Kerns By and Through Kerns v. G.A.C., Inc.

• Citation: 875 P.2d 949,255 Kan. 264
• Decision Date: 27 May 1994
• Docket Number: No. 68405,68405
• Parties: Aaron KERNS, A Disabled Minor, By and Through Samuel KERNS, His Natural Parent, Natural Guardian, and Next Friend, Appellant/Cross-Appellee, v. G.A.C., INC., et al. Appellees/Cross-Appellants, and American Fence Company, Appellee.
• Court: United States State Supreme Court of Kansas

Page 949

875 P.2d 949

255 Kan. 264

Aaron KERNS, A Disabled Minor, By and Through Samuel KERNS,

His Natural Parent, Natural Guardian, and Next

Friend, Appellant/Cross-Appellee, v. G.A.C., INC., et al. Appellees/Cross-Appellants, and American Fence Company, Appellee.

No. 68405.

Supreme Court of Kansas.

May 27, 1994.

Syllabus by the Court

1. Rules for summary judgment are discussed.

2. K.S.A.1993 Supp. 60-3303(c), the provision of the Kansas Products Liability Act that provides nothing contained in K.S.A.1993 Supp. 60-3303(a) and (b) shall modify the limitations provisions in K.S.A.1993 Supp. 60-513, does not nullify the exceptions to liability in 60-3303(b)(2)(D). Those exceptions include situations where harm is caused by prolonged exposure to a defective product and where the injury-causing aspect of the product was not discoverable by a reasonably prudent person within 10 years of the time of delivery of the product.

3. K.S.A.1993 Supp. 60-3303(b)(1) allows a plaintiff to bring a tort action more than 10 years after delivery of a product if the plaintiff can establish by clear and convincing evidence that the useful safe life of the product has not expired.

4. A product seller shall not be subject to liability in a product liability claim if the product seller proves by a preponderance of the evidence that the harm was caused after the product's useful safe life had expired. "Useful safe life" begins at the time of delivery of the product and extends for the time during which the product would normally be likely to perform or be stored in a safe manner. "Time of delivery" means the time of delivery of a product to its first purchaser or lessee who was not engaged in the business of either selling such products or using them as component parts of another product to be sold. K.S.A.1993 Supp. 60-3303(a)(1).

5. K.S.A.1993 Supp. 60-3303(b)(1) includes a 10-year statute of repose. The 10-year period of repose applies if the injury-causing aspect of the product that existed at the time of delivery was discoverable by a reasonably prudent person at the time of delivery. K.S.A.1993 Supp. 60-3303(b)(2)(D).

6. A director or officer of a corporation is not liable for torts committed by the corporation unless the officer or director commits or participates in the tort.

7. A corporation is liable not only for its own torts but also for the torts of its agents when committed within the scope of the agents' authority and course of employment. Officers, agents, and employees of a corporation who violate a duty owed to third persons are liable to such persons for their torts.

8. In reviewing an award for pain and suffering, a noneconomic element of damages, an appellate court must review the record to determine if there is evidence to support the jury's determination of damages.

9. K.S.A. 60-259 provides a new trial may be granted on all or a part of the issues when one of the statutory grounds for a new trial exists which affects the substantial rights of a party. A new trial may be limited to the issue of damages in those instances where the issue is separable from the issue of liability and when the interest of justice will be served thereby. Inherent in the power to limit a new trial to the single issue of damages when the verdict award is inadequate is the requirement that the issue of damages be separable from the issue of liability.

10. Negligence per se usually consists of violation of a specific requirement of a law or an ordinance. The distinction between "negligence" and "negligence per se" is the means and method of ascertainment; the former must be found by a factfinder from the evidence, while the latter results from violation of the specific requirement of a law or an ordinance and the only fact for determination by the factfinder is the commission or omission of the specific act inhibited or required.

11. Violation of an ordinance, by itself, does not establish negligence per se. The plaintiff must also establish that an individual right of action for injury arising out of the violation was intended by the legislature.

12. Under the facts of this case, particular provisions of city ordinances were enacted to protect a special class of individuals of which plaintiff is a member, and a defendant's violation of the city ordinances was admissible evidence of negligence per se.

Jeffery L. Carmichael, of Morris, Laing, Evans, Brock & Kennedy, Wichita, argued the cause, and Ken M. Peterson and Diane S. Worth, of the same firm, were with him on the briefs for appellant/cross-appellee.

Nicholas S. Daily, of Depew, Gillen & Rathbun, Wichita, argued the cause for appellee American Fence Co.

James L. Cline, of Turner and Boisseau, Chartered, Wichita, argued the cause, and Eldon L. Boisseau, Christopher P. Christian, and Anne M. Hull, of the same firm, were on the briefs for appellees/cross-appellants G.A.C., Inc., and Harold and Ena Orindgreff.

Wayne T. Stratton and John D. Ensley, of Goodell, Stratton, Edmonds & Palmer, Topeka, appeared on the brief for amici curiae Kansas Hosp. Ass'n and Kansas Medical Society.

LOCKETT, Justice:

Plaintiff Aaron Kerns, a six-year-old child, fell into a closed swimming pool at Green Acres Mobile Home Park (the park) and nearly drowned, sustaining serious injuries. Through his father, he sued, alleging negligence by the operators of the park, the corporation that owned the park, and the fabricator and installer of the fence that surrounded the pool. The operators and the fence company were granted summary judgment prior to trial. The jury found the corporate defendant 2% negligent, the father 68% negligent, and the child 30% negligent. Plaintiff appeals, claiming that the trial court erred in (1) granting summary judgment for the operators of the park and the fence company, (2) admitting evidence of collateral source benefits into evidence, and (3) not granting a new trial based on the jury's award of only $100 for noneconomic damages.

The corporation cross-appeals the trial court's failure to grant its motions for summary judgment and directed verdict. The case was transferred to this court pursuant to K.S.A. 20-3018(c).

Aaron, who was in first grade, lived with his father, Samuel Kerns, at the park for several years prior to the incident. G.A.C., Inc., is the corporation that owns and operates the park. Harold and Ena Orindgreff are two of the three shareholders for G.A.C. and officers of the corporation; they supervised the management of the park on a daily basis. The only other corporate shareholder is the Orindgreffs' son. Irene Michaelis was the on-site manager for the park. A resident of the park, Alva Oller, was hired by G.A.C. to maintain the pool.

The offices of G.A.C. were at the entrance of the park and provided a clear view of the swimming pool. The pool had a five-foot tall chain link fence with mesh measuring between two and three inches wide that had been installed by American Fence Company (American). The safety equipment for the pool was stored in a locked shed. The pool was open only during the summer months. The pool was closed at the time of the incident and had been pumped dry at the close of the previous season. When water from precipitation accumulated in the pool in the off season, one of the Orindgreffs would instruct Oller to pump it out. On the day of the incident there was an accumulation of three to four feet of murky water, algae, and leaves in the pool that made the bottom and sides of the pool slippery.

On April 22, 1990, Aaron and a friend, Chris Dreher, were playing in an open grassy area next to the pool. Aaron threw his baseball cap into the air, and it went over the fence and landed in the pool. Aaron climbed the fence and entered the pool to retrieve his cap. Chris, who had also climbed the fence, saw Aaron go under the water. Chris went for help and eventually two adults, Jim Kennedy and Chris' mother, Ruth Dreher, entered the pool area to rescue Aaron. They were initially unable to find Aaron beneath the dark, murky water.

A shepherd's crook was obtained from the storage shed and used to locate Aaron. Kennedy retrieved Aaron from the pool. Kennedy and Samuel Kerns attempted to resuscitate Aaron. Emergency medical service personnel transported Aaron to the hospital. Aaron suffered injuries which resulted in his being severely disabled. Aaron will never be able to walk, talk, or function independently.

Prior to trial, the district judge granted American's and the Orindgreffs' motion for summary judgment. The jury subsequently found (1) G.A.C.'s maintenance of the pool was not wanton or reckless, (2) G.A.C.'s maintenance did violate a city ordinance and that violation contributed to Aaron's injuries, and (3) Aaron was not entitled to recover under an attractive nuisance theory. The jury awarded Aaron past and future medical expenses totalling $870,243, $670,609 in loss of future income, and $100 for noneconomic damages. The jury determined Aaron could be expected to receive $528,732 in net collateral source benefits from an insurance policy.

Additional facts will be discussed in the analysis of the issues.

STANDARD OF REVIEW

The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we...