They did not appeal the dismissal of their implied indemnity claim. A panel of our Court of Appeals affirmed, Dodge City Implement, Inc., 38 Kan. App. 2d 348, closely examining several of our prior cases, including Teepak, Inc. v. Learned, 237 Kan. 320, 699 P.2d 35 (1985); Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 643 P.2d 158, aff'd on rehearing 232 Kan. 194, 653 P.2d 816 (1982); and Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980). The panel concluded that
K.S.A. 2015 Supp. 60–258a(a). This is often called the 49% rule, meaning the plaintiff's negligence must be 49% or less for recovery.The term comparative implied indemnity was first coined by our Supreme Court in Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980). Kennedy owned pasture land in the City of Sawyer (City), on which he grazed cattle.
COMPARATIVE NEGLIGENCE — Settlement Agreement between Original Defendant and Joined Defendants — Contribution from Joined Defendants to Original Defendant on Basis of Causal Fault Disallowed. A named defendant in a comparative negligence action cannot settle a claim on behalf of a party or parties against whom the plaintiff has not sought recovery and then seek contribution from those parties in proportion to the percentage of causal negligence attributable to those parties. Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980), distinguished. Appeal from Wyandotte district court; WILLIAM M. COOK, judge.
1. COMPARATIVE NEGLIGENCE — Joint and Several Liability Abolished. The concept of joint and several liability between joint tortfeasors which previously existed in this state no longer applies in comparative negligence actions. The individual liability of each defendant for payment of damages is to be based on proportionate fault, and contribution among joint judgment debtors is no longer needed in such cases because separate individual judgments are to be rendered. Kennedy v. City of Sawyer, 228 Kan. 439, Syl. ¶ 3, 618 P.2d 788 (1980). 2.
First, we must determine whether the district court appropriately concluded that DCI's voluntary settlement of all BNSF's claims relating to the grade crossing accident prohibited DCI from then seeking to collect payment on a theory of "comparative implied indemnity" from Barber County and Moore Township, neither of which were parties to the federal court action, and neither of which participated in the settlement. In resolving this issue, we will closely analyze several cases decided by our Supreme Court: Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980); Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 643 P.2d 158 (1982); and Teepak, Inc. v. Learned, 237 Kan. 320, 321, 699 P.2d 35 (1985). Kennedy v. City ofSawyer
In Kansas, a contract of indemnity may be express or implied. Kennedy v. City of Sawyer, 228 Kan. 439, 455, 618 P.2d 788 (1980); Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, 642, 666 P.2d 192 (1983). St. Francis has not asserted an express contractual claim of indemnity.
The Kansas Comparative Negligence Act, Kan.Stat. Ann. § 60-258a, was the basis for the apportionment of fault in this case, and although the Act speaks only of negligence, the Kansas courts have held that the "doctrine of comparative fault" applies to claims based on strict liability and breach of implied warranty. Kennedy v. City of Sawyer, 228 Kan. 439, 452, 618 P.2d 788, 798 (1980). "Under the doctrine of comparative fault all parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible."
The substantive law of Kansas governs the action. In certifying the question to this court, Judge O'Connor correctly points out that since the case of Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980), was decided by this court, there is no longer any doubt that the doctrine of comparative fault or comparative causation is applicable to strict liability claims. This result was predicted in Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740 (D. Kan. 1978).
K.S.A. 60–3302(c). Comparative fault applies to all product liability claims regardless of the theory of recovery. See K.S.A. 60–258(a); Forsythe v. Coats Co., 230 Kan. 553, Syl. ¶ 1, 639 P.2d 43 (1982); Kennedy v. City of Sawyer, 228 Kan. 439, 450, 618 P.2d 788 (1980). The KPLA governs the liability of a “product seller,” which is defined to include “any person or entity that is engaged in the business of selling products, whether the sale is for resale, or for use or consumption.”
ECF# 65, p. 12. The Kansas Court of Appeals in Watco Companies, Inc. v. Campbell, 52 Kan. App. 602, 610-613, 371 P.3d 360 (2016), review improvidently granted, 2018 WL 2748801, 420 P.3d 389 (2018), lays out an excellent summary of this equitable remedy based upon Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980), and the additional clarifying court decisions rendered over the next 25 years. The summary is noteworthy here for the following: