Barkley v. Freeman, 66461

• Decision Date: 28 February 1992
• Docket Number: No. 66461,66461
• Citation: 16 Kan.App.2d 575,827 P.2d 774
• Parties: Carol J. BARKLEY, Appellee, v. Ivan J. FREEMAN, Appellant.
• Court: Kansas Court of Appeals

Page 774

827 P.2d 774

16 Kan.App.2d 575

Carol J. BARKLEY, Appellee, v. Ivan J. FREEMAN, Appellant.

No. 66461.

Court of Appeals of Kansas.

Feb. 28, 1992.

Syllabus by the Court

1. It is not reasonably foreseeable that a party who is injured in an automobile accident will suffer additional or aggravated injuries in a subsequent and different vehicular collision.

2. If a later injury or aggravation to a previous injury is attributable to a distinct intervening cause, without which the later injury or aggravation would not have occurred, a tortfeasor who is liable for the earlier injury cannot be held liable or responsible for the later injury or aggravation.

3. Under the facts in this case, the jury was erroneously instructed that if the plaintiff's injuries were prolonged or aggravated by a subsequent automobile accident, the tortfeasor who was liable for injuries in a previous accident also was responsible for the prolonged effects or aggravation caused by the subsequent event.

Darrell L. Warta, Trisha A. Thelen, and Stephen M. Kerwick of Foulston & Siefkin, Wichita, for appellant.

Michael B. Brewer of Law Offices of Jerry L. Berg, P.A., Wichita, for appellee.

Before BRISCOE, C.J., and LARSON, J., and NELSON E. TOBUREN, District Judge, assigned.

LARSON, Judge:

Ivan L. Freeman appeals a jury verdict of $165,156.75 in favor of Carol J. Barkley for damages from whiplash injuries she sustained after the car in which she was riding was rear-ended by a car driven by Freeman.

Freeman's primary issue on appeal is that the trial court erroneously instructed the jury it could consider whether Barkley's injuries were aggravated by a later automobile accident and, if so, she was entitled to additional compensation from Freeman.

Freeman also claims he was unfairly prejudiced by erroneous rulings, remarks concerning the evidence, and criticism of defense counsel in the jury's presence. The final contention on appeal is that the trial court erred by overruling Freeman's motion for directed verdict, which allowed the jury to consider Barkley's claim for loss of future earnings.

Evidence at trial showed Barkley had been involved in three automobile accidents. The first, in 1985, resulted in a slight pull in the neck muscles with a return to normalcy until the January 1989 accident, which is the subject of this litigation.

Barkley also was involved in an automobile accident in November of 1989. Barkley testified she did not believe she was injured in that accident, but her physician, Dr. Jed Holmes, testified the subsequent accident did aggravate the injuries caused by Freeman in the January 1989 collision.

At the close of trial and over Freeman's objection, the trial court gave instruction No. 7, which states:

"In your evaluation of plaintiff's injuries occurring on January 13, 1989, you may take into account whether or not those injuries were aggravations of a pre-existing injury or condition.

"You may also take into account whether or not those injuries were aggravated by a later injury.

"If those before and after injuries did not affect plaintiff's condition arising from her injury of January 13, 1989, then you would of course, disregard them.

"If you decide the injury before created a condition or there was a pre-existing condition which was aggravated by the present injury then the aggravation is to be compensated for as a part of your verdict.

"If you decide the later injury prolonged the effects of or aggravated the plaintiff's injuries occurring on January 13, 1989, then plaintiff is entitled to be compensated as a part of your verdict.

"If you decide the later injury separately and independently from pre-existing conditions and separately and independently from the injuries sustained on January 13, 1989, under inquiry has made a separate disability to plaintiff she is not entitled to compensation for that.

"The facts of an earlier and later automobile accident are not to be considered by you in any way in your determination of fault or liability. They are admitted for the sole purpose of your being able to consider whether or not injuries therein sustained contributed in any way to plaintiff's condition arising from injuries occurring on January 13, 1989."

After Freeman's post-trial motions, which essentially featured his continuing objection to instruction No. 7, were overruled, he filed this appeal.

Freeman contends the language contained in jury instruction No. 7 is erroneous because it makes him liable for the injuries incurred in a subsequent automobile accident resulting from another driver's negligence and has the effect of allowing Barkley to recover from the later negligent driver as well.

Barkley argues Freeman is barred from asserting his contention because he failed to preserve the claims of comparative negligence and comparative causation in the pretrial order. Alternatively, Barkley argues instruction No. 7 is a proper statement of the law of proximate cause.

The issues identified in the pretrial order were the nature, extent, and cause of injuries, as is usual in a motor vehicle/personal injury case.

The general rule is that "a pretrial order controls the subsequent course of the action unless modified to prevent manifest injustice." State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 161, 747 P.2d 1326 (1987); see K.S.A.1991 Supp. 60-216. When issues not raised or set forth in the pleadings are tried by the express or implied consent of the parties, following K.S.A. 60-215(b), the issues are treated as if they had been raised, even if a pretrial order is in effect. See Thompson v. Aetna Life Ins. Co., 201 Kan. 296, 300, 440 P.2d 548 (1968).

During trial, it was obvious that issues had arisen concerning both the preexisting condition of Barkley, as well as aggravation of the injury which may have taken place as a result of the third accident. Barkley's own counsel questioned her concerning the prior automobile accident and did not object when Freeman's counsel questioned Barkley regarding the third accident. The medical evidence relating to Barkley's conditions also was admitted without objection.

These issues were tried with the implied consent of both parties, and we will consider the contested instruction on appeal. See Kiser v. Gilmore, 2 Kan.App.2d 683, Syl. p 3, 587 P.2d 911 (1978), rev. denied 225 Kan. 844 (1979).

The standard of review of jury instructions was enunciated in Trout v. Koss Constr. Co., 240 Kan. 86, 88-89, 727 P.2d 450 (1986):

"It is the duty of the trial court to properly instruct the jury upon the theory of the case. Errors regarding jury instructions will not demand reversal unless they result 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. [Citation omitted.]"

Barkley contends instruction No. 7 is a proper statement of the law of proximate cause, while Freeman asks us to isolate our consideration to that one paragraph in instruction No. 7 that states:

"If you decide the later injury prolonged the effects of or aggravated the plaintiff's injuries occurring on January 13, 1989, then plaintiff is entitled to be compensated as a part of your verdict."

Freeman contends this instruction makes him liable not only for aggravation of a preexisting condition, but also for all the consequences of another driver's negligence that occurred some 10 months after the incident which is the subject of this suit.

Barkley makes a proximate cause argument in her brief, citing Baker v. City of Garden City, 240 Kan. 554, 731 P.2d 278 (1987). She claims that the jury was correctly instructed because the following paragraph came after the paragraph in instruction No. 7 to which Freeman so ardently objects:

"If you decide the later injury separately and independently from pre-existing conditions and separately and independently from the injuries sustained on January 13, 1989, under inquiry has made a separate disability to plaintiff she is not entitled to compensation for that."

To this argument, Freeman counters that Baker v. City of Garden City involved different acts of fault for one accident, while in this case the injuries were caused by two distinct and different accidents.

Barkley also claimed at oral argument that Freeman failed to preserve this issue by not having the fault of the party causing the November 1989 injury compared because K.S.A.1991 Supp. 60-258a encompasses anyone who causes the injury. Mick v. Mani, 244 Kan. 81, 766 P.2d 147 (1988), was claimed to be authority for this contention, although the cite and argument were not raised in Barkley's brief.

Finally, Freeman claims, if he is responsible for the consequences of some other driver's negligence that happened 10 months later and the other tortfeasor is equally responsible for such injury and damages, this allows Barkley two recoveries for damages from the third accident while Freeman is entitled to no offset or contribution from the third-accident tortfeasor. Barkley responds to this argument by contending Freeman had the obligation to make the third-accident tortfeasor a party herein and have the contribution to liability of all the parties compared.

We find no direct Kansas authority on the issue of whether a defendant will be liable for the aggravation in a subsequent automobile collision for injuries the defendant caused a plaintiff in a prior automobile accident. Neither is there a PIK instruction that sets forth a proper instruction in cases like this.

It is clear in Kansas that " '[o]ne who has a weakened or pre-existing condition of the body and who is injured by the negligent act of another, is entitled to damages from...