Schmeck v. City of Shawnee
| Decision Date | 17 September 1982 |
| Docket Number | No. 53097,53097 |
| Citation | 651 P.2d 585,232 Kan. 11 |
| Parties | Teresa L. SCHMECK, Appellee, v. CITY OF SHAWNEE, Kansas, a municipal corporation; Secretary of Transportation of Kansas; Kansas City Power & Light Company, a corporation; Marilyn I. Velasquez, Administratrix of the Estate of Linda S. Nepote, Deceased, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. At common law a city has a legal duty to keep its streets in a condition reasonably safe for their intended use and it is liable in a civil action for injuries resulting from neglect to perform this duty. This is an exception to the immunity cities traditionally enjoy while engaged in governmental activities.
2. A city's common law duty to keep its streets reasonably safe is mandatory, and the city has no right or discretion to avoid this duty.
3. In a suit alleging a city breached its common law duty to keep its streets reasonably safe the question of whether a street defect existed is ordinarily a question of fact for the jury.
4. One who undertakes to render services to another which he should recognize as necessary for the protection of a third person is liable to the third person for harm resulting from his failure to exercise reasonable care. Restatement (Second) of Torts § 324A (1965).
5. Negligence and proximate cause are issues to be determined by the jury.
6. The question of whether intervening causation exists is to be determined by the test of foreseeability.
7. In civil cases each party is entitled to three peremptory challenges. Multiple defendants or multiple plaintiffs shall be considered as a single party unless the trial court, in its discretion, finds there is a good-faith controversy existing between multiple defendants or multiple plaintiffs.
8. Evidence of subsequent remedial measures is admissible to show control.
9. Opinion testimony by a lay witness is admissible where it is rationally based on the preception of the witness. K.S.A. 60-456(a).
10. The enactment of the comparative negligence statute, K.S.A. 60-258a, did not change the basic duty of a city to keep its streets in reasonably safe condition.
11. Except as otherwise provided by statute or the constitution, all relevant evidence is admissible. K.S.A. 60-407(f ). A trial judge may exclude otherwise relevant evidence when its probative value is substantially outweighed by the risk of unfair prejudice. K.S.A. 60-445. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 613, 549 P.2d 1354 (1976).
12. There is no rule of evidence excluding self-serving statements per se; however, a self-serving statement may sometimes be inadmissible as hearsay.
J. Roy Holliday, Jr., of Speer, Austin, Holliday, Lane & Ruddick, Chartered, Olathe, argued the cause, and Peter V. Ruddick and Mary L. Stuckey, Olathe, were with him on the brief for appellant Kansas City Power & Light Co.
Donald S. Simons, Topeka, argued the cause and was on the brief for appellant Secretary of Transp. of Kan.
Victor A. Bergman of Schnider, Shamberg & May, Shawnee Mission, argued the cause, and John E. Shamberg and Mark A. Johnson, Shawnee Mission, were with him on the brief for appellee.
Frank A. Bien and Barkley Clark of the League of Kan. Municipalities, Topeka, John Dekker, Director of Law, Wichita, Phillip L. Harris, City Atty., Overland Park, were on the amicus curiae brief of League of Kan. Municipalities.
J. Eugene Balloun of Balloun & Bodinson, Chartered, Olathe, argued the cause, Ron Bodinson and Thomas R. Buchanan, Olathe, and Marvin E. Rainey of Rainey & Wiglesworth, Overland Park, were with him on the brief for appellant City of Shawnee.
This is an appeal by the City of Shawnee (City), and Kansas City Power and Light Company (KCPL), from a jury verdict for Teresa Schmeck in the amount of $1,750,000. The action arose out of a motorcycle accident on July 11, 1976. The City was found to be 47.5% at fault and KCPL was found to be 22.5% at fault. Larry Doyle, who settled with Schmeck prior to trial, was found to be 30% at fault. The remaining defendants, Kansas Department of Transportation (KDOT) and the Estate of Linda Nepote, deceased, were found to have no fault.
On July 11, 1976, at approximately 10:30 p. m., Teresa Schmeck was riding on a motorcycle driven by Linda Nepote. They were proceeding east in the outside lane of highway K-10 in the City of Shawnee. At the same time Larry Doyle was proceeding west on K-10. At the intersection of K-10 and Quivira Road, Doyle pulled to the protected left-turn bay, then entered the intersection on the green light in an attempt to make a left turn south onto Quivira Road. While Doyle was in the intersection, a car driven by Robert Pastorious approached the intersection from the west then turned right on Quivira. Doyle then started to complete his left turn believing the highway was clear of oncoming traffic. As he did so, his vehicle was struck on the right front side by the Nepote motorcycle. The two cyclists were thrown over the hood of the Doyle car landing over fifty feet from the point of impact. Linda Nepote was killed and Teresa Schmeck suffered head injuries resulting in permanent partial loss of memory, permanent eye and brain damage and paralysis of her right side. The only witnesses to the collision were Larry Doyle, Robert Pastorious and a James Schumaker. They testified the road conditions were normal that night. Traffic was light. Doyle was under no impairment or disability at the time, and his view to the west on K-10 was unobstructed. In spite of this, Doyle did not see the motorcycle headlight and pulled directly into its path as it proceeded through the intersection on a green light. There was no left-turn signal at the intersection at that time.
Since the traffic control system at the intersection of 63rd street, K-10 and Quivira Road is crucial to this lawsuit, let us review its history. The intersection lies in the city limits of Shawnee. 63rd street is a "connecting link" on highway K-10. K.S.A. 1981 Supp. 68-406 defines "connecting link" as a city street which "[c]onnects a state highway through a city."
In 1968 highway K-10 was a two lane street in Shawnee controlled by four-way stop signs at the K-10--Quivira Road intersection. K-10 was widened to four lanes in 1969. At that time, automatic traffic signals were installed with an extended mast arm on K-10 so that a separate left-turn signal could be added later.
KDOT, the City and KCPL were all involved in the decisions regarding the traffic control devices at the K-10--Quivira Road intersection. Let us examine their roles. Traffic control devices on connecting links are either owned or leased by the City. The City is obligated to maintain the devices and monitor the traffic to detect changes in conditions which warrant a change in control. The City is charged with originating all changes in signal systems. K.S.A. 8-2005 requires connecting link cities to through permits. A city must obtain a permit before it can change traffic-control on a connecting link. KDOT follows the requirements of the Manual on Uniform Traffic Control Devices (MUTCD) in issuing permits. In addition to directing and controlling the traffic control devices on connecting links, KDOT also provides the cities, upon request, with technical assistance in the form of traffic engineering studies and recommendations.
The State is obligated to pay the connecting link cities a fixed sum of money "per lane mile" per year for maintenance or the city may at its option elect to have the State maintain the connecting link. Shawnee exercised this option and entered into a connecting link maintenance agreement with KDOT. The 1970 and 1975 agreements define the obligation thereunder "to maintain" as including "Lighting and Traffic Control Signals: All lighting systems, traffic signals, restrictive and/or regulatory signs." It was established by parol evidence that on all connecting links the city is responsible for maintaining traffic signals, regardless of which option is exercised. Shawnee leased its automatic traffic signals from KCPL.
The traffic signal system in place at the K-10--Quivira Road intersection on July 11, 1976, was installed in 1969, as the result of a compromise agreement between the City, KDOT and KCPL. The City had requested left-turn signals which KDOT rejected. The installed system contained semi-traffic actuated signals only, with an extended mast arm for the future addition of a separate left-turn signal. This signal system was devised to accommodate intersections through which the traffic flow was unequal. Here most of the traffic was on K-10 so the signal on K-10 would remain green until the detectors on Quivira Road signaled traffic there. The light would then change for a short time to relieve the Quivira Road congestion then return the green light to K-10.
There are two other types of traffic signal systems. The most common and least costly is the fixed-time system which permits traffic flow for a pre-set period of time. This system can have a multi-dial controller which permits variation of the fixed time period to accommodate rush hour traffic demands and comes equipped with or without left-turn signals. The other type of automated signal system is the fully automated traffic actuated system. It is the most complex and expensive of the systems. Left-turn signals are optional with it.
Since KDOT rejected left-turn signals in 1969 and provided only for an extended mast arm to contain a future signal, the installation of a fully automated traffic actuated system with left-turn capabilities would entail an outlay of about $3,000.
In 1974 the City and Johnson County commenced a joint project to widen Quivira Road to four lanes north from 75th Street to Johnson Drive. The project was completed in 1976 at a...
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