Each January, we receive a summary of all jury verdicts in civil cases in the greater Kansas City area. It is published by the Greater Kansas City Jury Verdict Service and it is useful tool for lawyers, litigants and insurance companies as they consider settlement of lawsuits.
The publisher does an excellent job of tracking cases that are tried in Jackson, Clay and Platte counties in Missouri, in Johnson and Wyandotte counties in Kansas and in the federal courts. The publisher of this verdict service is careful to point out that totals and comparisons of statistics are affected by variation in the law in Kansas and Missouri.
For example, in Kansas no recovery is allowed if the plaintiff is more than 50 percent at fault, whereas in Missouri the plaintiff can recover if the defendant is found to bear any percentage of fault. Any verdict rendered is reduced by the percentage of fault assigned to the plaintiff unless it is more than 50 percent in Kansas. This law is called comparative fault and it does affect many cases. Before comparative fault was adopted in 1983, Missouri courts applied the doctrine of contributory negligence which meant that the plaintiff did not recover even if the fault was minimal compared to the defendant.
In 1982, we tried a case in Carthage under the law of contributory negligence. Our client’s husband, while operating a motorcycle, ran into the rear of a delivery truck parked in the traveled portion of the road on a dark street without any lights. It was a gruesome wrongful-death case.
As a young lawyer, this was one of my first trials. Bob Graeff, my boss at the time, was lead attorney on the case, and my job was to make sure that we had witnesses ready to testify. The witnesses had been subpoenaed, but we told them we would call them, so they did not wait in the courthouse to testify. Cell phones had not been invented and so I had to repeatedly run outside the courthouse to make calls to witnesses on a nearby pay phone. The judge expected us to have the witnesses lined up and ready to go. Waiting for witnesses to testify is not pleasing to jurors or the judge. It was a pressure-packed day, but I made sure the judge and jury never had to wait on me.
The verdict was returned about 9 p.m. on a rainy Friday night. When the jury came back into the courtroom we noticed that most of the jurors were crying. When the judge announced the verdict, some of the jurors sobbed even more.
After Judge Ellison read the verdict, he informed the jurors that they could talk to the lawyers. Of course, we were curious as to how they had reached their result and why they were crying. It had been a long day for all of us, but none of the jurors left their seats in the jury box and the judge also stayed to listen to them, which is very unusual. The jurors explained that they were upset because they wanted to find in favor of our client, the widow, but they were compelled to follow the court’s instruction and because they believed that the decedent was partially at fault, they felt like they had to find in favor of the defendant even though they believed that the accident was avoidable and that the defendants were largely responsible for the death.
The judge explained to the jury that if this case had been tried a few miles to the west in Kansas a different result would have occurred. Then, the tears turned to anger as the jurors were perplexed as to why the laws in adjoining states were different and so unfair. The judge agreed that the law was unfair, but he had no control over it. He encouraged the jurors to contact their state representative and senators and ask them to change this very unfair law. We knew that was not going to happen.
Fortunately, my partner, Mike Manners, determined that the judge had made an error in giving instructions to the jury. Missouri has a law called the “rear-end doctrine,” which provides that a jury can conclude that a party is negligent if he or she collides with the rear of another vehicle without proving specific acts of negligence such as excessive speed or failure to timely apply brakes. However, the appellate court said that a defendant cannot use the rear-end doctrine if the lead vehicle does not have a right to be where it was and since the truck was occupying two-thirds of the lane of travel on a dark street without lights, it was improper to submit the rear-end doctrine instruction. The case was reversed on appeal, and we went back to Carthage to try the case again under different law this time.
While the case was on appeal, the Missouri Supreme Court handed down a decision called Gustafson v. Benda in 1983 which adopted the current law of comparative fault which allows recovery even if the plaintiff or decedent is at fault. We settled part of the case on appeal and went back and tried the case again and were successful this time. The jury did not cry when they returned that verdict.
Kansas comparative fault law, like the law of contributory negligence, is very unfair, but what makes it even worse is the fact that you cannot tell the jury that if they find that the plaintiff’s fault exceeds 50 percent, he or she does not recover. If there is a significant risk of fault being assessed to the plaintiff, the case is not pursued. It is just one more reason to stay out of Kansas.
Bob Buckley is an attorney in Independence, www.wagblaw.com . Email him at firstname.lastname@example.org.