UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

PHYLLIS N. GREGORY, 

individually and as the personal 

representative of the estate of 

RICHARD D. GATES, deceased, 

 Plaintiff - Appellant, 

v. 

CREEKSTONE FARMS PREMIUM 

BEEF, LLC, 

 Defendant - Appellee. 

No. 17-3168 

(D.C. No. 6:15-CV-01207-EFM) 

(D. Kan.) 

_________________________________ 

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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 29, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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). 
4 

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 premisesliability 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 
5 

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.”);
6 

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). 
7 

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 
8 

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. 
9 

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. LouisS.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. 
10 

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. 
11 

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 alley5

 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 
12 

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.”).