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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 99,451 SHELLY K. HERRELL, Appellee, v. NATIONAL BEEF PACKING COMPANY, LLC, Appellant, and TERRACON CONSULTANTS, INC., and LIBERTY MUTUAL FIRE INSURANCE COMPANY, Appellees.

SYLLABUS BY THE COURT 1. The existence of a duty is a question of law over which an appellate court has unlimited review.

2. A landowner generally owes to entrants upon his or her land a duty of reasonable care under the circumstances. This duty includes a duty to warn of a dangerous condition on the property.

3. A landowner bears a duty of reasonable care under the circumstances under premises liability law to an employee of an independent contractor working on the landowner's property, as long as the employee is not pursuing direct liability for the landowner's violation of a nondelegable statutory or regulatory duty or vicarious liability

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for the contractor's negligence. This court's decision in Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994), is distinguished.

Review of the judgment of the Court of Appeals in 41 Kan. App. 2d 302, 202 P.3d 691 (2009). Appeal from Ford district court; DANIEL L. LOVE, judge. Opinion filed August 12, 2011. Judgment of the Court of Appeals reversing the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part and reversed in part, and the case is remanded with directions to the district court.

Aaron L. Kite, of Rebein Bangerter, P.A., of Dodge City, argued the cause, and David J. Rebein, of the same firm, was with him on the brief for appellant.

Matthew L. Bretz, of Bretz Law Offices, of Hutchinson, argued the cause, and Mitchell W. Rice, of the same firm, was with him on the briefs for appellee, Shelly K. Herrell.

The opinion of the court was delivered by

BEIER, J.: This is a premises liability case with a twist. Plaintiff Shelly K. Herrell successfully sued defendant National Beef Packing Co., LLC (National Beef) to recover for a knee injury she suffered while working in its Dodge City beef-packing plant. National Beef appeals, arguing that Herrell's status as an employee of an independent contractor, Terracon Consultants, Inc. (Terracon), and her receipt of workers compensation meant that it did not owe her the landowner's usual duty of reasonable care.

The district judge denied National Beef's pretrial motion for summary judgment and mid-trial motion for judgment as a matter of law on the duty issue. A panel of our Court of Appeals reversed and remanded. Herrell v. National Beef Packing Co., 41 Kan. App. 2d 302, 304, 202 P.3d 691 (2009). A majority of the panel remanded only for entry of judgment as a matter of law in favor of National Beef, relying on Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994), and held that Herrell's remedy was limited to

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workers compensation because National Beef did not maintain substantial control over her employer's activities on the premises. In a concurring and dissenting opinion, Court of Appeals Judge Patrick D. McAnany rejected the application of Dillard to most of Herrell's claims. He would have remanded for retrial on all but one claim dependent upon National Beef's alleged noncompliance with an Occupational Safety and Health Administration (OSHA) regulation.

FACTUAL AND PROCEDURAL BACKGROUND

National Beef's beef-packing plant in Dodge City slaughters approximately 4,000 head of cattle a day. This understandably messy endeavor at times causes nonconsumable rendering, that is, bovine blood and guts, to spill onto the floor of the plant. National Beef employees are generally responsible for cleanup of such spills.

At the time of Herrell's injury, National Beef had contracted with J-A-G Construction Company (J-A-G) to build a new roof on its rendering building. National Beef chose to continue its plant's normal operations during the construction, and J-A-G was aware of that choice and of the conditions in the building. The construction of the new roof required holes to be drilled in the building's floor for placement of support footings. In turn, placement of the footings required testing of the underlying soil. J-A-G hired Herrell's employer, Terracon, to conduct the necessary soil tests.

Herrell was one of two Terracon employees who came to the plant to perform the soil tests. She and her fellow employee checked in at National Beef's guard station, where they were met by a J-A-G onsite foreman who showed them where the holes to be tested were located. After the J-A-G foreman left, Herrell and her fellow employee retrieved equipment from their vehicle and then began walking to the soil-testing site. Once back inside the plant, Herrell stepped off a ledge and into a hole, resulting in an injury to her knee. She and her coworker testified that the hole was covered by rendering and thus not
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visible. After the accident, when Herrell's fellow employee returned to the area, the rendering covering the hole had been cleared away, and he saw a grate in a nearby corner and tape on a column close to the hole. By the time this lawsuit began, well after the construction project was complete, no witness could determine exactly where the hole would have been or who had dug it or exposed it.

Because of her knee injury, Herrell was unable to continue her employment at Terracon. She received workers compensation for her injury.

District Court Proceedings

Herrell also filed this lawsuit against National Beef, alleging that National Beef "was negligent in maintaining a dangerous condition; in failing to warn of a dangerous condition; and in other respects."

National Beef moved for summary judgment pretrial. It initially argued that Herrell could not meet her burden to demonstrate that National Beef had knowledge of the hole or, even if it did, that it had control over the area in which the hole was located. Herrell's response argued that National Beef not only had notice and knowledge of the hole but also created the dangerous condition by operating during construction and allowing rendering to cover it; she also argued that National Beef controlled the area where the injury occurred. In its reply, National Beef argued for the first time that it owed no landowner duty to Herrell because of public policy considerations recited in the Dillard case. National Beef also filed an amended pretrial questionnaire to incorporate this new argument.

The district judge denied National Beef's motion for summary judgment, stating that he had reviewed Dillard "extensively." He emphasized that Dillard recognized the

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right of an injured employee to bring an action against a negligent third party, see K.S.A. 44-504(a), and wrote:

"In this instance, defendant was continuing its normal working operations while a construction project was under way. Had defendant vacated the premises and allowed J.A.G. and its subcontractors exclusive access to and possession of the area under construction, their motion would be well founded.

"However, the facts indicate to this Court that the rendering products that may have filled and obscured the hole that Plaintiff stepped into were there because of the actions of Defendant National Beef. It appears there are comparative fault issues that cannot be determined through a Motion for Summary Judgment."

Also, pretrial, National Beef filed an unsuccessful motion in limine to exclude Herrell's evidence regarding the existence and content of a federal OSHA regulation pertaining to safety precautions regarding holes in workplace floors. National Beef renewed its objection to this evidence at trial and was, again, unsuccessful. After argument by the parties at the instructions conference, the district judge also decided to include a mention of the OSHA regulation in the jury instruction detailing Herrell's contentions. The instruction listing the several ways in which Herrell alleged that National Beef was at fault included language characterizing the OSHA regulation as the industry standard. Herrell was not permitted to state that National Beef had violated the regulation. The final jury instruction thus read in pertinent part:

"The Plaintiff Shelly K. Herrell further claims that she sustained injuries and damages due to the fault of the defendant National Beef Packing Company, LLC, by not complying with the industry standard set out in OSHA Reg. 1910.23(a)(8)[,] which requires every floor hole into which persons can accidentally walk to be guarded by either: (i) a standard railing with standard toeboard on all exposed sides, or (ii) a floor hole cover of standard strength and construction. While the cover is not in place, the floor

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hole shall be constantly attended by someone or shall be protected by a removable standard railing."

National Beef's mid-trial motion for directed verdict, also known as a motion for judgment as a matter of law, based in part on the Dillard legal argument, was also unsuccessful. The district judge refused to change his pretrial ruling, adding:

"The hole itself is not inherently dangerous. Covering the hole with rendering makes it dangerous. The entire operation could have been turned over to J.A.G. And, had National Beef left the area, then clearly the cases cited by Defendant starting with Dillard v. Strecker would be applicable. But, that's not the case.

"They continued working there. They covered the floor with a substance that [sic] hid dangerous holes in this case. They should have known that under the circumstances they were creating a dangerous situation. And, in light of that, the Motion for Direct Verdict is going to be denied."

During closing argument, Herrell's counsel referred briefly to the instruction excerpt concerning the OSHA regulation:

"[T]his is a quote of the OSHA regulation that deals with holes in the floor. They didn't receive a citation by OSHA. There's not ever been a suggestion of that. OSHA probably doesn't even know about it. But, that's what the OSHA regulation requires, and you probably heard my questioning yesterday, and it seemed like strange questions that a floor hole and a standard grate, or railing or whatever. Read that. This is a quote of the instruction, or excuse me, this instruction is a quote of the OSHA regulation that deal[s] with this."

The jury returned a general verdict in favor of Herrell, assessing damages of $251,197.86. The verdict form did not permit the jury to attribute all or any part of its decision to a particular theory of fault advanced by Herrell. The jury assigned 47.5

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percent of fault to National Beef, 32.5 percent of fault to J-A-G, 15 percent to Terracon, and 5 percent to Herrell.

Court of Appeals Proceedings

National Beef raised only one issue in its appeal brief filed with the Court of Appeals: Was there a duty as a matter of law? Both parties agreed that the question is one of law subject to unlimited review. See South v. McCarter, 280 Kan. 85, 94, 119 P.3d 1 (2005).

National Beef, as it did before the district court, placed heavy reliance on this court's 1994 decision in Dillard, which it regarded as indistinguishable on a policy basis from this case. The court, it stressed, "must decide whether Kansas law would allow employees of independent contractors to recover more for their injuries than a property owner's own employees can recover for the same injur[ies]."

For her part, Herrell insisted that Dillard was distinguishable in important factual and legal respects and stressed the following self-limiting language of its holdings:

"(1) A landowner is not liable to an employee of an independent contractor covered by workers compensation for injury sustained as a result of the breach of a nondelegable duty imposed upon the landowner by statute or ordinance. (2) The inherently dangerous activity exception to the nonliability of a landowner does not extend to employees of an independent contractor covered by workers compensation. (3) Our decision is limited to the facts herein and to those instances where the injured employee of an independent contractor covered by workers compensation seeks to hold a landowner liable under the theories discussed in the opinion." Dillard, 255 Kan. at 726-27.

The majority of the Court of Appeals panel reversed and remanded for entry of judgment as a matter of law in favor of National Beef. Herrell, 41 Kan. App. 2d at 325. It
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relied on Dillard to conclude that "an employee of an independent contractor covered by workers compensation insurance cannot recover in negligence from the landowner, regardless of the employee's underlying theory of the landowner's liability." Herrell, 41 Kan. App. 2d at 315. An exception to this rule would arise only if the landowner maintained substantial control over the activities of the independent contractor on the premises. Herrell, 41 Kan. App. 2d at 320.

In the alternative, the Court of Appeals majority predicted that this court would require a landowner to control the details of the project and the contractor's activities in order to impose liability on the landowner. Herrell, 41 Kan. App. 2d at 322. Because, in its view, the record contained inadequate evidence of such control by National Beef, judgment in its favor as a matter of law also was appropriate and must be upheld. Herrell, 41 Kan. App. 2d at 323.

Judge McAnany agreed with his colleagues that the panel was required to set aside the judgment against National Beef, but only because the general verdict may have been influenced by Herrell's theory of liability based upon the OSHA regulation. Herrell, 41 Kan. App. 2d at 325, 336 (McAnany, J., concurring in part and dissenting in part). But he disagreed that the policy considerations recited in the Dillard decision should be extended to fully immunize National Beef from liability. Herrell, 41 Kan. App. 2d at 325 (McAnany, J., concurring in part and dissenting in part).

ANALYSIS

We accepted this case on Herrell's petition for review. Although the petition lists two issues, the second is actually a subissue of the first. We therefore ask ourselves the same question National Beef asked when it initially took this appeal: Did National Beef owe a duty of care to Herrell?

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We also note another initial refinement of the issue before us. In its response to Herrell's petition for review and again at oral argument before this court, National Beef relied entirely on the Court of Appeals majority's application of Dillard to argue that it should prevail. National Beef argues the only issue is "[whether] the Court of Appeals properly appl[ied] Dillard in finding that Appellee had no duty of care with respect to Appellant.") It no longer argued that the Court of Appeals should be affirmed because National Beef lacked control over the workplace or the contractor's activities. Given that National Beef does not contest, for purposes of summary judgment, that rendering was covering whatever hole Herrell fell into, and that the existence of the rendering was an inevitable byproduct of its continued operation of the plant, its decision to push its control argument into the tall grass appears to be prudent appellate strategy. In any event, we need address the control argument no further here. See State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004) (appellant abandons issue on appeal by not adequately briefing issue).We focus our full concentration on whether Dillard can stretch as far as National Beef would have it go.

The parties are correct that the existence of a duty is a question of law and that we have unlimited review. See South, 280 Kan. at 94.

A landowner generally owes to entrants upon his or her land a duty of reasonable care under the circumstances. Jones v. Hansen, 254 Kan. 499, 509, 867 P.2d 303 (1994). This duty includes a duty to warn of a dangerous condition on the property. Restatement (Second) of Torts

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