Kennedy v. City of Sawyer
| Decision Date | 01 November 1980 |
| Docket Number | No. 49732,49732 |
| Court | Kansas Supreme Court |
| Parties | Paul G. KENNEDY and Alice C. Kennedy, Plaintiffs, v. The CITY OF SAWYER, Kansas and Gene Aubley, Appellants, v. CONTINENTAL RESEARCH CORPORATION and Huge Company, Appellees. |
Syllabus by the Court
1. Under the doctrine of strict liability the liability of a manufacturer and those in the chain of distribution extends to those individuals to whom injury from a defective product may reasonably be foreseen, and then only in those situations where the product is being used for the purpose for which it was intended or for which it is reasonably foreseeable it may be used.
2. A trial court is given broad discretionary power under K.S.A. 60-215 to allow amendment of pleadings, and amendments should be permitted in the interest of justice.
3. The concept of joint and several liability between joint tortfeasors which previously existed in this State no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages is to be based on proportionate fault, and contribution among joint judgment debtors is no longer needed in such cases because separate individual judgments are to be rendered. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978).
4. The doctrine of comparative fault or comparative causation should be and is applicable to both strict liability claims and to those claims based on implied warranty in products liability cases.
5. The statutory adoption of comparative negligence in Kansas has the effect of abrogating the concept of indemnification based on the dichotomy of action/passive negligence as conceptualized in Russell v. Community Hospital Association, Inc., 199 Kan. 251, 428 P.2d 783 (1967).
6. In actions where comparative negligence is in issue the court deals in percentages of causal responsibility, and distinctions between primary, secondary, active and passive negligence lose their previous identities. The nature of misconduct in such cases is to be expressed on the basis of degrees of comparative fault or causation, and the "all or nothing" concepts are swept aside.
7. Courts have always taken the position that compromise and settlement of disputes between parties should be favored in the law in the absence of fraud or bad faith.
8. There is no reason in a comparative liability jurisdiction to hold a defendant, the proposed indemnitor, liable for damages in disproportion to his causal fault. Similarly, there is no reason to deny another defendant, the proposed indemnitee, a right of liability reduction when his fault, although minimal in terms of causal involvement, may nevertheless be characterized as "active."
9. We conclude that now is the proper time under the facts of this case to adopt a form of comparative implied indemnity between joint tortfeasors. When, as here, a settlement for plaintiffs' entire injuries or damages has been made by one tortfeasor during the pendency of a comparative negligence action and a release of all liability has been given by plaintiffs to all who may have contributed to said damages, apportionment of responsibility can then be pursued in the action among the tortfeasors.
10. In any action where apportionment of responsibility is sought by a settling tortfeasor, he or she will be required to establish the reasonableness of the amount of the settlement and that he or she had an actual legal liability for the injuries and damage which he or she should not be expected to successfully resist.
Steve R. Fabert of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause and was on the brief for appellants.
William A. Larson of Gehrt & Roberts, Chartered, Topeka, argued the cause and was on the brief for the Continental Research Corp., appellee.
E. Lael Alkire, of Alkire, Dwire & Wood, Wichita, argued the cause, and Loren H. Houk, Wichita, of the same firm, was with him on the brief for the Huge Co., appellee.
Robert E. Keeshan of Scott, Quinlan & Hecht, Topeka, was on the amicus curiae brief for Kansas Trial Lawyers' Assn.
Larry Mundy of Eidson, Lewis, Porter & Haynes, Topeka, was on the amicus curiae brief for the Kansas Ass'n of Defense Counsel.
This appeal comes to us on Petition for Review from the Court of Appeals. The Court of Appeals affirmed the trial court's orders which dismissed a third-party claim of the City of Sawyer and Gene Aubley against third-party defendant Continental Research Corporation and a similar claim of Continental against the Huge Company, Inc. Kennedy v. City of Sawyer, 4 Kan.App.2d 545, 608 P.2d 1379 (1980). The third-party claim was filed in a negligence action.
The negligence action was filed by Paul G. and Alice C. Kennedy against the city and Mr. Aubley, city councilman. The Kennedys owned fifty acres of pasture land adjacent to a 3.7 acre tract owned by the city on which are located sewage lagoons used and maintained for the benefit of the city. The 3.7 acre tract is fenced. The Kennedys had 53 head of cattle in their pasture adjacent to the sewage lagoons. Mr. Aubley, acting on behalf of the city, sprayed a herbicide solution along the fence surrounding the 3.7 acre tract. Three days later on July 20, 1975, the Kennedys found in their pasture six dead cattle and many others were sick. Examination of the cattle revealed they were victims of arsenic poisoning. The city's herbicide solution had been mixed by adding water to a chemical compound of sodium arsenite.
It appears that in 1973 a salesman for Continental Research Corporation examined the sewage lagoon area and recommended a chemical compound "CR-125" for use in weed control around the sewage lagoons. The CR-125 was shipped and received by the city sometime before April, 1974. Continental obtained this product from the Huge Company, Inc., which packaged and labeled it as a private label product of Continental. It was packaged by Huge in a metal drum which bore a use direction and warning label.
The label bore a skull and crossbones with the following warning:
The label further set forth the contents and description of the ingredients which were sodium arsenite -- 40.0% and inert ingredients -- 60.0%. Mixing instructions were given for both weed control and plant growth prevention.
In the petition filed by the Kennedys it was alleged that the city and Mr. Aubley "were negligent in not properly using, supervising the use of, storing and safeguarding the deadly arsenic compound used in the spray mixture herein which caused the Plaintiffs' loss." The defendant city and Mr. Aubley answered in part by stating "(p)laintiffs' alleged injuries and damages were proximately caused and contributed to by their own negligence." It is apparent from these allegations that the action raised issues of both negligence and contributory negligence. The damage to the cattle occurred on or about July 17, 1975. Our comparative negligence statute, K.S.A. 60-258a, became effective July 1, 1974. Comparative negligence was not mentioned by any party in the pleadings or during later arguments on motions.
The defendant city and Mr. Aubley filed a third-party petition bringing Continental Research Corporation into the proceedings. They alleged that the weeds at the site of the city's sewage lagoons were sprayed by Mr. Aubley with the chemical CR-125; that the Kennedys alleged some of their cattle died and others were injured by ingesting the chemical; that the city and Mr. Aubley denied any liability but in the event it is established they were negligent in any manner so as to be liable to the Kennedys their negligence was passive and secondary to the negligence of Continental Research Corporation; that Continental's negligence was active and primary negligence and the proximate and direct cause of the Kennedys' damages. The city and Mr. Aubley alleged they are entitled to judgment against Continental for all sums for which they may be liable to the Kennedys.
For this alleged liability of Continental the city and Mr. Aubley set forth three theories: (1) negligence in compounding, formulation, manufacture, testing, labeling, research, sale and distribution of CR-125, (2) breach of implied warranties to the city and Mr. Aubley, including warranty of merchantability and warranty of fitness for a particular purpose, and (3) under the doctrine of strict liability in tort the chemical CR-125 was in a defective condition unreasonably dangerous for use when it left the hands of Continental and was shipped to the city. The city and Mr. Aubley prayed for judgment against Continental for all sums for which they might be found liable to the Kennedys.
Continental Research Corporation then filed an answer as third-party defendant denying generally all such allegations of the city. It also filed a petition as third-party plaintiff against the Huge Company, Inc., alleging that Huge manufactured, packaged and labeled the chemical CR-125 for Continental; that in the event Continental is found negligent in any manner for which it would be liable to the city and Mr. Aubley, such negligence was passive and secondary to the negligence of Huge; that the action of Huge was primary negligence and the proximate and direct cause of the Kennedys' damages; and that Continental is entitled to judgment against Huge for all sums for which Continental may be found liable to the city and Mr. Aubley.
To establish this alleged liability of Huge, Continental set forth the identical theories pled by the city against Continental: (1) common law negligence, (2) breach of implied warranties, and (3) strict liability in tort for sale of a product in a defective condition unreasonably dangerous for use. It concluded with a prayer for...
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