Full Opinion

Appellate Case: 24-3122 Document: 42-1 Date Filed: 11/06/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT November 6, 2026 _________________________________ Christopher M. Wolpert Clerk of Court KATHY BAKER, Plaintiff - Appellant, v. No. 24-3122 (D.C. No. 6:22-CV-01227-JWB) BRAUM’S, INC.; RETAIL BUILDINGS, (D. Kan.) INC., Defendants - Appellees. _________________________________ ORDER AND JUDGMENT * _________________________________ Before HARTZ, MORITZ, and EID, Circuit Judges. _________________________________ Kathy Baker tripped and fell on a sidewalk outside a retail business where one concrete slab sat three inches higher than the adjoining slab. She sued the store’s owners and operators for negligence under Kansas tort law. In granting summary judgment to the defendants, the district court applied Kansas’s “slight defect” rule, which bars negligence actions for trivial defects in sidewalks. Baker appeals, arguing that (1) there is a genuine dispute as to whether the defect is slight, and (2) that one of the exceptions to the slight defect rule—when the defendant created the defect at issue—applies here because the defendants * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-3122 Document: 42-1 Date Filed: 11/06/2026 Page: 2 painted other hazards yellow, instilling a false sense of security. We hold that the step was a slight defect and that the danger here was not created by the defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. Braum’s Inc. owns and operates an ice cream store in Hutchinson, Kansas. Braum’s leases the building where the store is located from Retail Buildings, Inc. (“RBI”). As part of the business, Braum’s maintains a sidewalk that runs from the entrance of the store to the parking lot. Near the edge of the parking lot, the Braum’s sidewalk connects to a sidewalk maintained by the City of Hutchinson. “At the point the sidewalks meet, the city sidewalk is 2.25 to 3.25 inches lower than the Braum’s sidewalk,” creating a step seen in the picture below. App’x Vol. II at 362. 1 On September 4, 2020, Baker parked in the parking lot of Braum’s in Hutchinson, Kansas. She exited the vehicle and walked on the city sidewalk. While 1 Braum’s disputes Baker’s measurement and claims the step is 1.75 inches to 3.00 inches in height. Viewing the facts in the light most favorable to the nonmoving party, we accept Baker’s measurement as true. 2 Appellate Case: 24-3122 Document: 42-1 Date Filed: 11/06/2026 Page: 3 attempting to get onto the Braum’s sidewalk, she struck her toe on the middle of the step. As a result, she suffered a broken tibia, which ultimately required surgery. On the day of the incident, it was “sunny” and “nothing was obstructing [Baker’s] view of the ledge at the time she struck her foot.” App’x Vol. I at 156. Additionally, “[t]here were no prior incidents related to the Step before the Incident [with Baker],” nor were there any complaints by customers in the past. Id. Baker subsequently sued Braum’s and RBI in state court, alleging various claims for negligence under Kansas tort law. The defendants removed the action to federal court and moved for summary judgment. In their motion, they argued that summary judgment was appropriate for five separate reasons: (1) RBI owed no duty to Baker, (2) the step was not a dangerous condition, (3) the step was a “slight defect” which bars negligence actions under Kansas law, (4) there was no duty to warn because the step was an open and obvious danger, and (5) the City of Hutchinson bore full legal responsibility. The district court granted summary judgment based on Kansas’s “slight defect” rule, which bars negligence actions for trivial defects in sidewalks. It did not address the defendants’ other grounds for summary judgment. Baker timely appealed. II. We review the grant of a motion for summary judgment de novo, applying the same standard as the district court. See SEC v. GenAudio Inc., 32 F.4th 902, 920 (10th Cir. 2022). Summary judgment is proper if the movant demonstrates that 3 Appellate Case: 24-3122 Document: 42-1 Date Filed: 11/06/2026 Page: 4 “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In applying this standard, we “examine the record and ‘all reasonable inferences that might be drawn from it in the light most favorable to the non-moving party.’” Berry & Murphy, P.C. v. Carolina Cas. Ins. Co., 586 F.3d 803, 808 (10th Cir. 2009) (quoting Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006)). A. In a personal injury action based on negligence, the plaintiff must prove “the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered.” Nero v. Kan. State Univ., 861 P.2d 768, 772 (Kan. 1993) (internal quotation marks omitted) (quoting Honeycutt v. City of Wichita, 836 F.2d 1128, 1136 (Kan. 1992)). “Since 1935, Kansas courts have applied a judicially created rule that slight and inconvenient defects in the sidewalk of a city street do not furnish basis for actionable negligence, even though a pedestrian may trip, fall, and injure himself or herself on account of such a trivial defect.” Elstun v. Spangles, Inc., 217 P.3d 450, 453–54 (Kan. 2009) (citation modified). 2 Although the “slight defect” rule first arose in a negligence suit against a city, the Kansas Supreme Court has since applied it 2 Many states have recognized a version of this rule in judicial decisions or statutes. See, e.g., Evans v. City of Eufaula, 527 P.2d 329, 332–33 (Okla. 1974); Doht v. Vill. of Walthill, 299 N.W.2d 177, 178–79 (Neb. 1980); City of Memphis v. McCrady, 124 S.W.2d 248, 249 (Tenn. 1938); Hutchinson v. Sheridan Hill House Corp., 41 N.E.3d 766, 773 (N.Y. 2015); Cal. Gov. Code § 830.2; Mich. Comp. Laws Ann. § 691.1402a(3). 4 Appellate Case: 24-3122 Document: 42-1 Date Filed: 11/06/2026 Page: 5 with equal force “in actions against an individual or private corporation alleged to have created or maintained a defect in the sidewalk.” Sepulveda v. Duckwall-Alco Stores, Inc., 708 P.2d 171, 173 (Kan. 1985). Additionally, “[a]lthough cases that apply this slight-defect rule generally use the terms ‘actionable negligence’ or ‘actionable defect,’” the Kansas Supreme Court “explained . . . that the rule is actually based on the definition of the duty owed by municipalities or property owners to pedestrians using the walkways in question.” Elstun, 217 P.3d at 454. “If a court concludes that a defendant did not have a duty to act in a certain manner toward the plaintiff, then the defendant cannot be liable to the plaintiff for negligence.” Id. at 453. “[Q]uestions regarding the existence of a duty of care are purely legal determinations.” Id. Thus, if a court concludes that no duty exists, “a court may correctly grant summary judgment in the defendant’s favor.” Id. “There is no mathematical formula or bright-line test for determining what constitutes a slight defect, and there is some diversity of opinion as to which defects are considered minor; each case must be determined on its own facts.” Barnett- Holdgraf v. Mutual Life Ins. Co. of N.Y., 3 P.3d 89, 93 (Kan. 2000). Kansas courts, however, “generally rely on the well-established rule that a sidewalk defect is actionable, or in other words, presents a jury question, only when the defect is such that a reasonably prudent person should anticipate some danger to persons walking on it.” Id. 5 Appellate Case: 24-3122 Document: 42-1 Date Filed: 11/06/2026 Page: 6 There is a well-recognized exception to the slight defect rule “where the irregularity in the sidewalk is caused by the negligent acts of the defendant.” Lyon v. Hardee’s Food Sys., Inc., 824 P.2d 198, 203 (Kan. 1992). “In that case, the negligence is actionable regardless of whether or not the irregularity is a slight defect.” Barnett-Holdgraf, 3 P.3d at 92 (quotation omitted). B. We hold that the step constituted a slight defect and was not caused by Braum’s negligence. 1. Baker contends that “there is a genuine dispute of material fact about the dangerousness of the Step, precluding application of the ‘slight defect rule’ here.” Aplt. Br. at 40. However, Baker’s attempt to couch the slight defect rule as a factual issue is foreclosed by Kansas law. As we explained above, the slight defect rule is “based on the definition of the duty owed by municipalities or property owners to pedestrians using the walkways in question.” Elstun, 217 P.3d at 454. And the Kansas Supreme Court has made clear that “questions regarding the existence of a duty of care are purely legal determinations,” including whether a defect is slight. Id. at 453. Thus, “a trial court can certainly decide as a matter of law that a claim based on a slight defect in a sidewalk is nonactionable.” Barnett-Holdgraf, 3 P.3d at 93; see also Williams v. C-U-Out Bail Bonds, LLC, 450 P.3d 330, 340 (Kan. 2019) (“Whether a duty exists is a question of law.”). 6 Appellate Case: 24-3122 Document: 42-1 Date Filed: 11/06/2026 Page: 7 In fact, the Kansas Court of Appeals recently rejected this exact argument in Decavele v. Winbury Operating, 529 P.3d 161 (Kan. Ct. App. 2023). In Decavele, the plaintiff argued “that there was a factual question as to whether the imperfection in the sidewalk was sufficiently small to fall within th[e] [slight defect] rule’s scope.” Id. The court explained that “the point of the slight-defect rule is that property owners have no legal duty to provide perfect sidewalks and thus are not liable as a matter of law for slight defects in those walkways.” Id. “Allowing a plaintiff’s negligence claims to survive summary judgment” because a factual question exists as to whether a defect is slight “would effectively nullify the Kansas Supreme Court’s reasoning in adopting that rule in the first place—that regardless of the factual circumstances, slight defects in sidewalks cannot form the basis for negligence claims.” Id. Therefore, we look to Kansas state law to determine whether the defect was “slight” and fits within the rule’s scope. Kansas courts have determined that a defect is not slight if “the defect is such that a reasonably prudent person should anticipate some danger to persons walking on it.” Barnett-Holdgraf, 3 P.3d at 93. Moreover, the size of a defect does not automatically trigger application of the rule. See Lyon, 824 P.2d at 204 (holding that a jury instruction stating that “[t]he laws of Kansas provide that variances of up to 3 inches between adjacent surfaces of a sidewalk area are ‘slight variances’” inaccurately stated the law because a defect is not automatically nonactionable because of its size.). Instead, the Kansas Supreme Court has stated that “[a]ll the surrounding circumstances, not just the size of the 7 Appellate Case: 24-3122 Document: 42-1 Date Filed: 11/06/2026 Page: 8 irregularity, must be taken into account.” Id. These circumstances include the “sidewalk’s location, the extent of the irregularity therein, its prior use and its use on the occasion in question. Id. (quotation omitted). Here, based on the undisputed facts, the irregularity in the sidewalk is clearly a slight defect under Kansas law. The step is only 2.25 to 3.25 inches high, fitting well within the category of defects that Kansas courts have determined to be trivial. See, e.g., Taggart v. Kansas City, 134 P.2d 417, 418–19 (Kan. 1943) (holding that a 3-inch depression between sidewalk slabs was a slight defect); Blankenship v. Kansas City, 135 P.2d 538, 541 (Kan. 1943) (holding that a 2-inch depression in a sidewalk caused by missing bricks was a slight defect); Sepulveda, 708 P.2d at 172–74 (holding that a “[1]-inch drop-off in a sidewalk” was a slight defect); Green v. Steward, 533 P.2d 1240, 1241 (Kan. 1975) (holding that a corner of a concrete sidewalk slab raised by 0.25 of an inch was a slight defect); Barnett-Holdgraf, 3 P.3d at 93–94 (holding that a hole in a landlord’s sidewalk that was—at most—3 inches deep by 5 inches wide was a slight defect). Moreover, there is nothing else indicating that the step was more than just a trivial defect based on the circumstances. The district court properly applied factors Kansas courts had previously used to determine whether an obstruction constituted a slight defect, such as height, visibility, and previous complaints or incidents. As the district court explained, the step “has existed in some form since as early as 1992.” App’x Vol. II at 429. On the day of the incident, it was “sunny” and “nothing was obstructing [Baker’s] view of the ledge at the time she struck her foot.” Id. 8 Appellate Case: 24-3122 Document: 42-1 Date Filed: 11/06/2026 Page: 9 Additionally, “[t]here were no prior incidents with the ledge before the incident with [Baker],” nor were there any complaints by customers in the past. Id. And the sidewalk was located in an open and obvious place where it would be easy to see any irregularity. Id. at 365, 429–31. Ultimately, the defect here was small, open and obvious, and had not posed a danger to customers in the past. The district court did not err in concluding that this irregularity amounted to a slight defect. 2. Baker also argues that the defendant’s “negligence in painting all other surrounding edges [yellow] except the Step caused her injuries, [ ] precluding application of the ‘slight defect rule.’” Aplt. Br. at 46. In other words, she contends that by painting all other hazards yellow, the defendants created a false sense of security which “created” the hazard—a circumstance in which Kansas courts have held the “slight defect rule” to be inapplicable. It is true that there is an exception to the “slight defect rule” where “the defects complained of are created by” the defendants’ own negligence. Harris v. McConnell, 401 P.2d 908, 911 (Kan. 1965) (emphasis and quotation omitted). But the cases discussing this exception speak of its applicability only where the defendants created the irregularity in the sidewalk, not the dangerous situation generally. See, e.g., Lyon, 824 P.2d at 203 (concluding that the slight defect rule is inapplicable “where the irregularity in the sidewalk is caused by the negligent acts of 9 Appellate Case: 24-3122 Document: 42-1 Date Filed: 11/06/2026 Page: 10 the defendant”); Harris, 401 P.2d at 911 (“[A]n abutting property owner is not liable for personal injuries sustained by pedestrians injured by stumbling or falling over defects in the sidewalk unless the defect was created by such owner.”); McGuire v. Hunke, No. 68,521, 1993 WL 139655902, at *7 (Kan. Ct. App. June 4, 1993) (unpublished). In Lyon, for instance, the plaintiff tripped over a “tree grate [that] was raised above the sidewalk approximately two or three inches.” 824 P.2d at 199. The Kansas Supreme Court held the slight defect rule inapplicable because the defendants created the raised grate on the sidewalk. See id. at 203. Because the “defect” in the sidewalk “was caused by the negligent acts of the defendant and not by the acts of nature or the passage of time,” the plaintiff’s negligence claim could be sustained. Id. Similarly, in McGuire, the Kansas Court of Appeals determined that the slight defect rule was inapplicable because “the defendants . . . actively contributed to the deteriorated condition of the asphalt ramp” by “allowing others to drive over the ramp to the detriment of the safety of their business customers.” 1993 WL 13965902 at *8. Here, Baker does not argue that the defendants created the step—the irregularity in the sidewalk. Instead, she contends that the defendants created the dangerous situation by painting other areas yellow, which created a false sense of security for pedestrians walking over the step. Accordingly, this exception does not apply. 10 Appellate Case: 24-3122 Document: 42-1 Date Filed: 11/06/2026 Page: 11 III. For the foregoing reasons, we AFFIRM. Entered for the Court Allison H. Eid Circuit Judge 11