Arredondo v. Duckwall Stores, Inc.

• Decision Date: 10 May 1980
• Docket Number: No. 50965,50965
• Parties: Vincent Anthony ARREDONDO, Appellant, v. DUCKWALL STORES, INC., d/b/a Alco Discount Stores, Appellee.
• Court: Kansas Supreme Court

Page 1107

610 P.2d 1107

227 Kan. 842

Vincent Anthony ARREDONDO, Appellant, v. DUCKWALL STORES, INC., d/b/a Alco Discount Stores, Appellee.

No. 50965.

Supreme Court of Kansas.

May 10, 1980.

Syllabus by the Court

1. In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested.

2. Though the heading or title given an act of the legislature forms no part of the statute itself, the language of the title cannot be ignored as an aid in determining legislative intent.

3. The placement of a law in a particular location in the General Statutes by the compiler is not persuasive as to the intent of the legislature which enacted the statute.

4. The Judicial Council's comments on the various sections of the Kansas Criminal Code, published before the Code was enacted by the legislature, are helpful in determining legislative intent.

5. Gunpowder is an explosive.

6. The primary purpose of K.S.A. 21-4209 is to protect the general public.

7. In an action where it is claimed that the defendant was negligent in violating K.S.A. 21-4209, prohibiting sales of explosives to persons under 18 years of age and to certain others, and that such negligence caused plaintiff's injury, it is held that the comparative negligence statute, K.S.A. 60-258a, applies.

Joel K. Goldman of Schnider, Shamberg & May, Chartered, Fairway, argued the cause and was on the brief for appellant.

Sally Williamson of Wallace, Saunders, Austin, Brown & Enochs, Overland Park, argued the cause, and Barton Brown, Overland Park, was with her on the brief for appellee.

MILLER, Justice:

The issue in this interlocutory appeal is whether the Kansas comparative negligence statute applies in an action for personal injuries where liability is premised upon violation of a statute prohibiting sale of explosives to minors. The trial court denied plaintiff's motion to strike from the answer defendant's claim that the comparative negligence statute applies; plaintiff appeals.

The facts alleged and supported by plaintiff's deposition are these: On October 30, 1977, when plaintiff was 16 years of age, he purchased gunpowder from one of defendant's stores for use in reloading shotgun shells. He reloaded some shells and went duck hunting with friends. One of the shells jammed in plaintiff's shotgun. As plaintiff returned to the car, he was holding the gun by the barrel with his left hand, dragging it along with the stock on the ground behind him, when it discharged and shot him in the side. At the time of injury plaintiff had a Kansas hunting license and a federal duck stamp. Plaintiff claims that his injury was directly caused by defendant's sale of gunpowder in violation of K.S.A. 21-4209, which reads:

"(1) Unlawful disposal of explosives is knowingly selling, giving or otherwise transferring any explosive or detonating substance to:

"(a ) A person under eighteen (18) years of age; or

"(b ) An habitual drunkard or narcotic addict; or

"(c ) A person who has been convicted of a felony under the laws of this or any other jurisdiction within five (5) years after his release from a penal institution or within five (5) years after his conviction if he has not been imprisoned.

"(2) Unlawful disposal of explosives is a class A misdemeanor."

Plaintiff claims that the comparative negligence statute, K.S.A. 60-258a, does not apply because its application would destroy the legislative intent and purpose of K.S.A. 21-4209. Plaintiff's cause of action is predicated upon the doctrine that actionable negligence occurs when one branches a duty imposed by a criminal statute and an injury of the type intended to be prevented is proximately caused to another by the violation. Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 (1971); Denton v. Railway Co., 90 Kan. 51, 133 P. 558 (1913). Breach of duty, or negligence per se, results from a finding that the statute was violated. Liability follows if the violation is the proximate cause of injury. Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 25, 578 P.2d 1095 (1978); Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249, Syl. PP 6 and 7, 320 P.2d 1061 (1958). In the usual negligence per se case, plaintiff's contributory negligence has been a defense. Restatement (Second) of Torts § 483 (1965) reads:

"The plaintiff's contributory negligence bars his recovery for the negligence of the defendant consisting of the violation of a statute, unless the effect of the statute is to place the entire responsibility for such harm as has occurred upon the defendant.

"Comment:

"c. There are, however, exceptional statutes which are intended to place the entire responsibility for the harm which has occurred upon the defendant. A statute may be found to have that purpose particularly where it is enacted in order to protect a certain class of persons against their own inability to protect themselves. Thus a statute which prohibits the sale of firearms to minors may be clearly intended, among other purposes, to protect them against their own inexperience, lack of judgment, and tendency toward negligence, and to make the seller solely responsible for any harm to them resulting from the sale. In such a case the purpose of the statute would be defeated if the contributory negligence of the minor were permitted to bar his recovery.

"It is not within the scope of this Restatement to state the various types of statutes which have been enacted for such a purpose, nor the principles of statutory construction by which the purpose of a particular statute is to be determined."

Courts have found legislative intent to remove contributory negligence as a defense when the statute violated is one of two exceptional types: (1) the statute expressly removes the defense, as in the Federal Employers' Liability Act; and (2) such intent is found in the statute's character, its social purpose, and the background of the social problem and hazard to which it is directed, such as Child Labor laws. Prosser, Contributory Negligence as Defense to Violation of Statute, 32 Minn.L.Rev. 105, 119 (1948). Plaintiff's argument that K.S.A. 60-258a does not apply asserts that K.S.A. 21-4209 is within the second group of exceptional statutes and that plaintiff is a member of the special group to be protected by the statute such that allowing diminution of recovery based upon plaintiff's conduct would defect the protective statute's purpose.

Our comparative negligence statute removes contributory negligence as a complete bar to recovery. It reads:

"(a ) The contributory negligence of any party in a civil action shall not bar such party or said party's legal representative from recovering damages for negligence resulting in death, personal injury or property damage, if such party's negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action shall be diminished in proportion to the amount of negligence attributed to such party. If any such party is claiming damages for a decedent's wrongful death, the negligence of the decedent, if any, shall be imputed to such party." K.S.A. 60-258a.

The statute requires a weighing of the causal negligence, if any, of all parties whose conduct brought about the harm, and the consequent imposition of individual liability for damages based upon the proportionate fault of each party to the occurrence. See Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). If contributory negligence or an analogous defense would not have been a defense to a claim, the comparative negligence statute does not apply; if contributory negligence would have been a defense, the statute is applicable. In order to determine whether K.S.A. 21-4209 is an exceptional statute, the violation of which was not subject to the defense of contributory negligence and is not now subject to the doctrine of comparative negligence, we must first review the legislative history which may be indicative of legislative intent. In Brown v. Keill, 224 Kan. at 200, 580 P.2d at 871, we said:

"In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested."

During the early years of statehood, our statutes dealt with possession or sale of certain firearms, but not with shotguns or explosives. The carrying of pistols or other deadly weapons by intoxicated persons was prohibited and made a misdemeanor by G.S. 1868, ch. 31, § 282. The sale of pistols, revolvers, or other dangerous weapons to minors or persons of unsound mind was forbidden by Laws of 1883, ch. 105, § 1. See G.S. 1949, 38-701. This court held, however, that the legislature did not intend to include shotguns when it used the phrase "other dangerous weapons" in the latter statute. Parman v. Lemmon, 120 Kan. 370, 244 P. 227, 44 A.L.R. 1500 (1926).

It was not until 1915 that the legislature enacted a statute regulating the sale of explosives. That act, Laws of 1915, ch. 272, is entitled:

"AN ACT providing for public safety by regulating the storage handling and disposition of dynamite, giant powder, nitro-glycerine gun cotton and other detonating explosives, providing penalties for violation of this act and repealing all acts in conflict herewith." (Emphasis supplied.)

It provided safety regulations for the storage of explosives, required that records be kept of all sales, and prohibited the sale or transfer of explosives to "any intoxicated or irresponsible person." It contained the following proviso: "(T)his act shall not...