On appeal, as near as we can tell, Kunze appears to argue two things. First, he argues that the Kansas criminal trespass statute, K.S.A.2011 Supp. 21–5808(a)(1)(A), creates a statutory duty to provide notice and that Wal–Mart breached that duty by failing to properly notify him that he had been permanently banned from all Wal–Mart stores. He also argues that the district court erred in failing to provide him declaratory relief. Wal–Mart, on the other hand, argues that no such duty exists and without a case or controversy before it, the district court cannot issue the relief that Kunze requests.
Whether a district court erred by granting a motion to dismiss for failure to state a claim is a question of law subject to unlimited review. The appellate court will view the well-pleaded facts in a light most favorable to the plaintiff and assume as true those facts and any inferences reasonably drawn from them. If those facts and inferences state any claim upon which relief can be granted, then dismissal is improper. Cohen v. Battaglia, 296 Kan. 542, 545–46, 293 P.3d 752 (2013). Factual disputes cannot be resolved or decided on a motion to dismiss for failure to state a claim. Rector v. Tatham, 287 Kan. 230, 232, 196 P.3d 364 (2008).
In a negligence action, the plaintiff must prove four elements: a duty owed to the plaintiff, a breach of that duty, causation between the breach of the duty and injury to the plaintiff, and damages suffered by the plaintiff. Shirley v. Glass, 297 Kan. 888, Syl. ¶ 4, 308 P.3d 1 (2013). As a general rule, the legislature can create a duty and declare any behavior outside that duty unreasonable “by prohibiting a particular act for the purpose of protecting the interests of some person or class of persons as individuals.” 2A Speiser, Krause & Gans, The American Law of Torts § 9.8 n. 4 (2009) (quoting Restatement [Second] of Torts § 285, comment i [1965] ).
The fundamental question raised by this case is what duty, if any, did Wal–Mart owe to Kunze? A criminal trespass occurs when an individual enters or remains on land, a structure, or another place “in defiance of an order not to enter or to leave such premises or property personally communicated to such person by the owner thereof or other authorized person.” K.S.A.2011 Supp. 21–5808(a)(1)(A). Under Kunze's logic, this language creates a duty that requires Wal–Mart to personally provide notice to those individuals it bans from its property. This statute simply provides the elements of the crime of criminal trespass—including that criminal trespass may be committed when an individual enters or remains in a place after being banned from that same location. See K.S.A.2011 Supp. 21–5808(a)(1)(A).
Even assuming that Kunze suffered harm from being charged with aggravated burglary after entering the Overland Park Wal–Mart, there is no language in the notice portion of the criminal trespass statute that indicates a failure to warn would somehow prevent an arrest. If anything, the statute exists to protect property from criminal trespass, not against the possibility of an erroneous arrest and prosecution.
Also, there is no private cause of action created by the Kansas criminal trespass statute. Courts generally look at two aspects of a law when determining whether a statute creates a private right of action. First, the party claiming the existence of a private right of action must show that the statute was designed to protect a specific group of people rather than to protect the general public. Second, the reviewing court must consider the legislative history and determine whether a private right of action was intended by the legislature. Pullen v. West, 278 Kan. 183, 194, 92 P.3d 584 (2004).
Kunze's claim fails the first step of the private right of action test because his entire argument is predicated on the idea that Wal–Mart's duty to properly warn shoplifters about the long-term ban is owed to the public at large, not to a specific group. Moreover, even if we assume that there is such a group of people that the notice requirement is designed to protect—shoplifters, for instance—nothing in the statutory scheme suggests that our legislature intended the criminal trespassing statute to create a private cause of action.
As explained by our Supreme Court in Pullen: “Kansas appellate courts generally will not infer a private cause of action where a statute provides criminal penalties but does not mention civil liability.” 278 Kan. at 199.
A panel of this court applied this principle in Lovewell v. Stowell, No. 98,936, 2009 WL 596530 (Kan.App.2009) (unpublished opinion). In that appeal, the plaintiffs argued that the district court should have found the defendants liable for both criminal trespass and criminal damage to property after the defendants tore down part of a fence surrounding a disputed strip of land. The Lovewell court rejected that argument, finding that “there is no basis for a private cause of action based on these statutes.” 2009 WL 596530, at *4. Although the procedural posture and facts of the Lovewell case differ from this case, the principle is the same. The criminal trespass statute provides criminal penalties but is silent on civil remedies, indicating that no private cause of action exists. See Pullen, 278 Kan. at 199.
But Kunze also argues that even if the district court did not err in dismissing his negligence claim, he is entitled to declaratory judgment. In fact, Kunze appears to contend that he is still entitled to declaratory relief even if he failed to properly state any actionable claims in his pleadings. We hold this request cannot be granted.
District courts are broadly authorized “to declare the rights, status, and other legal relations whether or not further relief is, or could be sought.” K.S.A. 60–1701. An action for declaratory relief “provide[s] a speedy and flexible method for determining the rights and obligations of parties in cases of actual controversy where there is actual antagonistic assertion and denial of right.” Board of Reno County Comm'rs v. Asset Mgmt. & Marketing L.L.C., 28 Kan.App.2d 501, Syl. ¶ 1, 18 P.3d 286 (2001). The question of whether a dispute is in fact an actual controversy is one of degree, and the entertainment of the action rests within the discretion of the trial court. Wichita Computer & Supply, Inc. v. Mulvane State Bank, 15 Kan.App.2d 258, 260, 805 P.2d 1255, rev. denied 248 Kan. 999 (1991). A judicial action constitutes an abuse of discretion if that action is either: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S.Ct. 162 (2013).
Because of the lack of any actionable claim or controversy between the parties, we cannot say that the court acted arbitrarily, fancifully, or unreasonably in refusing to consider Kunze's request for declaratory relief. Kunze's arguments clearly belong before the Johnson County District Court as part of his criminal proceedings, not in a civil action against Wal–Mart.
Finally, we note in passing that we do not address any question concerning a malicious prosecution action arising from Kunze's criminal prosecution in Johnson County.
Affirmed.