Watkins v. Hartsock

• Decision Date: 08 December 1989
• Docket Number: No. 63271,63271
• Citation: 245 Kan. 756,783 P.2d 1293
• Parties: Kenneth D. WATKINS and Tammy L. Watkins, heirs-at-law of Jessica L. Watkins, deceased; and Tammy L. Watkins, an individual, Appellees, v. Jimmy W. HARTSOCK, Appellant.
• Court: Kansas Supreme Court

Page 1293

783 P.2d 1293

245 Kan. 756

Kenneth D. WATKINS and Tammy L. Watkins, heirs-at-law of

Jessica L. Watkins, deceased; and Tammy L.

Watkins, an individual, Appellees, v. Jimmy W. HARTSOCK, Appellant.

No. 63271.

Supreme Court of Kansas.

Dec. 8, 1989.

Syllabus by the Court

1. In order to ascertain legislative intent in a statutory enactment, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. Also to be considered are the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have on the various constructions suggested.

2. The requirement in K.S.A.1988 Supp. 8-1344 that parents or legal guardians protect their children by properly using child safety restraining devices makes no distinction between nonuse and misuse of a safety device.

3. Although K.S.A.1988 Supp. 8-1344 requires that children be secured in a child passenger safety restraining system or by a safety belt, the legislature has prohibited the admission of evidence of nonuse or misuse of a safety device to compare fault or to prove failure to mitigate damages. L.1989, ch. 40, § 2.

Paul Hasty, Jr. of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, argued the cause, and Kenton M. Hall, of the same firm, was with him on the briefs for appellant.

Gordon M. Rock, Jr. of Grimshaw & Rock, Chartered, Olathe, argued the cause and was on the brief for appellees.

Ricky E. Bailey of Focht, Hughey, Hund & Calvert, Wichita, was on the amicus curiae brief for the Kansas Trial Lawyers Ass'n.

Nicholas S. Dailey of Foulston & Siefkin, Wichita, was on the amicus curiae brief for the Kansas Ass'n of Defense Counsel.

LOCKETT, Justice:

This is an interlocutory appeal from the trial court's ruling that evidence of the misuse of a child safety seat may not be considered in determining comparative fault under K.S.A.1988 Supp. 60-258a.

On October 20, 1987, three-month-old Jessica Watkins was killed in an automobile accident. The accident involved two cars: one driven by Tammy Watkins, Jessica's mother; the other driven by the defendant, Jimmy Hartsock.

Jessica's parents filed a combined personal injury and wrongful death action against Hartsock, claiming that he had negligently caused the accident. Hartsock's answer denied fault and asserted comparative negligence as an affirmative defense. Hartsock alleged that although Jessica was in a child safety seat at the time of the accident, her fatal injuries were attributable, in part, to her mother's "improper use" of the safety seat.

Plaintiffs filed motions seeking to exclude at trial any evidence pertaining to whether Jessica had been properly or not properly placed in the safety seat. At the hearing on the motions, defendant stated his evidence would show: (1) at the time of the collision, Jessica was in a child safety seat; (2) her parents had obtained the seat from the hospital where Jessica was born; (3) her parents had been instructed on the proper use of the safety seat; (4) her parents had installed the seat facing forward in the automobile, rather than to the rear as required for protection of the child, in order to make it easier to get the baby in and out of the seat; and (5) the interior of the car where Jessica had been placed sustained little damage as a result of the accident. Defendant further stated he would call an expert witness who would testify that the fatal blow to Jessica's head was attributable to her mother's improper use of the child safety seat.

The trial court sustained plaintiffs' motion in limine, ruling that under K.S.A.1988 Supp. 60-258a, the comparative negligence statute, no negligence could be assessed for the parents' improper use of a child safety seat. Recognizing that its ruling presented an important question of law, the trial court allowed Hartsock to appeal to the Court of Appeals pursuant to K.S.A.1988 Supp. 60-2102. Because this case presents an issue of first impression, it was transferred to this court upon motion by defendant pursuant to Rule 8.02 (1989 Kan.Ct.R.Annot. 39).

On appeal, defendant argues that he should be allowed to present evidence concerning the alleged misuse of the child safety seat because: (1) the presentation of such evidence is not barred by statute; (2) the evidence is relevant and admissible under general principles of tort law; and (3) the exclusion of such evidence would contravene public policy.

Admissibility and the Statutes

In granting plaintiffs' motions, the trial court found that "misuse of a child restraint system is similar to nonuse of a child restraint system [and] that misuse or nonuse of the child restraint system is similar to failure to use seat belts." In arriving at this decision, the trial court examined the Child Passenger Safety Act (K.S.A. 8-1343 et seq.), related statutes, and prior decisions of the Kansas appellate courts.

Defendant argues that, under the doctrine of comparative negligence, the legislature intended that the defendant's fault and parents' fault in failing to properly place the child in the safety restraining seat be considered. Defendant argues that the parents' failure to properly use the safety seat either caused, contributed to, enhanced, or aggravated all of the child's injuries. With these multiple issues, one can easily foresee that allowing the introduction of evidence to support these claims would inevitably lead to a battle of experts as to what injuries would or would not have been avoided had the child been properly restrained in the safety seat.

Defendant states that misuse of a seat belt would occur if the occupant of an automobile wrapped a seat belt around his neck and then broke his neck in an accident. He argues that such misuse is negligence and is admissible to compare fault or to prove failure to mitigate damages. A more likely example of misuse is when the automobile occupant uses only the shoulder restraint and not the lap belt.

Plaintiffs point out that a distinction between nonuse and misuse could lead to absurd results. For instance, if Jessica had been crawling about freely in the interior of the automobile, unrestrained by belt or seat, such evidence of nonuse would be inadmissible for comparative negligence purposes. However, if she had been placed in a safety seat which was belted down, but on which the buckle was loose, this evidence of misuse would be admissible.

Negligence rests upon the premise that an individual has a legally imposed duty, i.e., a standard of conduct to which that individual must adhere. That duty may spring from a legislative enactment of a standard of conduct or from a judicially imposed standard. Though Kansas follows the general rule that one must use reasonable diligence to mitigate one's damages once the risk is known, Atkinson v. Kirkpatrick, 90 Kan. 515, 519, 135 P. 579 (1913), one is not required to anticipate negligence and guard against damages which might ensue if such negligence should occur. Rig & Reel Co. v. Oil & Gas Co., 111 Kan. 37, 40, 205 P. 1020 (1922). The term "mitigation of damages," interpreted broadly, includes every fact which would tend to decrease damages. Stated another way, one is required to use reasonable diligence to minimize one's damage once the risk is known. See First Nat'l Bank v. Milford, 239 Kan. 151, 158, 718 P.2d 1291 (1986).

A fundamental rule of statutory construction is that the purpose and intent of the legislature governs when that intent can be ascertained from the statutes. In construing statutes, the legislative intent is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). In determining the legislative intent, courts are not limited to consideration of the language used in the statute, but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. Ordinarily, courts presume that, by changing the language of a statute, the legislature intends either to clarify its meaning or to change its effect. Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 648 P.2d 1143 (1982).

The laws which require the use of seat belts and of child safety restraining systems share the same legislative intent and history. Seat belt legislation preceded child safety restraint laws; we will therefore examine the legislative history and prior court decisions interpreting the statutes in chronological order.

The Kansas Legislature required all passenger cars manufactured or assembled after January 1, 1965, to be equipped with seat belts in the front seat. Lap-type seat belts were required for all passenger positions after January 1, 1968. K.S.A. 8-1749. Originally, although passenger cars were required to be equipped with seat belts, their use was not mandatory.

The first case to raise the issue of whether negligence could be assessed for the nonuse of a seat belt was Hampton v. State Highway Commission, 209 Kan. 565, 498 P.2d 236 (1972). In Hampton, the plaintiff was injured when the automobile he was driving hit standing water on the highway, causing the driver to lose control of the automobile, which veered into the opposite lane of traffic and collided with a slow-moving tractor-lowboy rig. The plaintiff sued the highway department, claiming that the highway's defective design and construction had caused his damages. Among defendant's arguments against imposition of liability, it sought to show plaintiff...