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Raskin v. Allison11/8/2002
Affirmed.
This is an interlocutory appeal by the plaintiffs from the partial summary judgment granted to defendants on a choice-of-law question. The trial court found the substantive law of Mexico would govern the claims in this personal injury action where the injuries occurred in Mexico although all parties were Kansas residents. We affirm.
The facts are brief and uncontroverted. Kaley Raskin and Jenna Turnbaugh, both minors, received personal injuries resulting from a collision of the water craft they occupied and a water craft operated by Chad Leathers in the ocean waters off Cabo San Lucas, Mexico.
Kaley's and Jenna's parents filed this action individually and as next friends to their minor daughters against Ken and Karen Allison individually and as guardians ad litem for their minor son and stepson, Chad Leathers. Plaintiffs' claims were framed on the theories of negligence and negligent entrustment.
Following its choice-of-law finding, the trial court granted plaintiffs' application for an interlocutory appeal under K.S.A. 60-2102(b).
The question of which jurisdiction's laws apply in a given case is a legal question over which an appellate court has unlimited review. Resolution Trust Corp. v. Atchity, 259 Kan. 584, 590, 913 P.2d 162 (1996). Likewise, when the facts before the trial court are undisputed, as in this case, the ruling on the summary judgment motion may be reviewed de novo on appeal. Limestone Farms, Inc. v. Deere & Company, 29 Kan. App. 2d 609, 610, 29 P.3d 457 (2001).
Kansas follows the rule that the law of the state where the tort occurred, lex loci delicti, should apply. Ling v. Jan's Liquors, 237 Kan. 629, 634, 703 P.2d 731 (1985).
Here, plaintiffs do not dispute the injuries were sustained in Mexican waters and that under the rule of lex loci delicti, Mexican law would normally control. However, plaintiffs argue the rule should not apply in this case because (1) all the parties are residents of Kansas, (2) Kansas has never invoked the rule in a case where a foreign country's law would apply, and (3) the rule of comity requires that Kansas protect its own residents and apply Kansas law.
Kansas residents
Plaintiffs argue that because all the parties are Kansas residents, Kansas has the greater interest in applying its substantive law; therefore, the case should be governed by Kansas law.
However, the Kansas Supreme Court has repeatedly applied the law of the place of the injury, even when all the parties were residents of Kansas. In each of those cases, the law of the place of injury was less favorable to the plaintiffs than Kansas law.
For example, in Kokenge v. Holthaus, 165 Kan. 300, 194 P.2d 482 (1948), Kansas residents were traveling together in Iowa when an automobile accident occurred. The Kansas passenger sued the Kansas driver in a Kansas court. The Supreme Court held that because the accident happened in Iowa and the injuries were sustained there, the Iowa guest statute applied. 165 Kan. at 307. Under that Iowa statute, the passenger was required to show reckless operation of the vehicle by the driver in order to recover. 165 Kan. at 307.
In McDaniel v. Sinn, 194 Kan. 625, 400 P.2d 1018 (1965), all the parties were Kansas residents. The plaintiffs' decedent was killed in an accident in Missouri while traveling with the defendant. The Supreme Court rejected the plaintiffs' arguments that when all the parties are from Kansas, lex loci delicti should be rejected and Kansas law should control. 194 Kan. at 626.
Because the Kansas Supreme Court has consistently applied the rule of lex loci delicti in tor
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