Trout v. Koss Const. Co.

• Decision Date: 31 October 1986
• Docket Number: No. 58341,58341
• Citation: 240 Kan. 86,727 P.2d 450
• Parties: James R. TROUT and All Freight Systems, Inc., Robert Smith, and Raymond Miller, Appellees, v. KOSS CONSTRUCTION CO., Paul J. Fulsom, Inc., and Kansas Department of Transportation, Appellants.
• Court: Kansas Supreme Court

Page 450

727 P.2d 450

240 Kan. 86

James R. TROUT and All Freight Systems, Inc., Robert Smith and Raymond Miller, Appellees, v. KOSS CONSTRUCTION CO., Paul J. Fulsom, Inc., and Kansas Department of Transportation, Appellants.

No. 58341.

Supreme Court of Kansas.

Oct. 31, 1986.

Syllabus by the Court

1. It is the duty of the trial court to properly instruct the jury upon the theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct and the jury could not reasonably be misled by them, the instructions will be approved on appeal.

2. The standard instructions used in negligence actions are adequate under the Kansas Tort Claims Act if the only duty required of a private person would be to perform in a non-negligent manner.

3. Although the statutory liability of the state, counties and townships for defects in highways was repealed by the Kansas Tort Claims Act, a duty to maintain the highways remains under the general liability for negligence created by the Act.

4. The scope of the duty to maintain the highways is to be determined on a case-by-case basis and no hard and fast rule can be stated which would cover all possible future factual situations.

5. The common law recognizes that the responsibility for some duties is so important to the community that an employer may not be permitted to transfer it to another.

6. The responsibility for the duty of a governmental entity to maintain its highways in a reasonably safe condition may not be delegated to another.

Kris E. McKinney, Staff Atty., Kan. Dept. of Transp., argued the cause and Michael B. Rees, Chief Counsel, was with her on the briefs, for appellants.

Gordon M. Rock, Jr., of Grimshaw & Rock, Chartered, Olathe, argued the cause and was on the brief, for appellee James R. Trout.

HOLMES, Justice:

The Kansas Department of Transportation (KDOT) appeals from a jury verdict and judgment in an action under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., for personal injuries suffered by appellee James R. Trout, a truck driver, in an accident which occurred when his truck struck a number of horses on the highway. The jury returned a verdict for Trout of $150,000 and assessed 25% of the fault for the accident to the KDOT.

The material facts are not seriously in dispute. In 1983 the KDOT, after following standard bidding procedures, awarded a contract for resurfacing approximately ten miles of Interstate 70 to Koss Construction Company (Koss). The area of the highway to be improved was located east of Goodland in Sherman County. The plans and specifications for the project included renovation of fencing along portions of the highway being resurfaced. Koss entered into a contract with P.J. Fulsom Inc. (Fulsom) for Fulsom to do the fence removal and renovation.

Work commenced on the project July 18, 1983, and apparently progressed without incident until October 12, 1983. On October 12, 1983, a Fulsom crew was engaged in removing fencing along a segment of the highway roughly seven miles east of Goodland. As part of their activities the Fulsom crew would replace worn or damaged lengths of wire. When they ceased work on the night of the accident, they did not put up any type of temporary fencing which would prevent livestock on adjoining pasture land from escaping and wandering onto the highway while the permanent fencing was down. The fencing operations being conducted by Fulsom were inspected by Marlene K. Bebb, an engineering technician with the KDOT. Her responsibilities included assuring compliance with the contract documents, including the Standard Specifications for State Road and Bridge Construction issued by the KDOT, and inspecting for safety on the jobsite. At the time of Bebb's last inspection between 6:00 and 6:30 p.m. on October 12, 1983, wire from the old fencing had been removed and no temporary fencing had been installed. The Fulsom crew quit work for the day about one hour later, leaving a segment of the permanent fencing down and without erecting any temporary fencing.

Shortly after eight o'clock that evening a tractor and semi-trailer being operated by James R. Trout, of Olathe, Kansas, was westbound on I-70 traveling through the construction zone when it collided with several horses, which had strayed from the adjoining pasture onto the interstate through the opening in the fence. Trout attempted to avoid the collision but was unable to do so and struck the horses, killing three and injuring two. Trout was seriously injured and brought this action to recover for his injuries, asserting the KDOT, Koss, and Fulsom were negligent. The owner of the horses and the owner of the truck-trailer rig were originally parties in this action but were not involved in the jury verdict and are not involved in this appeal. The jury found Trout had sustained $150,000 in damages and apportioned the fault 25% to the KDOT, 25% to Koss, 40% to Fulsom and 10% to Trout. Koss and Fulsom have not appealed and although Trout filed a notice of cross-appeal, it was neither briefed nor argued and is deemed abandoned. Puritan-Bennett Corp. v. Richter, 235 Kan. 251, 679 P.2d 206 (1984). The appeal of the KDOT is the only matter now before this court.

The KDOT raises essentially two basic issues on appeal: one dealing with the duty imposed on it under the provisions of the KTCA, and the other questioning the permissible scope of delegation of duty available to the State when contracting highway improvement projects. Both of the alleged errors are based upon jury instruction No. 22 in the district court, which read:

"The Defendant Kansas Department of Transportation had a positive duty to keep Interstate 70 in a condition reasonably safe for its intended use. The Defendant Kansas Department of Transportation may not delegate to an independent contractor its primary legal responsibility to keep its highways in a reasonably safe condition for their intended use."

The KDOT asserts the instruction constitutes reversible error, contending it does not correctly state the duty of appellant under the KTCA and erroneously limits the authority of the KDOT to delegate responsibility to another. The KDOT is not asserting that its activities in this case constitute an exception to the KTCA under K.S.A. 75-6104.

It is the duty of the trial court to properly instruct the jury upon the theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal. Douglas v. Lombardino, 236 Kan. 471, 480, 693 P.2d 1138 (1985). The standard instructions used in negligence actions are adequate under the KTCA if the only duty required of a private person would be to perform in a non-negligent manner. Rollins v. Kansas Dept. of Transportation, 238 Kan. 453, 711 P.2d 1330 (1985).

Although this appeal is based solely upon alleged error in the giving of instruction No. 22, it was not the only instruction bearing upon the duties of the KDOT. Instruction No. 13 set forth the claims of Trout as they applied to the KDOT and included five specific acts of negligence, including failure to keep the highway in a reasonably safe condition; failure to maintain the fencing sufficiently to prevent livestock from entering upon the highway; and failure to adequately inspect and supervise the fencing operation. Instruction No. 17 sets forth the position of the KDOT in denying any negligence on its part and asserting that all of the fault was attributable to plaintiff and the other codefendants. Instruction No. 19 expressed the liability of the KDOT and the two corporate codefendants for the actions of their employees. Instruction Nos. 21 and 23 explained the duty of Koss and Fulsom to exercise reasonable care for the protection of others upon the highway. Instruction No. 24 gave the definition of an independent contractor. Instruction No. 33 explained the terms "negligence" and "fault" and advised the jury of the effects of comparative negligence. Instruction No. 35 advised the jury further on the apportionment of fault and considerations which should be given thereto. Other instructions applicable to Koss and Fulsom set forth their alleged acts which Trout contended constituted negligence, and the contentions of each defendant in asserting negligence on the part of the plaintiff and the other codefendants. The thirty-five instructions were comprehensive in nature and thoroughly covered the various positions and contentions of the parties.

The KDOT contends that the first sentence of Instruction No. 22 improperly imposes a "pre-KTCA" municipal liability standard upon the State. Further it is contended that use of the words "positive duty" compounds the error by placing undue emphasis on the State's duty.

Prior to passage of the KTCA, the right of action against the State, for damages occurring on our highways, was not based on negligence but was statutory. Kelley v. Broce Construction Co., Inc., 205 Kan. 133, 138, 468 P.2d 160 (1970). Under our tort claims statute the State incurs liability for damages under ordinary negligence principles. K.S.A. 75-6101 et seq. Since common-law negligence principles have always applied in cases of municipal liability for highway and street defects, Schmeck v. City of Shawnee, 232 Kan....