Ratterree v. Bartlett, 57055
| Decision Date | 08 October 1985 |
| Docket Number | No. 57055,57055 |
| Citation | 238 Kan. 11,707 P.2d 1063 |
| Parties | Jill RATTERREE, Appellee, v. Richard A. BARTLETT, William Munger, and Kansas Fire & Casualty Company, Appellants, and Jose Hernandez, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Police officers who investigate accidents may not give opinion testimony concerning the ultimate question of negligence, since that invades the province of the jury or other factfinder.
2. To be proper, instructions must accurately state the law applicable to a case.
3. Evidence which is more prejudicial than probative is inadmissible pursuant to K.S.A. 60-445.
4. A passenger in an automobile has no legal duty to use an available seat belt. Evidence of nonuse and an instruction that such nonuse is an element of fault is improper in Kansas.
5. If a passenger has knowledge of danger and the circumstances are such that an ordinary person would speak out or take other positive action to avoid injury to him or herself, then it is the passenger's duty to take the action the ordinary person would take under the circumstances.
6. A party is entitled to an instruction only where evidence is introduced to support that theory.
7. It is not error for a trial court to inform the jury as to the legal effect of the jury's answers in a comparative negligence case.
8. Parties whose actions either did not constitute fault or legally could not be considered negligent need not have their fault compared to the other parties.
9. Opinions by expert witnesses should not concern matters which are mere speculation or conjecture.
10. Where a charge of excessive verdict is based on passion or prejudice of the jury, but is supported solely by the size of the verdict, the verdict will be upheld unless the amount, in light of the evidence, shocks the conscience of the appellate court.
11. The appellate court must review the evidence in the light most favorable to the party prevailing below.
12. Since the issue of damages is a difficult one to calculate, the law has given juries great leeway in this area.
13. When a verdict is attacked on the ground it is contrary to the evidence, it is not the function of the court on appeal to weigh the evidence or pass on the credibility of the witnesses. If the evidence with all reasonable inferences to be drawn therefrom will support the verdict, an appellate court should not intervene.
14. In a tort action where the plaintiff enters into a secret settlement agreement with one of multiple defendants prior to trial, it is held: The parties entering into such agreement shall promptly inform the court in which the action is pending and the other parties to the action of the agreement and its terms. If the action is tried to a jury and the settling defendant is a witness, the court shall, upon motion of a party, disclose the existence and content of the agreement to the jury unless the court finds in its discretion such disclosure to the jury will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
Larry G. Pepperdine of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause and Ronald J. Laskowski, of the same firm, was with him on brief for appellants Bartlett, Munger and Kansas Fire & Cas. Co. Kerry D. Howlett of Thompson & Howlett, Kansas City, argued the cause and Charles W. Thompson, of the same firm, was on brief for appellee Hernandez.
Charles D. Kugler of Vasos, Kugler & Dickerson, Kansas City, argued the cause and was on brief for appellee Ratterree.
This is an appeal from a jury verdict for damages for personal injuries resulting from an automobile/tractor-trailer collision. Plaintiff/appellee, Jill Ratterree, was a passenger in a car driven by defendant/appellee, Jose Hernandez. They collided with defendant/appellant, Richard Bartlett, who was driving a tractor-trailer. Ratterree sued both defendants and Bartlett's employer, William Munger, and insurer, Kansas Fire & Casualty Co. (KFC), for damages. Hernandez cross-claimed against Bartlett, Munger and KFC for his injuries sustained in the accident. Both Ratterree and Hernandez were awarded damages. Defendants Bartlett, Munger and KFC appeal.
On the evening of January 8, 1982, Ratterree met Hernandez at Jalisco's Restaurant in Kansas City, Kansas. Hernandez invited Ratterree to accompany him in his 1971 Porsche automobile to Kansas City International Airport to pick up a friend. Enroute to the airport, in a northbound lane of I-635 near Leavenworth Road, the Porsche was involved in an accident with a tractor-trailer truck driven by Bartlett. At the point where the accident occurred, I-635 is a 6-lane divided highway, with three northbound lanes, a right outside shoulder, and a left inside shoulder bordered by a guardrail.
The cause of the collision was disputed at trial. Bartlett testified he had been traveling in the center lane of I-635. Traffic was braking in front of him, so he turned on his left turn signal and moved to the left inside lane. He traveled there for approximately one-quarter to one-half mile when he felt something collide with his left front wheel. He looked down, saw a Porsche, moved to the right lane, and stopped on the shoulder.
Highway patrol officers LeRoy McConico, Jr., and George Tate investigated the accident. The officers testified the only point of impact with Bartlett's truck was at the left front bumper of the cab of the truck. The officers also testified there were rolling tire tracks from the Porsche automobile entering onto the shoulder and running parallel to the guardrail for approximately 75 to 90 feet prior to the collision with the guardrail.
According to appellees Ratterree and Hernandez, the accident occurred when the tractor-trailer driven by Bartlett cut suddenly, without warning, into the Porsche's lane of travel in the left northbound lane and collided with Hernandez' vehicle. As the wheels of the tractor-trailer moved toward the car, Ratterree shouted a warning. After the collision, Hernandez steered his vehicle onto the shoulder attempting to regain control. The Porsche traveled approximately 75 feet before striking the steel guardrail which runs parallel to the shoulder. The car then rebounded from that contact and began to spin down the roadway where it struck the guardrail again approximately 68 feet away and thereafter came to rest 60 feet further down the roadway.
Both Ratterree and Hernandez testified they believed they collided with the left rear wheels of the tractor-trailer when Bartlett moved from the center lane into the left lane.
The shoulder, at the point of the collision, is six feet wide. On the night of the accident there was snow and ice packed against the guardrail and on the shoulder from recent snows and road-clearing operations.
At some point during the collision, the door of the car was torn open and as the car spun, Ratterree was thrown onto the highway. As a result, she sustained severe head injuries, which caused brain damage and other loss of mental skills. At the time of the accident she was an electronics assembler at Butler National Corporation in Lenexa, Kansas. At the time of the appeal she was unemployed, continued to suffer from pain, and had been diagnosed as suffering from depression due to the consequences of the accident.
Hernandez also suffered injuries for which he received medical treatment. Hernandez testified he continues to experience pain and other injury-related physical ailments.
Ratterree initiated this litigation by filing suit on August 27, 1982, naming in her petition as defendants Richard Bartlett, the tractor-trailer driver; William Munger, his employer; the Kansas Fire & Casualty Company, the common carrier insurer; and Jose Hernandez, operator of the car in which she was a passenger. Hernandez cross-claimed against the other defendants for personal injuries he suffered in the collision.
Just prior to trial Hernandez' insurance company and Ratterree entered into a compromise settlement of her claim against Hernandez. The morning of trial defendants and the trial court were advised of the settlement, but not of its terms. Hernandez remained in the suit as a named defendant at trial. Defendants requested the settlement agreement be produced at trial and that it be admitted into evidence. The trial court denied the motions.
The matter was tried to the jury, which found Bartlett 90% at fault and Hernandez 10% at fault in causing the accident. The jury awarded Ratterree $400,000 in damages and Hernandez $50,000 in damages on his cross-claim.
Bartlett, Munger and KFC appeal.
The first issue to be considered is whether the trial court erred in prohibiting the testimony of the two highway patrol officers as to their opinion that Hernandez was passing on the shoulder at the time of the collision.
Highway patrol officers LeRoy McConico, Jr., and George Tate investigated the accident. Based on the physical evidence at the scene, they were of the opinion that Hernandez was in the process of passing on the inside shoulder of the highway at the time the accident occurred. At trial, after the officers testified that the physical evidence showed Hernandez' vehicle was on the shoulder, appellants sought to have them testify as to whether in their opinions Hernandez was on the shoulder trying to pass. The trial court excluded the opinion testimony.
Appellants contend this exclusion was in error since the testimony was proper expert opinion testimony. In support appellants cite Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978). In Lollis we held opinion evidence by investigating police officers concerning physical factors of an accident is admissible when a proper foundation for such conclusions is presented and the conclusions are the proper subject of expert testimony. Appellants argue the two tests were met in this case.
Officer McConico testified he had fourteen years of law...
To continue reading
Request your trial
-
Gum v. Dudley
...Inc. v. Fass, 724 F.2d 1230 (7th Cir.1983); d'Hedouville v. Pioneer Hotel Company, 552 F.2d 886 (9th Cir.1977); Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985); Diaz v. Sears, Roebuck & Co., 475 So.2d 932 (Fla.Dist.Ct.App.1985); Torres v. Union Pacific R. Co., 157 Cal.App.3d 499, 2......
-
Smith v. Massey-Ferguson, Inc.
...of pecuniary loss. The evidence must be reviewed in the light most favorable to Smith, who prevailed in the district court. See Ratterree v. Bartlett, 238 Kan. 11, Syl. p 11, 707 P.2d 1063 In large measure, the evidentiary basis for the jury's calculation of future medical expenses was medi......
-
Collings v. City First Mortg. Servs., LLC
...(holding Mary Carter agreements void and inadmissible); Maule Indus., Inc. v. Rountree, 284 So.2d 389 (Fla.1973); Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985). But we concluded that listing parallel positions taken by the plaintiff and the impecunious defendant was not enough to......
-
Collings v. City First Mortg. Servs., LLC
...(holding Mary Carter agreements void and inadmissible); Maule Indus., Inc. v. Rountree, 284 So.2d 389 (Fla.1973); Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985). But we concluded that listing parallel positions taken by the plaintiff and the impecunious defendant was not enough to......
-
An Ounce of Prevention . Motions in Limine in Kansas State and Federal Courts
...should have been excluded as prejudicial, but under the circumstances did not require a new trial). [FN94]. Ratteree v. Bartlett, 238 Kan. 11, 18, 707 P.2d 1063 (1985); Bennett v. Longacre, 774 F.2d 1024, 1027 (10th Cir. 1985). [FN95]. Pope v. Ransdell, 251 Kan. 112, 833 P.2d 965 (1992). [F......
-
Kansas State Court Appellate Standards of Review an Understanding Unblinded
...[FN227]. Folks v. Kansas Power & Light Co., 243 Kan. 57, 78, 755 P.2d 1319 (1988)(citations omitted). [FN228]. Ratteree v. Bartless, 238 Kan. 11, 23, 708 P.2d 1063 (1985). [FN229]. Kuhl v. Atchison, Topeka & Santa Fe Rwy. Co., 250 Kan. 332, 344, 827 P.2d 1 (1992). [FN230]. Wahwasuck, 250 Ka......
-
Recent Utah Tort Developments
...(Utah 1980). [105] Slusher, 111 UAR at 20. [106] Id. [107] Id. at 21. [108] Id. at 22 (emphasis in original) citing Raintree v. Bartlett, 707 P.2d 1063, 1074-76 (Kan. 1984). [109] Id. After determining that the trial judge had erred in not disclosing the agreement to the jury, the court fou......