Railroad Crossing Case Settled Following U.S. Supreme Court Ruling

Railroad Crossing Case Settled Following U.S. Supreme Court Ruling

Victor Bergman and John Parisi recently settled the claims of Ashley Ball, a minor, against Burlington Northern Railroad Company, arising out of a train-car collision at 167th Street in southern Johnson County, Kansas. At the time of the collision, Ashley, who was eighteen months old, was a passenger in the back seat of a 1977 Chevette driven by her mother, Stephanie. We claimed Burlington Northern was liable because the crossing was unusually dangerous. We had a professor of traffic engineering, a doctor of highway design, and a human factors expert prepared to prove there was inadequate sight distance due to the close proximity of the crossing to Highway 169, and the driver of the vehicle had inadequate time for accurate decision making. Because of this condition there should have been automatic gates and flashing lights to warn motorists of approaching trains. We also claimed that the train was traveling too fast for the prevailing conditions.

The case was handled since 1988 under uncertain and conflicting law. The question was the validity of state common law tort actions alleging that trains were traveling at an excessive rate of speed or that the crossing was unusually dangerous. The federal circuit courts were split. The Tenth Circuit held all such cases were preempted by federal law; the Eighth Circuit held there was no federal preemption; and the Ninth and Eleventh Circuits took the position that preemption occurred only after the local governmental authority made a determination on whether increased crossing protection was warranted.

Although we won the pre-emption issue at the trial court, because the same question was pending before the United States Supreme Court, our trial date was postponed until after the anticipated date of the Supreme Court's decision.

The preemption issues were finally decided by the United States Supreme Court in Easterwood v. CSX, ____ U.S.____,1993 WL 119759 (April 21, 1993), clearing the way for settlement of Ashley Ball's case. The Supreme Court ruled that federal law does not preempt state common law negligence cases for unreasonably dangerous crossings, unless the government is acting pursuant to a specific regulation which mandates improvement of the crossing. The Supreme Court also ruled that common law actions alleging that a train was operating at excessive speed for the then prevailing conditions are preempted by federal regulations setting the maximum train speeds for various classes of track.

With the issue of federal pre-emption resolved, settlement with a present value of $2.5 million was reached with Burlington Northern Railroad Company. A structured settlement was negotiated that will pay Ashley a guaranteed amount of $4.3 million over 20 years. If Ashley lives a normal life expectancy, it will pay her over $15 million, which will go a long way to provide for her significant medical and custodial needs throughout her lifetime.

The firm is preparing to file another wrongful death case arising from a train-car collision in August, 1992, at the rail crossing at 159th Street, which is the crossing immediately north of 167th Street on the same tracks.

Rylands v. Fletcher Revisited

A recent decision by the Kansas Court of Appeals, Laterra v. Treaster (slip op. 67,128), finally concluded the successful handling of a wrongful death action by Victor Bergman and Benjamin Kieler. This case arose after a tragic scene unfolded on June 11, 1988, when toxic clouds of carbon monoxide gas billowed from a Roeland Park duplex. Inside the duplex garage, a young woman lay dead in the back seat of her automobile. In the bedroom of the apartment next door, her 31-year-old landlord, Steven Laterra, was also dead. Both deaths resulted from the carbon monoxide exhaust fumes released by the young woman's automobile as she committed suicide.

Steven Laterra, a divorced father, was survived by his only son and legal heir, 11-year-old Steven "Michael" Laterra. Although Michael lived with his mother, he spent a great deal of time with his father, who treated him as his highest priority and best friend. Vic Bergman and Ben Kieler represented Michael in a week-long trial in Johnson County in June 1991, resulting in a jury verdict of $500,000. Ben Kieler argued against defendant's appeal.

On December 18, 1992, the Court of Appeals rendered its decision affirming the judgment. The opinion addresses several interesting and significant issues. Perhaps most unusual was the affirmation of a directed verdict on liability, which the trial court entered against the defendant. The trial court found that the defendant was strictly liable in tort, as a matter of law, for the wrongful death of plaintiff's father because his death resulted from an "abnormally dangerous activity," citing Restatement (Second) of Torts ß 519 and the Kansas case which adopted it, Williams v. Amoco Production Co., 241 Kan. 102, 734 P.2d 1113 (1987). This theory of liability harkens back to the classic law school case of Rylands V. Fletcher, L.R.3 H.L.330 (1868). Both the trial and appellate courts found that, as a matter of law, the defendant's suicidal activity, releasing toxic carbon monoxide fumes from her running automobile in the enclosed garage of a shared duplex apartment, met all recognized tests of an "abnormally dangerous activity," established by the Restatement (Second) of Torts ß 520 and Williams.

The Court of Appeals opinion also affirmed the propriety of several important pretrial and evidentiary rulings, including the trial court's admission of the decedent's statements regarding his intention to pay for his son's future education and to provide future financial support. Both courts found an applicable hearsay exception in K.S.A. ß 60-460(1) (1991 Supp.) because there was no evidence the statements were made in bad faith and because they reflected the decedent's "present state of mind" when made. Finally, the opinion affirmed two instructional rulings by the trial court, including its rejection of language in P.I.K. 9.31 (damage instruction for the wrongful death of a parent) which limits a child's recovery of lost financial contributions to the period of minority only. The court ruled that the pattern instruction's language does not reflect Kansas law which imposes no such limitation on a child's recovery. The opinion also affirmed the trial court's rejection of defendant's tendered "present value" instruction, ruling that the defendant failed to provide sufficient foundation evidence on economic variables to warrant the instruction.

Lynn Johnson Elected Chairman of Supreme Court Nominating Commission

Lynn Johnson recently was elected Chairman of the Kansas Supreme Court Nominating Commission. The commission nominates three candidates for any vacancy on the Kansas Supreme Court or the Kansas Court of Appeals.

In addition to the chairman, the commission is made up of four lawyer members and four lay members. Each lawyer member represents one Congressional district from the state and is elected by the lawyers in the district. Each lay member also represents a Congressional district, but they are appointed by the governor. Lynn's four year term as chairman began on July 1.

John Shamberg recently completed eight years of service on the commission during which he participated in the nomination of many of the outstanding appellate court judges now serving the people of Kansas. John's very positive experience as a commission member and his encouragement led Lynn to seek the position of chairman. Lynn's goal as chairman is to continue a process that has permitted the governor to select some of the best lawyers in Kansas to become appellate judges.

In This Issue

• Rylands v. Fletcher Revisited
  
• GM Pickups are Subject of Crashworthiness Cases
  
• Shawnee County Malpractice Case Settled
  
• Lynn Johnson Elected Chairman of Supreme Court Nominating Commission
  
• Trial by Fyre: Adventures of Jack Fyre - Litigator
  

GM Pickups are Subject of Crashworthiness Cases

The Center for Auto Safety has called them the "Pintos of the '90s." The General Motors 1973-87 full-size C/K pickups have the gas tanks located outside the frame. As a result, the tank is prone to rupture in side impacts, turning the pickup into a virtual firebomb. In February 1993, GM was hit with the third largest jury award in history. The Georgia jury in Moseley V. GM awarded $105.24 million to the parents of Shannon Moseley who burned to death when the gas tank of his C/ K pickup ruptured.

Lynn Johnson is currently representing several personal injury and wrongful death plaintiffs in GM pickup cases. Our firm also has handled several other crashworthiness cases involving various manufacturers, including Honda and Subaru.

The basis for the product liability litigation against GM is the concept of crashworthiness. The crashworthiness doctrine requires a manufacturer to design a vehicle that is reasonably crashworthy so as to protect the vehicle's occupants from suffering "enhanced injuries" in a collision. Enhanced injuries are not caused by the initial collision but by a defect which renders a vehicle uncrashworthy. Most frequently these injuries result from a "second collision" between the occupant and the vehicle's interior. Under either strict liability or negligence principles, a manufacturer is liable for the enhanced injuries.

The foreseeability of collisions and enhanced injuries is the cornerstone of crashworthiness and was the primary concern of the Eighth Circuit in deciding the landmark crashworthiness case, Larsen V. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). Larsen held that a manufacturer has a duty to use reasonable care to make a reasonably crashworthy vehicle. This duty was predicated on the reality that collisions are an "inevitable contingency of normal automobile use." More important, Larsen recognized that collisions are foreseeable regardless of how they are caused.

Missouri first adopted the "second collision" doctrine in Cryts v. Ford Motor Co., 571 S.W.2d 683, 687 (Mo. Ct. App. 1978). Kansas has never explicitly adopted crashworthiness but recognized it implicitly in Garst v. General Motors Co., 207 Kan. 2, 484 P.2d 47 (1971). The Kansas Supreme Court held that a "manufacturer has the duty to use reasonable care in the design of his products so that they will be reasonably safe for their intended use, including any emergencies of use which can reasonably be anticipated." Id. at 2 Syl. 1.

Perhaps the most interesting and complicated crashworthiness issue is whether comparative fault and crashworthiness are compatible. Our firm takes the position that comparative fault is inappropriate in a crashworthiness case. Briefly stated, the foreseeability of collisions regardless of their cause and the severability of causation preclude comparing the fault of a one who negligently causes the collision.

Comparison of fault could result in either the initial tortfeasor or the manufacturer bearing responsibility for more damages than he actually caused. This argument won the day in Reed V. Chrysler Corp., 494 N.W.2d 224 (Iowa 1992). The Iowa Supreme Court refused to allow the introduction of evidence of the driver's negligence in causing the collision. The court reasoned that "the crashworthiness doctrine proceeds from the belief that a manufacturer has a duty to minimize the injurious effect of a crash, no matter how the crash is caused." Id. at 230.

Shawnee County Malpractice Case Settled

Lynn Johnson recently settled a medical malpractice/wrongful death/survival action lawsuit in Shawnee County, Kansas. He represented the heirs of a 52-year-old man, who died as a result of a massive abdominal infection following a surgical procedure performed by the defendant physician. The heirs included the wife and four adult children.

Investigation and discovery revealed that the defendant physician entered the bowel of the deceased while performing a splenectomy, thus allowing contaminated bowel contents to spill into the surgical field. Discovery further revealed that the enterotomy apparently was never disclosed to the patient or his family, nor was it disclosed to any of the consulting physicians throughout the course of the 26-day hospitalization. In fact, the enterotomy was only mentioned in two places in the medical record, the discharge summary and the operative report, both of which were dictated and transcribed after the patient's death.

The defense raised the issue of the decedent's comparative fault. Defendant contended that the plaintiffs' decedent's conduct at the time of his accident and his prior health condition (he was significantly overweight) contributed to his injuries and resulting death. After briefs and oral argument, the court ruled that the defense would not be permitted to compare the fault of the plaintiff. The court stated that it was not proper to give physicians the "green light" to commit malpractice on a patient simply because he might be a personal injury victim. The court also emphasized that the plaintiffs had never asserted claims for injuries from the motorcycle accident, which led to the hospitalization and surgery. Rather, their claims were for damages for wrongful death caused by medical negligence.

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