Reynolds v. Kansas Dept. of Transportation, 83,944.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtALLEGRUCCI, J.
Citation273 Kan. 261,43 P.3d 799
PartiesARNOLD LEE REYNOLDS, Administrator for the Estate of Connie Reynolds, Deceased; ARNOLD LEE REYNOLDS, Individually; and RHONDA REYNOLDS, Appellees, v. KANSAS DEPARTMENT OF TRANSPORTATION, Appellant.
Docket NumberNo. 83,944.,83,944.
Decision Date19 April 2002

273 Kan. 261
43 P.3d 799

ARNOLD LEE REYNOLDS, Administrator for the Estate of Connie Reynolds, Deceased; ARNOLD LEE REYNOLDS, Individually; and RHONDA REYNOLDS, Appellees,

No. 83,944.

Supreme Court of Kansas.

Opinion filed April 19, 2002.

Vicky S. Johnson, staff attorney, of Kansas Department of Transportation, argued the cause, and Michael B. Rees, chief counsel, was with her on the briefs for appellant.

Constance Crittenden Owen, of Overland Park, argued the cause, and Lon Walters, of The Walters Law Firm, LLC, of Kansas City, Missouri, and Julie Frickleton, of Leawood, were on the brief for appellees.

The opinion of the court was delivered by


This is a wrongful death and personal injury action filed by Arnold and Rhonda Reynolds against James and

273 Kan. 262
Karen Van Kirk, Everett Jones, and the Kansas Department of Transportation (KDOT). The trial court entered judgment on a jury verdict that found KDOT 35% at fault, Jones 45% at fault, and Arnold Reynolds 20% at fault. KDOT appealed from the trial court's denial of its motions for summary judgment and directed verdict. The Court of Appeals reversed and remanded. Reynolds v. Kansas Dept. of Transportation, 29 Kan. App.2d 695, 30 P.3d 1041 (2001). The Reynolds' petition for review was granted

On appeal, KDOT argues that it did not owe a duty to the Reynolds, and if it did, there was insufficient evidence KDOT's failure to maintain its fence was the proximate cause of the injuries and damages sustained by the Reynolds.

On August 1, 1997, at approximately 9 p.m., a vehicle driven by Arnold Reynolds struck a cow. The vehicle left the road and struck an embankment. Arnold's wife Connie was killed, and their daughter, Rhonda, was severely injured.

The Reynolds' vehicle was southbound on Highway 69 approximately 2½ miles north of the Louisburg exit. Where the accident occurred, Highway 69 is a four-lane road with a grassy median between north and southbound lanes. It is a controlled access road.

259th Street passes over Highway 69. The rock embankment hit by the Reynolds' vehicle is on the right shoulder of the southbound lanes "just past 259th." When the vehicle struck the cow, it veered off the road and into the embankment. There is no access to Highway 69 at 259th Street.

Between 259th Street and 263rd Street, there is a large culvert that passes beneath Highway 69. A stream flows through the culvert from east to west. The property on the east end of the culvert belongs to Lee Phillips, and he has an orchard there. Everett Jones leased 40 acres on the west side and pastured some cattle there. Before August 1, 1997, Jones had 11 cows. After the vehicle accident, he was missing one cow.

In this vicinity, a KDOT fence parallels Highway 69 on either side and completely seals it off. Where there is an overpass, the KDOT fence "snugs up" to the overpass to seal off Highway 69. The fence is heavy gauge woven wire with 4-to 5-inch openings.

273 Kan. 263
The posts are metal and there is a strand of barbed wire along the top. Lee Phillips described the fence as a "cattle type" fence

KDOT fence runs over the top of the culvert. KDOT does not fence across the openings of the culvert. Jones installed a water gap at the mouth of the culvert when he began leasing the pasture. He also built a water gap on the Phillips end of the culvert. He regularly had to repair the fence on both sides of the culvert and the water gap on the Jones' side of the culvert. The repairs were necessitated by heavy water flow after rainstorms.

Jones, a seasonal concrete worker, began leasing the property and grazing cattle there in 1988. Jones testified that his cattle had gone through the culvert and onto Phillips' property three times. Phillips testified that he knew of two times when the cattle had gotten on his property. Rainstorms wash debris and logs against the water gap, necessitating repairs. Jones repaired or rebuilt the water gap at the culvert three times. William Michael Lackey, retired assistant Secretary of KDOT, acknowledged the difficulty in adequately fencing the culvert due to heavy water flow during and after a rainstorm.

Phillips testified that the KDOT fence on his side of Highway 69 had been down at least a year and a half before August 1997. A fence post had been knocked completely down. He had seen deer go through the gap in the fence quite often. Phillips did not report the broken fence because he saw KDOT employees mowing and believed that they would see that it needed to be repaired. That stretch of Highway 69 had been mowed twice in 1997 before the accident. David Arbogast, KDOT maintenance supervisor for the Louisburg area, testified that he inspects the fences weekly from the road. Lackey expressed the opinion that it would be a waste of resources for KDOT to inspect fences annually. He testified that maintaining fence was "very low" on KDOT's priority list.

Lackey said that KDOT fence was not for keeping cattle in, but he recognized that farmers do not install a second fence that runs alongside a KDOT fence. He testified that fence repair becomes a priority when a farmer keeps cattle and uses KDOT fence.

273 Kan. 264
KDOT's official manual provides that the purposes of fencing are to control access, provide safety to traveling public, prevent indiscriminate crossing of medians or ramps by vehicles or pedestrians, and prevent encroachments on the right of way. With regard to maintenance and inspection of fencing, KDOT's manual provides
"The State Owned Fences are to be maintained as originally constructed and in such a condition that they:
a. Serve their intended purpose.
b. Present a satisfactory appearance.
"Fences Which Have been Damaged to the extent that their effectiveness is severely reduced should be repaired immediately. A temporary repair may be necessary until permanent repairs can be made.
"State Owned Fences Should Be Inspected a minimum of once per year and repairs made where needed.
"When damage to Private Fences is observed, which affects the protection of the highway user, the owner should be promptly notified."

Arbogast testified that even if he had known that the fence to Phillips' property was down, he would not have repaired it immediately. His crew would have repaired it "when we got time." Arbogast testified that he knew that the land adjoining this stretch of fence did not have livestock on it, and, for that reason, he would repair the fence as soon as possible but not immediately.

The evening of August 1, 1997, 10 to 12 cows were located by highway patrol troopers and Miami County sheriff deputies on the east side of Highway 69 along the highway side of the fence line immediately on the north side of 259th. A farmer with a pasture on the west side of Highway 69 offered to allow the cows to be kept in his pasture temporarily. The farmer and officers cut the KDOT fence on the northeast corner of the overpass in order to get the cows onto 259th Street. They planned to herd the cows across the bridge to put them into the farmer's pasture.

Once they got the cattle onto 259th Street, one cow left the herd. It jumped the guard rail, ran 25 to 30 feet to another fence, cleared the fence and ran approximately 50 to 100 yards to the southeast. The officers thought the lone cow was safely fenced in. They herded the other cows across the bridge and into the farmer's pasture. Before the officers got back to their vehicles, the Reynolds'

273 Kan. 265
vehicle hit a cow in a southbound lane of Highway 69 just south of 259th St.

After the accident, Phillips saw cattle tracks in the mouth of the culvert on the east side of Highway 69. Around the downed fence, the grass was "pretty deep." Phillips saw no evidence on or around the downed fence to show whether the cattle crossed it.

The Reynolds sued Jones; the Van Kirks, owners of the pasture Jones rented; and KDOT. Jones settled, and the trial court entered summary judgment in favor of the landowners. KDOT's motion for summary judgment was denied, and the Reynolds proceeded to trial against KDOT. KDOT's motion for directed verdict also was denied. The jury returned a verdict that found KDOT 35% at fault, Jones 45% at fault, and Arnold Reynolds 20% at fault. The jury awarded Rhonda Reynolds $705,521.65 and Arnold Reynolds $473,774. Reynolds, 29 Kan. App.2d at 697.

KDOT appealed. The Court of Appeals reversed and remanded with the instruction to the trial court to enter a verdict on behalf of KDOT. The Court of Appeals held that KDOT did not owe a duty to the Reynolds. 29 Kan. App.2d at 699-700. The Court of Appeals also expressed the opinion that the proximate cause of the accident was the cow's escape through the culvert, for which KDOT bore no responsibility. 29 Kan. App.2d at 700-01. The Reynolds' petition for review was granted.

We first determine if KDOT owed a duty to the Reynolds. The Reynolds claimed that the cow they hit "was allowed access to 69 Highway by a KDOT fence in disrepair." They alleged that KDOT was negligent in failing to maintain the fencing sufficiently to prevent livestock from entering upon the highway...

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