Lester v. Magic Chef, Inc.

641 P.2d 353, 230 Kan. 643, 1982 Kan. LEXIS 207
CourtSupreme Court of Kansas
DecidedFebruary 27, 1982
Docket53,000
StatusPublished
Cited by50 cases

This text of 641 P.2d 353 (Lester v. Magic Chef, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lester v. Magic Chef, Inc., 641 P.2d 353, 230 Kan. 643, 1982 Kan. LEXIS 207 (kan 1982).

Opinions

The opinion of the court was delivered by

Holmes, J.:

Plaintiff, Tammy Lester, appeals from an adverse [644]*644jury verdict in a products liability case. On June 2, 1975, Tammy Lester, two and one-half years old, was seriously burned when she climbed upon a gas stove manufactured by the defendant, Magic Chef, Inc., and located in the mobile home occupied by Tammy and her family. One of the burners on the stove was accidently turned on by Tammy, igniting the garment she was wearing, resulting in severe burns to her upper body and face. Richman Gordman Stores of Kansas, Inc., the seller of the garment worn by Tammy, was also named as a defendant in the original petition filed January 25, 1977. Subsequently an amended petition was filed which named as additional defendants, Roanna Togs, the fabricator of the garment worn by Tammy, and Spring Mills, Inc., the manufacturer of the material used in the garment. On June 18,1980, a third amended petition was filed in which Magic Chef, Inc. was the sole named defendant. Pursuant to agreement by plaintiff and all of the previously named defendants, the action against Richman Gordman, Roanna Togs and Spring Mills was dismissed.

Eventually the case proceeded to trial against Magic Chef, Inc., on the theories of strict liability in tort and negligence. Basically plaintiff claims defendant was at fault in that the stove was defectively designed, as the controls for the gas burners were not of a self-latching or two-step variety and accordingly could be accidently turned on by a child of tender years. It appears that as Tammy attempted to climb from a chair to the top of the stove, one of the burner controls was accidently turned on and Tammy was immediately engulfed in flames. The case was submitted to the jury under the theory of comparative fault (K.S.A. 60-258a) and the jury returned a verdict for $300,000.00 actual damages and assessed the comparative fault 50% to Melvin Lester, Tammy’s father, 50% to her mother, Linda Lester, and 0% to the defendant Magic Chef, Inc. The jury also found that the mobile home manufacturer, Roanna Togs, Richman Gordman, Spring Mills, the mobile home retailer and the gas valve manufacturer were without fault. Numerous points are raised by plaintiff on appeal.

At the outset plaintiff contends it was error to submit the case on the basis of comparative negligence or comparative fault because the plaintiff, due to her tender age, was free of negligence as a matter of law and the legislature, when it enacted K.S.A. [645]*64560-258a, did not intend to abolish joint and several liability when there is no fault or negligence on the part of the plaintiff. In the alternative it is argued that it was error to submit the comparative fault of the parents because they were not named parties to the action. This court has now established beyond question that actions based upon strict liability in tort are subject to K.S.A. 60-258a. Forsythe v. Coats Co., 230 Kan. 553, 639 P.2d 43 (1982); Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 634 P.2d 1127 (1981); and Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980). Plaintiff goes to great lengths to point out the legislative history of the statute and contends that it requires the reversal of our prior opinions beginning with Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), and Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978), wherein we held that joint and several liability was abolished by the statute and that the comparative fault of all persons and entities contributing to the occurrence, whether named as parties or not, is to be considered in determining the liability of the parties to the action. Without going into detail, suffice it to say, we have carefully considered all of plaintiff’s arguments and the legislative history presented and find nothing new or persuasive therein that has not been previously considered by the court in arriving at our earlier decisions.

In Brown v. Keill we stated:

“[W]e hold under the provisions of K.S.A. 60-258a the concept of joint and several liability between joint tort-feasors previously existing in this state no longer applies in comparative negligence actions.” p. 204.

As recently as October, 1981, we stated in Albertson,

“Under the doctrine of comparative fault all parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible.” p. 374.

We decline to overrule our previous decisions which, in our opinion, accurately reflect the legislative intent behind K.S.A. 60-258a. If our interpretation of the intent of the legislature is not correct, the legislature has the power to further address the issue.

Next plaintiff alleges it was error to submit the negligence of Tammy’s parents to the jury, contending there was insufficient evidence of any breach of duty by the parents, that the instruction on such duty was error and that the jury was allowed to consider evidence of the parents’ alleged lack of care of Tammy after the [646]*646unfortunate accident. Melvin Lester was not present in the home at the time of the fire and had not been there for several days. Mrs. Lester was in the bathroom at the time Tammy was burned and when she heard her scream, immediately rushed to her and extinguished the flames. Both parents admitted that on several occasions they had accidently turned the burner on by brushing against the control knob. There was some expert testimony that the stove, being several years old, needed repairs and lacked maintenance which, if done, would have made the control more difficult to turn. It was clear that the parents stored cookies above the stove and that Tammy knew where they were stored and was, in fact, attempting to reach the cookies when she climbed upon the stove. Other facts were developed which could also be considered negligence by the parents in the control and supervision of Tammy which if believed by the jury would support the verdict.

The instruction complained of by plaintiff read:

“Parents have a duty to exercise management and control over their children and must exercise reasonable care for their safety and protection. Failure to fulfill this duty constitutes negligence.”

The instruction given was not an incorrect statement of the law and although plaintiff objected to the instruction, no requested instruction was presented to the court. Plaintiff now argues that if the court was going to give an instruction it should have been a more detailed and specific one along the lines discussed in Shirack v. Gage, 166 Kan.

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Cite This Page — Counsel Stack

Bluebook (online)
641 P.2d 353, 230 Kan. 643, 1982 Kan. LEXIS 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lester-v-magic-chef-inc-kan-1982.