Rollins v. Department of Transp.

• Decision Date: 23 December 1985
• Docket Number: No. 56947,56947
• Citation: 238 Kan. 453,711 P.2d 1330
• Parties: William T. ROLLINS, Appellant, v. The DEPARTMENT OF TRANSPORTATION of the State of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 1330

711 P.2d 1330

238 Kan. 453

William T. ROLLINS, Appellant, v.The DEPARTMENT OF TRANSPORTATION of the State of Kansas, Appellee.

No. 56947.

Supreme Court of Kansas.

Dec. 23, 1985.

Syllabus by the Court

1.Evidence of the nonuse of seat belts by a driver of, or a passenger in, an automobile is inadmissible in a negligence action.

2.Subject to the limitations of K.S.A. 75-6101 et seq., each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.

3.In doing highway maintenance work, the duty under the tort claims act, absent any statutory exceptions, which the Department of Transportation of the State of Kansas owes the public is the same that would be required of a private individual doing the same work.

4.The test of what duty is owed to the public under the tort claims act is not whether the same or similar work is actually being done by a private person but what the standard would be if the work were to be done by a private person.

5.An instruction on the duty required by the tort claims act under K.S.A. 75-6103(a) is appropriate if the government activity is such that there would be specific duties required of a private person doing the same work, other than to perform in a non-negligent manner.

6.The standard instructions used in negligence actions are adequate under the tort claims act if the only duty required of a private person would be to perform in a non-negligent manner.

7.Evidence of other accidents may be admitted if the court finds that the accidents have sufficient similarity to the accident in the case before the court.The admission of such evidence lies within the sound discretion of the trial court.

8.An abuse of discretion is said to exist only when no reasonable person would take the view adopted by the trial court.

9.The fact that an allegation of negligence is asserted in a pretrial pleading does not justify an instruction on that particular allegation if there is no evidence to support it.

Jerry G. Elliott, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Mikel L. Stout and Nola Tedesco Foulston, were with him on brief for appellant.

Scott Logan, Office of Chief Counsel, Kansas Dept. of Transp., argued the cause, and David G. Tittsworth, Chief Counsel, Jay L. Smith and Timothy P. Orrick, were with him on brief for appellee.

HOLMES, Justice:

This is an appeal by the plaintiff in a case which arose from a one-car accident that occurred in the early morning hours of July 31, 1980, on Kansas Highway 25 (K-25) seven miles south of Lakin.William T. Rollins(plaintiff-appellant) was a passenger in the back seat of the vehicle, a 1979 Chevrolet Chevette.The accident occurred on a section of highway that was undergoing resurfacing by the Department of Transportation of the State of Kansas(KDOT).

Rollins brought suit against KDOT and the Board of County Commissioners of Kearny County, Kansas, alleging failure of KDOT to exercise due care in the design, construction and maintenance of K-25.The Board of County Commissioners was subsequently dismissed from the action.A Sedgwick County District Court jury found the driver of the car sixty-five percent at fault, the plaintiff thirty-five percent at fault, and found no fault on the part of KDOT.Rollins appeals, claiming several errors on the part of the trial court.

Between midnight and 1:00 a.m., on July 31, 1980, Lana Swisher, BaLynda Bell and appellant left Ulysses, Kansas, in Lana's car, to travel to Lakin on K-25, a distance of approximately twenty-seven miles.Lana was driving.In the area south of Lakin, KDOT was resurfacing the highway for about four miles with bituminous asphalt.The resurfacing work caused the surface of the roadway to extend above the highway shoulders, resulting in a drop-off at the edge of the paved portion of the highway.There were no warning signs in place and no temporary striping of the center and edges of the highway.As the Swisher automobile traveled this portion of the highway, its right wheels dropped off the road surface, the driver lost control and the car crashed in the ditch.Appellant was thrown from the vehicle and received serious injuries resulting in his being paralyzed from the waist down.Additional facts will be set forth as necessary in considering the various points on appeal.

The first issue raised by the appellant is that the trial court erred in admitting testimony regarding the effect of the driver's failure to use her seat belt on her ability to control the vehicle.Rollins' objection to evidence of the driver's failure to use a seat belt was overruled and the appellee's accident reconstruction expert was allowed to testify as to the effect of nonuse of a seat belt on a driver's ability to control his vehicle.It was his opinion Lana would not have lost control if she had been using her seat belt and that the accident would not have happened.In allowing the evidence, the judge stated he was only allowing it for the purposes of showing control of the vehicle and not to show negligence.We have consistently held that evidence of the nonuse of seat belts is inadmissible in a negligence action.In Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236(1972), the defendant attempted to introduce evidence that the plaintiff was not using a seat belt to show negligence on behalf of plaintiff and a failure to mitigate damages.We held:

"A driver has no legal duty to use an available seat belt, and evidence of nonuse is inadmissible either on the issue of contributory negligence or in mitigation of damages."Syl. p 9.

Following the adoption of comparative negligence, the issue was before the Court of Appeals in Taplin v. Clark, 6 Kan.App.2d 66, 626 P.2d 1198(1981), wherein the court stated:

"[U]nder the Kansas system of comparative negligence, it is not proper for a jury to consider as a negligence factor to reduce liability and damages the failure of a passenger to use an available seat belt."p. 70, 626 P.2d 1198.

The rule propounded in Hampton and Taplin was recently reconsidered and adhered to in Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063(1985).While the foregoing cases involved the plaintiff's failure to use a seat belt, the rule propounded is equally applicable when it is someone other than the plaintiff who is alleged to be at fault for failure to use the belts.KDOT's position was clearly set forth in InstructionNo. 9, wherein the court states the appellee's contentions to be that the driver was negligent in failing to keep her vehicle under control.The attempt by the trial court to distinguish the driver's "control" of the vehicle from negligence was confusing as well as erroneous.For there to be fault assessed in a negligence action there must be some duty which has been breached and as there is no duty to use seat belts in Kansas, there can be no fault attributed to a person for failure to use them.

In his instructions to the jury the trial judge stated: "The law of Kansas does not permit you to consider the presence and use or non-use of seat belts in any manner in arriving at your decision."

KDOT now asserts that, if the admission of the nonuse of seat belts by Lana was error, the foregoing instruction cured the error.We think not.It is clear that even with the giving of the instruction the trial court remained of the opinion the jury could consider the evidence on the issue of "control."To allow KDOT's expert to voice an opinion based upon the nonuse of the seat belt by the driver was, in our opinion, so prejudicial that it could not be cured by the instruction given and certainly cannot be considered harmless error.

Although the foregoing would ordinarily dispose of this case, as it must be remanded for a new trial, there are other issues raised some of which we deem advisable to consider.

KDOT admits that it fell within the scope of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. K.S.A. 75-6103(a) provides:

"(a) Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state."

In Carpenter v. Johnson, 231 Kan. 783, 784, 649 P.2d 400(1982), Chief Justice Schroeder, in writing for a unanimous court, stated:

"The Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101 et seq., a so-called 'open ended' tort claims act, makes liability the rule and immunity the exception."

K.S.A. 75-6104 sets forth numerous exceptions under which liability is precluded.There is no contention on appeal that any of the exceptions apply in this case.Appellant sought an instruction based upon K.S.A. 75-6103(a) and also sought to introduce evidence of the standards and duties which would be required by KDOT if the work were being done by a private contractor.It appears that during the daytime, while work was going on, various warning signs were erected to advise and protect the motorists using the highway.However, at night the State's employees removed the signs and no warnings of the condition of the highway, shoulders or ditches were provided.Appellant contends that he could produce evidence that if a private person were doing the maintenance or repair, then warning signs and other safety precautions would be required at night, which were not provided by KDOT in doing its work upon the highway.KDOT in its brief argues it is not subject to the same standards of a private person doing the same work, and states:

"When plaintiff attempted to offer this evidence [KDOT's specifications for private...