UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ PHYLLIS N. GREGORY, individually and as the personal representative of the estate of RICHARD D. GATES, deceased,
Pl aintiff - Appellant,

v. CREEKSTONE FARMS PREMIUM BEEF, LLC,
De fendant - 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 judg ment to the defendant on claims involving prem ises 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 cont ained in a pen that had been configured in a

* This order and judgme nt does not constitute bi nding 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 Court2 way that allegedly increased the dange r. 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 genuin e issue of material fact existed on the openness and obviousness of the danger. In light of this issue of material fact, we reverse th e 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 pl ant (Creekstone Fa rms Premium Beef, LLC). Mr. Gates arrived at Creekstone and was read y 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 th e exit for the west pen. Mr. Gates tried to help, entering the west pe n behind the cattle. After Mr. Irvin cleared the west pen, he set out to move the cattle out of the east pen. He starte d by walking south in the ha ndler’s alley to try to move the cattle toward the exit. Mr. Gates entered the eas t pen behind the cattle, trying again to help Mr. Irvin. Mr. Gates may have known that ente ring the east pe n, with nearby cattle, was dangerous. But he apparently did not know that the cattle might not see any way to leave th e east pen. The plaintiff’s theory is that this3 inability to see th e exit is why one animal turned around and ran northward in the east pen, plunging into Mr. Gates and killing him. Invoking this theo ry, the plaintiff allege d 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 de liveries and move the ca ttle out of the receiving pens. On all claims, the district court granted summary judgment to Creekstone, holding that it owed no du ty to Mr. Gates because the danger from the cattle was op en and obvious. In our view, this ratio nale overlooks the sign ificance of the alleged blind alley. The danger from a blind alley might not have been open and obvious. If not, Creekston e’s duty to Mr. Gates would have encompassed the danger. Thus, an open and obvious danger fr om 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 (1 0th Cir. 2017). Summary judgment is appr opriate only if the mo vant establishes that (1) there is no genu ine 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-j udgment standard agai nst the backdrop of Kansas’s substantive law. See US Fax Law Ctr., Inc. v. iHire, Inc ., 476 F.3d 1112, 1118 (10th Cir. 2007) (“Fede ral courts sitting in diversity typically apply the substantive law of the forum state.”). To ascertain Kansas’s substantive law, we “end eavor 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 Da nger is Open and Obvious The Kansas Supreme Court defines ne gligence as the lack of due care that a reasonable person would ex ercise 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 exte nd 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 issu e of law or fact. But in an unpublished opinion, the Kansas Court of Appeals regarded the5 existence of an open and obvious danger as an issue gene rally reserved for the jury as a f actual question. See Walker v. Mu stang 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 genera lly a factual question reserved for the jury.”). 1 Though unpublished, this opinion provi des useful guidance in how the Kansas Suprem e Court might treat the issue. See Grinnell v. Mut. Reinsu rance Co. v. Schwieger , 685 F.3d 697, 703 n.5 (8th Cir. 2012) (stating that unpublished decisions of a st ate 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 unpublis hed opinion, the Kans as Court of Appeals observed that dete rmining “whether a dangerous condition is patent or latent” is a factual ques tion in most instances. White v. J unghans 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, whethe r a hazard is open and obvious is almost alwa ys a jury question.”); Freeman v. Case Corp. , 118 F.3d 1011, 1014 (4th Cir. 1997) (“Whether a hazar d is open and obvious is a question of fact, an d should be left to the jury when ‘the evid ence [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) (s tating 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) (“Gene rally, whether a condition presents a known or obvious danger is a questi on of fact.”);6 on how the Kansas Supreme Co urt would treat the issue. See Van Zanen v. Qwest Wireless, L.L.C. , 522 F.3d 1127, 1132 (10th Ci r. 2008) (treating the existence of a substantial majority view as useful guidance on how the state supreme court woul d decide th e issue). In light of the Kansas Court of Appeals’s unpublished opinion and the approach ordinarily taken elsewh ere, 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 Pr emises 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 whethe r 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 qu estion of law on ly when reasonab le 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 ques tion, a court may determine that a risk was open and obvious as a matter of law when the established facts compel that conclu sion and may do so on the basis of clear and undisputed eviden ce.” (citations omitted)); Sholer v. Erc Mgmt. Grp., LLC , 256 P.3d 38, 44 (Okl a. 2011) (“[I]t is well established in our jurisprudence that, where conflicting evidence is presente d 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) (“Alt hough the question of wh ether a danger was known or obvious is usually a question of fact for the jury, the question may be decided by the cour t 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 exis tence 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 proper ty. 2016 WL 3881345 at *2. These injuries led th e 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 landowne r 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, a nd 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) (eng aging 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 creati ng a hazardous condition on8 the property, specify ing that this was a “premise s 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 premis es liability when addressing negl igence claims for act ivities conducted on the defendant’s property. For example, the Kansas Supreme Court has explained that

 “[p]remises liability law is not li mited to cases wh ere there is a physical defect in the premises” and

 “‘[a] possessor of land is subject to liabilit y to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable care for their sa fety . . . .’” South ex rel. Sou th v. McCarter , 119 P.3d 1, 11 (K an. 2005) (emphasis in original) (quoting Restatement (S econd) 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 plain tiff fainted and wa s injured after assisting doctors in the care of his fiancé, “premises liability principles and the relevant standards of care gove rn the liability for activities”). For these three reasons, we concl ude that principles of premises liability apply and th at the existence of an open and obvious danger would affect all of the plaintiff’s claims.9 V. The Existence of an Op en and Obvious Danger Under principles of pr emises 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 ordi narily owe a duty of care for open and obvious dangers on th e property. See Scales v. St. LouisS.F. Ry. Co ., 582 P.2d 300, 306 (K an. Ct. App. 1978). 4 The resulting issue is whether the en tirety of the danger to Mr. Gates was open and obvious. If it was, Creeks tone had only a li mited duty to Mr. Gates. But if the danger was not open and obvious, Creekstone owed Mr. Gates a duty to act wi th reasonable care und er the circumstances. Creekstone points out that the dang er 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 mu tual benefit and advantage of both inviter and invitee.” Gerchberg v. Loney , 576 P.2d 593, 596 (Kan. 1978), overruled on other ground s by Bowers v. Ottenad , 729 P.2d 1103 (Kan. 1986). For purposes of th e summary-judgment motion, the pa rties agreed that Mr. Gates wa s an invitee.

4 An exception exists when the landowne r should antici pate 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 exce ption in light of a genuine factual dispute on the openness and obviousn ess 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. Th e cattle created a danger, bu t this danger could have been unknowingly exacerbated by the cr eation of a blind alley. Thus, a fact-finder could reasonab ly infer that Mr. Gates had not rec ognized the probability and gravit y of the danger. An expert witness tes tified about this danger , stating that the east pen contained “a design flaw described as a blind a lley 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 wi tness added that “[ t]he blind alley and the water puddling at the South en d 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 op en and obvious, the inv itee must no t only know about the condition or activity itself but also appreciate the danger involved. Restatement (S econd) of Torts § 343A cm t. b (Am. Law. Inst. 1965); see Wellhausen v. Univ. of Kan. , 189 P.3d 1181, 1184 (Kan. Ct. App. 2008) (citing § 343A cmt. b). Th us, a danger is open and obvious only if the plaintiff appreciated “the probability a nd gravity of the threatened harm.” Re statement (Second) of Torts § 343A cmt. b.11 On this issue, the pl aintiff’s evidence indica ted that Mr . Gates had not appreciated the probab ility and gravity of the danger. He may have known that unloading and moving ca ttle was dangerous. And, as Creekstone points out, Mr. Gates may have known that cattle sometimes bunch up or hesitate to le ave their pens. But there is no evidence that Mr. Gates was aware of the blind alley 5 or the increased ri sk that cattle would balk because of th eir inability to see the exit. Without su ch 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) (concl uding 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 er red in awarding su mmary judgment to Creekstone based on the existen ce of an open an d 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 c ite any evidence that Mr. Gates knew of the blind alle y 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 Creekst one’s motion for summary judgment on causation ground s. And Creekstone did not brief causation as an alternativ e ground for affirmance. Th us, we leave this issue12 VI. Conclusion Creekstone’s duty to Mr. Gates en compassed dangers that were not open and obvious, and a f act-finder could reasonab ly conclude that the danger from a blind alley would not ha ve 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) (“Wh ere an issue has been raised, but not rule d on, proper judicial administration generally favors remand for the district cour t to examine the issue initially.”).