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June 7, 2013, Appellate Court Digests
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Kansas Supreme Court – Civil

NO. 106,429 – JUNE 7, 2013


FACTS: Jerry L. Martell, as conservator for Kim "Travis" Driscoll (collectively referred to as "Driscoll"), filed a petition against Leroy Driscoll (Leroy) and other named defendants because Leroy allowed Driscoll to drive a car belonging to Leroy and others, knowing that Driscoll was incapable of safely driving the car because his license was suspended, he had a drinking problem, had received multiple DUIs, and was a known reckless or incompetent person incapable for safely operating a vehicle. Driscoll subsequently got into a car accident with another vehicle, which resulted in injuries to Driscoll. Driscoll later filed a negligent entrustment claim against Leroy and the other presumptive owners of the vehicle, claiming that they owed him a duty to not give control of the vehicle to him. After filing an answer, Leroy filed a motion to dismiss Driscoll's petition for failure to state a claim, arguing, among other things, that Kansas law does not recognize a first-party negligent entrustment claim. The district court granted Leroy's motion to dismiss. The case was transferred to the Kansas Supreme Court.


ISSUES: First-party negligent entrustment


HELD: Court held that under Kansas law, a claim of negligent entrustment may be based upon knowingly entrusting, lending, permitting, furnishing, or supplying an automobile to an incompetent or habitually careless driver. An incompetent driver is one who, by reason of age, experience, physical or mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care. Court concluded that (1) Kansas law recognizes a first-party negligent entrustment claim; (2) if an entrustor owed a duty of care to an entrustee and that duty was breached, then determining the parties' comparative fault for the incident resulting in injuries to the entrustee is a question of fact for the jury to decide. Court held that the issue of the parties’ comparative fault remained a fact issue that could not be resolved as a matter of law on a motion to dismiss for failure to state a claim; and (3) Kansas public policy does not prevent an entrustor from being liable for an entrustee's injuries that resulted from the entrustee's negligent use of the entrustor's chattel. Court reversed the district court's decision to dismiss Driscoll's petition and remanded for further proceedings.


DISSENT: Justice Johnson dissented. Justice Johnson would not expand the concept of negligent entrustment to include a cause of action by an entrustee against the entrustor, i.e., first-party negligent entrustment.


STATUTES: K.S.A. 8-258a, -264; and K.S.A. 60-254


NO. 100,501 – JUNE 7, 2013


FACTS: Kansas Supreme Court affirmed Baker’s conviction for first-degree murder, and remanded for resentencing. Within one year of resentencing hearing, but more than a year after remand, Baker filed K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel. District court dismissed the motion as untimely. Court of Appeals reversed, holding the time limitation under K.S.A. 60-1507 began 10 days after resentencing. 42 Kan. App. 2d 949 (2009). State petitioned for review.


ISSUES: Time for filing K.S.A. 60-1507 motion


HELD: Issue of first impression. Construing K.S.A. 60-1507 as a whole and in harmony with Supreme Court Rule 183, under facts of this case, the 1-year time limitation in which to file a K.S.A. 60-1507 motion does not begin until the time to appeal from the resentencing expires. Judgment of Court of Appeals is affirmed. Judgment of district court is reversed, and case is remanded.


STATUTES: K.S.A. 22-3602(a), -3608; and K.S.A. 60-1507, -1507(a), -1507(c), -1507(f), -1507(f)(1)(i)


NO. 107,133 – JUNE 7, 2013


FACTS: The Tenth Circuit is considering a retaliatory discharge claim brought by Cynthia Pfeifer against her former employer, Federal Express Corp. (FedEx). She filed her lawsuit 15 months after she was fired, alleging she was terminated for exercising her rights as an injured worker under the Kansas Workers Compensation Act. Kansas law provides a two-year statute of limitations for such claims. K.S.A. 60-513(a)(4) (action for injury to rights of another). But FedEx argues Pfeifer's employment contract required her to file suit within six months of her termination. The federal district court agreed with FedEx and granted summary judgment. Pfeifer v. Federal Exp. Corp., 818 F. Supp. 2d 1287 (D. Kan. 2011).




1. Does Kansas law, specifically K.S.A. 60-501 and/or public policy, prohibit private parties from contractually shortening the generally applicable statute of limitations for an action?


Answer: K.S.A. 60-501 contains no express or implied prohibition against contractual agreements limiting the time in which to sue. But the public policy recognizing that injured workers should be protected from retaliation when exercising rights under the Workers Compensation Act, K.S.A. 44-501 et seq., invalidates the contractual provision at issue because it impairs enforcement of that protection.


2. If no such prohibition exists, is the six-month limitations period agreed to by the private parties in this action unreasonable?


Answer: Because the Court held the contract provision at issue is void, it is unnecessary to consider whether its six-month term is reasonable.

Kansas Supreme Court – Criminal

NO. 101,723 – JUNE 7, 2013


FACTS: Hart convicted of two counts of indecent liberties with a child, K.S.A. 21-3504(a)(2)(A). Court of Appeals affirmed, finding in part that Hart did not preserve his challenge to district court’s admission of prior bad acts evidence under K.S.A. 60-455, but further finding 2009 amendment to K.S.A. 60-455 should be applied retroactively and would have doomed the challenge. 44 Kan. App. 2d 986 (2010). State petitioned for review of panel’s interpretation of K.S.A. 2009 Supp. 60-455(d). Hart petitioned review of all claims presented to Court of Appeals: (1) prosecutorial misconduct in giving personal opinion that victims were credible, (2) trial court erred in providing jury with indecent liberties instruction that was broader than charging document, (3) trial court erred in admitting prior bad acts evidence involving the victims to prove motive, intent, plan, and absence of mistake or accident under K.S.A. 60-455, (4) trial court erred in giving limiting instruction on the admitted K.S.A. 60-455 evidence without explaining terms, (5) insufficient evidence supports the conviction of one victim being over 14 and less than 16 years old at the time, (6) cumulative error denied him a fair trial, and (7) constitutional rights violated by aggravated sentence imposed and increased based upon criminal history. Both petitions were granted.


ISSUES: (1) State’s petition for review, (2) prosecutorial misconduct, (2) overbreadth of elements instruction, (3) admission of K.S.A. 60-455 evidence, (4) limiting instruction for K.S.A. 60-455 evidence, (5) sufficiency of the evidence, (6) cumulative error, and (7) sentencing


HELD: State’s petition for review was improvidently granted. State was not a party "aggrieved by a decision of the Court of Appeals” merely because it would have preferred a different rationale to support its victory.
Hart challenged three comments by prosecutor. Two were permissible remarks. For third, prosecutor improperly vouched for victims' credibility, but this isolated comment was not gross and flagrant, did not demonstrate ill will, and was not so egregious to warrant a new trial.


No showing that Hart's substantial rights were prejudiced by the broadened jury instruction.


To assess whether trial error occurred, appellate court applies statutory law on evidence as it was at the time – thus pre-2009 amendment version of K.S.A. 60-455 controls. Court of Appeals interpretation and application of the amended statute was error and has no force or effect as precedent. Here, state’s stipulation to preservation is accepted. Under version of K.S.A. 60-455 in effect at time of trial, district judge erred in admitting evidence of uncharged sexual abuse of the victims by the defendant for inclination, which is synonymous with propensity. Under facts of case, however, error was harmless.

K.S.A. 60-455 limiting instruction in this case was not erroneous for failure to define motive, intent, plan, lack of mistake or accident, inclination, or method.


Sufficient evidence supported Hart’s convictions. Based on all evidence of victim’s age, viewed most favorably to state, a rational factfinder could have concluded that victim was 14 or 15 years old at time of the charged crime.


The three minor trial errors in this case do not collectively require reversal under cumulative error doctrine.


Constitutional claims regarding sentencing are defeated by record or foreclosed by controlling Supreme Court precedent.


STATUTES: K.S.A. 2009 Supp. 60-455(d); K.S.A. 21-3503, -3504(a)(1)(A), -3504(a)(2)(A); K.S.A. 22-3414(3); and K.S.A. 60-261, -404, -455


NO. 105,050 – JUNE 7 2013


FACTS: Miller convicted of rape and aggravated indecent liberties with a child. Three concurrent hard 25-year life sentences imposed. He appealed, claiming the state failed to presented sufficient evidence at trial to prove the various alternative means of committing each crime. He also claimed his sentence violated § 9 of Kansas Constitution Bill of Rights.


ISSUES: (1) Alternative means claims and (2) cruel and unusual punishment


HELD: Challenge to rape conviction under K.S.A. 21-3502(a)(2), and to aggravated indecent liberties convictions under K.S.A. 21-3504(a)(3)(A), are defeated by State v. Britt, 295 Kan. 1018 (2012).


Three-part test in State v. Freeman, 223 Kan. 362 (1978), is applied with consideration to each prong. Miller’s sentences for aggravated indecent liberties with a child do not violate Kansas Constitution.


STATUTES: K.S.A. 21-3501(1), -3502(a)(2), -3504(a)(3)(A), -4643

Kansas Court of Appeals – Civil

NO. 108,125 – JUNE 7, 2013


FACTS: Williams was injured in a one-vehicle accident as he rode back home from Petromark’s drilling site. The vehicle blew a tire and Williams was ejected because he did not have his seat belt on. Williams rode to the work site with Roach, his supervisor, but was injured on the way home when he rode with another employee, LaMaster. Williams filed a workers compensation claim. The ALJ held that Williams' injuries were not compensable because they did not arise out of and in the course of his employment. The ALJ also concluded that Williams’ claim would not have been barred due to his failure to wear a seatbelt. The Workers Compensation Board reversed the ALJ by finding that Williams’ injuries did arise out of and in the course of his employment and that Williams was not barred by his failure to wear a seatbelt despite Petromark’s company policy.


ISSUES: (1) Workers compensation and (2) going and coming rule


HELD: Court found that Petromark did not hire a new crew at every drill site. Williams, a crewmember, had no permanent work site. Instead, he was required to travel to ever changing drill sites. Roach, the driller, was paid mileage for driving his crewmembers to and from the drill site. Whether they drove themselves or rode with Roach, crewmembers, like Williams, were not paid for their travel to and from the drill site. Court stated he key to resolution of this case is whether Williams' travel, at the time of his accidental injury, was furthering Petromark's interests. There was a mutually beneficial transportation arrangement between Williams (free ride to and from the drill site) and Petromark (did not have to pay for crew's food or lodging or find a new crew at every drill site). But Williams chose to ride from the drill site with LaMaster instead of Roach. Roach's travel was definitely inherent to his employment because it furthered Petromark's interests. The same cannot be said of Williams' travel at the time of his accidental injury. He was on a personal mission to get home sooner. The proximate cause of Williams' injury was LaMaster's rather than Petromark's negligence. Court held the Board misapplied the law to the facts of this case. The ALJ correctly found that Williams' claim was barred by the going-and-coming rule. The Board erred by reversing the ALJ and finding the inherent-travel exception to the going-and-coming rule was applicable.


STATUTES: K.S.A. 44-501, -508(f)

Kansas Court of Appeals – Criminal

NO. 107,297 – JUNE 7, 2013


FACTS: Officer stopped and arrested Ewertz on suspicion of DUI, and discovered drug evidence during search of Ewertz’s after putting Ewertz in patrol car. Ewertz filed motion to suppress, arguing search of her car was not permissible as search incident to arrest, and search of her open makeup bag in the car was not permissible under plain view doctrine. District court denied the motion. Ewertz appealed from her drug convictions.


ISSUES: (1) Search incident to arrest and (2) plain view doctrine


HELD: Kansas Supreme Court has not yet interpreted "reasonable to believe” language in Arizona v. Gant, 556 U.S. 332 (2009). Two approaches are discussed – one requiring categorical link between nature of crime of arrest and right to search; the other applying a standard akin to reasonable suspicion. Under facts of case, both standards were satisfied and search of car was legal. Following a lawful traffic stop of a defendant, an officer’s warrantless search of a vehicle incident to arrest for DUI is lawful if officer’s observations regarding the defendant’s appearance and clues exhibited on field sobriety tests, coupled with odor of alcohol coming from car itself, make it ”reasonable to believe” evidence relevant to crime of DUI might be found in vehicle.


District court’s factual findings support legal conclusion that search of makeup bag was constitutional under plain view exception to warrant requirement.


CONCURRENCE (Malone, C.J.): Under totality of circumstances, an objective law enforcement officer would have reasonable suspicion that evidence relevant to DUI arrest might be found in vehicle. He writes separately to suggest that Kansas courts should reject a per se rule of a categorical link between nature of the crime of arrest and the right to search.



NO. 107,836 – JUNE 7, 2013


FACTS: After his latest conviction, Smith filed a motion for modification or correction of sentence arguing that his 1982 convictions for aggravated burglary and robbery were incorrectly classified as person felonies, rather than nonperson felonies, when calculating his criminal history score. Smith claimed that because his convictions were committed before Kansas began classifying crimes as person or nonperson crimes, his convictions should be considered unclassified and scored as nonperson crimes.


ISSUES: Criminal history


HELD: Court held that Smith's aggravated burglary conviction would be classified as a person crime if compared to the current offense of aggravated burglary and the same can be said for his robbery conviction. Court found that neither of these offenses has substantially changed from the pre-Guidelines versions of the statutes. Court concluded Smith has provided no persuasive reasons for this court to depart from its long held view that pre-Guidelines offenses may be classified as person offenses if the analogous statute now in effect is classified as a person crime.


STATUTES: K.S.A. 21-3426, -3716, -4701, -4710, -5420, -5807