VanDorn v. McNish

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NOT DESIGNATED FOR PUBLICATION
No. 116,686
IN THE COURT OF APPEALS OF THE STATE OF KANSAS

WILLIAM VAN DORN, by MARY VAN DORN, his spouse and next friend,
Appellees,
v.
DIANE E. MCNISH, Administrator of the Estate of
William Rae McNish a/k/a/ William Ray McNish,
Defendant,


and

STEVEN PACHECO, and KANSAS TRUCKING, LLC,
Appellants.



MEMORANDUM OPINION


Appeal from Franklin District Court; ERIC W. GODDERZ, judge. Opinion filed January 12, 2018.
Affirmed.


James R. Jarrow and John A. Watt, of Baker Sterchi Cowden & Rice, L.L.C., of Overland Park,
for appellants.


Christopher P. Sweeny and John E. Turner, of Turner & Sweeny, of Kansas City, Missouri, and

Donald W. Vasos and David A Hoffman, of Vasos Law Offices, of Fairway, for appellees.



Before STANDRIDGE, P.J., PIERRON, J., and BURGESS, S.J.



PER CURIAM: This personal injury action involves two motor vehicle accidents,
both of which occurred in a construction zone on Kansas Highway 68 in Franklin
County. In the first accident, Steven Pacheco, an employee of Kansas Trucking, LLC,
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negligently drove a dump truck off the side of the highway, leaving dirt in the westbound
lane of traffic. For safety reasons, employees of Sunflower Paving, Inc., decided to close
this lane of traffic. The second accident occurred approximately 26 minutes later, when
William Rae McNish drove through the construction zone and struck William Van Dorn,
a Sunflower Paving employee who was directing traffic in the westbound lane. Van Dorn
suffered severe injuries as a result and later sued Pacheco, Kansas Trucking, and McNish
for negligence. The case was presented to a jury. After hearing the evidence and the
arguments of counsel, the jury found Pacheco and Kansas Trucking 25% at fault for Van
Dorn's injuries. Pacheco and Kansas Trucking appeal on several grounds relating to their
motion for summary judgment, evidentiary rulings at trial, and the strength of the
evidence on causation.


FACTS


On May 15, 2014, a construction crew was engaged in milling work on Kansas
Highway 68 in Franklin County. This portion of the highway had two lanes of traffic, one
moving in each direction. One of the subcontractors, Sunflower Paving, was removing an
asphalt overlay from the concrete base of the highway. The Sunflower Paving crew
loaded the asphalt into dump trucks owned by another subcontractor, Kansas Trucking,
who would then haul the asphalt away. At approximately 8:43 a.m., Pacheco was driving
a fully loaded dump truck westbound through the construction zone when he drove off the
right side of the road into the ditch. The highway had a soft dirt shoulder, so when
Pacheco drove off the road it caused dirt to be pushed into the westbound lane of the
highway. Pacheco's truck ultimately rolled onto its side in a position close to the edge of
the highway.


Travis Burris, Sunflower Paving Director of Field Operation, was concerned that
the proximity of the dump truck to the highway and the dirt in the westbound lane would
impede westbound traffic and possibly cause a collision. Burris and another Sunflower
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Paving worker stood in the center of each lane and waved their arms to stop traffic in both
directions in order to allow one lane of traffic to pass at a time using the eastbound lane.
Burris later left his post to speak with a sheriff who had arrived at the scene; another
Sunflower Paving worker took Burris' place. When that replacement worker left to get a
uniloader to move the dirt off the road, Van Dorn took over directing traffic in the same
manner. At approximately 9:09 a.m., McNish was driving a Chevrolet pickup westbound
on Highway 68 and did not slow down as he entered the construction zone. Despite Van
Dorn waving his arms to get McNish's attention, McNish struck Van Dorn. McNish
advised law enforcement that he did not see Van Dorn prior to hitting him.


On October 21, 2014, Van Dorn filed a negligence claim against McNish, alleging
that he had sustained traumatic brain injury and was permanently and totally disabled as a
result of McNish's negligence. Van Dorn later amended his petition to include Pacheco
and Kansas Trucking as named defendants, alleging, in part, that Kansas Trucking
employee Pacheco's negligence in causing the dump truck rollover created the hazardous
condition that caused Van Dorn to be on the highway directing traffic; therefore, Kansas
Trucking was vicariously liable. McNish passed away on May 3, 2015. Diane McNish,
administrator of his estate, replaced McNish as a defendant.


On February 11, 2016, Pacheco and Kansas Trucking filed a motion for summary
judgment on the issue of proximate cause, which the district court denied. Thereafter, the
court approved a settlement agreement between Van Dorn and McNish's estate, leaving
Pacheco and Kansas Trucking (the defendants) as the only remaining defendants. The
case proceeded to trial, where the defendants stipulated that Pacheco was negligent "for
driving the dump truck off the road and causing the rollover of the dump truck" but
defended on a theory that Pacheco's negligence was not the proximate cause of Van
Dorn's injury. The defendants alternatively argued that if the jury found against them on
this point, their negligence must be compared to that of McNish (for negligently driving
into Van Dorn with his car), Van Dorn (for standing in the road directing traffic), the
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Franklin County Sheriff's Department (for failing to control the accident scene or
promptly close the roadway), and Sunflower Paving (for instructing Van Dorn to direct
traffic and for failing to monitor the situation). After hearing evidence, the jury assessed
fault as follows:


William Van Dorn 5%
William McNish 52%
Sunflower Paving, Inc. -0-
Franklin County Sheriff's Department 18%
Steven Pacheco & Kansas Trucking, LLC 25%


The jury also found Van Dorn had suffered damages in excess of $3.2 million.
After considering percentages of fault and the statutory limitations on recovery for
noneconomic loss, the district court entered judgment against the defendants for
$798,511.97. The district court denied the defendants' motion for a new trial.



ANALYSIS


The defendants raise the following issues on appeal: (1) The district court erred in
denying their motion for pretrial summary judgment, (2) the district court erred in
excluding certain evidence from admission at trial, (3) the district court erred in denying
both of their motions for judgment as a matter of law at trial, and (4) the evidence was
insufficient to support the jury's verdict with respect to causation. We address each of
these issues in turn.


1. Summary judgment before trial


Summary judgment is appropriate "if the pleadings, the discovery and disclosure
materials on file, and any affidavits or declarations show that there is no genuine issue as
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to any material fact and that the movant is entitled to judgment as a matter of law."
K.S.A. 2016 Supp. 60-256(c)(2). An appellate court reviews the district court's denial of a
motion for summary judgment de novo, viewing the facts in the light most favorable to
the party opposing summary judgment. "If 'reasonable minds could differ as to the
conclusions drawn from the evidence'—in other words, if there is a genuine issue about a
material fact—summary judgment should be denied." Siruta v. Siruta, 301 Kan. 757, 766,
348 P.3d 549 (2015). But when a plaintiff lacks evidence to establish an essential element
of the claim, there can be no genuine issue of material fact because a complete failure of
proof concerning an essential element of the plaintiff's case renders all other facts
immaterial. Crooks v. Greene, 12 Kan. App. 2d 62, 64-65, 736 P.2d 78 (1987). Thus,
summary judgment is appropriate if the movant can establish the absence of evidence
necessary to support an essential element of the nonmoving party's case. Kuxhausen v.
Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).


The defendants argue the district court should have granted their motion for
summary judgment because the undisputed evidence at the pretrial stage of the
proceeding established that McNish's negligence was the sole proximate cause of Van
Dorn's injuries. Claiming Van Dorn failed to produce any evidence at the summary
judgment stage from which a reasonable juror could have concluded that the defendants'
actions were the proximate cause of Van Dorn's injury, the defendants assert the court
erred in failing to grant summary judgment in their favor.


As a procedural matter, Van Dorn argues the district court's decision to deny
summary judgment is moot given the jury later resolved the issue presented for summary
judgment—proximate cause—after a full trial on the merits. Van Dorn's argument,
however, presumes the court denied summary judgment based on a dispute of material
fact on the issue of proximate cause. Ordinarily, proximate cause is a question of fact and
reserved for the trier of fact. But the district court can remove the issue of proximate cause
from the jury's consideration and resolve the question as a matter of law "when all
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the evidence on which a party relies is undisputed and susceptible of only one inference."
Hale v. Brown, 287 Kan. 320, 324, 197 P.3d 438 (2008). Relying on this exception, the
defendants argue it is proper for us to review the district court's decision denying
summary judgment because the material facts related to proximate cause were undisputed
on summary judgment, so resolution of the issue was a matter of law for the court to
decide without presenting it to a jury.


Here, the district court's journal entry states that it denied the defendants' summary
judgment motion "for the reasons stated by the Court on the record in open court." Due to
an audio issue, a transcript of the summary judgment hearing and the district court's
ruling is not included in the record on appeal. As a result, we do not know whether the
district court denied the defendants' motion based on a dispute of material fact or based
purely on a matter of law. Our lack of knowledge regarding the reason for the district
court's decision to deny summary judgment however does not impact our analysis of
whether the issue is properly before this court on appeal. If the decision to deny summary
judgment was based on a dispute of material fact on the issue of proximate cause, Van
Dorn is correct that the district court properly reserved the question for a decision by the
jury. But if, as the defendants assert, the district court found no dispute in material fact on
the issue of proximate cause and should have decided the issue as a matter of law before
proceeding to trial, appeal of that decision would be interlocutory in nature because the
defendants could raise the issue in a motion for judgment as a matter of law during the
trial. In fact, that is precisely what the defendants did here: they filed one motion for
judgment as a matter of law at the close of Van Dorn's case-in-chief and another one at
the close of all evidence. Both motions were predicated on the issue of proximate cause.
Both motions were denied. The defendants seek review of all three decisions in this
appeal, which necessarily would require us to consider the same legal issue under three
separate records—the summary judgment record, the trial record before the defendants
presented their case, and the trial record of the entire trial. For this reason, we find it both
improper and a waste of judicial resources in this case to review the defendants' claim
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that the district court erred by denying their motion for summary judgment. We will,
however, review the defendants' claim that the district court erred in denying motion for
judgment as a matter of law after the close of all evidence. See Issue 3 below.


2. Excluding evidence


The defendants argue the district court erred in excluding certain evidence from
admission at trial.


Before trial, the district court entered in limine rulings that prevented the
defendants from introducing the following evidence at trial: (a) that McNish did not have
a valid driver's license at the time of the accident and (b) that Sunflower Paving
employees were conducting a flagging operation at the time of Van Dorn's injury. Based
on these in limine rulings, the defendants proffered at trial evidence relating to both
McNish's driver's license and the alleged flagging operation, thereby preserving these
issues for appeal. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan.
247, 278-79, 225 P.3d 707 (2010) (when district court grants motion in limine to exclude
evidence at trial, party limited by motion must make sufficient proffer of excluded
evidence to preserve issue for appeal).


On review of a court's decision regarding a motion in limine, the court must first
determine the relevance of the challenged evidence, i.e., whether the evidence is
probative and material. The district court's determination that the evidence is probative is
reviewed by us for an abuse of discretion; the court's determination that the evidence is
material is subject to de novo review. Evergreen Recycle v. Indiana Lumbermens Mut.
Ins. Co., 51 Kan. App. 2d 459, 508, 350 P.3d 1091 (2015).


Evidence is relevant if it has any tendency in reason to prove any material fact.
K.S.A. 60-401(b). This definition encompasses two elements: a materiality element and
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a probative element. Evidence is material when the fact it supports is in dispute and is
significant under the substantive law of the case. In re Acquisition of Property by
Eminent Domain, 299 Kan. 37, 44, 320 P.3d 955 (2014). Evidence is probative if it has
any tendency to prove any material fact. State v. Dupree, 304 Kan. 43, 63, 371 P.3d 862,
cert. denied 137 S. Ct. 310 (2016).


a. McNish's driver's license


The defendants claim evidence to establish that McNish's driver's license was
expired on the day he struck Van Dorn was both probative and material because it
showed that McNish had breached his duty to maintain a valid license if he was going to
drive. The defendants contend that the jury should have been allowed to determine
whether McNish's alleged breach caused the injury to Van Dorn, which potentially could
have caused the jury to assess a higher degree of fault to McNish.


Contrary to the defendants' argument, the issue in the present case was not whether
McNish violated Kansas licensing statutes. Although the issue of McNish's contributory
negligence was a central aspect of the trial, evidence of McNish's expired license was not
material to this issue because there is no indication that his failure to have a valid driver's
license contributed in any way to causing the collision and Van Dorn's resulting injuries.
See Williams v. Esaw, 214 Kan. 658, 660-62, 522 P.2d 950 (1974) (violation of traffic
law only gives rise to liability for injury of another where violation bears causal or
proximate relationship to injury); see also Henning v. Union Pacific R. Co., 530 F.3d
1206, 1218 (10th Cir. 2008) (citing majority rule that lack of a license is not relevant to
whether driver was negligent at time of accident because "'unlike traffic regulations such
as speed limits, licensing statutes do not in themselves create a standard of care that a
driver is expected to meet while operating a motor vehicle'"). Evidence that McNish did
not have a valid driver's license at the time of the accident was not relevant. Therefore,
the district court did not err in excluding this evidence.
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b. Evidence of a flagging operation


The defendants contend the district court erred in excluding evidence that
Sunflower Paving employees were conducting a flagging operation at the time of Van
Dorn's injury. A discussion of some additional facts is warranted to place the defendants'
arguments in context.


One of the defendants' theories of defense at trial was that Sunflower Paving was
comparatively liable for


"its employees directing Mr. Van Dorn to stand in the lane of traffic; for having Mr. Van
Dorn performing a flagging operation without proper equipment; for its supervisors
failing to monitor the flagging operation and make sure its employees were complying
with the Flagger's Handbook and/or training video by first standing on the side of the
road until the first car is stopped; for not standing in the lane of traffic, etc. Sunflower
failed to get the Stop/Slow paddles after the first accident and before the second accident.
The paddles were reportedly a short distance away."


In response to this theory, Van Dorn asserted that he was conducting emergency traffic
control at the time he was struck by McNish, not a flagging operation.


The district court's order in limine specifically prohibited:



"Any testimony from the expert witnesses identified by Kansas Trucking or
Steven Pacheco concerning violation of Flagging Operation Book. Defendants are
permitted to present evidence from fact witnesses about where Mr. Van Dorn was trained
to stand (on the shoulder) and where he was trained not to stand (in the lane of traffic).
"Any testimony from the expert witness of Kansas Trucking, Steven Pacheco
concerning the flagging operations because they do not have the proper expertise to
testify about a flagging operation."
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The defendants' proffer included testimony and witness statements, which the
defendants alleged would establish that a flagging operation was occurring at the time
McNish struck Van Dorn.


At trial, Burris explained the nature of the construction work that Sunflower
Paving was performing on K-68, which was removing an asphalt overlay from the
concrete base of the highway. Burris said that his crew was blocked off from traveling
motorists, so their job did not include traffic control. Burris further testified that the only
reason his crew stopped traffic to close the westbound lane was due to Pacheco's
accident. On cross-examination, the defendants' counsel elicited testimony from Burris
that Van Dorn had training in traffic control. Counsel also introduced into evidence a
Kansas Department of Transportation Flagger Handbook and elicited testimony from
Burris that the Handbook directs a worker in a flagging operation to stand on the shoulder
of the road, raise his or her hand and extend a flag into the roadway, and only move to the
center of the road after the first vehicle has stopped. On redirect, Burris denied that
Sunflower Paving was conducting a flagging operation at the time Van Dorn was injured,
explaining that a flagging operation involves specific signage and traffic cones. Burris
claimed that the Sunflower Paving crew was simply involved in an emergency situation
to control traffic flow and keep the public safe.



Thereafter, outside the presence of the jury, defense counsel relied on the district
court's order in limine to argue that Van Dorn's counsel had opened the door to additional
evidence regarding flagging operations by asking Burris on redirect whether Burris had
been conducting a flagging operation. Van Dorn's counsel responded that it was defense
counsel who actually opened the door first by questioning Burris about the Handbook and
requesting the court allow the defense to introduce the Handbook into evidence. Van
Dorn objected to the admission of the Handbook. The district court ruled that Van Dorn's
objection was untimely and allowed the Handbook to be introduced into evidence at trial.
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Nevertheless, the court declined to change its previous ruling prohibiting the introduction
of any evidence relating to a flagging operation in this case.


The defendants argue that their proffered evidence established that a flagging
operation was taking place at the time of Van Dorn's injury and that they should have
been allowed to present this evidence at trial because Van Dorn opened the door to the
admission of this evidence and because the Handbook was entered into evidence without
objection. The defendants assert that this evidence was both material and probative to the
jury's determination of comparative fault because Van Dorn's actions were contrary to the
directives set forth in the Handbook.


Contrary to the defendants' argument, their proffered evidence did not establish
that an official flagging operation was taking place. Instead, these witness statements and
testimony merely made reference to "flaggers" that were "flagging traffic" or "directing
traffic." The only use of the term "flagging operation" was by defense counsel in what
presumably was his questioning of Burris at a deposition. The reference to "flagger" or
"flagging" in the witness statements appears to be a generic term used to describe the
Sunflower Paving crew and their actions. The use of these terms did not convert the
emergency situation into an official flagging operation. Thus, it cannot be said that the
district court erred in prohibiting the defendants from characterizing the situation as a
flagging operation when no such evidence existed.


Moreover, much of the defendants' proffered evidence was ultimately admitted at
trial. Defense counsel was permitted to introduce the Handbook into evidence, elicited
testimony from Burris about the rules involved in a flagging operation, and obtained
testimony that Van Dorn had been trained with the Handbook. In addition, several of the
witness statements that referenced "flaggers" and "flagging traffic" were also admitted
into evidence. The district court's ruling did not prohibit the defense from using the terms
"flagging" or "flagging traffic," and defense counsel was allowed to argue that Van Dorn
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had acted contrary to his safety training during opening and closing argument. The
district court did not err in ruling on this issue.


3. Judgment as a matter of law


As discussed above, the defendants sought judgment as a matter of law on the issue
of proximate cause at the close of Van Dorn's case-in-chief and at the close of all
evidence. The district court denied both motions. The defendants argue the district court's
rulings were in error.


K.S.A. 2016 Supp. 60-250(a)(1) provides authority for a district court to enter
judgment as a matter of law during a jury trial:


"If a party has been fully heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis to find for the
party on that issue, the court may:
"(A) Resolve the issue against the party; and

"(B) grant a motion for a judgment as a matter of law against the party on a claim
or defense that, under the controlling law, can be maintained or defeated only with a
favorable finding on that issue."


A district court's decision on a motion for judgment as a matter of law is reviewed
de novo to determine "whether evidence existed from which a reasonable jury 'could
properly find a verdict for the nonmoving party.'" Siruta, 301 Kan. at 766. When ruling
on a motion for judgment as a matter of law, the district court is required to resolve all
facts and inferences that may reasonably be drawn from the evidence in favor of the party
against whom the ruling is sought. Where reasonable minds could reach different
conclusions based on the evidence, the motion must be denied. The appellate court must
apply a similar analysis when reviewing the grant or denial of a motion for judgment as a
matter of law. 301 Kan. at 766.
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In support of their claim that the district court erred in denying their motions for
judgment as a matter of law, the defendants argue Van Dorn failed to present any
evidence at trial from which a jury could conclude that Pacheco's negligence was the
proximate cause of his injury. Without such evidence, the defendants argue they are
entitled to judgment as a matter of law.


We begin our analysis with the definition of proximate cause:



"The proximate cause of an injury is the cause that in a natural and continuous sequence,
unbroken by any superceding cause, both produced the injury and was necessary for the
injury. The injury must be the natural and probable consequence of the wrongful act.
Individuals are not responsible for all possible consequences of their negligence, but only
those consequences that are probable according to ordinary and usual experience.
[Citations omitted.]" Hale, 287 Kan. at 322.


Proximate cause incorporates concepts that fall into two categories: causation in
fact and legal causation. To establish causation in fact, a plaintiff must prove a cause-and-
effect relationship between a defendant's conduct and the plaintiff's loss by presenting
sufficient evidence from which a jury can conclude that more likely than not, but for the
defendant's conduct, the plaintiff's injuries would not have occurred. To prove legal
causation, the plaintiff must show it was foreseeable that the defendant's conduct might
create a risk of harm to the victim and that the result of that conduct and contributing
causes was foreseeable. Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 420-
21, 228 P.3d 1048 (2010). As noted above, proximate cause is ordinarily a question of
fact for the jury. But defendants argue in this case that proximate cause was a question of
law at trial to be decided by the court and not the jury. The question of proximate cause
becomes a question of law for the court only "when all the evidence on which a party
relies is undisputed and susceptible of only one inference." Hale, 287 Kan. at 324.
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a. Causation in fact


Although the defendants claim that McNish, as the driver who struck Van Dorn,
was the cause in fact of Van Dorn's injuries, they appear to concede that Pacheco's
accident was also the cause in fact of the injury to Van Dorn, stating: "Certainly, had
Pacheco not rolled off the side of the road, Van Dorn would not have later been ordered
to direct traffic, McNish would not have struck him and Van Dorn would not have been
injured." Thus, it appears there is no real dispute on the issue of causation in fact.


b. Legal causation


To prove legal causation, a plaintiff must show the injury was a natural and
probable consequence of the wrongful act. "Individuals are not responsible for all
possible consequences of their negligence, but only those consequences that are probable
according to ordinary and usual experience. [Citation omitted.]" Hale, 287 Kan. at 322.
The defendants argue there is no evidence in the record from which a jury could
reasonably infer that Van Dorn's injuries were a natural and probable consequence of
Pacheco's negligence. Specifically, the defendants note that this case involves two
separate accidents that occurred 26 minutes apart, and suggest that McNish's intervening
negligent act relieved them of liability.


When determining whether an intervening negligent act relieves the original
wrongdoer of liability, our Supreme Court has stated:


"Whether the negligent conduct of the original wrongdoer is to be insulated as a
matter of law by the intervening negligent act of another is determined by the test of
foreseeability. If the original actor should have reasonably foreseen and anticipated the
intervening act causing injury in the light of the attendant circumstances, his [or her] act
of negligence would be a proximate cause of the injury. Foreseeability of some injury
from an act or omission is a prerequisite to its being a proximate cause of the injury for
15
which recovery is sought. When negligence appears merely to have brought about a
condition of affairs or a situation in which another and entirely independent and efficient
agency intervenes to cause the injury, the latter is to be deemed the direct and proximate
cause and the former only the indirect or remote cause." George v. Breising, 206 Kan.
221, 227, 477 P.2d 983 (1970).



See Edwards v. Anderson Engineering, Inc., 45 Kan. App. 2d 735, 740-41, 251 P.3d 660
(2011).


An intervening cause absolves a defendant of liability only if it supersedes the
defendant's negligence. In other words, the superseding and intervening cause component
breaks the connection between a negligent act and the harm caused. See Hale, 287 Kan.
at 324. One more factor—foreseeability—must be considered. "If the intervening cause is
foreseen or might reasonably have been foreseen by the first actor, his [or her] negligence
may be considered the proximate cause, notwithstanding the intervening cause. [Citation
omitted.]" Miller v. Zep Mfg. Co., 249 Kan. 34, 51, 815 P.2d 506 (1991).


In support of their claim that an intervening act (McNish's negligence) absolved
them from any liability, the defendants rely primarily on Hale, 287 Kan. 320, and
Erickson v. O'Malley, No. 113,559, 2016 WL 2809716 (Kan. App. 2016) (unpublished
opinion).


In Hale, Jason Packard, an employee of Topeka Electric Construction, Inc., was
driving east on I-470 in Topeka when he lost consciousness and drove his truck into a
tree near an off-ramp. Traffic on the interstate became congested as a result of the
accident. About 35 minutes later, Mary Hale was driving east on I-470 when she noticed
the congestion, so she slowed down and then stopped. Judy Brown was driving behind
Hale and collided with the rear of Hale's stopped car. Hale was injured as a result of the
accident and filed a negligence action against Brown, Packard, and Topeka Electric
Construction. Hale settled her claims against Brown. The district court granted Packard's
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and Topeka Electric Construction's motion to dismiss based on a lack of proximate cause.

287 Kan. at 321. A panel of this court affirmed the district court's ruling. See Hale v.
Brown, 38 Kan. App. 2d 495, 167 P.3d 362 (2007). On review, the Kansas Supreme Court
also affirmed. Specifically, the court found that the district court had properly considered
the length of time between the first and second accidents and Brown's intervening
negligent act in determining whether proximate cause existed as a matter of law, holding
that "[a] review of the factual allegations confirms the district court's legal conclusion that
the passage of time and Brown's negligence interrupted the continuing chain of causality
from Packard's asserted negligence to Hale's accident." Hale, 287 Kan. at 324.


In Erickson, Natalie Marquez was driving east on Kimball Avenue in Manhattan.
When Marquez stopped for a red light at an intersection, her car ran out of gas. Kenyon
Erickson, also driving east on Kimball, saw Marquez' car stopped at a green light in the
lane of travel with the car's hazard lights flashing. Erickson pulled over and walked up to
Marquez' passenger side window to see if she needed help. Marquez replied that she did
not and had already called someone. While Erickson's head was still in the passenger side
window of Marquez' car, Harold O'Malley rear-ended Marquez' car, causing its center roof
support to hit Erickson. Erickson sued both Marquez and O'Malley. Erickson alleged that
O'Malley negligently ran into Marquez' car, causing him injury, and that Marquez was
negligent in failing to take reasonable care in the maintenance of her car and in not
removing her car from the open lane of traffic. Marquez moved for summary judgment,
claiming she had no duty to protect Erickson from O'Malley's negligence and that if she
breached any duty, that breach was not the proximate cause of Erickson's injuries. The
district court granted Marquez summary judgment, finding that she did not owe a duty to
Erickson. 2016 WL 2809716, at *1.


On appeal, Erickson argued that Marquez owed a duty of care to him and that she
was the proximate cause of his injuries. A panel of this court rejected Erickson's
17
arguments. First, the court held Marquez owed no duty to Erickson, who voluntarily left
his car to ask whether she needed assistance, and otherwise had no duty to control
O'Malley's actions. 2016 WL 2809716, at *4-8. Second, the court held that even if
Marquez was negligent, the sequence of events that led to Erickson's injury was "an
unforeseeable scenario that a reasonable person could not be expected to anticipate."
2016 WL 2809716, at *9. Thus, the court concluded that even though the placement of
Marquez' car in the road was "a link in the chain leading to Erickson's injury," it was an
insufficient condition for imposing liability because the injury was not foreseeable. 2016
WL 2809716, at *9. Affirming the decision of the district court, this court determined
summary judgment was proper because the evidence permitted no reasonable inference to
support proximate cause.


The defendants' reliance on Hale and Erickson to support their position in this case
is misplaced, as the facts in both Hale and Erickson are readily distinguishable. To that
end, this court's analysis in Hale is instructive. Noting that "it is difficult to wrest general
rules from these fact-specific cases that will universally predict the results," the court
examined multiple cases involving successive accidents. Hale, 38 Kan. App. 2d at 500.
The cases reviewed established that, as a general rule, the negligent conduct of the
original wrongdoer was not insulated by the intervening negligent act of another when an
obstruction from the initial accident was still blocking the roadway when the second
accident occurred or when only a short period of time had lapsed between the accidents.
On the other hand, the cases reviewed also established that the intervening negligent act
of another relieved the original wrongdoer of liability for negligence when a substantial
amount of time had elapsed, when the initial accident did not obstruct the roadway, when
the later accident was caused by the distraction of the initial accident or inattention of a
later driver, or when other circumstances occurred to establish that the subsequent
accident was not a probable consequence of the first. 38 Kan. App. 2d at 501-03.
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Given the evidence presented at trial here, we must decide whether Van Dorn
presented sufficient evidence from which a jury could conclude that his injuries were a
natural and probable consequence of Pacheco's negligence; in other words, whether it
was reasonable for Pacheco to have anticipated there would be a need for traffic control
and to have foreseen that some type of accident or injury would occur as a result of his
negligence. Van Dorn presented the following evidence during his case-in-chief:


Pacheco drove his dump truck off the side of the highway, leaving dirt in the
westbound lane of traffic. Pacheco's truck was overturned and in close proximity
to the highway.
Multiple witnesses testified that the westbound lane needed to be closed
immediately to avoid a risk of injury to the motoring public.
Sunflower Paving employees undertook to close the westbound lane by stopping
traffic in both directions and alternating traffic in the eastbound lane.
The only reason Sunflower Paving employees were directing traffic was because
of the dirt in the road.
While Van Dorn was directing traffic, McNish hit him, causing severe injuries.



Based on this evidence, we find Van Dorn satisfied his burden to show Pacheco's
act of negligence was a proximate cause of the injury. Specifically, we conclude from the
evidence presented at trial that Pacheco should have reasonably foreseen and anticipated
that his initial negligent act created the risk of injury to a worker who was directing
traffic. See Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006). No evidence
presented during the defense's case-in-chief changed this outcome. And the fact that the
second accident occurred 26 minutes after the first accident has no real bearing on the
issue of proximate cause in this case because the traffic control due to the first accident
was still taking place at the time of the second accident. The passage of time and
McNish's negligence did not interrupt the continuing chain of causality from Pacheco's
initial negligence to Van Dorn's injuries. Even the defendants' own expert acknowledged
19
that Pacheco's negligence created an immediate and present danger necessitating
immediate closure of the westbound lane of the highway. For all of these reasons, we
agree with the district court that judgment as a matter of law on the issue of proximate
cause was not appropriate.


4. Sufficiency of the evidence


Finally, the defendants argue that the evidence was insufficient to support the
jury's verdict that their actions were the proximate cause of Van Dorn's injuries.


When a verdict or district court decision is challenged for insufficiency of the
evidence or as being contrary to the evidence, an appellate court does not reweigh the
evidence or pass on the credibility of the witnesses. If the evidence, when considered in
the light most favorable to the prevailing party, supports the verdict, the verdict will not
be disturbed on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 407, 266 P.3d
516 (2011).



As previously discussed, proximate cause incorporates both the concepts of
causation in fact ("but for" causation) and legal causation (foreseeability). Puckett, 290
Kan. at 420-21. It is undisputed that but for Pacheco's admitted negligence, Van Dorn
would not have been in the roadway directing traffic when he was struck by McNish.
And given the circumstances attendant to Pacheco's accident discussed in length in the
previous section, we find sufficient evidence from which a jury could conclude that
Pacheco should have foreseen and anticipated the risk of injury to a worker who was
directing traffic as a result of Pacheco's initial negligent act. When considered in the light
most favorable to Van Dorn, the evidence supports the jury's verdict that the defendants
were 25% at fault for Van Dorn's injuries.


Affirmed.