Prince v. Leesona Corp., Inc., s. 81-1962

• Decision Date: 07 November 1983
• Docket Number: 81-1985,Nos. 81-1962,s. 81-1962
• Parties: Nancy Kathleen PRINCE, Plaintiff-Appellant/Cross-Appellee, v. LEESONA CORPORATION, INC., Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1166

720 F.2d 1166

Nancy Kathleen PRINCE, Plaintiff-Appellant/Cross-Appellee, v. LEESONA CORPORATION, INC., Defendant-Appellee/Cross-Appellant.

Nos. 81-1962, 81-1985.

United States Court of Appeals Tenth Circuit.

Nov. 7, 1983.

William H. Pickett of Kansas City, Mo., for plaintiff-appellant/cross-appellee.

Keith Martin of Payne & Jones, Chartered, Olathe, Kan., for defendant-appellee/cross-appellant.

Before DOYLE, BREITENSTEIN and McKAY, Circuit Judges.

McKAY, Circuit Judge.

This diversity action against an equipment manufacturer ¹ for personal injuries occurring on the job in which plaintiff, Ms. Prince, caught her hair in the rotating shaft of her employer's machine is based on the theory of products liability. It was first filed in Missouri before the two-year statute of limitations expired but was dismissed by the district court for Missouri for lack of personal jurisdiction after the two years' limitation period expired. It was refiled in Kansas within six months thereafter. Plaintiff's employer, who is immune from liability under the Kansas worker's compensation law, was not named as a defendant but was added by the court as a "phantom" party. In order to reach a judgment the jury was required to allocate among all the actors, including plaintiff's employer, their appropriate share of fault in causing the injury. The jury found plaintiff's damages to be $200,000 and allocated fault as follows:

Plaintiff--35%

Defendant manufacturer--5%

C.M. Moore Company (plaintiff's employer)--60% Thus plaintiff's net recovery against the defendant was $10,000. ²

Plaintiff has appealed on a variety of issues, most of which involve the interpretation of the Kansas Comparative Negligence Act as applied to the doctrine of strict liability. Defendant has cross-appealed on a jurisdictional issue and on the issue of whether, as a matter of law, the negligence of C.M. Moore was a superseding cause under the doctrine of shifting responsibility. It is necessary to address the jurisdictional issue first.

Defendant contends that plaintiff's action is barred by Kansas' two-year statute of limitations for personal injury in tort. Kan.Stat.Ann. Sec. 60-513(a)(2) (1976). When plaintiff originally filed the action in Missouri, she was within the two-year time period. The Missouri action was dismissed after the two years had run. The action was refiled in Kansas two years, five months after the accident. The issue is whether the Kansas savings statute applies. That statute provides that "[i]f any action be commenced within due time, and the plaintiff shall fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff ... may commence a new action within six (6) months after such failure." Kan.Stat.Ann. Sec. 60-518 (1976).

Defendant argues that the statute applies only when the first action is filed in the forum state. ³ Although Kansas has not directly decided the issue, defendant cites the dictum of Jackson v. Prairie Oil & Gas, 115 Kan. 386, 391, 222 Pac. 1114, 1116 (1924), in which the Kansas Supreme Court noted that the rule of Herron v. Miller, 96 Okl. 59, 220 Pac. 36 (1923), appeared to be well taken. The rule of Herron --that the forum's savings statute does not apply when the initial action is brought in another state--is the general rule among older cases. ⁴ More recently, however, both circuit and state courts have split on the issue of whether savings statutes apply to suits originally filed in sister states. ⁵

Absent compelling precedent from a state, we see no reason to follow old dicta when virtually every state has a savings statute and no significant policy would be advanced by holding such a statute inapplicable to actions originally filed in sister states. Defendant here was put on notice of the action in a timely manner and there was no more delay involved than if the action had been filed in the forum state and dismissed there for procedural reasons. Nor would holding that a savings statute is inapplicable to actions filed in sister states further any policy of the forum state to protect its citizens from discrimination by other states.

Defendant's second argument is that as a matter of law, the intervening fault of C.M. Moore Company was a superseding cause under the doctrine of shifting responsibility. See Restatement (Second) of Torts (1965) Sec. 452. As defendant admits, the general rule is that mere intervening negligence does not normally supersede a prior act of negligence and the question of shifting responsibility is a question of fact for the jury. Defendant contends, however, that the issue of superseding negligence and shifting responsibility may be decided as a matter of law "where the parties do not dispute the critical facts and only their legal effect remains in issue." Meuller v. Jeffrey Mfg., 494 F.Supp. 275, 277 (E.D.Pa.1980). Even if this circuit were to adopt this exception, it would not apply in the instant case. As discussed below, the parties here dispute virtually all of the critical facts. Thus, the issue of superseding cause and shifting responsibility was properly decided by the jury.

Plaintiff's first argument is that the trial court erred in submitting the question of her assumption of risk to the jury because there was no evidence that she assumed the risk. In Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976), Kansas adopted the rule of strict liability as defined in Section 402A of the Restatement (Second) of Torts (1965), including the assumption of risk defense. ⁶ To establish this defense, defendant must prove that the injured plaintiff (1) discovered the defect; (2) was aware of the danger; and (3) unreasonably continued to use the product. The jury instruction given by the trial court reflected these elements. ⁷

After trial, plaintiff moved for a judgment notwithstanding the verdict challenging the instruction. The court denied plaintiff's motion holding that the instruction complied with Brooks and that there was sufficient evidence to warrant its submission to the jury.

On appeal plaintiff does not challenge the substance of the instruction but only whether there was enough evidence to submit the issue to the jury. The parties presented conflicting evidence as to every element. Plaintiff testified that she did not in fact know of the defect, was not aware of the danger, and did not unreasonably continue to use the product after discovering the defect. She testified that she was given no instruction as to how to wear her hair and that any applicable rule was not strictly enforced. She also presented evidence to establish that the defect and danger was not obvious to the average person, including new employees.

Defendant, on the other hand, presented evidence to establish that the defect was so obvious that any adult would be aware of the danger. Defendant also presented evidence that plaintiff was instructed to wear her hair tied up.

In view of this clearly conflicting evidence, the question was properly for the jury to resolve. Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1149 (10th Cir.), cert. denied, 439 U.S. 862, 99 S.Ct. 183, 58 L.Ed.2d 171 (1978). The evidence was sufficient to support the jury's conclusion.

Plaintiff's second contention is that jury instructions Nos. 16 and 18 ⁸ applied erroneous duties and burdens to plaintiff's employer. In essence, plaintiff argues that the instructions permitted the jury to assess the employer's ordinary negligence when it should have been permitted to allocate part of the liability to the employer only on a showing that the employer assumed the risk of plaintiff's injury. Plaintiff's argument is based on Comment n to Sec. 402A of the Restatement (Second) of Torts (1965) and Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976). Since C.M. Moore, the employer, was a user or consumer of the equipment, plaintiff argues its fault can be considered only if it meets the elements of assumption of risk. Plaintiff misconstrues Brooks. Brooks deals only with plaintiff's contributory negligence and assumption of risk. In any event, since Brooks the Kansas court has shifted directions because of the effect of the Kansas Comparative Negligence Act. It has applied the doctrine of comparative fault to strict liability actions. Kennedy v. City of Sawyer, 228 Kan. 439, 452, 618 P.2d 788, 798 (1980). "[A]ll parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible." Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 374, 634 P.2d 1127, 1132 (1981). Section 258a(c) of the Kansas Comparative Negligence Act allows a defendant to force a comparison of fault with third parties, even though formal joinder is not required. Kennedy v. City of Sawyer, 228 Kan. 439, 460, 618 P.2d 788, 803 (1980). This comparison of fault of phantom parties has been extended to products liability cases. Forsythe v. Coats Co., 230 Kan. 553, 639 P.2d 43 (1982); Lester v. Magic Chef, Inc., 230 Kan. 643, 641 P.2d 353 (1982).

In essence, what Kansas has done is to let the jury determine the degree to which each actor has departed from his or her respective duty ⁹ and apportion fault accordingly. As explained in Kennedy, all types of fault, regardless of degree, are to be compared with that of defendant whether the fault is characterized as contributory negligence, assumption of risk, product misuse, or unreasonable use. All of these defenses depend on the reasonableness of plaintiff's conduct, a negligence concept. Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788, 796-97. As we pointed out in Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 455 n. 5 (10th Cir.1982), this approach is analytically difficult to harmonize with traditional notions of strict liability and negligence. Yet,

[w]e are persuaded that what Kansas intends by the overarching application of...