Eurich v. Alkire, 48655
| Decision Date | 10 June 1978 |
| Docket Number | No. 48655,48655 |
| Citation | 579 P.2d 1207,224 Kan. 236 |
| Parties | Orlan L. EURICH, Jr., Appellee, v. Wesley D. ALKIRE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a comparative negligence action all persons who are named as parties and who are properly served with summonses are bound by the percentage determination of causal negligence.
2. Any named party who has been properly served with a summons and who fails to assert a claim against any other party in a comparative negligence action is forever barred.
Christopher Randall, of Turner, Hensley & Boisseau, Chartered, Great Bend, argued the cause and was on the brief for the appellant.
Dennis J. Keenan, of Keenan, Mauch & Keenan, P.A., Great Bend, argued the cause and was on the brief for the appellee.
This is an interlocutory appeal from an order granting summary judgment in favor of plaintiff Orland L. Eurich, Jr., on the issue of liability in an action seeking recovery for personal injury.
This is the second of two cases arising from a two-car crash on February 24, 1975, in Great Bend, Kansas. One car was driven by Bonnie Faris and the other car contained Eurich and Wesley D. Alkire, the defendant herein.
The first lawsuit was instituted by Faris against Eurich and Alkire. In her petition she alleged she did not know who was driving but claimed both defendants were intoxicated and the driver was negligent. Each defendant filed a separate answer alleging the other to be the driver and himself to be a sleeping passenger. At pretrial plaintiff Faris amended her petition alleging that if the owner of the car, Alkire, was not driving he was guilty of negligent entrustment for allowing Eurich to drive when he knew Eurich was intoxicated. At trial the jury answered special verdicts finding Eurich was the driver at the time of the accident. Damages to plaintiff were $50,000, and fault was 40% attributable to Eurich and 60% to Alkire for negligent entrustment.
This case was filed before the trial of the first lawsuit. Following the decision in the first case, Alkire moved for summary judgment in the instant case. On July 30, 1976, the district court granted judgment on liability, holding that the jury's findings in the first case controlled. Because of our decision in Williams v. Evans, 220 Kan. 394, 552 P.2d 876 (1976), decided only one week prior to the trial court's decision herein, Alkire moved for reconsideration. In Williams we held that a prior judgment against codefendants does not activate the doctrine of collateral estoppel as to liability between the defendants, pointing out that the question of liability between the defendants was not put in issue in the prior case. The trial court held Williams was not applicable.
Williams was decided prior to the adoption of our comparative negligence act (K.S.A. 60-258a). The parties herein raise the issue of whether the collateral estoppel rule pronounced in Williams is applicable after the adoption of comparative negligence. While it is logical that we consider that issue, we deem it more important to the bench and bar of this state that we decide this action upon a basic construction of the comparative negligence act.
We first refer to Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978) (No. 48,686, decided June 6, 1978), for its review of basic rules of statutory construction and the determination of two important issues in the history of our comparative negligence statute. We there held that the act...
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Wooderson v. Ortho Pharmaceutical Corp.
...whether the participants are all formally joined as parties to that lawsuit or not. Brown v. Keill, 224 Kan. 195 ; Eurich v. Alkire, 224 Kan. 236, 579 P.2d 1207 (1978); Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 634 P.2d 1127 (1981); and Lester v. Magic Chef, Inc., 230 Ka......
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Jackson v. City of Kansas City
...as possible--various conflicting provisions of the act in order to make them consistent, harmonious, and sensible. Eurich v. Alkire, 224 Kan. 236, 238, 579 P.2d 1207 (1978); Jordan v. Doonan Truck & Equipment Inc., 220 Kan. 431, 434, 552 P.2d 881 (1976). In keeping therewith, when the inter......
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...case should not be bound by a judgment therein, even though his causal negligence may have been determined." Eurich v. Alkire , 224 Kan. 236, 238, 579 P.2d 1207 (1978).In Kennedy v. City of Sawyer , 228 Kan. 439, 618 P.2d 788 (1980), cattle died from an herbicide which contained arsenic. Th......
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Burnette v. Eubanks
...action contemplates that the rights and liabilities of each person should be determined in one action.” Eurich v. Alkire , 224 Kan. 236, 237–38, 579 P.2d 1207 (1978).The comparative negligence statute, K.S.A. 2015 Supp. 60–258a(a), states:“The contributory negligence of a party in a civil a......
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An Overview of the Law of Negligence in Kansas
...Before he is liable it must appear the violation contributed to the injury and was the proximate cause of it); Eurich v. Alkire, 224 Kan. 236 (1978) (the Kansas comparative negligence act is a multipurpose act which goes far beyond a basic comparison of the contributing negligence of each o......
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An Overview of the Law of Negligence in Kansas
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