Opinion
No. 106,394.
2012-12-14
Shirley SHELTON, appellee, v. JAY HATFIELD MOBILITY, LLC, Appellant.
Appeal from Montgomery District Court; F. William Cullins, Judge. Kevin D. Case and Patric S. Linden, of Case & Roberts P.C., of Kansas City, Missouri, for appellant. W.J. Fitzpatrick, of Fitzpatrick & Bass, of Independence, for appellee.
Appeal from Montgomery District Court; F. William Cullins, Judge.
Kevin D. Case and Patric S. Linden, of Case & Roberts P.C., of Kansas City, Missouri, for appellant. W.J. Fitzpatrick, of Fitzpatrick & Bass, of Independence, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Shirley Shelton filed a negligence action against Jay Hatfield Mobility, LLC, (JHM) after she was injured when her wheelchair rolled out of a JHM van operated by a JHM employee. A jury found that JHM was 62% at fault for the accident and apportioned the remaining 38% fault to Shelton. The jury determined Shelton's total damages to be $349,042.48, and consequently the trial court entered judgment against JHM in the amount of $216,406.34. JHM argues the court erred in giving or not giving several jury instructions, insufficient evidence existed to support the verdict based on those jury instructions, and the court erred in not allowing the jury to compare the fault of the home assistant present that day. We affirm in part, reverse in part, and remand.
JHM sells power scooters, mobility-equipped vans, and other equipment to customers who have physical mobility limitations. Linda Kennedy was employed by JHM as a mobility specialist at its Pittsburg, Kansas, facility, helping assess client's needs and determining what mobility equipment would be beneficial.
Shelton was born in 1937 and suffered from polio at an early age, but it mostly went into remission and settled in her right foot. She was able to function normally until about 1977 when the polio began to affect her back and she had to retire. In 2002, Shelton was living alone and her back was causing her more and more problems. She decided it was time to purchase a wheelchair. Shelton testified that at that time she was able to get in and out of the wheelchair and able to do most things including cook, go to the bathroom, and get in and out of bed.
In 2008, Shelton decided that she needed more help with her mobility than the manual wheelchair could provide. Her arms would get tired after pushing. She purchased a van equipped with an electric loading/unloading platform and vehicle controls that could all be done on the steering wheel. She did not purchase the van from JHM. However, Shelton contacted JHM about purchasing a motorized wheelchair and worked with Kennedy to determine what chair would best meet her needs. Shelton purchased the 600 Jazzy Power Wheelchair. Shelton also purchased an EZ Lock System for her new van so that she could drive the van without getting out of the powerchair.
Shelton testified that in order to qualify for Medicare to cover a portion of the cost of the wheel chair, she needed to have an examination by a doctor. Kennedy set up an appointment with Shelton's doctor and drove her to and from the appointment. Kennedy drove a JHM minivan to the appointment. Shelton was in her powerchair and was able to get in and out of the minivan by herself on a let-down ramp.
Kennedy also set up the appointment for Shelton to have the EZ Lock System installed in her van. Kennedy showed up on March 3, 2009, at 9 a.m. to take Shelton to Columbus, Kansas, for the EZ Lock installation. Rita Lashley, Shelton's home care assistant, was there, and Shelton testified that Kennedy said it was alright for Lashley to accompany them on the trip. Shelton testified that Lashley came along to find out how to snap the driver's seat in and out just in case she needed to drive in an emergency. Shelton understood that they would go and return from Columbus the same day, in her van, and that Kennedy never said otherwise. Shelton was in her powerchair, but they took her manual wheelchair along so she would have some place to sit during installation of the EZ Lock System. When they arrived at JHM in Columbus, Shelton was able to stand up and transfer from the powerchair to her manual wheelchair.
In Columbus, employees told Shelton that due to limited staff they would not be able to complete her EZ Lock System installation that day. Shelton's van and powerchair would have to stay at JHM. Shelton testified that Kennedy loaded her into a loaner van for the trip back home. Shelton testified that Kennedy only put two restraints on her manual wheelchair while they were in the loaner van and that she actually slid forward at one point when Kennedy unexpectedly took a corner at a high rate of speed.
When they arrived at Shelton's home, Kennedy stopped in the driveway. Lashley unlocked the back door, and Kennedy started getting ramps out. Lashley helped Kennedy set ramps from the garage floor to the platform in the garage. Lashley took both her and Shelton's belongings into the house. Shelton testified that Kennedy got back into the van and pulled forward a couple feet. Kennedy turned off the van and then turned around to release the restraints on Shelton's wheelchair. Shelton testified that Kennedy got out of the van and walked around the front to the passenger side. She opened the passenger side sliding door and then unfolded the ramp to the ground. Shelton testified that Kennedy started talking on the phone and walked around the front of the van again. Kennedy opened the driver's side sliding door and continued talking on the phone.
Shelton testified that she unlocked the brakes on her wheelchair and moved to about 6 inches from the ramp going out the passenger side sliding door. She was facing outside and spoke to Lashley who was squatting down by the front tire picking up sticks in the driveway. Shelton was expecting Kennedy to unload her. Shelton said she sat there with her hands in her lap for about 5 minutes.
Shelton testified that all of a sudden, it felt like someone pushed her wheelchair and she started down the ramp. She tried to stop the wheels with her hands but could not. At the end of the ramp, the footrest stuck in the ground, Shelton flipped in the air, and sge landed on her side with her arm underneath. Shelton said that when she looked back at the van, she saw Kennedy through the open sliding doors standing on the driver's side. Lashley called 911. Shelton testified that Kennedy only came to check on her after emergency personnel arrived but then never said anything to her.
Lashley provided home assistance for Shelton. She was employed by Windsor Home Health Care in conjunction with the Kansas Department on Aging. Lashley worked 12 hours a week—typically 6 hours each Monday and Friday. Lashley testified her job duties included cooking, cleaning, shopping, laundry, and small errands if needed. Lashley was not responsible for Shelton's health care and never took her out of the house. Lashley was not a nurse and had no nursing qualifications. Lashley testified that on the day of the trip to Columbus, she was not scheduled to work in Shelton's home. However, she wanted to learn how the EZ Lock pin worked and Shelton had promised to teach her how to crochet while they waited for the pin to be installed. Lashley testified that she had no responsibilities that day.
Lashley testified Shelton had only two restraints on her wheelchair on the trip back from Columbus. As for the critical timeframe in this case, Lashley stated she was cleaning sticks off the driveway when Shelton was injured. Lashley testified that after Shelton went down the ramp, Lashley turned around and saw Kennedy standing on the other side of the van in the driver's side sliding door. Lashley also testified that Kennedy said she would follow EMS to the hospital but that when the ambulance turned to go to the hospital, Kennedy turned the other way and that was the last they heard from her.
Marty Fry is Shelton's nephew. Fry was at Shelton's house on the day they left for Columbus. He said he initially thought that they would take the van to Columbus, put in the pin, and return home. However, he testified that Kennedy told him there was a possibility they might not get the van done, but that JHM had a handicapped accessible van they could use to bring Shelton back home. Kennedy said they had ramps to get Shelton from the garage into the house. Fry said he did not tell Shelton or Lashley about a possible change in plans. Fry testified that he told Kennedy to call for assistance when they got back home, but that Kennedy said she was a professional and had been doing this for a long time.
Kennedy testified that at their very first meeting, Shelton made it clear that she was an independent lady, wanted to do things for herself, and had taken care of herself for a long time. Kennedy agreed to pick up Shelton and take her to the JHM facility in Columbus. Kennedy offered Shelton a loaner powerchair if she needed it in Columbus, but she said Shelton wanted to take her manual wheelchair along. Kennedy confirmed that Shelton's manual wheelchair came loose on the way back home and that she just tightened the straps back up. Kennedy said there were four straps holding the wheelchair down.
Kennedy testified that all along the plan to install the EZ Lock System in Shelton's car was not a 1–day job. She testified that she had planned to take Shelton back to her home in the loaner van and then the service department would bring her van and powerchair back to her house the next day.
When they arrived back home, Kennedy said that Lashley offered to help Kennedy with the ramps to go in Shelton's garage. Kennedy testified that after they set the ramps, she walked back to the van, sat down in the driver's side sliding door, and then unhooked Shelton's restraint straps. She said that she saw Lashley bending down at the front of the van but did not know what she was doing. Kennedy testified that she backed away from the van, slammed the sliding door shut, and then started walking around the van. Kennedy heard Shelton scream. Kennedy testified that she ran around and saw Shelton's wheelchair at the bottom of the ramp and Shelton lying on the ground. Kennedy testified that Shelton never asked for help getting down the ramp. Kennedy denied getting in the van with Shelton or pushing her down the ramp. Kennedy confirmed her prior deposition testimony that she did not believe that Lashley did anything wrong.
Shelton filed a negligence lawsuit against JHM. She submitted her case to the jury under two negligence theories, Restatement (Second) Torts § 323 and § 324 (1964). The trial court granted a direct verdict to Shelton on allocation of fault to Lashley and struck Lashley from the fault section of the verdict form. The parties stipulated that Shelton suffered serious injuries including fractures to her right leg and permanent and irreparable damage to the nerves in her right leg causing loss of dorsiflexion or drop foot. At the conclusion of trial, the jury found JHM to be 62% at fault and Shelton to be 38% at fault. The jury found Shelton suffered $349,042.48 in damages but reduced that to $216,406.34 based on Shelton's percentage of fault.
JHM first argues the trial court erred in giving jury instructions based on Restatement (Second) Torts §§ 323 and 324. JHM contends Kansas has not recognized § 324 as a tort theory and even if recognized, the evidence adduced at trial did not support a verdict premised on § 324. JHM also argues there was insufficient evidence to support a verdict in favor of Shelton based on § 323. We agree with JHM's argument on § 324 and disagree with its arguments on § 323.
In Kansas, a plaintiff in a negligence action must first prove the existence of a duty owed to him or her by the defendant. The existence of a duty is a question of law over which this court's review is unlimited. Roe v. Kansas Dept. of SRS, 278 Kan. 584, 592, 102 P.3d 396 (2004). As for the sufficiency questions raised in this appeal, when a verdict is challenged as being contrary to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable to the prevailing party, supports the verdict, the appellate court should not intervene. Unruh v. Purina Mills, 289 Kan. 1185, 1195, 221 P.3d 1130(2009).
The general duty owed by one who voluntarily aids another is articulated in § 323 of the Restatement (Second) of Torts, which the Kansas Supreme Court has adopted as the law of this jurisdiction. See, e.g., Sail v. T's, Inc., 281 Kan. 1355, 136 P.3d 471(2006). It provides:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.” Restatement (Second) of Torts § 323 (1965).
In Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 488–89, 657 P.2d 532 (1983), the court explained the duty established under § 323:
“Section 323 is based upon the legal principle that a valuable consideration is not a prerequisite to the existence of a duty to exercise due care. The law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken, for nonperformance of which an action lies. See 57 Am.Jur.2d, Negligence § 45, p. 392 and the many cases cited therein. Stated in another way, where one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking the act must generally be performed with ordinary or reasonable care .”
Section 324 is a more particularized application of the rule stated in § 323. See Restatement (Second) of Torts § 324, cmt. a. Section 324 applies when the one receiving aid is helpless to adequately aid or protect himself or herself. It states:
“One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by:
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or
(b) the actor's discontinuing his aid or protection, if by so doing leaves the other in a worse position than when the actor took charge of him.” Restatement (Second) of Torts § 324.
Before trial, both parties submitted written arguments on whether Shelton could be considered “helpless adequately to aid or protect himself (herself)” and whether § 324 should be given to the jury. They raise the same arguments on appeal. The trial court found Shelton's argument persuasive and gave an instruction patterned after § 324. Alternatively, JHM argues that we do not actually need to decide whether § 324 should be adopted in Kansas because the evidence presented at trial is not sufficient to support a verdict under § 324. JHM maintains that Shelton was not helpless adequately to aid herself.
JHM argues that Kansas has neither expressly adopted nor implicitly recognized § 324 as a duty giving rise to a negligence theory of recovery. Both parties rely on the case of Watkins v. Hartsoch, 245 Kan. 756, 783 P.2d 1293 (1989), as supporting their respective positions. In Watkins, a 3–month–old baby was killed in an automobile accident. The baby's parents sued the other driver for negligence. The other driver denied fault and asserted comparative negligence as an affirmative defense that although the baby was in a child safety seat at the time of the accident, her fatal injuries were attributable, in part, to her mother's “improper use” of the safety seat. The other driver relied on § 324 for comparative fault. 245 Kan. at 765. The Watkins court found § 324 was irrelevant because K.S.A. 8–2504(c) rendered the evidence of seat use or non-use inadmissible. The court held:
“Since there is a statutory bar to the admission of this evidence, defendant's argument concerning general principles of tort law is irrelevant. Though the common law had provided the basics of the law in this state since territorial days, it is clear that, by legislative pronouncement, the common law has been modified. Steele v. Latimer, 214 Kan. 329, 332, 521 P.2d 304 (1974).” 245 Kan. at 765.
Both parties argue different conclusions from the above quoted language of Watkins. JHM argues the Watkins court did not decide whether or not § 324 was recognized in Kansas. Shelton argues that although the Watkins court relied on K.S.A. 8–2504(c) to decide the case, it did not reject § 324 as part of Kansas common law. Shelton also argues that since Restatement (Second) of Torts § 324 A (1965) has been adopted by the Kansas Courts, then its close relative, § 324, should be adopted as well. See Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982) (the principles embodied in Section § 324A have long been recognized by the Kansas Supreme Court). JHM contends § 324A is clearly distinguishable because it involves a duty to third persons, not the person to whom the services are provided as is the case before the court. Another question is whether the facts of this case support a duty under § 324.
Restatement (Second) of Torts § 324A was adopted by the Kansas Supreme Court in Schmeck, 232 Kan. at 25–27.Restatement (Second) of Torts § 324A (1964)—Liability to Third Person for Negligent Performance of Undertaking—provides:
“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.”
The Kansas appellate courts have not expressly adopted § 324. A recognition of it would not be much of a jurisprudential leap since “[t]he rule stated in [section 324] is [merely] an application of the one stated in [section] 323.” Restatement (Second) of Torts § 324, cmt. a (1965). See e.g., Flynn v. United States, 681 F.Supp. 1500, 1506 n. 15 (D.Utah 1988), aff'd in part902 F.2d 1524 (10th Cir.1990). As an application of § 323, § 324 would impliedly retain the reasonableness component of § 323. See Restatement (Second) of Torts § 324, cmt. b (“The rule stated in this Section is applicable whenever one takes charge of another who is incapable of taking adequate care of himself.”).
JHM argues that Kansas adheres closely to the general principles in Restatement (Second) Torts §§ 314 and 314A that a person has no duty to act for the protection of others, absent a special relationship. See Thomas v. Board of Shawnee County Comm'rs, 40 Kan.App.2d 946, 951, 198 P.3d 182 (2008) (“There is no affirmative duty to protect an individual unless one can establish a special duty is owed to the injured individual.”). Shelton counters that a special relationship existed. See Sarracino v. Martinez, 117 N.M. 193, 870 P.2d 155 (1994) (“a special relationship, requiring reasonable care, is created when one ‘voluntarily takes charge of a helpless person.”); Restatement (Second) Torts § 314A(4) (A special relationship exists when “[o]ne who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.”).
The parties cite other jurisdictions that have approved of § 324. JHM argues the other cases involve two types of inapplicable situations: (1) persons who take charge of an intoxicated individual, e.g., Downs ex rel. Downs v. Bush, 263 S.W.3d 812, 822–23 (Tenn.2008); and (2) persons who undertake to assist someone who is incapacitated or unable to help themselves due to recent injury or illness, e.g., Filter v. McCabe, 733 A.2d 1274, 1278 (Pa.Super.1999). JHM argues that Shelton does not fall within either of these situations and she was certainly not helpless to adequately protect herself as necessitated in § 324.
Shelton cites a number of cases regarding § 324: Hayes v. Caspers, Ltd., 2002 WL 449284 (Conn.2002) (taking charge of intoxicated individual); Le Juene Road Hospital, Incorporated v. Watson, 171 So.2d 202 (Fla.Dist.App.1965) (hospital patient forced to leave and go to other hospital for appendix removal); Wakulich v. Mraz, 203 Ill.2d 223, 785 N.E.2d 843 (2003) (taking charge of intoxicated individual); Garofalo v. Lambda Chi Alpha Fraternity, 616 N.W.2d 647 (Iowa 2000) (taking charge of intoxicated individual); David v. Southern Farm Bureau Casualty Ins., 122 So.2d 691 (La.App.1960) (taking injured individual to hospital); Holson v. State, 99 Md.App. 411, 637 A.2d 871 (1994) (intoxicated passenger); Sarracino v. Martinez, 117 N.M. 193, 870 P.2d 155 (1994) (intoxicated passenger brought action against driver to recover damages for injuries sustained when she was assaulted when left alone in truck with engine running while driver went into a bar to use bathroom); Parvi v. City of Kingston, 41 N.Y.2d 553, 362 N.E.2d 960 (1977) (duty of police officers to persons under the influence of alcohol who are already in their custody); Fisher v. Dipietro, No 30319/06, 2007 WL 2049714 (N.Y.Sup.2007) (unpublished opinion) (take charge of intoxicated individual); Karavas v. Poulos, 381 Pa. 358, 113 A.2d 300 (1955) (duty to injured bar patron); Madison v. Babcock, 371 S.C. 123, 638 S.E.2d 650 (2006) (private treatment center owes a duty to exercise reasonable care in supervising a mentally retarded person admitted to its care); Alder v. Bayer, 61 P.3d 1068 (Utah 2002) (exposure to toxic fumes by faulty installation and maintenance of x-ray machine); Collins v. Thomas, 182 Vt. 250 938 A.2d 1208 (2007) (intoxicated individual in truck bed); Cummins v. Lewis County, 156 Wash.3d 844, 133 P.2d 458 (2006) (negligent maintenance of an emergency dispatch system and failure to respond to a 911 call).
JHM contends that Shelton was not helpless. It argues that Shelton's testimony showed that her own conduct created the circumstance that led to the incident. Shelton acknowledged that she disengaged the brakes on her manual wheelchair, moved it close to the open doorway of the van, and sat there with the brakes off and her hands in her lap. JHM also argues the jury's verdict of 38% fault against Shelton demonstrates that it did not consider her helpless and bore partial fault for the incident. JHM contends that if the jury found Shelton at fault, then she certainly had the power to aid and protect herself under § 324. We agree. We conclude the evidence was insufficient to support a jury instruction under § 324.
As for the sufficiency of the evidence under § 323, at the instructions conference, JHM argued that the standard PIK negligence instruction (Instruction Nos. 12 & 17, based on PIK Civil 4th § 103.01 was sufficient in the case. JHM insists that to give the jury an instruction under § 323 improperly assumed that JHM had undertaken a duty to remove Shelton from the van. JHM argues this is misleading and requires a new trial. Shelton counters that the negligence instruction did not inform the jury of what duty of care JHM owed Shelton and that the jury instructions should be constructed to conform to the facts of each individual case. See e.g., Schmeck, 232 Kan. 11 (patterned a jury instruction after Restatement [Second] of Torts § 324A).
JHM cites several cases in support of its position that it owed no duty to Shelton under § 323. In Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 490, 657 P.2d 532 (1983), the plaintiffs, owners of International Harvester irrigation engines, contacted a product specialist for Amoco Oil for a recommendation on what type of oil should be used in the machines. International Harvester subsequently conducted a surveillance program on the engines and initially determined that the oil recommended by Amoco was suitable. Subsequently, damage resulted to the machines from the type of oil recommended. At trial, the plaintiffs' theory of liability was based upon § 323, and International Harvester argued it was a mere volunteer who was conducting the surveillance on new engines to obtain information regarding engine problems that would normally occur during the warranty period. The Supreme Court disagreed and found the evidence supported a claim for recovery under § 323. 232 Kan. at 488–91.
In Cunningham v. Braum's Ice Cream & Dairy Stores, 276 Kan. 883, 80 P.3d 35 (2003), the plaintiff customers of the defendant's ice cream store brought a negligence action against the defendant after its employees shooed them out of the store into the path of a tornado. They were injured while driving home when the tornado threw a truck into their car. The evidence established that the defendant's employees were aware at that time that a tornado warning was in effect and had heard reports of a tornado sighting in the area. Additionally, the defendant had an emergency action plan that “if a tornado is sighted, or a Civil Defense warning sounds, anyone not wishing to leave should be directed to the ‘milk room.’ “ 276 Kan. at 885. The employees did not tell the plaintiffs about the tornado warning or the emergency action plan. 276 Kan. at 885.
On appeal, the plaintiffs argued in part that summary judgment was inappropriate because a duty arose under Restatement (Second) of Torts, quoting § 323 but citing § 324A. As such, the court addressed both provisions. In discussing whether a duty arose under § 323, the court first discussed two Kansas cases which had found a duty arose under § 323, Circle Land and Burgess v. Perdue, 239 Kan, 473, 481, 721 P.2d 239 (1986). In Burgess, this court found a duty arose under § 323 when a doctor voluntarily assumed the responsibility to relay a mother's request for a partial autopsy of her son to the coroner, but he failed to do so and a full autopsy was performed. 239 Kan. at 481–82. The Cunningham court quoted from Burgess as follows:
“ ‘ “In most of the cases finding liability, the defendant has made the situation worse, either by increasing the danger, by misleading the plaintiff into the belief that it has been removed, or by depriving him of the possibility of help from other sources. Many of the decisions state that some such element is necessary, and that there can be no liability where the conduct in no way aggravates the situation or misleads the plaintiff, and he is left no worse off than he was before....’ “ 239 Kan. at 481(quoting Prosser and Keeton on Torts, § 56, pp. 381–82 [5th ed.1984] ).” 276 Kan. at 892–93.
In finding the evidence to support a § 323 duty wanting, the Cunningham court found that the only evidence of an undertaking, the emergency action plan, did not compel any particular action by the employees under the facts of the case. Additionally, it distinguished Circle Land and Burgess, where the defendant's behaviors induced the plaintiffs' detrimental reliance, by holding no duty arose under § 323 because no evidence was presented that the plaintiffs relied upon the emergency action plan. The court concluded that the plaintiffs “cannot demonstrate that they looked to [defendant] for services they now argue [the defendant] had a legal obligation to provide.” 276 Kan. at 895–96.
JHM argues there was no showing of any express agreement between Kennedy or JHM to assist Shelton in getting out of the vehicle. Kennedy testified that she never told Shelton she would help her out of the van and would never have thought to because of how independent Shelton claimed she was. JHM claims Kennedy's conduct did not constitute an implicit undertaking sufficient to give rise to a duty under § 323. We disagree.
There was an explicit undertaking by JHM to install an EZ Lock pin in Shelton's van. Encompassed within that undertaking was Kennedy's agreement to transport Shelton to JHM's Columbus facility and then return her home along with any conduct consistent with that undertaking. Shelton argues that when the original undertaking changed, JHM and Kennedy should have recognized that Shelton would need assistance negotiating the ramp in her manual wheelchair while getting out of JHM's van. Shelton argues if Kennedy was not going to render that assistance, then Kennedy should have told Shelton and also called Fry as he had requested
The jury clearly determined that JHM did in fact “take charge” of Shelton and that Kennedy owed a duty to safely remove her from the van. We agree with Shelton that the jury obviously took into consideration that Shelton had to exercise care for her own safety and that a portion of fault should be attributable to her where the evidence demonstrated that Shelton unlocked the brakes and moved closer to the edge of the ramp. However, Shelton's actions did not relieve Kennedy of the duty she assumed when she agreed to take charge and transport Shelton to and from the Columbus facility. See Burgess, 239 Kan. at 481 (a duty arose under § 323 when a doctor voluntarily assumed the responsibility to relay a mother's request for a partial autopsy of her son to the coroner, but he failed to do so and a frill autopsy was performed). The court in Circle Land, 232 Kan. at 489, stated that “where one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking the act must generally be performed with ordinary or reasonable care.” (Emphasis added.)
We do not find the trial court erred in submitting Shelton's case to the jury under § 323. There is certainly evidence to support a duty attributable to Kennedy under either section. As the trial court pointed out and defense counsel rigorously argued, the jury still had to decide whether Kennedy breached that duty and whether Shelton herself was at fault. However, we conclude the evidence was insufficient to support a jury instruction on § 324, if in fact § 324 were to be adopted in Kansas.
Next, JHM argues the trial court erred in refusing to give a jury instruction based on PIK–Civil 4th § 171.43 involving pre-existing conditions.
Prior to trial, JHM requested a jury instruction to exclude from the jury's consideration any damages flowing from a pre-existing condition, PIK–Civil 4th § 171.43. JHM renewed its request at the instructions conference and argued that Shelton's right leg had already been affected by polio and that her right leg was further injured as a result of her accident in this case. Shelton countered that before the injury, it was undisputed that she could get in and out of her wheelchair, stand up, and move to whatever she needed. The trial court denied the request.
“It is the duty of the trial court to properly instruct the jury upon a party's theory of the case. Error regardingjury instructions will not demand reversal unless it results in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.” (Emphasis added.) In re Care & Treatment of Foster, 280 Kan. 845, Syl. ¶ 10, 127 P.3d 277 (2006).
PIK–Civil 4th § 171.43 addresses an injured party's pre-existing condition:
“Plaintiff is not entitled to recover for any physical ailment, defect, or disability that existed prior to the occurrence. However, if the plaintiff had a preexisting physical ailment, defect or disability and you find this condition was aggravated or made active causing increased suffering or disability, then the plaintiff is entitled to recover for such increased suffering and disability.”
JHM argues the evidence supported the giving of PIK–Civil 4th § 171.43. JHM points to the evidence that Shelton had mobility limitations because of her polio and she was growing ever more reliant on her wheelchair. JHM maintains that in order for the jury to assess damages flowing only from the van accident, the jury should have been allowed to exclude any damages that were attributable to her pre-existing condition.
JHM also suggests the jury's verdict did not take into account Shelton's prior condition in assessing her damages. Based on Shelton's evidence that her injuries added weekly home health costs of $390, JHM argues the verdict of $150,000 in future home care expenses would encompass only 7 1/2 years of future care. JHM argues the absence of PIK–Civil 4th § 171.43 resulted in substantial prejudice to JHM because the jury would not consider her pre-existing polio condition and it is likely the jury would have awarded lower damages for future home health care in expectation that at least some portion of those home health care costs would be attributable to the advancing polio condition.
Shelton directs the court's attention to several instructions given to the jury. Instruction No. 11 sets forth the parties' stipulation that Shelton's serious injuries “included fractures to her right tibia and fibula below the knee joint, and permanent and irreparable damage to the deep peroneal nerve in her right leg with resultant permanent loss of dorsiflexion [drop foot].” Instruction No. 20 estimated that “a person of plaintiffs age has a remaining life expectancy from the date of the occurrence [March 3, 2009] of 14.46 years.” Shelton argues that using JHM's calculation of damages covering only 7 1/2 years, the jury obviously did not award damages for the entire length of Shelton's expected life.
JHM has not provided any evidence that Shelton was claiming damages for aggravation of her polio condition, only the injuries stipulated by the parties. The trial court certainly has a duty to instruct on a party's theory of the case. See In re Care & Treatment of Foster, 280 Kan. 845, Syl. ¶ 10. However, there must be evidence, viewed the light most favorable to the requesting party, to support the giving of the instruction. See Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, Syl. ¶ 1, 228 P.3d 1048 (2010) ( “A trial court is required to give a jury instruction supporting a party's theory if the instruction is requested and there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence.”).
JHM does not present any evidence that any damages included within the 30 extra hours per week included any damages from an aggravation of Shelton's polio condition. Shelton argues and we agree that to require a PIK–Civil 4th § 171.43 instruction, JHM needed to present testimony to prove the progression of polio beyond March 3, 2009, and the impact it would have on her need for household services. See PIK–Civil 4th § 171.43, Notes on Use (“This instruction is proper only when there is an issue as to whether the present condition of the injured party is the consequence of a preexisting condition.”).
We find there is no evidence the jury awarded damages for any condition related to Shelton's polio condition or that damages awarded by the jury for the 30 additional hours of home health care included any due to her polio. Considering the jury instructions as a whole, the trial court did not err in refusing to give PIK–Civil 4th § 171.43.
Last, JHM argues the trial court erred in refusing to allow the jury to compare the fault of Lashley by finding that she had no duty to Shelton. The existence of a duty is a question of law for which we have unlimited review. See South v. McCarter, 280 Kan. 85,94, 119 P.3d 1 (2005).
Shelton attempts to create an abuse of discretion standard of review based on Schmidt v. Shearer, 26 Kan.App.2d 760, 995 P.2d 381 (1999). However, the facts in Shearer were whether the defendant could add a defense of comparative fault on the eve of trial. Our present case concerns which individuals should be considered in the comparative fault instruction that is going to the jury. JHM argues it is ajury instruction issue, but we believe it is a failure to find a duty resulting in an unlimited review.
Before trial, Shelton filed a motion in limine seeking to prevent JHM from asserting fault against Lashley because JHM had failed to raise any specific facts up until that point in the pretrial proceedings that Lashley had any fault in Shelton's accident. The trial court denied Shelton's motion. When both sides had rested at trial, Shelton moved for judgment as matter of law on JHM's comparative fault claim against Lashley. The court held that based on the evidence, “there's no legal duty imposed by law here, so Rita Lashley's name will not go back” and sustained Shelton's motion.
JHM argues that if we find no error in the trial court's decision to submit Shelton's claims to the jury under Restatement (Second) Tort § 323, then we must conclude that Lashley owed a parallel duty of care to Shelton under § 323 as well. Shelton counters that at trial, JHM provided no explanation as to a source of law that created a duty for Lashley to help Kennedy safely remove Shelton from JHM's loaner van. Shelton insists JHM's claim that § 323 created a duty in Lashley is an argument raised for the first time on appeal and not properly before this court. See In re Care & Treatment of Miller, 289 Kan. 218, 224–25, 210 P.3d 625 (2009) (issues not raised before the trial court cannot be raised on appeal). However, it appears that JHM preserved this issue for appeal. At trial during the discussion of Lashley's comparative fault, JHM's counsel stated, “Linda Kennedy had no more duty than Rita Lashley.” Then during the instructions conference concerning § 323, JHM's counsel stated, “This is a comparative fault case where we can compare the fault of Rita Lashley.”
Usually, a determination of the presence or absence of negligence should be left to the trier of fact. We have noted, however, that where no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the appellate court's determination. See Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983).
A jury must be instructed on the issue of comparative fault of both parties and nonparties if there is supporting evidence. Allowing the jury to judge the attributable fault is in line with this state's policy of comparative negligence as embodied in K.S.A.2011 Supp. 60–258a. In Brown v. Keill, 224 Kan. 195, 203, 580 P .2d 867 (1978), the court stated: “The perceived purpose in adopting K.S.A. 60–258a is fairly clear. The legislature intended to equate recovery and duty to pay to degree of fault.... [T]here is no compelling social policy which requires the codefendant to pay more than his fair share of the loss.”
JHM argues that even though Lashley was “technically off duty,” she was still “providing assistance to the plaintiff,” including assisting Shelton with packing for the trip, assisting Kennedy in setting up the ramps when they got back to the house, and clearing sticks and branches from the van to the house along Shelton's anticipated path. JHM also argues that immediately prior to the incident, Lashley was located at the front of the passenger side of the van. She testified that she was in a position to see Shelton at the opening of the passenger side sliding door but did not caution Shelton about her proximity to the edge of the ramp or ask Shelton if she had engaged the brakes on the wheelchair. Shelton counters that any actions performed by Lashley played no role in what happened to Shelton. Lashley's assistance with ramps and cleaning of the driveway should be construed as actions taken for Shelton's protection after she got out of the van. JHM claims prejudice in that if the jury could have compared Lashley's fault in the accident, there is a reasonable probability the jury would have allocated at least some fault to her.
In St. Clair v. Denny, 245 Kan. 414, 781 P.2d 1043 (1989), a vehicle driven by plaintiff's decedent was struck by a vehicle that ran a stop sign. The collision killed both drivers. The intersection was uncongested, and both drivers had an unobstructed view of the intersection and oncoming traffic for approximately one-quarter mile. Defense counsel contended that a reasonable person could find that the decedent failed to maintain a proper lookout or otherwise exercise due care under the circumstances, making the question of decedent's fault a matter for the jury's determination. The St. Clair court stated that the evidence did not show decedent was aware of the approaching vehicle. Evidence that decedent had an unobstructed view of the intersection would not support a finding that she failed to keep a proper lookout. “There is no evidence that [decedent] failed to keep a proper lookout or that, assuming she did not, it was to any degree the proximate cause of the collision.” 245 Kan. at 419. The court held:
“Although normally a determination of whether someone failed to keep a proper lookout would involve a question of fact to be decided by the jury, the evidence presented here is undisputed that the cause of this accident was [Denny's] failure to stop at the posted stop sign. Even viewing the evidence in the light most favorable to the defendants, as this court must do, the minds of reasonable persons could not differ in concluding that the cause of this accident was [Denny's] failure to stop, not [decedent's] failure to keep a proper lookout.” 245 Kan. at 420.
There was no evidence that Lashley undertook or assumed a duty of care for Shelton's safety on the trip to and from Columbus. JHM's only claim of a duty is based on Restatement (Second) Tort § 323 which required Lashley to undertake to render services to Shelton which were necessary for Shelton's protection on the trip to and from Columbus and that she failed to exercise reasonable care while performing the undertaking. However, Lashley was off duty and only along to find out about the EZ Lock System and possibly learn to crochet. There is no evidence that Lashley accompanied Shelton in furtherance of her duties as Shelton's personal care assistant or agreed with Kennedy that Lashley was responsible for Shelton's safety on the trip.
“Negligence consists of the following elements: a duty owed to the plaintiff, breach of that duty, that the breach of duty was the proximate cause of the plaintiff's injury, and that the plaintiff suffered damages.” P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 831, 877 P.2d 430 (1994). If Lashley had no duty to Shelton, then there can be no breach of that duty and, hence, there can be no negligence for which Lashley may be held responsible.
We find the trial court was correct to give an instruction based on Restatement (Second) Torts § 323 as § 323 has been adopted in this State. There was substantial evidence in support of the claims. We make no conclusion on whether Restatement (Second) Torts § 324 should be adopted in Kansas, but we find the evidence was insufficient to support a jury instruction under § 324. Therefore, we must remand this matter for a new trial without an instruction based on § 324.
We also find the trial court did not err in refusing to give a jury instruction based on PIK Civil 4th § 171.43 involving pre-existing conditions and refusing to allow the jury to compare the fault of Lashley.
Affirmed in part, reversed in part, and remanded for a new trial.