McCart v. Muir, 52816

• Citation: 641 P.2d 384,230 Kan. 618
• Decision Date: 27 February 1982
• Docket Number: No. 52816,52816
• Court: United States State Supreme Court of Kansas
• Parties: Mr. and Mrs. Robert McCART, et al., Appellees, v. Mr. William G. MUIR, As surviving parent and next of kin of Stephen A. Muir, deceased, in his individual capacity, Appellant.

Page 384

641 P.2d 384

230 Kan. 618

Mr. and Mrs. Robert McCART, et al., Appellees, v. Mr. William G. MUIR, As surviving parent and next of kin of

Stephen A. Muir, deceased, in his individual

capacity, Appellant.

No. 52816.

Supreme Court of Kansas.

Feb. 27, 1982.

Syllabus by the Court

1. A claim of negligent entrustment is based upon knowingly entrusting, lending, permitting, furnishing, or supplying an automobile to an incompetent or habitually careless driver.

2. An incompetent driver is one, who by reason of age, experience, physical or mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care.

3. The intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages, even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault. (Following Brown v. Keill, 224 Kan. 195, Syl. P 6, 580 P.2d 867 (1978).)

4. Liability in a negligent entrustment case is not founded upon the negligence of the driver of the automobile but upon the primary negligence of the entruster in supplying the chattel, an automobile, to an incompetent and reckless driver.

5. If a party in a comparative negligence action is claiming damages for a decedent's wrongful death, the negligence, if any, of the decedent is imputed to such party-claimant. K.S.A. 60-258a(a ).

6. Pecuniary loss or damages in a wrongful death case should be equivalent to those pecuniary benefits or compensation that reasonably could have been expected to have resulted from the continued life of the deceased.

7. Under the provisions of K.S.A. 60-1903, which now limit the nonpecuniary damages allowable in a wrongful death case to $25,000.00 and which now impose no limit on pecuniary damages, the jury is required to separately state the amounts allowed for pecuniary loss and for nonpecuniary loss for each wrongful death.

8. In applying the comparative negligence statute, K.S.A. 60-258a, in an action for death by wrongful act brought under K.S.A. 60-1901, et seq., the percentage of causal fault attributable to decedent's negligence plus the percentage of additional causal fault attributable to any direct negligence of the plaintiff are to be deducted from the amount of damages awarded by the court or jury for nonpecuniary damages, rather than from the maximum permissible recovery for nonpecuniary damages allowable under K.S.A. 60-1903.

Richard L. Honeyman, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause, and Steven R. Smith, Wichita, of the same firm, and Light, Yoxall, Antrim & Richardson, Liberal, were with him on the brief, for appellant.

Daniel J. Sevart, of Render & Kamas, Wichita, argued the cause, and John W. Johnson, Wichita, of the same firm, and C. Dean Homolka, II, Wichita, were with him on the brief, for appellees.

FROMME, Justice:

This is a consolidated wrongful death action arising from a two-vehicle accident occurring in Meade County, Kansas in February 1977. Three sets of parents claim separate damages for the injury or death of their respective children. Five children were killed and one was injured as a result of a head-on collision on U. S. Highway 54 about three miles east of Meade, Kansas.

The plaintiffs are: (1) Mr. and Mrs. Robert McCart, the surviving parents of Laura L. McCart; (2) Mr. and Mrs. Monte Finke, the surviving parents of Cheryl A. Finke and Keith A. Finke; and (3) Mr. and Mrs. Ricky Rickers, the surviving parents of Eric Rickers, and the parents of Colby Rickers, who was the sole survivor.

The defendant, William G. Muir, is the father of Stephen Muir. Stephen Muir was the driver of one of the vehicles involved in the accident. The mother of Stephen was first joined as a defendant but was dismissed from the action at the close of plaintiffs' evidence. Jury verdicts were returned in favor of the respective plaintiffs.

The brief of the defendant-appellant lists nine trial errors and then proceeds to brief eight points under headings different from the original nine trial errors listed. The consolidated brief of the appellees is divided into five headings which fail to address at least three of the eight points discussed by appellant. We have experienced some little difficulty in sorting out the dispositive points on appeal and in finding where in the respective briefs the points are discussed. Out of this confusion of points appear three primary areas of law to be considered by this court on appeal: (1) Negligent entrustment, (2) comparative negligence in negligent entrustment cases, and (3) the nature and amount of damages allowable under the provisions of K.S.A. 60-1903, effective July 1, 1975. We turn to the facts.

At the time of the accident, Stephen Muir, the 17-year-old son of defendant William G. Muir, was driving a 1974 Plymouth Roadrunner automobile. The title to this car was in the name of Stephen and his father as co-owners. The father had co-signed the loan documents to enable Stephen to purchase the car. Riding with Stephen were Laura L. McCart, age 16 years, and James Downing, age 26 years.

Approximately three miles east of Meade, Kansas, on U. S. Highway 54, Stephen Muir's vehicle crossed the center line of the highway and struck another vehicle being driven by Cheryl A. Finke, age nineteen. Cheryl's vehicle was occupied by her younger brother, Keith A. Finke, age 14 years; her nephew, Eric Rickers, age four years; and her niece, Colby Rickers, age two years. All occupants of the two vehicles were killed except two-year-old Colby Rickers. Colby sustained serious physical injuries.

The results of blood tests indicated that Stephen Muir's blood had an alcohol content of .22 percent, and Cheryl Finke's blood indicated no alcohol content. Evidence introduced at the trial established that Stephen Muir had been involved in four vehicular accidents within six months prior to the fatal accident. Within four months prior to the fatal accident Stephen had received three traffic citations for moving violations-speeding, careless driving, and reckless driving. During this same period, Stephen had dropped out of high school. The evidence at trial established that Stephen was tried and convicted for reckless driving, which conviction was entered within five days of this fatal accident. He was fined $50.00 in the Municipal Court of Liberal, Kansas.

Appellant contends that the plaintiffs failed to establish the necessary elements of negligent entrustment. A claim of negligent entrustment is based upon knowingly entrusting, lending, permitting, furnishing, or supplying an automobile to an incompetent or habitually careless driver. Fogo, Administratrix v. Steele, 180 Kan. 326, 304 P.2d 451 (1956); Neilson v. Gambrel, 214 Kan. 339, 342, 520 P.2d 1194 (1974). An incompetent driver is one, who by reason of age, experience, physical or mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care. This definition of an incompetent driver is deduced from our prior cases including Priestly v. Skourup, 142 Kan. 127, 45 P.2d 852, 100 A.L.R. 916 (1935); and Richardson v. Erwin, 174 Kan. 314, 255 P.2d 641 (1953).

Defendant asserts he did not know or have reasonable cause to know that Stephen was an incompetent, careless, or reckless driver. However, by his own admission he was aware of three of the accidents in which Stephen was involved as the driver. Defendant's wife testified that she had warned Stephen of the dangers of drinking intoxicants and driving. The wife further testified that she told Stephen if he had anymore wrecks that she was "going to make him park the car." Stephen was living with his parents in Liberal, a city of 14,000 people.

Under the evidence all elements of liability for negligent entrustment were shown: (1) The father, as co-signer on the automobile finance papers and as co-owner on the certificate of title, was instrumental in furnishing the motor vehicle to his son, Stephen, (2) the father knew or should have known Stephen was an incompetent driver, and (3) the negligence of Stephen in operating the vehicle was a cause of the damages.

Stephen was not an emancipated child. He remained under the control of his parents. The automobile was being operated with the permission of the father. It is inconceivable that the father did not know of the wrecks and prior convictions on moving violations.

It should be noted here that plaintiffs settled their claims against the estate of Stephen Muir for undisclosed sums.

In the case at bar, the petition sets forth claims against the father, William G. Muir, based on the theory of negligent entrustment and sets forth the negligent acts of the son in driving the car. The defendant, William G. Muir, in his answer, denies negligence on the part of himself and of his son, and alleges "if the plaintiffs have suffered any damages as a result of negligence, this negligence was that of the plaintiffs or third persons presently unknown to these defendants."

The defendant at trial requested that the court instruct the jury and submit the case on the theory of comparative negligence. Defendant submitted requested comparative negligence instructions taken from PIK Civ.2d 20.01 and 20.02 (1977). Neither these instructions nor the requested verdict forms suggested by PIK Civ.2d 20.03 (1977) were used to cover the comparative fault theory of liability. The court unequivocally stated: "I am not going to give an instruction on comparative negligence." In this we believe the trial court erred.

"The intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or...