Baker v. City of Topeka
| Decision Date | 08 May 1982 |
| Docket Number | No. 53420,53420 |
| Citation | 231 Kan. 328,644 P.2d 441 |
| Court | Kansas Supreme Court |
| Parties | David BAKER, by and through his conservator, Ira Dennis Hawver, Plaintiff, v. CITY OF TOPEKA, Kansas, Defendant-Appellant, and The Kansas Power and Light Company, Defendant-Appellee, and Eagle Signal Corporation; Gades Sales Company, Inc.; E. W. Bliss Company; Gulf& Western Industries Company; Gulf & Western Mfg. Co.; Eagle Signal Americas Corporation; Eagle Signal Mfg. Corp.; Paramount International Holding Company; State of Kansas; John B. Kemp, Secretary of Transportation of the State of Kansas; Mark Meier; Robert Lee Burkhardt; and Colleen M. Chisham, Defendants. |
Syllabus by the Court
1. Generally, upon the expiration of a municipal franchise granted to a public utility there is no longer any contractual relationship between the municipality and the utility. An exception to this general rule occurs, however, when the parties to the franchise agreement continue to perform after the expiration of the franchise in the same manner as they did when the franchise was formally in effect.
2. Where an agreement expires by its terms, and, without more, the parties continue to perform as before, an implication arises that they have mutually assented to a new contract containing the same provisions as the old, and such contractual relationship will continue until reasonable notice of termination is given by one party to the other.
3. An exculpatory agreement is to be strictly construed and its terms will not be extended to situations not plainly within the language employed.
4. In a comparative negligence action where numerous defendants made individual settlements with the plaintiff, the record is examined and on the facts set forth in the opinion it is held the trial court did not commit error in dismissing the cross-claim of the defendant City of Topeka against the defendant Kansas Power & Light Co.
Robert E. Duncan, II, Asst. City Atty., argued the cause and was on the brief for appellant, City of Topeka.
Robert D. Ochs, of Fisher, Ochs & Heck, P. A., Topeka, argued the cause and Ann L. Hoover, Topeka, of the same firm, was with him on the brief for appellee, Kansas Power & Light Co.
The City of Topeka, a defendant in a comparative negligence action, appeals from an order dismissing its cross-claim against Kansas Power and Light Company (KP&L), a codefendant. Both parties, along with several other defendants, settled with the plaintiff and he, along with the other defendants, are not parties to this appeal.
On September 26, 1977, at approximately 6:45 a. m., plaintiff David Baker was proceeding south on Topeka Boulevard in Topeka when he was involved in a collision which has left him incapacitated. The collision involved the motorcycle ridden by Baker and an automobile driven by Colleen Chisham, and occurred at the intersection of Topeka Boulevard and Croix Street.
The intersection is supposed to be controlled by an automatic traffic signal. On the morning of the accident, however, the signal was malfunctioning. As Baker approached the intersection he faced a steady green signal. Ms. Chisham, on Croix Street, was becoming impatient on her way to work because she had waited an unusually long time at a steady red light. Believing the lights to be malfunctioning, Ms. Chisham proceeded through the intersection against the red signal, whereupon her automobile collided with Baker's motorcycle.
About one-half hour before the accident occurred, a Shawnee County Sheriff's Deputy had gone through the intersection and had reported to his dispatcher that the traffic lights were cycling unusually fast. Since traffic was light at the time, he did not feel the situation required him to stop and direct traffic.
About fifteen or twenty minutes before the accident, a Topeka Police Officer, Robert Lee Burkhardt, went through the intersection in his private automobile. On his way home after finishing his shift, Officer Burkhardt observed the signal at the intersection was stuck and noticed some traffic congestion. Since he was off-duty and had no emergency equipment or two-way radio in his car, he did not stop to direct traffic. When he reached home, he telephoned the Topeka Police Dispatcher to report the stuck signal.
About eight minutes before the accident, Topeka Police Officer Mark W. Meier also proceeded through the intersection. He was heading for the station house to conclude his tour of duty which, technically, had already ended. After sitting on Croix Street at the red signal for approximately three minutes, Officer Meier determined that the light was stuck. He decided there was no hazard and that he did not need to stay there and direct traffic. He proceeded through the red light onto Topeka Boulevard toward downtown reporting the stuck signal by radio to his dispatcher, Randy Carver.
The dispatcher contacted KP&L, informed them of the malfunction and requested repairs. He was advised it could take as much as one hour for the repairman to get to the intersection. Dispatcher Carver did not deploy any Topeka police officers to the intersection to direct traffic pending the arrival of KP&L's repairman. Shortly thereafter he was informed by the Shawnee County Sheriff's office that the Baker-Chisham traffic accident had occurred.
Seeking redress for the serious personal injuries he sustained, plaintiff, by his conservator, filed claims for damages against numerous defendants including the City, KP&L, Ms. Chisham, Officers Meier and Burkhardt, the signal light manufacturer and its parent companies, the distributor, the State of Kansas, and the Kansas Secretary of Transportation. Then, among the defendant parties, various cross-claims were filed seeking indemnification for damages which plaintiff might recover against the cross-claimant. Eventually, all of the defendants either settled with the plaintiff or were dismissed from the lawsuit. The settlement totaled $1,175,500.00 of which KP&L paid $675,000.00 and the City $178,000.00. The settlements negotiated by KP&L and the City were for the negligence and liability of each defendant only and in each release executed on behalf of plaintiff, he reserved the right to pursue his claims against the remaining defendants. In addition, in the settlement agreement executed by plaintiff and the City, the City reserved the right to pursue its cross-claim against KP&L. KP&L was not a party to the City's release and had no part in the settlement negotiated between plaintiff and the City. The City had filed a cross-claim against KP&L seeking indemnity for any amounts it might ultimately have to pay the plaintiff but after all the defendants had settled, individually, with plaintiff or been otherwise dismissed from the action, the court dismissed plaintiff's case with prejudice as to all defendants and terminated the litigation. The City has appealed asserting it has a right to indemnification from KP&L based upon an express written contract or, in the alternative, on common law principles of indemnity.
On the 5th of June, 1962, the City of Topeka and KP&L entered into an express contract, adopted as City Ordinance No. 10646, whereby the City agreed to purchase from KP&L its requirements for street and alley lighting, and the operation and maintenance of traffic and school signal lights, including the signal light located at the intersection of Topeka Boulevard and Croix Street. The pertinent portions of the contract provide:
"3. The Company shall operate the above lighting facilities and signal systems according to the scheduled hours of burning, and shall maintain the same .... Traffic signal lights shall be operated twenty-four (24) hours each day or upon such reduced schedule as may be designated by the City.
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By its terms, the express contract was for a ten-year period from the date of its execution. Although the contract term expired in 1972, some five years before the traffic accident, KP&L and the City continued to perform in the same manner as they had under the written contract. Services were performed and bills were paid by the respective parties even though no memorial of their agreement was redrafted and no new ordinance was adopted. It is the City's contention that the original contract has been extended as to all its terms by the actions of the parties while KP&L acknowledges that there is some sort of an informal agreement...
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