# Kansas State Bank & Trust Co. v. Specialized Transportation Services, Inc.

> Supreme Court of Kansas · October 25, 1991 · 249 Kan. 348

URL: https://www.frixlaw.com/law-library/cases/9633447

## Case

- **Full name:** Kansas State Bank and Trust Company, Appellee, v. Specialized Transportation Services, Inc., and Unified School District No. 259, Appellants, and H. Ardon Davidson, Defendant
- **Court:** Supreme Court of Kansas
- **Decided:** October 25, 1991
- **Citations:** 249 Kan. 348; 819 P.2d 587; 1991 Kan. LEXIS 182
- **Precedential status:** Published
- **Opinion:** Concurring in part by Lockett
- **Judges:** Six, Lockett, Holmes
- **Cited by:** 177 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9633447

## How later opinions describe it (automated extraction)

- holding that genuine issues of material fact existed as to whether defendant should have foreseen that an employee posed a danger to a plaintiff/student, who the employee sexually assaulted, and, thus, summary judgment as to plaintiff’s negligent retention and supervision clai…
- holding that a bus driver's intentional misconduct in sexually molesting a student could not be compared to the negligence of school districts and transportation services in failing to take steps to protect the student from such intentional misconduct
- holding that the adoption of comparative negligence did not change the rule that a minor’s contributory negligence in an illegal liquor transaction would not prevent a tort claim against a liquor licensee
- explaining that liability results from the employer having "reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor"
- noting that liability under a negligent-supervision claim results not because of the employer-employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor

## Opinion text

Lockett, J.,
concurring and dissenting: I respectfully dissent from the majority’s determination that K.S.A. 1990 Supp. 38-1522 does not provide a private right of action.
I must again dissent from the majority’s departure from our prior decisions and the common law by determining the legislature did not intend to grant a private right of action when enacting K.S.A. 1990 Supp. 38-1522. See Ling v. Jan's Liquors, 237 Kan. 629 , 703 P.2d 731 (1985), for prior dissent. The majority bases its decision in part on Greenlee v. Board of Clay County Commrs, 241 Kan. 802 , 740 P.2d 606 (1987), and the fact that the legislature did not expressly authorize a private right of action when that statute was enacted or revised in 1983, 1986, 1987, and 1988.
First, the majority misapplies Greenlee to the facts of this case. In Greenlee , a former county highway employee brought an action against the board of county commissioners for wrongful termination. Greenlee claimed he was terminated because the commissioners’ reckless or intentional violation of the cash basis law resulted in loss of his job. In Greenlee , we noted the test of whether a person injured by the alleged violation of the cash basis law may recover from a wrongdoer in a private action in tort is whether the legislature intended to afford such a right when enacting the cash basis law. We observed that the purpose of the cash basis law is to prevent a deficit iri the funds at the end of the fiscal year. We determined that the legislative purpose of the cash basis law was to protect the public from government overspending and was not intended to provide government employees with job security.
Here, there is no doubt that the legislature, by enacting 38-1522, intended to protect children. The rationale of Greenlee , therefore; does not apply.
*385 The majority’s determination that the legislature did not intend to authorize a private right of action when K.S.A. 1990 Supp. 38-1522 was enacted or revised in 1983, 1986, 1987, and 1988 is flawed. It reasons that, if the legislature intended a private right of action when enacting a statute that creates a duty, the legislature would have so stated. This reasoning departs from our prior common-law rule regarding a breach of a statutory duty.
It has long been the law of Kansas that negligence exists where there is a breach of a duty and there is a causal connection between the breach of the duty and the injury received. Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 135 , 12 Pac. 582 (1887). The first requisite in establishing negligence is to show the existence of the duty which it is alleged has not been performed. A duty may be general and owing to everybody, or it may be particular and owing to a single person only by reason of that person’s peculiar position. In order to justify a recovery, it is not sufficient to show that the defendant has neglected some duty or obligation existing at common law or imposed by statute, but that the defendant has neglected a duty or obligation which it owes to the party who claims damages for the neglect. Express Co. v. Everest, 72 Kan. 517, 522-23 , 83 Pac. 817 (1906).
In Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249 , 320 P.2d 1061 (1958), the plaintiff claimed that the railroad’s train failed to sound its whistle at the crossing as required by law. The Kendrick court discussed the distinction between negligence and negligence per se. The court observed that “negligence per se” usually consists of the violation of a specific requirement of law or ordinance. It noted that the distinction between “negligence” and “negligence per se” is the means and method of ascertainment, in that negligence must be found by the jury from the evidence, while negligence per se results from violation of the specific requirement of law or ordinance, and the only fact for determination by the jury is the commission or omission of the specific act inhibited or required. The court recognized that we follow the rule that while a breach of duty imposed by law or ordinance is negligence per se, liability in damages cannot be predicated on a violation of law or ordinance unless the breach is the proximate cause of the injury or damages or substantially *386 contributes to them. Kendrick at 260 . See Clark v. Mo. Pac. Rly. Co., 35 Kan. 350 , 11 Pac. 134 (1886).
We have long recognized a duty may be general and owing to everybody, or it may be particular and owing to an individual by reason of that person’s position. The majority of our tort law is premised on uniform traffic laws or other statutes that restrict or require certain conduct or acts. In Gabel v. Hanby, 165 Kan. 116 , 193 P.2d 239 (1948), we held that the operator of a vehicle upon a public highway may assume that others driving the highway will observe the law. We noted that mere violations of the statutes regulating traffic on the highways, such as excessive speed, insufficient signals, and other matters of similar nature, are not sufficient to make a driver of an automobile liable for negligence in an action for damages growing out of a collision, unless it appears that such violations contributed to the accident and were the legal cause of the injuries sustained.
Certain of the uniform traffic laws have been amended, others repealed, and new traffic laws enacted during every legislature since the uniform laws were first enacted. We still recognize that negligence exists where there is a breach of a traffic law and a causal connection between the breach of the duty and the injury received, even though the legislature has always prescribed the penalty but has never expressly incorporated a private right of action into the law.
It is important to note that when the legislature has intended not to grant a private right of action when enacting a statute to protect the public, it has specifically stated its intent. For example, when the legislature enacted the child passenger safety statutes, K.S.A. 8-1343 et seq., in 1981 it required children of certain ages to be placed in safety restraining systems. K.S.A. 8-1344. In 1984, the legislature made it unlawful for any driver to violate K.S.A. 8-1344 and provided a fine of $10 for each violation. L. 1984, ch. 38, § 2. The legislature amended K.S.A. 8-1345 in 1989 to state that evidence of failure to secure a child in a child passenger safety restraining system under the provisions of K.S.A. 8-1344 shall not be admissible in any action for the purpose of determining any aspect of comparative negligence or mitigation of damages. L. 1989, ch. 40, § 2.
*387 In Arredondo v. Duckwall Stores, Inc., 227 Kan. 842 , 610 P.2d 1107 (1980), when determining whether comparative negligence applied, this court noted there was a private right of action for personal injuries where liability was premised upon violation of a statute prohibiting sale of explosives to minors. The plaintiff’s cause of action was predicated upon K.S.A. 21-4209, which prohibited anyone from knowingly selling, giving, or otherwise transferring any explosive or detonation substance to a person under 18 years of age. The Arredondo court recognized that a breach of duty, negligence per se, results from a finding that the statute was violated. It observed that liability follows a breach of a statutory duty if the violation is the proximate cause of the injury. The court recognized in the usual negligence per se case plaintiff s contributory negligence had been a defense. It noted that courts have found legislative intent to remove contributory negligence as a defense when the statute violated is one of two exceptional types: (1) the statute expressly removes the defense, as in the Federal Employers’ Liability Act; and (2) such intent is found in the statute’s character, its social purpose, and the background of the social problem and hazard to which it is directed, such as the child labor laws. The court concluded that comparative negligence applied when determining the percentage of fault of the parties. Justice Herd dissented, stating the statute operated to protect a class of persons traditionally protected under the law, namely, minors, even from their own inexperience, lack of judgment, and tendency toward negligence, and comparative negligence should not apply. 227 Kan. at 850 .
The rationale of the Arredondo court that a breach of K.S.A. 21-4209 provided a private right of action should be applied to K.S.A. 1990 Supp. 38-1522. The purpose of each statute is to protect children. Each statute provides a criminal penalty. When enacting K.S.A. 1990 Supp. 38-1522, our legislature intended to authorize a private right of action, or it would have stated otherwise.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9633447. Public record. Not legal advice.