Opinion
No. 105,698.
2013-02-1
Duskin L. SIRUTA, by and on behalf of the heirs at law of Tate Dillon SIRUTA, Deceased, Appellant/Cross-appellee, v. Melissa SIRUTA, Appellee/Cross-appellant.
Appeal from Thomas District Court; Glenn D. Schiffner, Judge. Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, and Timothy J. King, of Speth & King, of Wichita, for appellant/cross-appellee. Kevin M. McMaster and Jennifer M. Hill, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellee/cross-appellant.
Appeal from Thomas District Court; Glenn D. Schiffner, Judge.
Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, and Timothy J. King, of Speth & King, of Wichita, for appellant/cross-appellee. Kevin M. McMaster and Jennifer M. Hill, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, for appellee/cross-appellant.
Before HILL, P.J., BUSER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Tate Dillon Siruta, age 7, was killed in a one-car rollover crash on March 22, 2009. Tate was a passenger in the back seat of the family car being driven by his mother, Melissa Siruta (Missy). Tate's father, Duskin Siruta, was in the front passenger seat of the car. Duskin filed this wrongful death case against Missy. Duskin and Missy are Tate's only heirs at law. A jury found both parents equally at fault. Consistent with the verdict, the district court entered judgment in favor of Missy.
Duskin appeals contending that the district court should not have submitted comparative fault instructions for the jury's consideration. However, in the event we determine the district court did not err, Duskin does not further challenge the jury's factual findings of equal fault. Missy has cross-appealed contending, inter alia, that the evidence was insufficient to support a finding that she was negligent.
We conclude the jury's verdict and the district court's judgment should not be disturbed on appeal and affirm.
The events leading to Tate's death
For several years, Tate had participated in organized wrestling. Missy and Duskin took him to many wrestling tournaments, primarily in Northwest Kansas. Missy was his coach.
On Saturday, March 21, 2009, Duskin and Missy drove from Colby to Ottawa so that Tate could participate in a wrestling tournament. They stopped in Hays to pick up Konnor Griffin. Konnor and Tate were close friends and both wrestled. Konnor had been attending a wrestling event in Hays and presumably went to Ottawa to support Tate. The Sirutas and Konnor stayed at a motel on Saturday night before going to the wrestling tournament on Sunday morning. It appears the trip to Ottawa was uneventful. After attending Tate's weigh-in, everyone went to their motel and then dinner. The record does not indicate what activities, if any, were undertaken before turning in for the evening.
The next morning, the Sirutas and Konnor went to the tournament site well before it was to start in order to obtain good seats. The tournament started about 9 a.m. and concluded between 4:30 and 6 p.m. After the presentation of awards, the Sirutas and Konnor left Ottawa and drove to Lawrence, a distance of about 27 miles, where they stopped to eat. From Lawrence, Duskin drove to Topeka, a distance of about 27 miles, and stopped for gasoline.
Missy drove the next leg of the trip on Interstate 70 from Topeka to Salina, a distance of about 111 miles. In Salina, the parties stopped again, and Duskin took over driving from Salina to Wakeeney, a distance of about 128 miles. During this leg of the trip, Missy slept.
Duskin stopped in Wakeeney. Missy used the restroom and then took over driving. The boys were asleep in the back of the vehicle. During the first part of this leg of the trip, Duskin and Missy were talking. However, as Duskin began drifting to sleep, Duskin asked Missy if he could take a nap. Missy and Duskin agreed that Missy would drive from Wakeeney to Oakley, a distance of about 55 miles, and then Duskin would take over and drive the rest of the distance to Colby, a distance of about 18 miles.
About 37 miles west of Wakeeney, and just minutes before midnight, Missy's vehicle went onto the south shoulder and toward the median, hitting the rumble strips. Missy overcorrected, coming across two lanes of traffic, and headed off the Interstate and into the ditch, rolling at least once before it came to a stop.
At trial, Missy testified that she did not remember the accident. She stated that she was listening to the radio and watching the road signs and the next thing she remembered was hearing the rumble strips and turning the car to the right. After that, she remembered being in the ditch and hollering for the other passengers. Missy did not have another reason, such as the wind or something in the roadway, that provided an explanation for the accident. Missy testified that her best explanation for what had happened was that she fell asleep because she could not remember. However, Missy testified that she was alert and showed no signs that she was too tired to drive prior to the accident.
Kimberly Shirley was following the Sirutas' car when the crash occurred. She observed the car swerving from its lane and then overcorrecting before leaving the road on the north side and rolling. Shirley was not certain how many times the car rolled. She did not believe the erratic driving was caused by a tire blowout.
Shirley stopped her car to give assistance. After calling 911, she gave assistance to those in the crash.
Ronald Boyd of the Kansas Highway Patrol arrived at the crash site. Trooper Boyd conducted an accident investigation, assisted the injured until other emergency vehicles arrived, and subsequently took statements from those involved at the hospital. Boyd's report noted that Missy “stated that she had fallen asleep while driving.” Boyd testified that if Missy had expressed any doubt or ambiguity as to whether she had fallen asleep, he would have included that in his report. Missy did not tell Boyd that she was too tired to drive. Missy did not provide any additional explanations for the accident. Boyd estimated that the wind was blowing between 20 and 30 mph, but Missy did not state that the wind caused her to lose control. Missy voluntarily submitted to a blood test to check for alcohol and drugs, and the test came back negative. In his report, Boyd stated that he believed the cause of the accident was that Missy had fallen asleep while driving.
Duskin, Missy, and Konnor were treated for minor injuries and released from the hospital the following day. Tragically, Tate was pronounced dead after being transported to the hospital.
The ensuing wrongful death litigation
Duskin, on behalf of Tate, filed this wrongful death action pursuant to K.S.A. 60–1901 et seq. , alleging that Missy's negligence was the proximate cause of Tate's death. In the pleadings and other legal filings, Duskin contended that Missy was negligent in the following ways: (1) failing to keep her vehicle under proper control; (2) failing to maintain a single lane; (3) failing to keep her vehicle from driving over a clearly indicated highway dividing section; (4) failing to devote full time and attention to driving; and (5) failing to stop, slow, or swerve to avoid an accident.
In her pleadings and legal filings, Missy denied she was legally at fault for the cause of the accident and death of her son. She further alleged that the accident occurred without any party being negligent or otherwise failing to exercise reasonable care. In the alternative, Missy contended that if it was determined she was negligent, Duskin was also negligent as a result of their joint driving decisions.
However, at trial, the testimony of Duskin and Missy was not entirely adversarial. Both Duskin and Missy explained to the jury that they were each other's best friend, their marriage remained strong, and neither blamed the other for the crash and Tate's death. Duskin testified his only claim was that Missy fell asleep while driving. Missy testified Duskin did not do anything that contributed to the crash. She even went so far as to tell the jury she did not want the jury to determine there was no fault and not award damages. There was also the odd and inappropriate exchange between the court and counsel in the presence of the jury regarding written interrogatories Missy had not signed after she sought and obtained independent legal advice.
The discordance carried over in closing arguments. For example, Duskin's lawyer argued:
“We need you to technically—technically, legally find fault in this case. And that in no way is a criticism of Mrs. Siruta. Mrs. Siruta is a wonderful mother. She's a wonderful wife, and she is a wonderful person. And that in no way is a criticism of her. But in order for us to prevail in this case, we need you to technically find, yes, there was fault.”
The jury returned a verdict finding Missy was 50% at fault and Duskin was 50% at fault; thus, no damages were awarded. Duskin has filed a timely notice of appeal. Missy has filed a timely notice of cross-appeal.
The district court properly instructed the jury on comparative fault
Duskin's argument on appeal is that the district court erred in instructing the jury to compare the fault of Duskin and Missy in jury Instruction Nos. 14 and 15. We note the instructions given are consistent with PIK Civ. 4th 105.01 and PIK Civ. 4th 105.03 that the civil advisory committee recommends be used in every comparative fault case based on negligence. Duskin objected to jury Instruction Nos. 14 and 15 on the basis that he was asleep during the events leading to the crash and there was no evidence before the jury that would support a finding that he was at fault.
“[A] trial court is required to give an instruction supporting a party's theory if the instruction is requested and there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence.” Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 419, 228 P.3d 1048 (2010).
In addition to the comparative fault instructions submitted to the jury, there was also Instruction No. 13 that was given without objection. It stated:
“If a passenger has knowledge of danger and the circumstances are such that an ordinary person would speak out or take other positive action to avoid injury to himself, then it is his duty to do what the ordinary person would do under the circumstances. Unless such knowledge and circumstances exist, he may rely upon the driver to attend to the operation of the vehicle.”
This instruction is consistent with PIK Civ. 4th 121.95.
In Casey v. Phillips Pipeline Co., 199 Kan. 538, Syl. ¶ 6, 431 P.2d 518 (1967), the court stated:
“Circumstantial evidence in law is evidence that tends to prove a fact in issue by proving other events or circumstances which, according to common experience of mankind, are usually or always attended by the fact in issue, and therefore affords a basis for a reasonable inference by the jury or court of the occurrence of the fact in issue. Circumstantial evidence need not rise to that degree of certainty which will exclude any and every other reasonable conclusion.”
In Friesen–Hall v. Colle, 270 Kan. 611, 614, 17 P.3d 349 (2001), our Supreme Court discussed a district court's consideration of circumstantial evidence when deciding whether to grant summary judgment:
“The circumstances relied on must be of such nature and so related one to the other that the only reasonable conclusion to be drawn is the theory sought to be established; that a fact is not proven by circumstances merely consistent with its existence, and that a finding of negligence must be established by competent proof and cannot rest on mere conjecture. [Citation omitted.]”
The Kansas Supreme Court contemplated a sleeping passenger's duty in Bowse v. Weinrich, 133 Kan. 132, 298 Pac. 766 (1931). In Howse, the defendant began the trip by driving the vehicle in a careful manner. Relying on the driver's demonstration of competence, the plaintiff permitted himself to fall asleep. Knowing the passenger was asleep, the defendant deliberately increased the speed of the vehicle, resulting in an accident. The court stated:
“[We] cannot state a hard-and-fast rule by which it may be determined whether a sleeping guest is negligent, or not negligent. If the guest knows the character of the automobile driver, knows that the driver's experience and skill qualify him to deal with road and traffic conditions likely to be encountered on a particular journey, and has no reason to anticipate that unusual or extraordinary situations will arise, it may be clear the guest would not be at fault if he took a nap. On the other hand, the circumstances might be such that it would be clear the guest ought to be awake and alert. Generally, the question will be one for the jury.” 133 Kan. at 135.
In a case involving the driver's failure to yield to a Union Pacific Railroad train, our Supreme Court explored a passenger's duties in deciding whether a sleeping passenger's contributory negligence barred her recovery as a matter of law. The court stated:
“In automobile collision cases this court has held that a passenger in an automobile is not negligent as a matter of law even though that passenger may be asleep when the accident occurs. See Howse [, 133 Kan. 132, Syl. ¶ 2].
“Generally it can be said it is the duty of the passenger while riding in an automobile driven by another person to use that care which a reasonably careful person would use for his [or her] own protection under the circumstances then existing. (McGlothlin v. Wiles, 207 Kan. 718, Syl. [¶] 1, 487 P.2d 533 [1971].) A passenger may properly rely upon the driver to attend to the operation of the vehicle, in the absence of the knowledge of danger, or of facts which would give him [or her] such knowledge. ( McGlothlin v. Wiles, supra, Syl. [¶] 3.) It is for the jury to say from the evidence whether a passenger exercised such care as a reasonably careful person would exercise under the existing circumstances. [Citations omitted.]” Smith v. Union Pacific Railroad Co., 222 Kan. 303, 307, 564 P.2d 514 (1977).
These cases indicate that an evaluation of a passenger's negligence is a question of fact for the jury. In line with this caselaw, the jury here was instructed that
“[i]f a passenger has knowledge of danger and the circumstances are such that an ordinary person would speak out or take other positive action to avoid injury to himself, then it is his duty to do what the ordinary person would do under the circumstances. Unless such knowledge and circumstances exist, he may rely upon the driver to attend to the operation of the vehicle.”
See PIK Civ. 4th 121.95.
In other jurisdictions, it is clear that a party can also be found to be negligent if he or she voluntarily went to sleep as a passenger in a vehicle, exercising no care for his or her own safety, if it is shown that the decision to do so lacked reasonable care. See Sledge v. Continental Cas. Co., 639 So.2d 805, 813 (La.App.1994) (“Although a passenger ordinarily has no duty to supervise a driver, fault may be imposed where there is a joint venture, an independent negligent act by the passenger, or a showing that the rider had actual or constructive knowledge of a driver's incompetence or impaired ability to operate the vehicle.”); see also Fry v. Smith, 217 Iowa 1295, 1303–04, 253 N.W. 147(1934) (must be causal connection between sleeping passenger and cause of accident to compare negligence); Purchase v. Jeffrey, 33 A.D.2d 620, 620, 304 N.Y.S.2d 619 (1969) (passenger may be negligent in riding with obviously sleepy driver).
In Sledge, after several days of vacation, the group departed Florida for home at approximately 10:30 p.m. On the return trip, everyone except for Sledge and his 15–year–old son slept. Finally, at about 2 or 2:30 a.m., Sledge's son fell asleep. Around 3 a.m., Sledge felt tired, woke his son, and requested that he take over the driving duties. After his son agreed, Sledge reclined his seat and went to sleep. Shortly after the youth began driving, he fell asleep at the wheel. As a result, the vehicle left the road, continued over a steep embankment, and collided with a tree. Sledge died at the scene of the crash and there were serious injuries to all of the occupants in the car, including the driver. The jury returned a verdict attributing 50% of the fault to Sledge and 50% of the fault to his son. In rejecting an argument that the apportionment of fault to Sledge should be eliminated or reduced, the Court of Appeals of Louisiana pointed to the following factors: (1) Sledge woke his son and asked him to drive after he had been sleeping for no more than an hour; (2) Sledge knew that his son did not get adequate rest during the vacation; and (3) Sledge chose to travel at night. 639 So.2d at 813. The court concluded:
“Here, beyond soliciting his recently-licensed son to drive the van during the early morning, Sledge knew that the youngster had kept late hours throughout their vacation. Similarly, he should have recognized that the boy, notwithstanding any physical exhaustion on his part, would be unlikely to refuse his father's request. Yet, despite all this, Sledge still reclined his seat and went to sleep after about five or ten minutes. As viewed by the jury, and likewise in our evaluation, the circumstances at hand support a conclusion that the actions of the passenger significantly contributed to the accident. [Citations omitted].” 639 So.2d at 814.
Here, the facts of this case are not as egregious or clear as those cited above in Sledge. However, “[a]ll types of fault, regardless of degree, are to be compared to apportion causal responsibility for an accident.” Mills v. Smith, 9 Kan.App.2d 80, 83, 673 P.2d 117 (1983).
We conclude Duskin's argument overlooks the following facts shown by the evidence: (1) The parties made shared decisions as to how driving duties were to be divided during the 2–day trip to Ottawa and return to Colby; (2) they mutually agreed to the late-night, 366–mile trip to Colby after a full day at the wrestling tournament; (3) Duskin knew Missy had been sleeping immediately before Wakeeney; and (4) after leaving Wakeeney, Duskin asked if he could take a nap while Missy drove the 55–mile stretch to Oakley. His question leaves an ambiguity as to whether he was concerned about Missy's state of alertness and ability to drive. Under the totality of circumstances shown by the evidence, the district court appropriately decided there was a fact issue for the jury to decide as to whether Duskin had actual or constructive knowledge of Missy's impaired ability to safely operate the car.
In upholding the decision of the district court, we wish to iterate that the only issue raised is whether the district court erred in submitting comparative fault instructions. A far different issue, not presented on appeal, is whether there is substantial, competent evidence to support the jury's findings regarding comparative fault. Here, the question is whether the district court made a legal mistake, and not whether the jury made mistaken findings. Moreover, as to the issue before us, it is not inconsequential that the parties had no objection to Instruction No. 13 that informed the jury as to the duty of a passenger. Instruction No. 13 is the legal predicate that compels the giving of the comparative fault instructions.
Our decision renders moot the issues in the cross-appeal
The jury's determination that both parties are 50% at fault renders moot the issues raised in Missy's cross-appeal. A judgment on any of the issues raised by Missy would not impact the legal rights of the litigants. See McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009).
Affirmed.
HILL, J., dissenting.
I must respectfully dissent. I believe the trial judge made a mistake when he instructed the jury that Duskin Siruta, a sleeping passenger, could be found at fault in this tragic one-car accident and not instruct the jury about the joint enterprise of mother and father in making this trip. The Kansas Supreme Court has stated unequivocally that in the absence of a joint venture or a special relationship a passenger owes no duty to other passengers:
“Kansas courts have recognized that a passenger owes a duty to exercise that care which a reasonably careful person would use for his own protection under the existing circumstances. [Citation omitted.] It has never been recognized in Kansas that a passenger owes any duty to other passengers or third parties unless the passenger and driver were involved in a joint enterprise or the passenger and driver had a special relationship which created some duty. This is the general rule followed in almost all jurisdictions.” (Emphasis added.) Akins v. Hamblin, 237 Kan. 742, 743, 703 P.2d 771 (1985).
In that case, Akins, a passenger in a car that was driven recklessly, sued the driver and a fellow passenger for injuries he sustained in the resulting accident. After settling with the driver, Akins pursued Hamblin, the other passenger, but the trial court granted summary judgment in favor of Hamblin by ruling he owed Akins no duty and, therefore, could not be negligent; thus, his negligence could not be considered in the determination of fault in that case. The Supreme Court affirmed after discussing and applying the language cited above, general negligence rules, the comparative negligence statute, and caselaw. See 237 Kan. at 743–50.Akins was decided after the adoption of comparative fault, unlike the ancient authority cited by the majority, Howse v. Weinrich, 133 Kan. 132, 298 Pac. 766 (1931), decided when contributory negligence was the rule and any negligence by a plaintiff was a bar to recovery.
In contrast, this is not a claim for Duskin Siruta's injuries but, instead, is a wrongful death action filed according to K.S.A. 60–1901. That statute grants the following authority to file suit: “If 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 he or she lived.” In essence then, this is an action that Tate, the deceased son, could have filed had he lived. Tate had no more cause of action against his father than he did against the third passenger in the car, Konnor, the young friend returning home with the Sirutas from the same tournament, unless a joint enterprise between Tate's mother and father was proved to the jury.
Based on PIK Civ. 4th 121.97, Melissa accurately asked the court to give the following joint enterprise instruction to the jury:
“To constitute a joint enterprise between a passenger and driver there must be a common purpose for which they jointly use and occupy the vehicle so as to give each the equal privilege and right to control and manage its operation. The meaning of the word ‘control’ is not necessarily limited to participation in the manual operation of the vehicle; it also includes any situation where there is an understanding between the parties that the passenger has the right, and is possessed of equal authority with the driver, to prescribe conditions of use and operation of the vehicle.”
That instruction corresponds with the facts as displayed by the record on appeal and had it been given, then the jury could have decided if Duskin's negligence should have been weighed when making a determination of fault.
Instead, Instruction No. 13, as given by the trial court and cited by the majority, has no application in this case in the absence of the joint enterprise instruction if we follow the clear ruling in Akins. A plain reading of the instruction reveals that the duty referred to in that instruction is that of a passenger to take positive action to avoid injury to himself, not another passenger. The instruction is based upon the model found in PIK Civ. 4th 121.95. The Notes on Use for PIK Civ. 4th 121.95 clearly state:
“This instruction is to be used when the claim of the passenger is against a wrongdoer other than his own driver. PIK Civ. 4th 121.94, Negligence of Driver Not Imputed to Passenger, should precede this instruction.
“For cases when negligence is imputed to a passenger, see PIK Civ. 4th 121.96, Negligence of Driver Imputed to Passenger—Agency and Joint Enterprise.”
In contrast, this action was by a passenger against his own driver and Instruction No. 13 gave erroneous guidance to the jury under these circumstances.
The majority takes comfort from Sledge v. Continental Cas. Co., 639 So.2d 805, 813 (La.App.1994), a case from Louisiana where the law is much different than ours, but there is a similarity concerning joint enterprise. The Sledge court ruled:
“Although a passenger ordinarily has no duty to supervise a driver, fault may be imposed where there is a joint venture, an independent negligent act by the passenger, or a showing that the rider had actual or constructive knowledge of a driver's incompetence or impaired ability to operate the vehicle.” (Emphasis added.)
In summary, I am concerned that the trial court and the majority have created a duty where there is none. I urge compliance with the well-settled doctrine set out in Akins. I would reverse and remand this case for a new trial with proper jury instructions.