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No Dorothy, It’s Not Forum Shopping — Don’t Count on Kansas Law Applying to a Kansas Injury Where the Parties are Missouri Residents

February 12, 2015

On January 13, 2015, the Missouri Court of Appeals for the Western District handed down an opinion in Rider v. The Young Men’s Christian Association of Greater Kansas City, WD76680, which provides an avenue for plaintiffs to avoid the Kansas non-economic damage cap, if the circumstances are right.

On December 16, 2003, Isaiah Rider was injured while attending a YMCA after-school daycare in Kansas.  Due to a congenital condition, his injuries were significant.  Before trial, the YMCA argued Kansas law should apply and Kansas jury instructions should be used for submitting the comparative fault of Rider and determining the damages recoverable by Rider.  The trial court ruled it would use the Missouri instruction for negligence and apply Missouri law on Rider’s right of recovery.  The trial court reasoned the YMCA had not established any differences between Missouri and Kansas law as it pertained to the elements of negligence and Kansas did not have any interest in limiting the recovery between two Missouri residents.  Rider lived in Missouri and the YMCA was a Missouri not-for-profit corporation with its principal place of business in Missouri.  After a two-week jury trial, Rider submitted a negligence claim to the jury, which found the YMCA was negligent and awarded damages of $5,906,525.00; however, the jury also found Rider was 90% at fault for failing to keep a careful lookout.  As a result, the trial court entered judgment in favor of Rider in the amount of $590,652.50.  Both Rider and the YMCA appealed.

On appeal, Rider argued the trial court erred in giving the comparative fault jury instruction because there was no substantial evidence supporting a finding he failed to keep a careful lookout.  The Court agreed, noting there was no evidence there was a plainly visible wet floor, as every witness present at the time of the fall, including Rider, testified he or she did not see the wet condition of the floor before Rider fell.  Without a plainly visible condition on the floor, there was no substantial evidence supporting the instruction.  Rather than remand the case for a new trial, the Court determined entry of a modified judgment of $5,906,525.00 with the YMCA being 100 percent at fault was appropriate.

Thereafter, the Court addressed the YMCA’s arguments the trial court erred in refusing to apply Kansas law on comparative fault and in refusing to apply the Kansas cap on non-economic damages.  The Court noted the comparative fault argument had been rendered moot with its’ determination there was no substantial evidence to support a finding Rider failed to keep a careful look out.  As for the Kansas cap argument, the Court noted it was subject to de novo review as the question of which state’s law should apply was a question of law.  In reaching its conclusion, the Court found its holding in Wilson v. Image Flooring, LLC, 400 S.W.3d 386, 391 (Mo. App. W.D. 2013) persuasive.

In Wilson, plaintiff was injured in Kansas when an Image Flooring box truck moved as it was being loaded which caused her to fall and break her leg.  Plaintiff, a Missouri resident, filed suit in Missouri against both Rapp, the truck driver and a Missouri resident, and Image Flooring, a Missouri corporation doing business in both Missouri and Kansas.  Claims of negligence and vicarious liability were submitted to the jury, which assessed damages in the amount of $1,565,625.00, with plaintiff being found 25% at fault.  Plaintiff appealed and Rapp and Image Flooring cross-appealed.  Rapp and Image Flooring argued the trial court erred in refusing to apply Kansas substantive law as it had the most significant contacts with the case and should control.  In its’ analysis, the Court discussed the Restatement (Second) of Conflict of Laws §§ 6, 145(a) and 146 (1971) and noted in personal injury actions, the presumption is that the state with the most significant relationship is the state where the injury occurred. Thereafter, the Court noted the pertinent differences in Missouri and Kansas law relate to 1) Missouri is a pure comparative fault state while Kansas is a modified comparative fault state, and 2) Kansas has a statutory cap on non-economic damages while Missouri does not.  After discussing the interest of each state in applying their own law, the Court noted that while the question of negligence should be determined by the law of the state where the tort occurred, the same could not be said of the right of recovery issues, including comparative fault and the statutory damage cap.  “Where the issue involves a right of recovery as opposed to a question of liability, the domicile of the parties becomes a highly significant contact, as states have a great interest in applying their own compensation-related laws to their own residents, but very little interest in applying those same laws to non-residents.” Id. at 398 (citation omitted).  The Court in Wilson concluded Missouri law was properly applied to the right of recovery or question of compensation issues.   After acknowledging Image Flooring does business in Kansas, the Court concluded this was not significant enough to overcome the other contacts Missouri had including plaintiff’s residence, Rapp’s residence and Image Flooring’s incorporation and principal place of business.

After finding the present case was not meaningfully distinguishable from Wilson, the Rider Court concluded the trial court did not err in application of Missouri law with respect to the right of recovery between Rider and the YMCA, two Missouri residents, even though the injury happened in Kansas.

The Court’s holding in Rider is significant as it allows plaintiffs, who are Missouri residents, to potentially avoid the Kansas damage cap for an injury that arises in Kansas and which should be governed by Kansas law.  In cases arising from a Kansas injury where the plaintiff and defendant are both Missouri residents, like in Rider, plaintiffs are sure to argue Missouri law should apply so they can avoid the Kansas damage cap.  What other contacts with Kansas would be sufficient for application of Kansas law is unclear, except we know doing business in Kansas is not enough based on Wilson.  In Wilson, the court noted the fact that Image Flooring did business in Kansas was not alone significant enough to overcome other contacts Missouri had through the plaintiff’s residence, the other defendant’s residence and the fact Image Flooring was incorporated and had its principal place of business in Missouri.  What is clear is allowing plaintiffs to recover under Missouri law for a Kansas injury may allow them to recover well in excess of what they could recover under Kansas law given the cap.

Merry “Maggie” Tucker

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