One-action in more states: the propriety of expanding the Kansas one-action rule into other jurisdictions.

• Author: Moten, Jaran

1. INTRODUCTION

   Most second-year law students who have completed an introductory course on civil procedure can explain the doctrines of issue and claim preclusion--collectively known as res judicata--with some proficiency. (1) By successfully invoking either doctrine, one can avoid having to defend against a prolonged and expensive lawsuit. A defendant who fails to meet the elements of either probably will not be able to preclude a plaintiffs action. (2) This is not the case in Kansas. The one-action rule in Kansas prohibits a plaintiff from securing a comparative fault determination and then suing other defendants for injuries arising from negligence related to the same transaction. (3) Developed through a string of judicial interpretations of the Kansas comparative negligence statute, (4) the rule has since been embraced by the legislature and has enjoyed consistent support in Kansas courts. (5)

   If the Kansas one-action rule furthers all of its justificatory principles--judicial economy, fairness, and consistency, to name a few (6)--why have the courts and, ostensibly, legislatures of other states refused to follow Kansas's lead and adopt an identical rule? This Note will begin by providing a brief history of the one-action rule, from its (mostly) judicially created origins to its explicit approval by the Kansas legislature. (7) It will also examine the current status of the doctrine in Kansas, including recent modifications and clarifications. (8) The following part will discuss the rule's failure to expand into other jurisdictions that have expressly considered its rationale and implications. (9) The concluding part will analyze the justifications for both supporting and opposing the expansion of the one-action rule (10) and provide possible reasons that the rule has not caught on the way some commentators think it should have. (11) Ultimately, this Note proposes that, at least from a theoretical standpoint, the one-action rule provides an element of fairness that might otherwise be missing from comparative negligence law. (12) But the practical uncertainties underlying the rule's application might justify most jurisdictions' hesitance to adopt something substantially similar. The rule's practical implications should be investigated so that sufficient information exists for jurisdictions to make informed decisions regarding its adoption. (13)

2. HISTORY: FROM CONTRIBUTORY NEGLIGENCE TO COMPARATIVE NEGLIGENCE DETERMINED IN ONE-ACTION

   1. The Old Rule: Contributory Negligence

      The Kansas Supreme Court reaffirmed the old contributory negligence rule in the late nineteenth century case of Union Pacific Railroad Co. v. Adams. (14) There, the court explained that "where the plaintiff seeks to recover for injuries on the ground of defendant's negligence, ... if the ordinary negligence of the plaintiff directly or proximately contributed to his injury, he cannot recover." (15) The only exception to this rule arose when "the [plaintiffs] injury was intentionally and wantonly caused by the defendant." (16) In Adams, the plaintiffs contributory negligence barred her from recovering damages after she sustained injuries from being thrown from a wagon that was struck by a train. (17) The court held that the plaintiff failed to exercise ordinary care by not stopping and looking for the train. When the plaintiff argued that she could not have seen the train coming due to the contour of the landscape and obstructions blocking the view, the court concluded ordinary care would have entailed stopping and listening for the coming train, which could have prevented the collision. (19)

      While the "total bar" rule of Adams was still being applied into the mid-twentieth century, the Kansas Supreme Court, in another line of decisions, had begun to temper the harsh results of the rule in certain cases much earlier. (20) It did so primarily by emphasizing the proximate cause requirement for a plaintiff's actions to effectively preclude recovery under the doctrine of contributory negligence. (21) In Union Pacific Railway Co. v. Henry, (22) the defendant challenged a jury instruction permitting the plaintiff to recover for injuries resulting from the defendant's negligence, even if the plaintiff was guilty of contributory negligence, as long as the plaintiff's "negligence was slight, and did not contribute directly to cause the injuries complained of." (23) The court upheld the jury instruction, holding that, under the circumstances of the case, "[s]light negligence on the part of the driver ... would not relieve the defendant from liability." (24) In the earlier case of Sawyer v. Sauer, (25) the Kansas Supreme Court made explicit the difference between the Kansas rule and the rule followed by other states that did not allow for a slightly negligent plaintiff to recover against a negligent defendant: (26)

      It is true, some of the New York decisions say that any negligence on the part of the plaintiff will defeat a recovery; but these courts reject the idea of degrees of negligence, and hold that if one does that which ordinarily prudent men would have done, he is guilty of no negligence, so that they in fact announce no different doctrine. In this state we recognize the different degrees of negligence, and therefore the instruction is in this respect properly worded. The law does not regard the remote causes of an injury. It is enough to determine the proximate causes. (27) Thus, the Kansas Supreme Court was aware long ago of the potential harsh consequences of barring recovery to all negligent plaintiffs, and sought to prevent this consequence by excluding slight ^or remote negligence from that which is the proximate cause of an injury.

   2. The Kansas Comparative Negligence Statute

      In 1974, the Kansas legislature officially replaced contributory negligence with comparative negligence with the passage of section 60-25 8a. (29) The statute provides, in relevant portion:

      (a) The contributory negligence of any party in a civil action shall not bar such party or such party's legal representative from recovering damages for negligence resulting in death, personal injury, property damage or economic loss, if such party's negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action shall be diminished in proportion to the amount of negligence attributed to such party. (30)

      But subsequent sections of the statute did more than repeal the somewhat strict contributory negligence rule. The following sections of the statute have been interpreted as creating the one-action rule, which bars a plaintiff who has secured a comparative negligence determination against one or more defendants from bringing a subsequent negligence action against other defendants for injuries arising from the same transaction:

      (b) Where the comparative negligence of the parties in any such action is an issue, the jury shall return special verdicts. .. determining the percentage of negligence attributable to each of the parties, and determining the total amount of damages sustained by each of the claimants....

      (c) On motion of any party against whom a claim is asserted for negligence resulting in [injury], any other person whose causal negligence is claimed to have contributed to such [injury], shall be joined as an additional party to the action.

      (d) Where the comparative negligence of the parties ... is an issue and recovery is allowed against more than one party, each such party [is] liable for that portion of the total dollar amount awarded as damages to any claimant in the proportion that the amount of such party's causal negligence bears to the amount of the causal negligence attributed to all parties against whom such recovery is allowed. (31)

      Among the first cases to interpret the new Kansas statute was Brown v. Keill, (32) which provided for computation of the comparative negligence of nonparties to an action in order to ensure consistent fault apportionment. (33) There, the Kansas Supreme Court acknowledged the dual purposes of the statute the abolition of contributory negligence as a bar to recovery" and to provide for the awarding of damages on the basis of comparative negligence." (34) In Brown, the court explained that "under the Kansas law as it existed prior to statutory comparative negligence a plaintiff could choose his tort-feasor and a defendant had no right to bring in another joint tort-feasor to plaintiffs action." (35) The opinion goes on to explain that, before the statute, a plaintiff could effectively recover damages completely disproportionate to a defendant's negligence by strategically choosing which defendants to sue, and further, from which to collect. (36) After "reviewing the court decisions in other states" and concluding that "no other state has the exact combination of provisions as does Kansas," the court in Brown found it necessary to construe the statute pursuant to the perceived legislative intent. (37) It concluded that the legislature intended the statute "to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault." (38) Thus, nonparties to an action could have their negligence determined under the statute so long as their negligence "gave rise to the injuries and damages" being sued for in the action.

      Four days after Brown, the Kansas Supreme Court decided Eurich v. Alkire. (40) There, the court made explicit the preclusive effect of failing to join a potential responsible party in a comparative negligence action. Expanding upon its interpretation of the statute in light of its recent analysis of the legislature's intent, the court held:

      [W]e believe it was the intent of the legislature to fully...