Mathis v. TG & Y

751 P.2d 136, 242 Kan. 789, 1988 Kan. LEXIS 56
CourtSupreme Court of Kansas
DecidedFebruary 29, 1988
Docket60,509
StatusPublished
Cited by22 cases

This text of 751 P.2d 136 (Mathis v. TG & Y) 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
Mathis v. TG & Y, 751 P.2d 136, 242 Kan. 789, 1988 Kan. LEXIS 56 (kan 1988).

Opinions

The opinion of the court was delivered by

Lockett, J.:

Plaintiff/appellant Jack Mathis filed a personal injury suit against defendant/appellee TG&Y. Prior to adjudication of the action, plaintiff filed a second suit, arising out of the same set of facts, against other defendants. Plaintiff settled the second suit and it was dismissed with prejudice. TG&Y moved for dismissal of this suit claiming that the dismissal of the second action precluded Mathis from proceeding in this suit. The district court dismissed based on Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 634 P.2d 1127 (1981). We disagree with the district court’s application of Albertson and reverse and remand this case for further proceedings.

Mathis alleged a loose door closure hit his head as he was leaving a TG&Y store in Wichita, resulting in tinnitus and [790]*790hearing loss. Mathis sued TG&Y in Case No. 85-C-1451 on May 1, 1985. In response to interrogatories, TG&Y stated that it intended to compare the negligence of Jacobs Construction Co., Inc., (its landlord) and Hopper’s Mirror & Glass, Inc., who had done repair work on the doors. Mathis amended his petition in February, adding these two companies as defendants and also G. & J. Investments, Inc., the original landlord. This suit will be designated the “original suit” for purposes of this opinion.

Later, after discovering that the actual landlord was Vernon Jacobs personally, and that Jacobs had hired Cheney Door Company, Inc., to maintain the doors, Mathis filed a separate suit, 86-C-1466, against those two parties on April 28, 1986, alleging the same facts and injuries. TG&Y never became a party in the second suit.

On June 6, 1986, defendants G. & J. Investments, Inc., Jacobs Construction Co., Inc., and Hopper’s Mirror & Glass, Inc., were dismissed without prejudice from the original suit. On September 10, 1986, defendant Cheney Door Company, Inc., was dismissed with prejudice from the second suit. Later, on September 18, 1986, the remaining defendant in the action, Vernon Jacobs, was dismissed. The dismissal order stated the claim had been settled between Jacobs and Mathis. Recause of the dismissal of the second suit, there was no judicial adjudication of comparative fault of the defendants.

In the original action, the remaining defendant, TG&Y, rather than joining the other parties to compare their fault, moved to dismiss based on the principles of comparative negligence stated in Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, and Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985). The journal entry granting TG&Y’s motion to dismiss stated:

“The court finds that as a matter of law and pursuant to Albertson v. Volkswagen, and the other oases cited by defendants, plaintiff has split his cause of action, violated the comparative fault doctrine, and that his case against T. G. & Y. should be dismissed.”

The plaintiff appealed. The appeal was transferred to this court on our order pursuant to K.S.A. 20-3018(c).

The legislature’s purpose in passing K.S.A. 60-258a was twofold: (1) to abolish contributory negligence as a bar to recovery [791]*791and (2) to provide for the awarding of damages on the basis of comparative negligence.

Prior to the enactment of 60-258a, when a plaintiff obtained a judgment against two or more tortfeasors, contribution between the tortfeasors was authorized by K.S.A. 60-2413(b). A plaintiff could choose his defendant and a defendant had no right to bring other tortfeasors into the plaintiff s action. If a plaintiff sued and recovered a judgment against two tortfeasors, plaintiff could proceed to collect all or part of the judgment from either judgment debtor. Each defendant was jointly and severally liable for all of the plaintiff s damages regardless of whether others contributed to cause such injuries. When one judgment debtor had satisfied the entire judgment, that debtor could then recover one half of the amount paid from the other judgment debtor.

After the passage of 60-258a, recovery and duty to pay the injured party became based on the degree of fault of each tortfeasor. The individual liability of each defendant for the payment of damages is computed based on each defendant’s proportionate fault; therefore, contribution among joint tortfeasors is no longer possible. To obtain a judgment against each of the tortfeasors, it is now necessary for a plaintiff to join all tortfeasors in one action. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978).

K.S.A. 60-258a allows all possible parties to be brought into a single lawsuit, to fully and finally litigate all issues and liability arising out of a single occurrence, and to apportion the amount of total damages among those parties against whom negligence is attributable in proportion to the party’s degree of fault. All who are named as parties and who are properly served with summonses are bound by the adjudication of the percentage of causal negligence. Because each party has a right to cross-claim against any or all other parties to the lawsuit, any party who fails to assert a claim against any other party in a comparative negligence action is forever barred. A corollary rule naturally follows that a person who is not made a party to a comparative negligence case is not bound by the judgment, even if the person’s causal negligence may have been determined. Eurich v. Alkire, 224 Kan. 236, 579 P.2d 1207 (1978).

Albertson and Teepak were decided subsequent to Brown and [792]*792Eurich. In Albertson, the plaintiff was injured in a two-car accident. He sued the driver of the other car in state court. The jury determined the plaintiff to be 40 percent at fault and the defendant 60 percent at fault. Albertson recovered 60 percent of his damages from the other driver. Albertson could have sued the manufacturer in the state action, but chose not to for tactical reasons. Albertson then attempted to sue the manufacturer of his automobile in federal court, claiming his injuries were enhanced and increased by design defects of the automobile. The federal court certified the following question to the Kansas Supreme Court:

“Having once obtained a satisfied judgment for a portion of his injuries in a comparative negligence action, may a plaintiff bring an action to recover damages for the remaining portion of his injuries against a defendant not a party to the first action, such second action being based on strict liability in tort?” Albertson, 230 Kan. at 369.

The Albertson

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Cite This Page — Counsel Stack

Bluebook (online)
751 P.2d 136, 242 Kan. 789, 1988 Kan. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathis-v-tg-y-kan-1988.