Albertson v. Volkswagenwerk Aktiengesellschaft

• Decision Date: 23 October 1981
• Docket Number: No. 53293,53293
• Citation: 230 Kan. 368,634 P.2d 1127
• Parties: Glynn Dean ALBERTSON, Appellee, v. VOLKSWAGENWERK AKTIENGESELLSCHAFT, a foreign corporation; and Volkswagen of America, Inc., a New Jersey corporation, Appellants.
• Court: Kansas Supreme Court

Page 1127

634 P.2d 1127

230 Kan. 368

Glynn Dean ALBERTSON, Appellee, v. VOLKSWAGENWERK AKTIENGESELLSCHAFT, a foreign corporation and Volkswagen of America, Inc., a New Jersey corporation, Appellants.

No. 53293.

Supreme Court of Kansas.

Oct. 23, 1981.

Syllabus by the Court

1. In Kennedy v. City of Sawyer, 228 Kan. 439, 452, 618 P.2d 788 (1980), this court judicially adopted the system statutorily set out in K.S.A. 60-258a and applied it to actions in strict liability.

2. Strict liability in tort has a fault basis; therefore it may be compared with other fault concepts.

3. In an action brought before this court as a certified question, it is held : In a damage suit the doctrine of comparative fault requires all of the parties to the occurrence to have their fault determined in one action.

Robert L. Howard (argued) of Foulston, Siefkin, Powers & Eberhardt, Wichita, and Jerry G. Elliott and James D. Oliver, Wichita, on brief, for appellants.

Gerald Michaud (argued) of Michaud, Cordry & Michaud, Chartered, Wichita, and Richard D. Cordry, Wichita, on brief, for appellee.

HERD, Justice:

This case was filed in the United States District Court for the District of Kansas and comes to this court by certification from that court under authority of the Uniform Certification of Questions of Law Act. K.S.A. 1980 Supp. 60-3201 et seq. The certifying court shows by its order it has jurisdiction of the parties and the subject matter of this suit and that the law of Kansas controls the substantive legal issues of the case. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We accepted certification.

On December 7, 1975, Glynn Albertson, while driving a 1961 Volkswagen van in Wichita, collided with a vehicle owned and driven by Vernon Travis. Albertson sued Travis in the District Court of Sedgwick County. Under a comparative negligence instruction to find 100% of the fault for Albertson's injury, the jury determined his damages to be $275,000, with 40% of the fault attributed to Albertson, and 60% to Travis. The judgment in the amount of $165,000 was entered against Travis and satisfied.

Albertson then filed suit against Volkswagen, manufacturer of the van, on November 18, 1975, in the U.S. District Court, alleging injuries and damages caused by a defective product but arising from the same collision with Travis which had been litigated in state court. Defendants contended the rules relating to comparative fault bar the suit against them and moved for summary judgment. At this juncture in the litigation, U.S. District Judge Frank Theis certified the following question to the Kansas Supreme Court:

"Having once obtained a satisfied judgment for a portion of his injuries in a comparative negligence action, may a plaintiff bring an action to recover damages for the remaining portion of his injuries against a defendant not a party to the first action, such second action being based on strict liability in tort?"

Judge Theis ruled collateral estoppel barred relitigation of the amount of Albertson's damages which were established at $275,000. Since Travis has already paid 60% or $165,000, plaintiff can recover a maximum of $110,000 in this action. Judge Theis then ruled collateral estoppel did not bar relitigation of the percentages of fault determined in the first action:

"In sum, this Court believes that the apportionment of negligence between drivers involved in a collision is not the same issue as the apportionment of causal fault among the same drivers and a strictly liable product manufacturer. Since the issues are not identical, plaintiff is not bound by the percentages of fault found in the prior action. Since the Court finds defendants' argument as to collateral estoppel to be without merit, it is clear that the issue previously discussed is controlling of the defendants' motion."

Since we deem the doctrine of comparative fault dispositive of the certified question, we need not respond to the collateral estoppel issue.

Albertson claims the injuries he suffered were enhanced and increased by design defects of the Volkswagen van under the theory of "second collision." He contends the design of the Volkswagen van was defective and dangerous in that the door handle would activate from the slightest contact; the door would open, and the occupant would be ejected. As a consequence, plaintiff suffered more substantial injuries than he would have in a properly designed crashworthy vehicle. He further argued the "second collision" theory was adopted in Larsen v. General Motors Corporation, 391 F.2d 495, 502 (8th Cir. 1968), by the United States Court of Appeals, where the court held:

"We think the 'intended use' construction urged by General Motors is much too narrow and unrealistic. Where the manufacturer's negligence in design causes an unreasonable risk to be imposed upon the user of its products, the manufacturer should be liable for the injury caused by its failure to exercise reasonable care in the design. These injuries are readily foreseeable as an incident to the normal and expected use of an automobile. While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts. No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury, usually caused by the so-called 'second collision' of the passenger with the interior part of the automobile, all are foreseeable. Where the injuries or enhanced injuries are due to the manufacturer's failure to use reasonable care to avoid subjecting the user of its products to an unreasonable risk of injury, general negligence principles should be applicable. The sole function of an automobile is not to provide a means of transportation, it is to provide a means of safe transportation or as safe as is reasonably possible under the present state of the art."

Albertson contends by 1977 twenty-nine other jurisdictions had adopted the "second collision" theory as noted in Huff v. White Motor Corp., 565 F.2d 104 (7th Cir. 1977). He argues that although Kansas has not specifically adopted the theory, it has defined a manufacturer's duty in design of products:

"A manufacturer has the duty to use reasonable care in the design of his products so that they will be reasonably safe for their intended use, including any emergencies of use which can reasonably be anticipated." Garst v. General Motors Corporation, 207 Kan. 2, Syl. P 1, 484 P.2d 47 (1971).

It is Albertson's argument the holding in Garst, plus the adoption of strict liability in tort, Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976), is tantamount to adoption of the "second collision" theory. This court has never had occasion to rule on the availability of the second collision theory in Kansas. The nature of the question before us does not require that we do so now.

The issues which do deserve our attention are best premised by a brief discussion of the relevant Kansas law. K.S.A. 60-258a presents a logical place to begin. Standing alone, the comparative negligence act does not require all potentially liable parties be sued in the same action. The joinder provision is K.S.A. 60-258a(c) which provides:

"On motion of any party against whom a claim is asserted for negligence resulting in death, personal injury or property damage, any other person whose causal negligence is claimed to have contributed to such death, personal injury or property damage shall be joined as an additional party to the action."

This section applies only to defendants and is permissive. As usual, significant gaps remain in the legislative fabric of the law which, of necessity, have been filled by court decisions declaring legislative intent. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), presented the question of whether a plaintiff could avoid proportionate liability by suing only one of several tortfeasors. This court responded in the negative:

"(W)e conclude the intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries or damages even though one or more parties cannot be joined as a litigant or be held responsible for his or her proportionate fault." p. 207, 580 P.2d 867.

Eurich v. Alkire, 224 Kan. 236, 579 P.2d 1207 (1978), followed and the court made sweeping statements regarding the legislative intent of the act. It pointed out that the comparative negligence act provided the machinery "for drawing all possible parties into a lawsuit to fully and finally litigate all issues and liability arising out of a single collision ...." p. 237, 579 P.2d 1207. The court then concluded:

"(I)t was the intent of the legislature to fully litigate all causes of action and claims for damage arising out of any act of negligence subject to K.S.A. 60-258a. The provision for determining the percentage of causal negligence against each person involved in a negligence action contemplates that the rights and liabilities of each person should be determined in one action. Because all issues of liability are determined in one action there can be no reasonable argument that the issues should be relitigated. Likewise, there is no reasonable argument for the proposition that a claim for damage arising out of one collision or occurrence should not be presented at the time...