DUSKIN L. SIRUTA, by and on behalf of the heirs at law of TATE DILLON SIRUTA, Deceased, Appellant/Cross-appellee,
MELISSA SIRUTA, Appellee/Cross-appellant
Review of the judgment of the Court of Appeals in an unpublished opinion dated February 1, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from Thomas District Court; GLENN D. SCHIFFNER, judge.
BY THE COURT
1. A wrongful death action under K.S.A. 60-1901 et seq. can be brought against an alleged tortfeasor who is an heir at law of the decedent.
2. Under the facts of this case, a vehicle driver was not entitled to summary judgment or judgment as a matter of law on the issue of negligence where there was circumstantial evidence that could cause reasonable people to disagree on whether the driver deviated from the standard of a prudent driver by becoming drowsy or falling asleep.
3. A passenger can only be liable for negligence in two situations: (1) where there was a failure to use due care for his or her own safety as a passenger in the automobile or (2) under a joint enterprise or when the passenger and driver had a special relationship which created some duty where the negligence of the driver would be imputed to the passenger.
4. PIK Civ. 4th 121.95 (Duty of Vehicle Passenger) relates only to a passenger's duty to avoid injury to himself or herself. It does not relate to a passenger's duties to other passengers. A passenger is liable for a driver's negligence only if the driver's negligence is imputed to the passenger because the passenger and the driver operated the vehicle as a common enterprise or the passenger and the driver had a special relationship.
5. Four elements are necessary to establish a joint enterprise such that the driver's negligence may be imputed to the passenger: (1) an agreement, (2) a common purpose, (3) a community of interest, and (4) an equal right to a voice, accompanied by an equal right of control over the automobile.
6. Generally, unverified interrogatory answers lack evidentiary value.
7. Under the facts of this case, K.S.A. 2014 Supp. 8-1345(d), which prohibits the admission of evidence of failure to secure a child in a child passenger safety restraining system or a safety belt for the purpose of determining any aspect of comparative negligence or mitigation of damages, did not unconstitutionally deprive the defendant of the right to due process under the Fourteenth Amendment to the United States Constitution.
8. Under the facts of this case, neither the parental nor the interspousal immunity doctrine is available as a defense.
Timothy J. King, of Speth & King, of Wichita, argued the cause, and Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, was with him on the briefs for appellant/cross-appellee.
Kevin M. McMaster, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, argued the cause and Jennifer M. Hill, of the same firm, was with him on the briefs for appellee/cross-appellant.
LUCKERT, J. MICHAEL J. MALONE, Senior Judge, assigned.
[301 Kan. 758] LUCKERT, J.:
In this wrongful death action, an heir sues an alleged tortfeasor for the death of a decedent. But this case is not the typical suit brought pursuant to the Kansas Wrongful Death Act, K.S.A. 60-1901 et seq., due to a few unusual iterations: Here a bereaved father sues his wife, the bereaved mother; the two parties are the sole heirs at law of a decedent child; and, to add one more wrinkle, both parties are potential tortfeasors.
On appeal and cross-appeal, both parties raise several issues, which we group and address in the following order. First, the mother contends the father is not legally entitled to bring a wrongful death action against her because the suit is brought on behalf of all the decedent's heirs at law, including the mother, and she cannot be permitted to benefit from her own negligence. Second, she contends she was entitled to either pretrial summary judgment or midtrial judgment as a matter of law on the issue of negligence because there was a lack of evidence supporting her liability. Third, [301 Kan. 759] the father argues the district court erred in allowing the jury to compare his negligence, as a mere passenger in a car, to that of the mother, who was the driver of the car at the time it crashed and their son was killed. In four final issues, the mother argues the district court erred in not giving jury instructions on common enterprise, in allowing questions about unsigned interrogatory answers during witness examination at trial, in ruling that K.S.A. 2014 Supp. 8-1345(d) (precluding evidence that a child was not properly secured in a safety restraint system) is not unconstitutional as applied to this case, and by not allowing her to raise the common-law defenses of parental and interspousal immunity.
The Court of Appeals panel unanimously affirmed the district court's rulings denying the pretrial motion for summary judgment and the midtrial motion for judgment as a matter of law. A majority of the panel also affirmed the district court on the jury instruction issues presented by the father and concluded all of the mother's issues were moot because of the jury's determination that the mother and father were equally at fault, which effectively resulted in judgment in her favor. Siruta v. Siruta, 293 P.3d 815, 2013 WL 451890, at *3-6 (Kan. App. 2013) (unpublished opinion). One member of the panel dissented, concluding it was error to compare the fault of the father because, as a passenger, the father owed no duty to his son unless the mother's negligence was imputed to him under the joint enterprise doctrine--an option the jury had not been allowed to consider. 293 P.3d 815, 2013 WL 451890, at *6-8 (Hill, J., dissenting).
Upon our review of the Court of Appeals decision, we agree with the unanimous panel rulings that the mother was not entitled to summary judgment or judgment as a matter of law. But we reject the majority's holding that it was appropriate to issue instructions allowing the jury to compare the father's fault based on duties he owed to protect himself--rather than his son--from injury. We hold that this error undoubtedly affected the jury's verdict, and we, therefore, reverse the district court and the Court of Appeals and remand this case for further proceedings. We address the remaining issues only to the extent of providing guidance on remand.
[301 Kan. 760] FACTUAL AND PROCEDURAL BACKGROUND
We will not belabor the tragic facts, which are more fully explained in the Court of Appeals opinion in this case. See generally Siruta, 293 P.3d 815, 2013 WL 451890, at *1-2. Tate Dillon Siruta, a 7-year-old child, was killed in a one-car rollover crash just after midnight as his family neared the end of a long trip across Kansas following a wrestling tournament in which Tate had participated. Tate's
parents had periodically traded driving duties during the approximately 330 miles the family had traveled. At the time of the crash, Tate's mother, Melissa (Missy) Siruta, was driving, Tate and a friend were asleep in the back seat, and Tate's father, Duskin Siruta, was asleep in the front passenger seat. Due to his small size, Tate slipped under the shoulder restraint and out of the seatbelt during the rollover and was pinned when the passenger door opened. After Tate's death, Duskin brought a wrongful death action against Missy and alleged that Missy's negligence was the proximate cause of Tate's death. Missy and Duskin filed competing motions for summary judgment, both of which the district court denied, and the case proceeded to a jury trial.
At trial, the parties disputed whether Missy fell asleep behind the wheel or was otherwise negligent in causing the accident. Missy had argued in her pleadings and pretrial filings that the accident occurred without any party being negligent, or in the alternative if she was negligent, Duskin was also negligent as a result of their joint driving decisions. But at trial, as noted by the Court of Appeals, the parties' positions on whether negligence should be found was " not entirely adversarial," as Duskin and Missy remained married, and Missy went so far as to say that she did not want the jury to determine no fault and not award damages. 293 P.3d 815, 2013 WL 451890, at *3. At the close of Duskin's evidence, Missy moved for judgment as a matter of law (known at the time as a directed verdict), which the district court denied.
The jury found both parties 50% at fault, which, under Kansas comparative negligence law, resulted in a judgment in favor of Missy. See K.S.A. 2014 Supp. 60-258a(a); PIK Civ. 4th 105.01. Duskin appealed on the grounds of erroneous jury instructions, [301 Kan. 761] and Missy cross-appealed on different jury instruction grounds and raised several other issues.
The Court of Appeals reached Duskin's jury instruction issues and, finding that the instructions were not issued in error, affirmed the jury verdict. 293 P.3d 815, 2013 WL 451890, at *3-6. We granted Duskin's petition for review and Missy's cross-petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
We will first address Missy's arguments regarding the district court's denial of her motions for summary judgment and for judgment as a matter of law, then turn to Duskin's arguments regarding the jury instructions, and, finally, address Missy's remaining arguments.
ISSUE 1: Action Not Barred Because Missy Is Both a Potential Tortfeasor and Heir at Law
We begin with whether Duskin may bring this suit at all. Missy contends that he may not and that the district court erred in denying her motion for summary judgment on the basis of this argument.
We review the district court's denial of summary judgment de novo, viewing the facts in the light most favorable to the party opposing summary judgment. See, e.g., Long v. Turk, 265 Kan. 855, 865, 962 P.2d 1093 (1998). " Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002); see K.S.A. 60-256(c)(2).
In Missy's summary judgment motion, she argued various provisions in the wrongful death act prohibited Duskin's wrongful death action. Sorting out her arguments requires us to resolve issues of law and construe the act. This court applies de novo review and does not grant deference to the district court's legal conclusions and statutory interpretation. Martin v. Naik, 297 Kan. 241, 247, [301 Kan. 762] 300 P.3d 625 (2013); Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 557, 276 P.3d 188 (2012).
K.S.A. 60-1901 provides that " [i]f the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom
if the former might have maintained the action had such person lived." If the decedent could have maintained the wrongful death action, the action may be filed " by any one of the heirs at law of the deceased who has sustained a loss by reason of the death." K.S.A. 60-1902; see K.S.A. 60-1904 (listing recoverable damages including, inter alia, mental anguish, suffering or bereavement, and reasonable funeral expenses). K.S.A. 60-1902 also provides that a wrongful death action " shall be for the exclusive benefit of all of the heirs who [have] sustained a loss regardless of whether they all join or intervene" in the suit. Each of the heirs, including those who did not join in the wrongful death action, may receive an apportionment of the recovery " in proportion to the loss sustained by each of the heirs." K.S.A. 60-1905.
Here, it is undisputed that Tate might have maintained the suit had he lived, and so there is no initial difficulty under K.S.A. 60-1901. There is also no real dispute that Duskin is a proper plaintiff under K.S.A. 60-1902 because he is one of Tate's heirs at law and he sustained a loss by reason of Tate's death.
Missy argues that the district court should have nevertheless barred Duskin's suit. Missy's first point is that she was entitled to summary judgment on Duskin's claim because she is also one of Tate's heirs at law, meaning she is both plaintiff and defendant in this action. But nothing in the wrongful death statute requires us to treat Missy as a " plaintiff" in this case solely because she is an heir at law. See K.S.A. 60-1901 et seq. In fact, K.S.A. 60-1902 expressly contemplates that some heirs may elect to join a wrongful death action as party-plaintiffs and others may elect not to; Kansas does not require that all heirs join a wrongful death action as necessary or indispensable parties. See K.S.A. 60-219 (regarding compulsory joinder of parties). Thus, while a wrongful death action is " for the exclusive benefit of all of the heirs who [have] sustained a [301 Kan. 763] loss," it does not necessarily follow that all the heirs are " plaintiffs" during a civil litigation of fault. K.S.A. 60-1902.
Further, the statutory provisions regarding apportionment of the ultimate award make clear that the " exclusive benefit" language pertains to apportionment of damages. Apportionment must occur after the substance of the action has been litigated and damages have been awarded to the named plaintiff(s). See K.S.A. 60-1902; K.S.A. 60-1905. To hold otherwise would render meaningless the language in K.S.A. 60-1902 that the action is for the benefit of the heirs " regardless [of] whether they all join or intervene" in the action. K.S.A. 60-1902; see Fisher v. Kansas Crime Victims Comp. Bd., 280 Kan. 601, 613, 124 P.3d 74 (2005) (referencing " the presumption that the legislature does not intend to enact useless or meaningless legislation" and the courts'" obligation to interpret a statute in such a way that part of it does not become surplusage" ).
Accordingly, we decline to view Missy as a " plaintiff" in the instant action such that she would necessarily recover damages from herself as the defendant. We do not address what would have happened had Missy sought to join Duskin's action outright as a party plaintiff or had otherwise sought to intervene, as those circumstances are not before us. See ...