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March 27, 2026 Get Citation Alerts Download PDF Add Note

Short v. Costco Wholesale Corp.

Court of Appeals of Kansas

• Citations: None known
• Docket Number: 128994

• Precedential Status: Non-Precedential

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (32.2K)

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Combined Opinion

NOT DESIGNATED FOR PUBLICATION

No. 128,994

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

FREDRICK SHORT,
Appellant,

v.

COSTCO WHOLESALE CORPORATION,
Appellee.

MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES F. VANO, judge. Oral argument held on February 10,
2026. Opinion filed March 27, 2026. Reversed and remanded with directions.

Andrew H. McCue, of The Accurso Law Firm, of Kansas City, Missouri, for appellant.

Justin C. Shock, pro hac vice, of Baty Otto Scheer P.C., of Kansas City, Missouri, and Lee Baty,
of the same firm, for appellee.

Before ARNOLD-BURGER, P.J., BRUNS and SCHROEDER, JJ.

PER CURIAM: Fredrick Short appeals the district court's grant of Costco
Wholesale Corporation's (Costco) motion for judgment on the pleadings. In his amended
petition, Short alleges that he was injured while he was shopping at Costco because of
inadequately packaged frozen mini tacos that "suddenly and unexpectedly" broke open
and splled on the floor. Short also alleges in the amended petition that he slipped on the
frozen contents causing him to fall. As a result, Short claims that Costco breached its
implied warranty of merchantability because the mini tacos were not adequately
packaged. On appeal, we find the district court erred in granting Costco's motion for

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judgment on the pleadings. Thus, we reverse and remand this matter to the district court
for further proceedings.

FACTS

Because the sole issue before us is whether the district court erred in granting
Costco judgment on the pleadings, we will confine our discussion of the facts solely to
those alleged on the face of the pleadings. On April 6, 2022, Short was a customer at the
Costco store in Lenexa. After picking up a box of frozen chicken mini tacos to purchase,
the packaging failed and its contents fell onto the floor. When he pivoted, Short fell on
the floor causing him to suffer injuries to his head and right knee.

Although Short originally filed a petition seeking to recover damages against
Costco on October 10, 2022, the pleading that is material to the issue on appeal is his
amended petition filed on January 2, 2025. In his amended petition, Short briefly set forth
his version of the facts and alleged that Costco impliedly warranted that the mini tacos
were adequately packaged. As a result, Short claimed that Costco "breached its implied
warranties that the frozen goods were merchantable and fit for their intended purpose
because they were not adequately contained and packaged in that the package . . .
suddenly and unexpectedly . . . collapsed or otherwise failed." Furthermore, Short
claimed that Costco's breach of these warranties caused him to suffer injuries and
damages.

On January 3, 2025, Costco filed a motion for judgment on the pleadings and
Short filed a written response. The district court also heard arguments on the motion and
permitted the parties to file supplemental briefing. After considering the oral and written
arguments made by the parties, the district court issued a memorandum decision granting
the motion for judgment on the pleadings. In doing so, the district court not only looked
to the face of the pleadings to determine whether Short had stated a cause of action but

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also considered other facts that were not specifically alleged in the amended petition.
Significantly, the district court determined that "the usual point of sale, where title to the
goods transfers from Costco to its customers, is at the check-out stand where the
customer makes payment to Costco for the goods he or she intends to purchase."

After discussing K.S.A. 84-2-314, the district court concluded:

"When there are no other specific terms of the contract providing otherwise, the point of
sale, at the check-out stand, where title is transferred is the point where the contract for
sale is formed and where the implied warranty of merchantability attaches and becomes
actionable. Other activity within a self-service retail store, such as Costco in this case not
itself serving food, is at best an invitation, offer, or expectation to contract without the
implied warranty attaching by operation of law."

Thereafter, Short filed a timely notice of appeal.

ANALYSIS

Although both parties have presented thought-provoking arguments regarding the
interpretation of the Kansas version of the Uniform Commercial Code, the only issue
before us on appeal is whether the district court erred in granting Costco's motion for
judgment on the pleadings. When a defendant moves for judgment on the pleadings under
K.S.A. 60-212(c), the district court must determine from the face of the petition—
assuming all the allegations and reasonable inferences that may be drawn from those
allegations to be true—whether the plaintiff has stated a legally cognizable claim. On
appeal, our review of the issue of whether a district court properly granted a motion for
judgment on the pleadings is unlimited. Mashaney v. Board of Indigents' Defense
Services, 302 Kan. 625, 638-39, 355 P.3d 667 (2015).

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In evaluating whether the district court appropriately granted Costco's motion for
judgment on the pleadings, we must view the facts alleged in the amended petition in the
light most favorable to Short. Nora H. Ringler Revocable Family Trust v. Meyer Land
and Cattle Co., 25 Kan. App. 2d 122, 135, 958 P.2d 1162 (1998). This is because
motions under K.S.A. 60-212(c) are similar to motions under K.S.A. 60-212(b)(6) in that
both allow district courts to dispose of claims as a matter of law only when the petition
fails to state a cause of action. See Mashaney, 302 Kan. at 638. If a district court desires
to consider matters outside the pleadings, it must treat the motion as one for summary
judgment under K.S.A. 60-256 and follow the appropriate procedure. See Sperry v.
McKune, 305 Kan. 469, Syl. ¶ 4, 384 P.3d 1003 (2016). Regardless, pretrial dispositive
motions should not be used as a vehicle for district courts to "sort out varied facts and
their implications. . . ." Golden v. Den-Mat Corp., 47 Kan. App. 2d 450, 465, 276 P.3d
773 (2012).

Under our notice pleading requirements, a petition is not intended to govern the
entire course of the case. Rather, the ultimate decision as to the legal issues and theories
on which the case will be decided should typically not be decided at the pleading stage of
the case. Halley v. Barnabe, 271 Kan. 652, 656-57, 24 P.3d 140 (2001); see also ARY
Jewelers v. Krigel, 277 Kan. 27, Syl. ¶ 4, 38, 82 P.3d 460 (2003) ("A court . . . must
determine whether the pleaded facts and inferences state a claim, not only on the theory
which may be espoused by plaintiffs, but on any possible theory the court can divine.")

In other words, it is not our role to determine who might ultimately prevail in this
case nor is it even to determine whether the plaintiff's legal theory will survive summary
judgment. Instead, we must answer the basic question of whether Short has stated a
conceivable cause of action. To do so, we "must accept the facts alleged by the plaintiff
as true, along with any inferences that can reasonably be drawn therefrom" and then
address "whether those facts and inferences state a claim based on plaintiff's theory or

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any other possible theory. If so, the dismissal by the district court must be reversed."
Rector v. Tatham, 287 Kan. 230, Syl. ¶ 1, 196 P.3d 364 (2008).

Here, Short has attempted to state a claim against Costco based on a breach of the
implied warranty of merchantability and breach of the implied warranty of fitness for the
intended purpose. K.S.A. 84-2-314(1) provides "a warranty that the goods shall be
merchantable is implied in a contract for their sale if the seller is a merchant with respect
to goods of that kind." For goods to be merchantable, they must be "adequately
contained, packaged, and labeled as the agreement may require." K.S.A. 84-2-314(2)(e).
The implied warranty of merchantability applies both "to present sales" and "to contracts
to sell" goods. K.S.A. 84-2-314, UCC Comment 1.

Similarly, the term "contract for sale" entails "both a present sale of goods and a
contract to sell goods at a future time." K.S.A. 84-2-106(1). The Kansas Comment to
K.S.A. 84-2-106(1) further explains that "contract for sale" is broad enough "to include
both present sales of goods and contracts for the sale of goods in the future" and that
"[a]lthough the definition of 'sale' is based on the passage of title from seller to buyer, the
concept of title is largely unimportant in Article 2." Whether a binding contract has been
formed—either for the present or future sale of goods—is a question of fact because it
depends on the intention of the parties. Reimer v. The Waldinger Corp., 265 Kan. 212,
214, 959 P.2d 914 (1998); see also Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 60,
643 P.2d 100 (1982) ("The controlling question as to whether a binding contract was
entered into depends on the intention of the parties and is a question of fact.").

In viewing the face of the amended petition in the light most favorable to Short,
we find that he has alleged that Costco is the seller of goods of the kind that allegedly
caused his injuries; that he intended to purchase the goods that he selected from the
freezer; that the goods were inadequately packaged; that the inadequate packaging caused
its contents to rupture; that the contents spilled onto the floor; and, that he slipped on the

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spilled contents; that he fell to the floor; and that he suffered injuries. In addition, Short
alleges that his injuries were caused by Costco's breach of its implied warranty of
merchantability based on inadequate packaging. Finally, he seeks to recover damages
from Costco based on its alleged breach of implied warranty of merchantability.

We conclude that these allegations are sufficient to withstand a motion for
judgment on the pleadings. Consistent with notice pleading, we find that Short's amended
petition was sufficient to assert a conceivable claim that Costco breached its implied
warranty of merchantability by allegedly selling a defectively packaged good that caused
him to suffer personal injuries. In particular, he has sufficiently presented a fact question
regarding whether the parties entered into a contract for the sale of the goods. As
discussed above, a "contract for sale" of goods not only includes "a present sale of goods"
but also "a contract to sell goods at a future time." K.S.A. 84-2-106(1).

CONCLUSION

Although we take no position regarding the merits of the claims or defenses
asserted by the parties, we conclude that the granting of judgment on the pleadings is not
appropriate. In fact, based on a review of the briefs and the oral arguments presented by
counsel, it appears that there may be several factual questions and legal issues that must
be resolved in this case. But at this stage of the proceedings, we conclude that Short has
adequately stated a claim against Costco upon which relief could potentially be granted.
We, therefore, reverse the judgment on the pleadings and remand this case to the district
court for further proceedings.

Reversed and remanded with directions.

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