A Review of the Kansas Comparative Fault Act

Publication year1994
CitationVol. 63 No. 06 Pg. 26
Kansas Bar Journals
Volume 63.

63 J. Kan. Bar Assn. June/July, 26 (1994). A REVIEW OF THE KANSAS COMPARATIVE FAULT ACT

Journal of the Kansas Bar Association
June/July, 1994


James D. Griffin [FNa]

Chris Reitz [FNaa]

Copyright (c) 1994 by the Kansas Bar Association; James D. Griffin and Chris Reitz

The Kansas Comparative Fault Act [FN1] (the Act) became effective in 1974. [FN2] Since that time, numerous cases and articles have interpreted the Act. This article will attempt to pull all of that information together and provide the reader with a thorough, concise description of how the Act applies, or does not apply, to the many situations in which two or more tortfeasors may be responsible for the same harm.[FN1]. K.S.A. 60-258a.

[FN2]. 1974 Kan.Sess. Laws 239.


A. The Policy Behind the Act.

In 1978, the Supreme Court of Kansas resolved many of the uncertainties surrounding the Act in the landmark decision of Brown v. Keil. [FN3] The court stated the now familiar compromise that a plaintiff could recover even if the plaintiff was partially at fault, but joint and several liability was abolished. [FN4] Therefore, although the harsh rule of contributory negligence was abolished, the risk of insolvent, immune, or unjoined tortfeasors was shifted from defendants to plaintiffs. [FN5] The court concluded that "the intent and purpose of the legislature in adopting K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injury and damages...." [FN6] Those simple propositions have not always been easy to apply to specific cases.

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B. Procedure.

Section (c) of the Act provides for joinder of other potentially negligent persons by any party to the lawsuit against whom a claim of negligence has been asserted. This provision has been construed to allow both formal and informal joinder. In Brown, the Supreme Court of Kansas held that the fault of a tortfeasor who had not been summoned and against whom no claims had been made could be compared. [FN7] The defendant had filed an answer alleging the comparative fault of the non-joined tortfeasor and evidence of that fault was admitted at trial. [FN8]

Since Brown, the practice in Kansas has been for defendants to allege comparative fault in answers and for plaintiffs to obtain the specifics of those allegations by contention interrogatories. A defendant alleging comparative fault has the burden of proving the fault of the other party by a preponderance of the evidence. [FN9]

It is appropriate for plaintiffs to file summary judgment motions challenging the adequacy of evidence supporting a submission of their own fault to the jury. [FN10] However, because fault may be apportioned as little as one percent, the evidence needed to allow a defendant the right to have other parties listed on the jury verdict form may be slight. But when no evidence of negligence of a party is presented at trial, then the defendant has no right to submit the issue of that party's fault to the jury. [FN11]


While the policy of the Act is to determine the fault of all parties to an occurrence in one action, the Supreme Court of Kansas has held that a plaintiff may file multiple lawsuits claiming the same injury. However, as seen below, a plaintiff gets only one "adjudication of comparative fault." This section will review the development of the law on this subject and discuss the tactical considerations of plaintiffs and defendants.

The first case to discuss multiple litigation under the Act was Eurich v. Alkire. [FN12] The first lawsuit at issue in Eurich was brought by Bonnie Farris against Eurich and Alkire for injuries sustained by Farris in an automobile accident. [FN13] Eurich and Alkire both alleged that the other was driving the car which injured Farris. [FN14] While the first case was pending, Eurich sued Alkire in a separate action for injuries suffered by Eurich in the accident. The first case proceeded to a jury trial which attributed sixty percent of fault to Alkire and forty percent to Eurich. [FN15] The trial court which held that the jury's findings of liability in the prior action were binding, granted Eurich summary judgment on that issue. [FN16] On appeal, the Supreme Court of Kansas stated that the intent of the Act was to determine the rights and liabilities of all potentially responsible parties in one action. [FN17] Because Eurich failed to make a crossclaim against Alkire in the first action, he was forever barred from raising it again. [FN18] The decision of the trial court was reversed and the second suit was dismissed. [FN19]

The next case in which the supreme court barred a second lawsuit was Albertson v. Volkswagenwerk Aktiengesellschaft. [FN20] Albertson, who was involved in an automobile accident, sued the driver of the other vehicle in state district court and received a jury verdict. [FN21] Albertson then sued the car manufacturer in United States district court claiming his injuries were caused by the defective design of his vehicle. [FN22] The federal court certified to the Supreme Court of Kansas the question of whether the second lawsuit could proceed. [FN23] Citing Eurich, the Supreme Court of Kansas held that the second lawsuit could not proceed. [FN24]

In Teepak, Inc. v. Learned, [FN25] the court extended the rule to cases involving successive tortfeasors. In Teepak, the court ruled that the initial tortfeasor, a sausage manufacturer, could not sue a physician claiming indemnity because of malpractice in treating the condition caused by the defective sausage. [FN26] The court held that the remedy of the manufacturer was to compare the fault of the physician in the first case. [FN27] Because a mechanism existed in one lawsuit to compare the fault of all parties, a second lawsuit was not allowed. [FN28]

In Mick v. Mani, [FN29] the court explicitly adopted what it called the "one-trial rule." In Mick, the plaintiff filed a product liability and a medical malpractice action in separate counties. Immediately after a jury verdict for the defendants in the product liability action, the medical malpractice defendant filed a motion for summary judgment claiming that fault had been conclusively determined. [FN30] The trial court granted the motion and was upheld by the Supreme Court of Kansas. [FN31]

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The court has carved out a number of exceptions to the rules set out in Eurich, Albertson, Teepak, and Mick. Those exceptions are:

A second lawsuit claiming the same injury against a separate set of defendants can proceed to trial if the first case was settled and dismissed prior to a determination of comparative fault. [FN32] A second lawsuit in state court can proceed to trial when the plaintiff is prevented from joining a necessary party in federal court because of loss of diversity. [FN33] This situation has arisen where the defendants remove the case to federal court and the plaintiff is not allowed to amend to include an additional non-diverse defendant. [FN34] The filing and entry of judgment in a friendly suit to approve a settlement by a minor against one potential defendant does not bar a second lawsuit against another. [FN35] One defendant in a lawsuit may file a later lawsuit against another defendant for injuries arising from the same accident if the first lawsuit was settled prior to the time a compulsory crossclaim was filed and prior to any determination of comparative negligence. [FN36] A common denominator running through all of these exceptions is that, in each case in which the second action was allowed to proceed, there was no comparison of fault in the first. Under these cases, the rule of law under the Act appears to be that the rights and liabilities of all parties are to be determined in one action, but a party is absolutely entitled to one comparison of fault. Once there is a comparison of fault, perhaps even a summary...

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