Ellis v. Union Pacific Railroad

Fromme, J.,

dissenting. I join in the dissent of Herd, J., and add the following comments. This court continues to struggle with the concept of liability based on comparative negligence.

In Kennedy v. City of Sawyer, 228 Kan. 439 , Syl. ¶ 9, 618 P.2d 788 (1980), a products liability case, we held:

*194 “We conclude that now is the proper time under the facts of this case to adopt a form of comparative implied indemnity between joint tortfeasors. When, as here, a settlement for plaintiffs’ entire injuries or damages has been made by one tortfeasor during the pendency of a comparative negligence action and a release of all liability has been given by plaintiffs to all who may have contributed to said damages, apportionment of responsibility can then be pursued in the action among the tortfeasors.”

I can see no valid reason for this court to set up a different rule in cases based on ordinary negligence. Other states have adopted comparative implied indemnity in ordinary negligence cases. See Pachowitz v. Milwaukee & S. Transport Corp., 56 Wis. 2d 383 , 202 N.W.2d 268 (1972); Bielski v. Schulze, 16 Wis. 2d 1 , 114 N.W.2d 105 (1962); Packard v. Whitten, 274 A.2d 169 (Me. 1971); Gomes v. Brodhurst, 394 F.2d 465 (3rd Cir. 1967); Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th Cir. 1974).

As previously pointed out by Justice Herd the defendants in the present case followed the procedure outlined and approved in Kennedy . The additional parties, City of Onaga, Mill Creek Township, and Pottawatomie County, on motion of the defendants and by order of the court were joined as additional parties defendants for purposes of comparison of possible liability pursuant to K.S.A. 60-258a(c). They were properly served with process pursuant to K.S.A. 60-304(d).

The defendants then filed separate petitions for adjudication of fault against each of these additional parties. In the petitions it was alleged that each of the additional parties had failed in their duty to maintain the road over the railroad crossing and had failed to erect and maintain suitable signs, markings, or warnings. It was further alleged that these additional parties had been joined in the action to determine their respective contributory causal negligence or fault in causing plaintiffs’ damages. The petitions then recited that pursuant to the suggestion contained in Kennedy v. City of Sawyer, 228 Kan. 439 , defendants were seeking adjudication of the proportionate causal fault of these additional parties.

In rejecting this procedure and affirming the dismissal of the implied indemnity action against the additional parties the majority of this court now limit the holding in Kennedy to products liability cases. The present case is based on ordinary negligence and the majority hold the defendants are not entitled to pursue an *195 action for adjudication of proportionate causal fault and comparative implied indemnity. The settlement of all plaintiffs’ damages were negotiated and paid for by the Union Pacific Railroad Company. The settlement and release included the liability, if any, of the city, township, and county. This court now holds the petitions filed by defendants were of no effect and only the plaintiffs had a right to assert liability against these additional parties. On full settlement plaintiffs’ action terminates and with this the defendants’ claim for implied indemnity ended.

The effect of today’s decision will be to tie the hands of a defendant so that a defendant can no longer settle a case with an injured party. He or she may settle only what he or she conceives to be his or her own limited share of liability.

A court should favor and promote the compromise and settlement of lawsuits, not discourage them.

Another effect of today’s decision is to render useless the provisions of K.S.A. 60-258a(c) which permit a party against whom a claim is asserted to join additional parties in the action. In products liability cases, procedures for third party practice under K.S.A. 60-214 can be used as was done and approved in Kennedy . In prior comparative negligence cases, this court has approved determination of the proportionate fault of phantom parties which reduces the percentage of fault of formal party defendants.

Under the present majority opinion there is no incentive for a defendant to use the procedure of K.S.A. 60-258a(c) because such joinder will be of no greater advantage to a defendant than merely to name in the answer those additional individuals claimed to have caused plaintiffs’ injuries. The inclusion of phantom parties in this manner may result in reducing defendants’ percentage of fault, and under the majority opinion joinder under K.S.A. 60-258a(c) can have no different effect so far as a defendant is concerned. If this is so the legislature had no apparent reason for inserting subsection (c) in the comparative negligence statute.

Holmes and Herd, JJ., join the foregoing dissenting opinion.