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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TAMMY STORTS,

Plaintiff - Appellee,

v.

HARDEE'S FOOD SYSTEMS, INC., a foreign corporation licensed to do
business in Kansas,

Defendant - Appellant.

No. 98-3285

(D.C. No. 95-CV-1036-MLB)

(District of Kansas)

TAMMY STORTS,

Plaintiff - Appellant,

v.

business in Kansas,

Defendant - Appellee.

No. 98-3320

(D.C. No. 95-CV-1036-MLB)

(District of Kansas)

ORDER AND JUDGMENT(*)

Before BALDOCK, BRORBY and LUCERO, Circuit
Judges.

In this diversity action, defendant Hardee's Food Systems, Inc. ("Hardee's")
appeals from a jury verdict in favor of plaintiff Tammy Storts for injuries she
suffered as a result of her abduction from a Hardee's parking lot. Hardee's'
primary contentions are that the district court's instructions on the duty to
provide security and the duty to warn of a dangerous condition, and the verdict
finding negligence, were not supported by the evidence. Hardee's also contends
that the instructions misstated the law, the suit is barred by the statute of
limitations, and the district court erroneously admitted expert testimony. On
cross-appeal, Storts argues the district court erred when it dismissed two of
her theories of liability--undertaking of duty and breach of contract--and
instructed the jury on comparative negligence. We conclude that although the
evidence is sufficient to establish the existence and breach of the duty to
provide security, it does not support an instruction on the duty to warn of a
dangerous condition. This error requires reversal because it is impossible to
determine from the general verdict whether the jury relied on the improperly
submitted duty to warn theory of negligence. The remaining claims of error are
without merit. We also deny Hardee's' motion to certify various questions to the
Kansas Supreme Court. We exercise jurisdiction pursuant to 28 U.S.C. § 1332 and
reverse and remand for a new trial.

I

On February 5, 1993, Tammy Storts pulled off the Kansas Turnpike into the
Belle Plaines service area, where she parked her van and entered a restaurant
managed, owned, and operated by Hardee's. After using the restroom, calling
work, and purchasing a soda, she exited the restaurant. Walking towards her van,
she noticed two men standing next to the trunk of a car backed into the adjacent
parking space, and a third man in the driver's seat of the car. As she started
to get into her van, someone grabbed her purse and then threw her into the trunk
of the car. Her abductors drove off, eventually exiting the turnpike and parking
in a field. There, they removed Storts from the trunk, stole her jewelry, and
raped and sodomized her. One of her assailants also put the barrel of a pistol
into her mouth.

Storts did not report the incident to the authorities until May 1993. On June
27, 1994, she was admitted to St. John's Medical Center in Tulsa, Oklahoma
because she had overdosed on drugs and alcohol and was suffering from
depression. Storts had been unconscious or unresponsive for thirty hours prior
to her admission and remained lethargic and experienced hallucinations for much
of her six-day stay at the hospital.

Storts filed the instant suit on February 2, 1995, but did not serve Hardee's
until May 19, 1995. In her complaint, Storts alleged that Hardee's had
"negligently failed to provide proper security, in the form of visibility and
natural surveillance, to protect plaintiff, a customer and business invitee of
Hardee's." (I Appellant's App. at 4.) In response to Hardee's' motion to dismiss
on statute of limitations grounds, Storts submitted a first amended complaint
that dropped the negligence claim and alleged instead that the lack of proper
security constituted a breach of a contract between Hardee's and the Kansas
Turnpike Authority ("KTA"), of which she was an intended third party
beneficiary. The district court found that Storts's contract claim failed as a
matter of law, but granted leave to file a second amended complaint based on her
allegations of temporary incapacitation. See Storts v. Hardee's Food
Sys., Inc., 919 F. Supp. 1513, 1522-23 (D. Kan. 1996). Storts accepted that
invitation, and in her second amended complaint reasserted her negligence claim.
Both parties then moved for summary judgment on the statute of limitations
issue. The district court ruled in favor of Storts, finding that the limitations
period had been tolled pursuant to Kan. Stat. Ann. § 60-515 because of her June
1994 hospitalization. In a separate memorandum and order, the district court
denied Hardee's' motion for summary judgment on the issue of its duty to provide
security measures as well as on a motion in limine to exclude the testimony of
various experts, but granted summary judgment in favor of Hardee's as to
Storts's undertaking of duty theory. The case was tried to a jury, which found
Hardee's 70% at fault pursuant to a comparative negligence instruction and
calculated total damages of $200,000. The court entered judgment against
Hardee's for $140,000 and denied Hardee's' motions for judgment as a matter of
law and a new trial.

Both parties appeal this judgment. Hardee's argues that Storts's claim is
barred by the statute of limitations, it owed no duty as a matter of law to
provide increased security, the jury instructions regarding duty were erroneous,
and the court erred in admitting the testimony of several experts. Storts
asserts that the court erred in instructing the jury on contributory negligence
and in dismissing its contract and undertaking of duty claims.

II

We first address Hardee's' various arguments regarding the Kansas statute of
limitations.

A

State law establishes the limitations period and tolling procedures for this
federal diversity action. See Habermehl v. Potter, 153 F.3d 1137,
1139 (10th Cir. 1998). Under Kansas law, a negligence action must be commenced
within two years of the date the cause of action accrues. See Kan. Stat.
Ann. §§ 60-510, 60-513(a)(4). A civil action is deemed commenced on the date the
complaint is filed, provided service of process is obtained within ninety days
of the date of filing. See Kan. Stat. Ann. § 60-203(a)(1). If service is
not obtained within the ninety-day period, the action is deemed commenced on the
date service is obtained. See Kan. Stat. Ann. § 60-203(a)(2). Storts was
injured, and therefore her action accrued, on February 5, 1993. While she filed
the instant action on February 2, 1995, within the two-year limitations period,
she did not obtain service on Hardee's until May 19, 1995, more than ninety days
later. Therefore, the action is deemed commenced on May 19, 1995, outside the
two-year limitations period.

State law also provides, however, that if at any time during the period the
statute of limitations is running the person entitled to bring an action is
"incapacitated [,]. . . such person shall be entitled to bring such action
within one year after the person's disability is removed." Kan. Stat. Ann. §
60-515(a). An incapacitated person has been defined as "'any adult person whose
ability to receive and evaluate information effectively or to communicate
decisions, or both, is impaired to such an extent that the person lacks the
capacity to manage such person's financial resources . . . or to meet essential
requirements for such person's physical health or safety, or both.'" Biritz
v. Williams, 942 P.2d 25, 28-29 (Kan. 1997) (quoting Kan. Stat. Ann.
§ 59-3002, which defines "disabled persons"). Adopting the magistrate's
report and recommendation, the district court found Storts was unable to meet
the essential requirements of her personal health and safety, and therefore
"incapacitated," Kan. Stat. Ann. § 60-515(a), during her hospitalization from
June 27 until July 2, 1994. Because Storts commenced her claim on May 19, 1995,
less than one year from July 2, 1994, the district court held her claim was not
time-barred as a matter of law.

Hardee's argues the district court's holding was incorrect because
"[i]ntentional, short-term, self-induced 'incapacitations' [such as a drug and
alcohol overdose] were not intended by the Kansas Legislature to extend the
statute of limitations." (Appellant's Br. at 30). This argument is foreclosed by
the Kansas Supreme Court's decision in Biritz, 942 P.2d at 29-30. In that
case, the defendant argued the plaintiff was not incapacitated within the
meaning of § 60-515 because he had voluntarily taken the pain medication
which had rendered him incapacitated and his incapacitation lasted only
forty-eight hours. See id. The court rejected these arguments,
holding that "[t]he statute tolls the statute of limitations for any
person who is incapacitated at the time the cause of action accrues or at
any time during the period the statute of limitations is running . . . . The
statute is not ambiguous and clearly applies to any disability."
Id. at 30 (emphasis in original). We agree with the district court that §
60-515, as interpreted by Biritz, applies to all incapacitated persons
irrespective of their cause of the disability. As for duration, while it might
be less likely that someone who is disabled for only a brief time would meet the
definition of incapacity adopted by Biritz, 942 P.2d at 28-29, the
undisputed evidence is more than sufficient to support the district court's
finding that Storts was unable to meet the essential requirements of her health
and safety. Therefore, summary judgment in favor of Storts on the question of
the application of the statute of limitations was proper.

B

Hardee's has submitted to this court a motion to certify to the Kansas
Supreme Court the question of whether an incapacitation induced by voluntary
actions can toll the statute of limitations pursuant to § 60-515. The district
court denied a similar motion. While it should be apparent from the preceding
discussion that Biritz settles this issue, we pause to set forth in some
detail the standard for certification because Hardee's has requested
certification of several issues addressed in this opinion.

The rule of this court provides that "[w]hen state law permits, this court
may: (1) certify a question arising under state law to that state's highest
court according to that court's rules; and (2) stay the case in this court to
await the state court's decision of the certified question." 10th Cir. R.
27.1(A). State law permits the Kansas Supreme Court to

answer questions of law certified to it by . . . a court of appeals of the
United States [or] a United States district court . . . , when requested by the
certifying court if there are involved in any proceeding before it questions of
law of this state which may be determinative of the cause then pending in the
certifying court and as to which it appears to the certifying court there is no
controlling precedent in the decisions of the supreme court and the court of
appeals of this state.

Kan. Stat. Ann. § 60-3201. While certification is appropriate "where the
legal question at issue is novel and the applicable state law is unsettled,"
Allstate Ins. Co. v. Brown, 920 F.2d 664, 667 (10th Cir. 1990), it is
never compelled, see Lehman Brothers v. Schein, 416 U.S. 386,
390-91 (1974). Furthermore, "under the diversity statutes the federal courts
have the duty to decide questions of state law even if difficult or uncertain."
Copier v. Smith & Wesson Corp., 138 F.3d 833, 838 (10th Cir. 1998)
(citing Meredith v. Winter Haven, 320 U.S. 228, 235 (1943)). Finally,
"[w]e generally will not certify questions to a state supreme court when the
requesting party seeks certification only after having received an adverse
decision from the district court." Massengale v. Oklahoma Bd. of Med. Exam'rs
in Optometry, 30 F.3d 1325, 1331 (10th Cir. 1994) (citing Armijo v. Ex
Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988)); see also Harvey E.
Yates Co. v. Powell, 98 F.3d 1222, 1229 n.6 (10th Cir. 1996) (denying a
motion for certification because the moving party had removed the case to
federal court, had not moved for certification below, and had received an
adverse ruling).

In light of Biritz, the issue of voluntary incapacitation is neither
novel nor unsettled. See 10th Cir. R. 27.1(A). Therefore, we deny
Hardee's' motion for certification of that issue.

III

The district court denied Hardee's' motion for judgment as a matter of law,
relying on its findings at the summary judgment stage that the evidence was
sufficient to establish that Hardee's owed and breached a duty to provide
security measures for Storts's safety. We review de novo the district court's
denial of a motion for judgment as a matter of law. See Vining v.
Enterprise Fin. Group, Inc., 148 F.3d 1206, 1213 (10th Cir. 1998).
Construing all evidence and the inferences therefrom in the light most favorable
to the non-moving party, we will reverse such a ruling "only if the evidence
points but one way and is susceptible to no reasonable inferences supporting the
party opposing the motion." Id. (citing Haines v. Fisher, 82 F.3d
1503, 1510 (10th Cir. 1996)).(1)

A

The Kansas Supreme Court established the standards for determining when the
owner of a business has a duty to provide security for its patrons in Seibert
v. Vic Regnier Builders, Inc., 856 P.2d 1332 (Kan. 1993), a premises
liability action arising out of an assault in a shopping center parking lot.

In determining whether there is a duty owed, we start with two general rules.
The owner of a business is not the insurer of the safety of its patrons or
customers. The owner ordinarily has no liability for injuries inflicted upon
patrons or customers by the criminal acts of third parties in the business'
parking lot, as the owner has no duty to provide security. Such a duty may
arise, however, where circumstances exist from which the owner could reasonably
foresee that its customers have a risk of peril above and beyond the ordinary
and that appropriate security measures should be taken.

Id. at 1338. Whether a risk of peril above and beyond the ordinary is
reasonably foreseeable is determined based on the "totality of the
circumstances." Id. at 1339. The circumstances to be considered must
"have a direct relationship to the harm incurred" and "must relate specifically
to the foreseeability of the attack on the plaintiff." Id. at 1339, 1340.
"Prior incidents remain perhaps the most significant factor, but the precise
area of the parking lot is not the only area which must be considered. If the
parking lot is located in a known high crime area, that factor should be
considered." Id. at 1339. Seibert's discussion of 62A Am. Jur. 2d,
Premises Liability § 520, suggests that the "place and character of the business
[and the business owner's] past experience" are additional circumstances that
can be considered. Id. at 1336 (citing Restatement (Second) of Torts §
344 (1965)).

[T]he duty to provide security and the level of such security must be
reasonable--that includes the economic feasibility of the level of security. . .
. [I]f because of the totality of the circumstances the owner has a duty to take
security precautions by virtue of the foreseeability of criminal conduct, such
security measures must also be reasonable under the totality of the
circumstances.

Id. at 1339-1340.

In general, the determination of duty is a matter of law. See Nero
v. Kansas State Univ., 861 P.2d 768, 772 (Kan. 1993). At the same time,
"'[w]hether risk of harm is reasonably foreseeable is a question to be
determined by the trier of fact. Only when reasonable persons could arrive at
but one conclusion may the court determine the question as a matter of law.'"
Id. at 779 (quoting Kansas State Bank & Tr. Co. v. Specialized
Transp. Servs., Inc., 819 P.2d 587 (Kan. 1991)). Seibert imposes on
Hardee's a duty to provide reasonable and appropriate security if it is
reasonably foreseeable, based on the totality of the circumstances, that "its
customers have a risk of peril above and beyond the ordinary." Seibert,
856 P.2d at 1338. Because Hardee's' fundamental argument is that the attack on
Storts was not foreseeable, we will reverse only if that is the sole conclusion
a reasonable juror could reach.

B

As a preliminary matter, Hardee's moves this court to certify to the Kansas
Supreme Court two questions related to a business owner's duty to provide
security. The first is "whether Kansas' 'totality of the circumstances test'
rule should be abandoned in favor of the 'prior similar incidents test' or
modified to clarify the requisite degree of foreseeability . . . ." (Appellant's
Mot. for Certification at 2.) That question is entirely inappropriate for
certification. In Seibert, the Kansas Supreme Court expressly rejected
the prior similar incidents test in favor of the totality of the circumstances
test. Seibert, 856 P.2d at 1338-39. The purpose of certification is to
permit the state court to resolve novel and unsettled questions of state law,
not to abandon or modify settled law.

The second question posed is whether the totality of the circumstances can
include prior criminal attacks that occurred in an area as widespread as the
entire Kansas Turnpike. We deny certification of this question because it was
first posed after the moving party had been subject to an adverse decision in
district court, see Massengale, 30 F.3d at 1331, and because the
totality of the circumstances test as set forth in Seibert is broad
enough to encompass such evidence. A defendant is of course free to attempt to
persuade a jury to accord such evidence little weight.

C

The question we must resolve is whether the evidence presented at trial,
viewed in the light most favorable to Storts, demonstrates that under the
totality of the circumstances having a direct relationship to her abduction,
Hardee's could have reasonably foreseen that its customers were exposed to a
risk of peril above and beyond the ordinary and that it failed to provide
reasonable security in light of such a risk.

Seibert instructs us that "perhaps the most significant" circumstance
tending to demonstrate the foreseeability of harm is prior incidents of crime.
Seibert, 856 P.2d at 1339. Although Storts cannot identify a prior
abduction from this particular Hardee's location, Seibert rejects the
need for identical prior incidents. Id. at 1339-40. Rather, we examine
the record for evidence of prior incidents having "a direct relationship to the
harm incurred." Id. at 1339. There was no evidence of violent crime at
the Belle Plaines Hardee's in the three years preceding the attack on Storts,
although there was a police report of a man arrested at the nearby Belle Plaines
service station for aggravated assault using a gun. There was evidence of a
shooting and a murder on the turnpike near the Belle Plaines service area.
Evidence of crimes at other Hardee's restaurants and other service areas along
the turnpike was more abundant: numerous robberies, one involving an armed
kidnaping and another an assault in a bathroom, and various disturbances and
fights, including an attack on a Hardee's patron in a service area parking lot.
A victim of an abduction and rape reported the crime at the Lawrence service
area Hardee's. Elsewhere on the turnpike there was evidence of an assault on a
trooper with intent to kill and an arrest for battery of an officer.

The second circumstance relevant to foreseeability specifically endorsed in
Seibert is whether the business is located in a high crime area.
See id. Based on reports of crimes along the Kansas Turnpike, a
range of other factors, and their personal experience, experts Michael Witkowski
and Fred DelMarva testified that the risk of crime, including abduction, at the
Belle Plaines Hardee's was greater than usual. While Hardee's emphasizes that
these experts were unable to provide concrete data comparing the rate of crime
along the Turnpike to other areas, the totality of the circumstances test does
not require comparative statistical evidence to show foreseeability "above and
beyond the ordinary." Seibert, 856 P.2d at 1338.

The nature and location of the restaurant are additional circumstances that
Seibert suggests are appropriate to consider under the totality of the
circumstances test. See id. at 1336. There was substantial
evidence tending to prove that fast food restaurants generally, and turnpike
locations in particular, faced a higher risk of crime than ordinary and that
this was well known in the industry. Witkowski testified that the most frequent
area of criminal attacks at fast food restaurants was their parking lots.
Evidence established that several factors related to the location of the Belle
Plaines Hardee's increased the risk of criminal activity there: It was located
on the Kansas Turnpike, a crime corridor with a high crime rate; it experienced
an exceptionally high volume of customers; and the parking lot was isolated,
lacking natural surveillance otherwise afforded by the presence of other
businesses and activities. Two managers of the Belle Plaines Hardee's testified
that they were aware of and concerned about security risk problems in the
parking lot and believed the rear of the restaurant posed a special risk.

There was also considerable testimony concerning the appropriateness of
security measures at the Belle Plaines Hardee's and the feasibility of enhanced
measures, both of which are factors relevant to a foreseeability analysis.
See Seibert, 856 P.2d at 1339-40. Plaintiff's experts testified
that surveillance, either natural surveillance from surrounding businesses and
activities, surveillance from within the restaurant through windows, or the use
of surveillance cameras, are significant crime deterrents used in most Hardee's
and other fast food restaurants. In some Hardee's restaurants, the crime rate,
primarily armed robberies, had fallen by as much as 84% after surveillance
cameras were installed. At Belle Plaines, the area where Storts parked and was
abducted was at the rear of the restaurant near the trash dumpsters and an
employee entrance. The employee entrance had no window. In order to get to the
closest customer entrance, a recessed door, Storts had to walk along a
windowless wall. Plaintiff's experts testified that this parking area
surprisingly had no natural surveillance and fell far below industry standards.
They suggested that Hardee's should have installed security cameras, windows
facing the parking area, and/or a window or peephole in the rear employee
entrance, and they testified that such measures would have been cost-effective.
The convenience store at the opposite end of the Belle Plaines service area had
installed surveillance cameras.

Whether this evidence is adequate to support a jury determination of
liability under Seibert can be determined by measuring it against the
evidence presented in two Kansas cases holding, as a matter of law, that a
property owner did not breach its duty to provide security and therefore was not
liable for injuries to guests caused by third parties. In Gragg v. Wichita
State Univ., 934 P.2d 121, 135 (Kan. 1997), the Kansas Supreme Court held
that a university could not have reasonably foreseen the shooting of an
individual on its campus following a festival and that the security provided was
adequate. Applying Seibert, the court found evidence of a student shot
during a different festival on a different part of campus two years earlier and
of a high crime rate in a neighborhood bordering the campus to be insufficient
to overcome a motion for summary judgment. See id. This conclusion
relied in significant part on the fact that over 100 security personnel were
present at the festival and that "the security and lighting were adequate."
Id. At issue in Weroha v. Craft, 951 P.2d 1308 (Kan. Ct. App.
1998), was a business owner's liability for an assault inside a pinball arcade.
The court granted summary judgment in favor of the business owner, finding there
was no evidence that the arcade was in a high crime area and no basis from which
to infer that violent activity had occurred previously in the arcade or that
pinball arcades in general experience a high rate of crime. See
id. at 1313-14.

The evidence of foreseeability in the present case, although not
overwhelming, is more substantial than the evidence in Gragg or
Weroha. Unlike either of those cases, the record before us contains
evidence that the Kansas Turnpike, and other Hardee's along the Turnpike, had
been the sites of multiple violent crimes in the preceding three years.
Furthermore, unlike Weroha, the evidence demonstrates that fast food
restaurants experience a high rate of crime, the Belle Plaines Hardee's and its
parking lot were especially vulnerable, and the foreseeable risk of crime at
that location was greater than usual. Finally, unlike Gragg, the jury
heard opinion testimony that reasonable, widely-used security measures were not
employed and the security in place was below industry standards. Under the
totality of the foregoing circumstances, and considering the evidence in the
light most favorable to Storts, we hold a reasonable juror could conclude that
Hardee's should have foreseen a risk of harm to its patrons above and beyond the
ordinary and nevertheless failed to take reasonable security measures to deter
such harm.

IV

In addition to the duty to provide security, Storts alleged that Hardee's
breached its duty of reasonable care by failing to warn her of a dangerous
condition on its property. Hardee's now argues the district court's instructions
to the jury on both duties misstated the law, were unsupported by the evidence,
and had prejudicial titles. We review de novo the district court's instructions

to determine whether, as a whole, the instructions correctly stated the
governing law and provided the jury with an ample understanding of the issues
and applicable standards. Assuming the instruction[s] properly sets forth the
relevant law, we review the district court's decision to give the particular
instruction[s] for an abuse of discretion.

Kinser v. Gehl Co., 184 F.3d 1259, 1272 (10th Cir. 1999) (internal
quotations and citations omitted). An instruction should not be given unless
supported by sufficient competent evidence. See Farrell v. Klein
Tools, Inc., 866 F.2d 1294, 1297 (10th Cir. 1989). Reversal is required if
submission of the erroneous instruction was prejudicial. See id.
at 1298.(2)

A

The two duty instructions were entitled "Duty to Provide Security" and "Duty
to Warn of a Dangerous Condition." (III Appellant's App. at 516, 518.) During
discussion of the instructions, Hardee's objected to the duty to provide
security title. The district court explained the reason for the title was to
make clear that two separate duties were at issue. The court then asked if
Hardee's "had a problem with that," to which Hardee's responded "No, sir." (IV
Tr. at 954.) We find that this constitutes a waiver of objection to the titles,
and therefore this issue was not properly preserved for appellate review.
See Fed. R. Civ. P. 51. Alternatively, insofar as this comment can be
construed, as Hardee's argues, as simply expressing "an understanding of the
Court's position," (Appellant's Reply Br. at 29), Hardee's fails to identify
where in the record it distinctly stated the "grounds of the objection," Fed. R.
Civ. P. 11. We further hold that the instruction titles do not constitute plain
error because they are not "'patently plainly erroneous and prejudicial.'"
United Drilling Co. v. Enrol Oil & Gas Co., 108 F.3d 1186, 1190 (10th
Cir. 1997) (quoting Moe v. Avions Marcel Dassault-Breguet Aviation, 727
F.2d 917, 924 (10th Cir. 1984)).

B

The instruction on the duty to provide security stated in part:

The operator of a business has a duty to provide security for customers on
the premises when circumstances exist from which the operator could reasonably
foresee there is a risk of harm above and beyond the ordinary and that
appropriate security measures should be taken.

(III Appellant's App. at 516.) Hardee's contends the court should have
instructed the jury that any foreseeable risk of harm must be "substantially"
above and beyond the ordinary. In support of this contention, it relies on the
statement in Seibert that the duty to provide security arises "only where
the frequency and severity of criminal conduct substantially exceed the norm or
where the totality of the circumstances indicates the risk is forseeably high."
942 P.2d at 1339. However, elsewhere in Seibert, somewhat different
language is used: The duty arises "where circumstances exist from which the
owner could reasonably foresee that its customers have a risk of peril above and
beyond the ordinary . . . ." Id. at 1338. The instruction given by the
district court simply adopts one of two formulations of the same concept.
Furthermore, the formulation chosen is the one that appears in the Kansas
Supreme Court's syllabus of the case, see id. at 540, and the
Kansas Pattern Jury Instructions, see PIK Civil 3d 126.35. See
also Webb v. ABF Freight Sys. Inc., 155 F.3d 1230, 1248 (10th Cir.
1998) (holding that "no particular form of words is essential if the instruction
as a whole conveys the correct statement of the applicable law") (internal
quotations and citation omitted). We conclude the instruction on the duty to
provide security correctly stated the applicable law, provided the jury an ample
understanding of the applicable standards, and, as discussed above in Part
III.B, was supported by sufficient competent evidence.

C

The instruction on the duty to warn of a dangerous condition stated:

An operator of a place of business which is open to the public owes a duty to
the customer to use reasonable care, under all of the circumstances, in keeping
the business place safe. This duty applies to all areas in the business used by
the customer. The operator of the business must warn the customer of any
dangerous condition which it knows about or should know about if it had
exercised reasonable care in tending to the business.

The operator of a business has no duty to warn a customer of any condition
known to the customer or which the customer should discover in the exercise of
reasonable care.

(III Appellant's App. at 518.)

The propriety of this instruction is the final question that Hardee's
requests we certify to the Kansas Supreme Court, and once again we deny that
request. Hardee's did not request certification of this question prior to the
adverse judgment, and, as discussed presently, it is resolved by controlling
precedent. See Massengale, 30 F.3d at 1331.

The duty expressed in this instruction, although an accurate statement of the
law, is not applicable to this case. Rather, it applies when a physical
condition of the business premises is the direct cause of the plaintiff's
injury. The pattern jury instruction upon which this instruction is based cites
as authority Thompson v. Beard & Gabelman, Inc., 216 P.2d 798 (Kan.
1950). See PIK Civil 3d 126.03. In that case, the plaintiff was injured
when, after entering what she believed to be a store dressing room, she fell
down a dimly-lit stairway. See id. at 800. The court described the
store owner's duty in language almost identical to that in the instruction
before us. See id. Similarly, every other Kansas case reciting
this standard of care involved a physical condition of the premises that was the
direct cause of the plaintiff's injuries. See, e.g., Lyons v. Hardee's
Food Sys., Inc., 824 P.2d 198, 199, 204 (Kan. 1992) (the plaintiff tripped
on a tree grate on the sidewalk area outside a restaurant); Noland v. Sears,
Roebuck & Co., 483 P.2d 1029, 1031, 1032 (Kan. 1971) (the plaintiff fell
down stairs lacking handrails); Smith v. Mr. D's, Inc., 415 P.2d 251, 253
(Kan. 1966) (the plaintiff slipped on a piece of lettuce). The evidence in this
case tended to demonstrate that a lack of windows or surveillance created an
environment in which criminal attack was more likely to occur. This simply is
not the sort of dangerous condition that gives rise to a duty to warn of a
dangerous condition under Kansas law.

As Storts points out, there are situations in which Kansas law recognizes a
duty to warn and protect in the context of criminal assaults. See, e.g.,
Gould v. Taco Bell, 722 P.2d 511 (Kan. 1986). The circumstances giving
rise to such a duty, however, are materially different from those in this case.
While Gould held that a business proprietor's duty to warn and protect
customers against reasonably foreseeable dangers can include the duty to
forestall or prevent an assault against a customer by a third party, the
Gould court specifically limited such a duty: It "'does not arise until
the impending danger becomes apparent to him, or the circumstances are such that
a careful and prudent person would be put on notice of the potential danger.'"
Id. at 515 (quoting Kimple v. Foster, 469 P.2d 281, 283 (Kan.
1970)). The record in this case is completely void of evidence that Hardee's or
any of its employees or agents knew or should have known that the three men
would rob, abduct, or otherwise assault Storts. Indeed, Storts does not even
allege that Hardee's could or should have intervened in her abduction.
Seibert, clearly the more factually analogous case, distinguishes
Gould and Kimple on precisely the same grounds. 856 P.2d at 1338
("Neither the premises owner nor any of its employees were aware of the presence
of the plaintiff or her attackers or that an attack was occurring."). Moreover,
to the extent the duty to warn of dangerous condition instruction purported to
articulate the duty described in Gould and Kimple, it misstated
the law because it did not require the jury to find that Hardee's failed to
forestall or prevent an apparent impending danger, namely an attack by third
parties.

Similarly, Nero, 861 P.2d at 768, does not support the application of
the duty to warn of a dangerous condition instruction to this case. In
Nero, a university student was assaulted by a fellow student in a common
area of their dorm. See id. at 772. The court held that "a
university has a duty of reasonable care to protect [or warn] a student against
certain dangers, including criminal actions against a student by another student
or third party if the criminal act is reasonably foreseeable and within the
university's control." Id. at 780. Because the university knew the
assailant had been charged with rape three weeks earlier, and because it placed
the assailant in a coed dorm with the victim, the court concluded that the
foreseeability of the attack was a factual issue. See id.

By contrast, in the instant case, Storts does not allege that Hardee's knew
her abductors were in the parking lot, let alone inclined towards violence, or
had control over their presence. As the Seibert court stated when
distinguishing Gould and Kimple:

Rather, the liability sought to be imposed herein is predicated upon the
frequency and severity of prior attacks against different patrons by presumably
different attackers at different times and in different areas . . ., plus the
totality of the circumstances making the attack upon the plaintiff or some other
business invitee foreseeable to the defendant, who then had a duty to take
appropriate security action to prevent or make less likely the same from
occurring.

856 P.2d at 1338. That Nero is analogous to Gould and
Kimple but not Seibert is reinforced by the fact that the majority
cites to Gould but not Seibert, see Nero, 861 P.2d
at 779-80, even though Seibert was decided less than two months earlier
and is discussed by the dissent, see id., 861 P.2d at 784-85 (Six,
J., dissenting).

It is the duty described in Seibert, and not the duty described in
Thompson, Gould, or Nero, that applies in this case.
Therefore, the district court erred when it submitted to the jury the duty to
warn of a dangerous condition instruction.

"Generally, where a jury has returned a general verdict and one theory of
liability upon which the verdict may have rested was erroneous, the verdict
cannot stand because one cannot determine whether the jury relied on the
improper ground." Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1229
(10th Cir. 1996) (citing Sunkist Growers, Inc. v. Winkler & Smith Citrus
Prods. Co., 370 U.S. 19, 29-30 (1962)); see also Morrison Knudsen
Corp. v. Fireman's Ins. Fund Co., 175 F.3d 1221, 1254 (10th Cir. 1999);
Franklin v. Northwest Drilling Co., Inc., 524 P.2d 1194, 1203 (Kan.
1974). This case was submitted to the jury on two theories. Submission of the
duty to provide security theory was proper, but submission of the duty to warn
of a dangerous condition theory was erroneous. Because the verdict form did not
specify upon which theory the verdict rested, we cannot say "'with absolute
certainty' that the jury was not influenced by the submission of the improper or
erroneous instruction." Anixter, 77 F.3d at 1229 (quoting Farrell,
866 F.2d at 1299-1301 (10th Cir. 1989)). Therefore, we reverse.

V

The final issue presented by Hardee's is whether the district court erred by
admitting irrelevant and unreliable expert testimony. While the precise nature
of the objection is not entirely clear, Hardee's appears to contest both the
foundation for the expert testimony as well as the relevance of particular
statements. We address this issue because it is likely to recur on re-trial.

Abuse of discretion is the proper standard for review of a district court's
decision to review or exclude expert testimony. See General Elec. Co.
v. Joiner, 522 U.S. 136, 141 (1997). In Kumho Tire Co. v. Carmichael,
526 U.S. 137, 119 S. Ct. 1167, 1174-75 (1999), the Supreme Court held that a
district court has a gatekeeping obligation to ensure the relevance and
reliability of all expert testimony when the data, principles, methods, or
application upon which the testimony is based are called into question. See
also Kinser, 184 F.3d at 1271. "However, the Court also held that
trial courts have great latitude in determining the methods by which it tests
the reliability of expert testimony. Indeed, the abuse of discretion standard
'applies as much to the trial court's decisions about how to determine
reliability as to its ultimate conclusion.'" United States v. Charley,
189 F.3d 1251, 1261 n.11 (10th Cir. 1999) (quoting Kumho Tire, 119 S. Ct.
at 1176). "Even though the trial court in this case did not have the benefit of
Kumho Tire's direction, its evidentiary decisions do not warrant reversal
if it determined, in some apparent manner, that the expert testimony it admitted
was reliable." Id. (citing Kumho Tire, 119 S. Ct. at 1179). In the
absence of adequate findings on an expert's qualifications, we conduct a de novo
review of the entire record to determine whether that omission is harmless.
See Kinser, 184 F.3d at 1271.

Hardee's first challenged the relevance and reliability of Storts's experts
when their affidavits were submitted in response to its motion for summary
judgment on the question of duty, alleging that the opinions expressed therein
would not be admissible at trial as required by Fed. R. Civ. P. 56(e). The court
found that the backgrounds of experts Mellard and DelMarva qualified them to
express opinions, based on their experience and training, as to the
foreseeability of crime at the Belle Plaines Hardee's. With regard to Witkowski,
the district court conducted a separate hearing to determine the reliability of
the theory of Crime Prevention Through Environmental Design ("CPTED"), upon
which many of his opinions were based. The appendices do not contain the
district court's ruling on the reliability of Witkowski's testimony, but it is
apparent that he was permitted to testify as an expert on CPTED.

The district court did not abuse its discretion in determining that the
experts' proffered testimony was reliable and relevant. While it did not conduct
a separate hearing for Mellard and DelMarva, it did review evidence of their
qualifications. Our own review confirms its conclusions. Mellard has an
extensive background in law enforcement and crime prevention and has personal
knowledge of the Kansas Turnpike, and DelMarva has extensive background in the
restaurant management and security, particularly with fast food restaurants.
This knowledge and experience supports the reliability of their relevant
testimony concerning whether Hardee's should have foreseen, and taken steps to
reduce the likelihood of, criminal attacks at Belle Plaines. With respect to
Witkowski, Storts presented, and Hardee's failed to refute, evidence that CPTED
is widely accepted in the security field and was employed by Hardee's as part of
its security program. This theory served as the basis for Witkowski's relevant
opinion that the likelihood of the attack on Storts could have been reduced by
improved surveillance.

With respect to Hardee's challenges to individual statements made by the
experts, Hardee's rarely indicates where in the record we can find the offending
testimony and the objections thereto. See United States v.
Rodriguez-Aguirre, 108 F.3d 1228, 1237 n.8 (10th Cir. 1997) (holding that
the appellant must provide specific citations in support of its allegations that
the trial court admitted prejudicial evidence). We thus address only those
statements identified with sufficient particularity.

On two occasions, Hardee's objected to expert testimony on the ground that it
invaded the province of the jury: when Witkowski stated the abduction of Storts
"was foreseeable based upon other types of crimes throughout the Hardee's chain
of restaurants and also crime along the contiguous highway on which it was
located" (I Tr. at 172); and when Mallard stated, in effect, that it was
unreasonable for a company to look only at convictions, and not incident
reports, when assessing the foreseeability of criminal acts. Federal Rule of
Evidence 704(a) permits expert testimony that "embraces an ultimate issue to be
decided by the trier of fact," but experts are still prohibited from testifying
to "legal conclusions drawn by applying the law to the facts," A.E., by and
through Evans v. Independent Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir.
1991) (citing United States v. Jensen, 608 F.2d 1349, 1356 (10th Cir.
1979); Frase v. Henry, 444 F.2d 1228, 1231 (10th Cir. 1971)). Mallard and
Witkowski's opinions on reasonableness and foreseeability, respectively, do not
offend this prohibition. They do not "'merely tell the jury what result to
reach,'" nor are they "'phrased in terms of inadequately explored legal
criteria.'" Specht v. Jensen, 853 F.2d 805, 807 (10th Cir. 1988) (en
banc) (quoting Fed. R. Evid. 704 advisory committee's note). Following
Witkowski's statement, he was questioned in detail concerning the number and
types of crimes occurring at other Hardee's and along the Kansas Turnpike.
Mallard's opinion was preceded and followed by a discussion of the reasons that
conviction statistics alone under-represent criminal activity, and an assertion
that the standard in the security industry is to use incident reports. Moreover,
the district court repeatedly warned the jury that the ultimate issues of law
and fact were for it to determine. We have held that it is not an abuse of
discretion to admit expert testimony embracing ultimate issues of fact when the
expert

explained the bases for his opinions in sufficient detail to permit the jury
to independently evaluate his conclusions. The legal terms used are not so
complex or shaded with subtle meaning as to be beyond the understanding of the
average person, and [the expert's] use of those terms did not conflict with the
court's instructions. Finally the court instructed the jury that it was free to
entirely disregard an expert's opinion "if you should conclude that the reasons
given in support of the opinion are not sound."

Karns v. Emerson Elec. Co., 817 F.2d 1452, 1459 (10th Cir. 1987)
(citations omitted). The testimony and cautionary instructions at issue here are
qualitatively similar to those in Karns. Therefore, the district court
properly overruled Hardee's' objections to this opinion testimony.

The district court's decision to admit evidence of "other crimes on the
turnpike of a similar nature during a similar time period" also was not an abuse
of discretion. (I Tr. at 126.) Hardee's argues that "distinct crimes occurring
in distinct locations and under dissimilar circumstances" were not relevant to
foreseeability. (Appellant's Br. at 50.) Seibert's totality of the
circumstances test, however, only requires that the circumstances considered
bear "a direct relationship to the harm incurred." Seibert, 856 P.2d at
1339. It does not require that prior crimes be identical in all respects.
See id. We agree with the district court that violent crimes
occurring along the turnpike in the three years preceding the attack on Storts
were sufficiently similar to the crime at issue to be considered under the
totality of the circumstances test. There is little question that the more
similar the previous incident the more probative it is of the foreseeability of
the later crime, but this consideration goes to weight, not admissibility.
Therefore, the district court did not abuse its discretion in finding the
testimony relevant.

VI

Having addressed Hardee's' claims on appeal, we now turn to the three
assignments of error raised by Storts in her cross appeal: instructing the jury
on contributory negligence; granting summary judgment for Hardee's on her
undertaking of a duty theory; and granting summary judgment for Hardee's on her
contract claim.

A

"The question of contributory negligence is ordinarily a question for the
jury and is to be determined by the court only when the facts are such that
reasonable minds might not differ." Gardner v. Pereboom, 416 P.2d 67, 72
(Kan. 1966) (citing In re Estate of Lloyd, 290 P.2d 817 (Kan. 1955)). In
addition, an instruction should not be given unless supported by sufficient
competent evidence. See Farrell, 866 F.2d at 1297. When
determining whether the question of comparative negligence should be submitted
to the jury, the evidence must be considered in the light most favorable to the
defendant. See Cox v. Lesko, 953 P.2d 1033, 1038 (Kan. 1998).(3)

Considering the evidence in the light most favorable to Hardee's, we find
there was sufficient competent evidence to support the submission of the
comparative fault question to the jury. Storts, like everyone else, has a
general duty to exercise ordinary or reasonable care to avoid harm to herself
and others. See Stingley v. Allison, 436 P.2d 387, 389 (Kan.
1968). There is some evidence that Storts breached this duty and that that
breach was a cause of her abduction: She approached two unknown men standing
next to an unusually positioned car, with a third man at the wheel, in an area
of a remote parking lot hidden from view, without looking to see if there was
anyone else in the parking lot. We cannot say it was error to let the jury
determine whether a reasonable person would have taken some precautionary
measures in that situation.

B

We review de novo the district court's grant of Hardee's'
motion for

summary judgment on the issues of undertaking of duty and breach of contract.
See Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.
1995). Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

In Schmeck v. Shawnee, 651 P.2d 585, 596 (1982), the Kansas Supreme
Court adopted the concept of tort liability for the undertaking of duty as
defined by the Restatement (Second) of Torts § 324A (1965):

One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third
person or his things, is subject to liability to the third person for physical
harm resulting from his failure to exercise reasonable care to protect his
undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm,
or

(b) he has undertaken to perform a duty owed by the other to the third
person, or

(c) the harm is suffered because of reliance of the other or the third person
upon the undertaking.

"In all the cases [where § 324A was held to create a duty] there was some
duty by another to a third person assumed by the party sought to be held liable
which, when the duty was breached, led to the injury of the third person."
Gooch v. Bethel A.M.E. Church, 792 P.2d 993, 1000 (Kan. 1990). In order
to assume a duty under § 324A, the defendant must perform an affirmative act or
enter into an agreement. "Without an affirmative act or an agreement, there is
no duty owed under § 324A." P.W. v. Kansas Dep't of Soc. & Rehabilitative
Servs., 877 P.2d 430, 435 (Kan. 1994). Thus, Storts must demonstrate a
genuine issue of material fact as to whether Hardee's assumed a duty owed to
Storts by a third party through some affirmative act or agreement.

Storts argues that Hardee's undertook a duty to provide security by virtue of
its internal policies and its lease agreement with the KTA. Hardee's' internal
policies clearly do not provide a basis for § 324A liability. By adopting those
policies, Hardee's did not assume a duty owed to Storts, or the public at large,
by a third party. Nor did Hardee's undertake a duty to protect Storts from
attacks by third parties by entering into the lease with the KTA. Storts relies
on two provisions of the lease requiring Hardee's to maintain the safety of the
property "in a manner befitting the Turnpike." (II Appellee's Supp. App. at 273,
284.) Parties are presumed to contract in light of existing law, and we will not
interpret a contract to impose duties exceeding those imposed by law unless such
a heightened duty is apparent from the language of the contract. See
Schoke v. Franklin, 633 P.2d 1151, 1153 (Kan. Ct. App. 1981). We agree
with the district court that the contract provisions requiring maintenance of
safety did not impose on Hardee's duties exceeding those otherwise imposed on
business proprietors by Kansas law. See Storts, 919 F. Supp. at
1519. Therefore, Storts's § 324A claim was properly dismissed on summary
judgment.

For similar reasons, we hold that the district court properly granted summary
judgment in favor of Hardee's on Storts's breach of contract claim. Storts
alleged that she was an intended third party beneficiary of the lease between
Hardee's and the KTA and that Hardee's had breached that contract by failing to
keep the premises safe. Even if we assume Storts was an intended third party
beneficiary of the lease, we agree with the district court that the contract
does not impose a duty to keep the premises safe greater than that imposed by
law. See Storts, 919 F. Supp. at 1519-20. Therefore, Storts's
claim sounds in tort, not contract. Cf. Young v. Kansas State Park
& Resources Auth., 627 P.2d 384, 385-88 (Kan. Ct. App. 1981).

VII

Because the district court erroneously and prejudicially submitted to the
jury instructions on the duty to warn of a dangerous condition, we
REVERSE and REMAND for further proceedings
consistent with this opinion.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES
Click footnote number to return to
corresponding location in the text.

*. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral
estoppel. This court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions
of 10th Cir. R. 36.3.

1. Hardee's also asserts that it was error for the
district court to deny its motion for summary judgment on the question of duty
to provide security. We need not address this argument. "Even if . . . summary
judgment was erroneously denied, 'the proper redress would not be through appeal
of that denial but through subsequent motions for judgment as a matter of law .
. . and appellate review of those motions if they were denied.'" Medlock v.
Ortho Biotech, Inc., 164 F.3d 545, 549 n.1 (10th Cir. 1999) (quoting
Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1103 (10th Cir. 1998)).

2. In a federal diversity case, the substance of jury
instructions is governed by state law but the grant or denial of an instruction
as a matter of procedure is governed by federal law. See Farrell,
866 F.2d at 1296.

3. Contrary to Storts's assertion, Hardee's' closing
argument cannot be fairly read as waiving the comparative fault argument or
admitting that Storts was not negligent.

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