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SCHRADER v. GREAT PLAINS ELECTRIC CO-OP INC.2/11/1994
This wrongful death action arises out of an automobile accident that killed Michelle Schrader, the daughter of Darrell and Judy Schrader. The Schraders sued Great Plains Electric Cooperative, Inc., (Great Plains) alleging the utility was negligent in the placement of its guy wire and anchor. Later, Midwest Energy, Inc., (Midwest) was added as a defendant because Midwest had purchased the assets and liabilities of Great Plains. At the conclusion of trial, the jury found Darrell and Judy Schrader had sustained total damages of $131,415 and that Michelle Schrader had sustained damages of $50,000. The jury apportioned fault as follows: Michelle Schrader, 15.8%; Mark Dickey, 17%; Great Plains, 35%; and Sherman County Board of Commissioners, 32.2%. In addition, the jury awarded punitive damages of $96,333.
Great Plains appeals from the trial court's determination that it owed a duty of reasonable care to Michelle Schrader in the placement of its guy wire and anchor. Midwest Energy appeals from the trial court's conclusion that, as purchaser of the assets and liabilities of Great Plains, it is jointly liable for the punitive damages assessed against Great Plains.
The accident which gave rise to this lawsuit occurred on December 31, 1986. Michelle Schrader, who was 14 years old, lost control of the vehicle she was driving on a Sherman County road near Goodland. The automobile left the road, striking a utility pole and guy wire owned by Great Plains. Michelle was thrown from the automobile and died at the scene of the accident. Mark Dickey, a passenger in the vehicle, survived.
The road on which Michelle was traveling at the time of the accident was 25 feet wide. The surface of the road changed from blacktop to gravel at a point 801 feet east of the utility pole. The gravel portion of the road contained a number of grooves or
"washboards." The gravel on the surface of the road was unusually deep, measuring between one-half and three-quarters of an inch. The speed limit on both the blacktop and gravel portions of the road was 55 miles per hour. The utility pole in question was located 28'4" from the northern edge of the road. The guy wire ran from the top of the pole to an anchor located in a ditch 19'4" from the road's northern edge.
Mark Dickey testified that when they encountered the loose gravel and "washboard" conditions, Michelle Schrader locked the brakes and the car started to slide. They went into the north ditch and across a driveway, then struck the power pole and guy wire owned by Great Plains. The car then turned over, and Michelle was thrown out.
Great Plains moved for a directed verdict at the close of the plaintiffs' evidence, arguing that it could not be liable for Michelle's death because it owed no duty to her. The motion was denied. Great Plains reiterated this argument in its motion for judgment notwithstanding the verdict, which was also denied.
The Supreme Court has noted: "`For negligence to exist there must be a duty and a breach thereof before the conduct becomes actionable. If no duty exists there can be no negligence.'" Cansler v. State, 234 Kan. 554, 558, 675 P.2d 57 (1984) (quoting Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, 662 P.2d 243 ); see Madison v. Key Work Clothes, 182 Kan. 186, 318 P.2d 991 (1957). Whether a duty exists is a question of law, although whether the duty has been breached is a question of fact. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
In negligence cases, "duty" has been defined as "an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." Prosser and Kee
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