Kennedy v. City of Sawyer

McFarland, J.,

concurring in part and dissenting in part. The majority opinion herein seeks to resolve a number of difficult questions which are likely to arise relative to comparative negligence. A major difficulty with the opinion is that many of the questions determined were not, are not, and can never be issues in this case. Certainly appellate courts should, where appropriate, interpret new statutes and procedures in order that the instant case may be properly resolved and provide guidance for courts and litigants in other cases involving similar issues.

This court has consistently held that its function is not to issue advisory opinions. Likewise, the court has repeatedly stated that it will not decide moot questions, although some flexibility in this rule is noted where issues of great statewide interest have been involved. The major question decided by the majority opinion cannot be categorized as moot, as inherent in that term is the fact such issues were viable at one time, but due to some subsequent occurrence they are no longer viable. In the case before us these *463 issues were never in the case and hence could never be classified as moot issues.

Likewise, the term “advisory opinion” is inapplicable because neither the trial court nor any party requested determination of these issues. Advisory opinions involve a seeking of advice on an issue not presented in an actual controversy. Clearly, this is not the situation herein.

What we have is a situation wherein the parties had a lawsuit whose nature, format, and issues were clearly understood by the trial court and all parties. The trial court rendered an opinion within the framework of the lawsuit and the defendants thereto appealed from the decision. Instead of determining whether or not the trial court erred in the particulars claimed by the appellants, the Court of Appeals used the case as a vehicle to decide all manner of comparative negligence questions which judges and attorneys have recognized must eventually be determined in cases where the same were issues on appeal. Instead of labeling the Court of Appeals’ injection of such issues into the appeal as error and deciding the appeal on its merits, the majority has compounded the error by preparing an exhaustive treatise dealing with whether or not the Court of Appeals correctly decided the manufactured issues. The fact the issues so decided are of great statewide significance is no excuse to sacrifice the appeal before us in the name of the common good.

The following accurately reflects the facts herein. Plaintiffs’ cattle died. Plaintiffs sued defendants for damages for the loss of the cattle in tort on the theory that the cause of death was the negligent application of a herbicide on adjoining property by defendant City and its defendant employee. In their answer, defendants denied negligence and alleged contributory negligence on the part of plaintiffs. Then defendants filed a third-party petition pursuant to K.S.A. 60-214 against Continental Research Corporation, alleging negligence, breach of implied warranty, misrepresentations, and strict liability for the product and seeking indemnity for any judgment rendered against the defendants-third-party plaintiffs in favor of the plaintiffs. The whole thrust of the third-party petition was that the herbicide and the dealings and relationship between third-party plaintiffs and third-party defendants had placed third-party plaintiffs in a position wherein they were exposed to damage, i.e., a possible judgment against them, and seeking indemnity for any such judgment *464 which might ultimately be entered against them. Third-party defendant Continental then filed a third-party petition against one of its suppliers, Huge Company, on a similar indemnity theory. No cross-actions of any kind were pled or even suggested. It was a contingent chain of claims. Huge was faced with possible liability only to Continental, and then only if a judgment had been rendered against Continental on defendant City’s third-party action. Continental’s sole exposure was to the City and then only if the City were held liable to the plaintiffs.

At no place in the pleadings does any party seek to bring either Huge or Continental into the action between plaintiffs and defendants for any purpose.

The majority opinion concludes that who sues who for what is a mere technicality under notice pleading and speculates amendments might later have been made to draw all parties’ negligence to the plaintiffs into the case.

K.S.A. 60-208, the notice pleading statute, provides in relative part:

“(a) Claims for relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which the pleader deems himself or herself entitled. Every pleading demanding relief for damages in money in excess of ten thousand dollars ($10,000) shall, without demanding any specific amount of money, set forth only that the amount sought as damages is in excess of ten thousand dollars ($10,000), except in actions sounding in contract. Every pleading demanding relief for damages in money in an amount of ten thousand dollars ($10,000) or less shall specify the amount of such damages sought to be recovered. Relief in the alternative or of several different types may be demanded.

“(b) Defenses, form of denials. A party shall state in short and plain terms his or her defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or the pleader may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all averments, the pleader may do so by general denial, subject to the obligations set forth in K.S.A. 60-211.”

At the very minimum, clearly, notice pleading requires that a *465 claim must be asserted against a particular party. The party must be given notice of who is suing him and for what. The majority opinion implies that notice pleading requires only that one be notified that he is a party to the lawsuit and that once a party he is in the lawsuit for all purposes and may be recovered against or may recover against anyone else who is then or who later becomes a party. If this be the case perhaps the words plaintiff, defendant, third-party defendant, third-party plaintiff, counterclaim, cross-claim, etc., should be eliminated and we should have only “parties,” with juries instructed to allow such damages in favor of or against such parties as the jury deems appropriate. Surely who sues who for what is more than a technicality.

The speculation in the majority opinion as to possible amendments is an even weaker willow to cling to. There is nothing in the record to indicate any party had any intention of amending, nor do appellants contend they were denied any amendment. The fact is, the parties were content with the lineup of the parties and it must be accepted that the parties are so situated. It is just as much a part of the facts as is the fact the cattle died.

We then go to what the trial court did that appellants consider to be error. Third-party defendants Huge and Continental filed motions to dismiss the third-party petitions against them on the grounds that spraying by defendant City through its employee, defendant Aubley, was active negligence and hence no indemnification was legally possible. The trial court sustained the motions to dismiss, concluding the act of spraying was either active negligence as a matter of law or no negligence at all; therefore no indemnification could be possible. Defendant City and Aubley appealed therefrom, aggrieved by the dismissal of their potential indemnitor, Continental, and by the finding that the spraying was active negligence as a matter of law for the purposes of the motion. While the appeal was pending defendants settled with plaintiffs.

Did the trial court err in determining the issues before it as claimed by appellants, and what effect does the settlement have on the issues properly on appeal?

I concur that joint and several liability among joint tortfeasors was abolished by the introduction of comparative negligence. Brown v. Keill, 224 Kan. 195 , 580 P.2d 867 (1978). Kansas has adhered to the doctrine that there can be no contribution between *466 joint tortfeasors, but there may be indemnity where they are not in pari delicto and their negligence is substantially different, not merely in degree but in character. See Russell v. Community Hospital Association, Inc., 199 Kan. 251 , 428 P.2d 783 (1967), for a full discussion of this principle and its purpose. I believe that need for indemnity between joint tortfeasors as set forth in Russell has been abolished by comparative negligence. However, we are only talking about joint tortfeasors whose combined torts caused plaintiffs’ damage. I would limit this to those situations where the alleged negligence could have been asserted by the plaintiff directly against the third-party defendant. If such be the case, the defendant could bring the joint tortfeasors in under K.S.A. 60-258a for a determination of relative fault. Any portion of the third-party plaintiffs’ petition for indemnity against Continental falling within the above category was properly dismissed. However, here the third-party plaintiffs contend: (1) Third-party defendant Continental and third-party plaintiff City had a contractual relationship; (2) as a part of that contractual relationship the third-party defendant, upon express misrepresentation, sold an unfit and dangerous product to the third-party plaintiff; (3) as a result of said sale the purchaser (third-party plaintiff) was damaged by being exposed to liability for harm done by the product (now a settlement paid); and (4) they are entitled to indemnification. Comparative negligence in no way bars or affects such a third-party indemnification action.

The fact defendants settled with plaintiffs while the case was on appeal affects the issues before ús only to the extent that a dollar amount is now set for the alleged damage for which indemnification is sought. I would reverse the trial court as to its dismissal of the third-party petitions except for allegations of joint negligence which could have been the basis of litigation in the action between plaintiffs and defendants.

Indemnification on the contractual theory is alive and well. On remand the issue should be: (1) Whether the settlement was reasonable; (2) if the settlement is not held to be reasonable, the court may determine what a reasonable figure would have been and that figure then would become the indemnity base; (3) determination whether or not the City should be indemnified for its loss in toto by Continental, comparison of respective fault being no part of the contractual indemnification action; and (4) if *467 indemnification is granted in favor of the City, the court should then determine whether Continental is entitled to indemnification from Huge.

I concur with those portions of the majority opinion which are consistent with the rationale herein expressed, and dissent from those parts that are inconsistent with this opinion or which deal with issues I believe were improperly considered.