Ellis v. Union Pacific Railroad

Miller, J.,

dissenting.

Several months ago I voted for a rehearing in this case because, along with a majority of the then members of this court, I was convinced that our original opinion affirming the trial court was fundamentally erroneous. It emasculates the legislative act, K.S.A. 60-258a, and our earlier opinion construing that act, Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980), upon which the lawyers and litigants of this state and counsel for the appellant herein have justifiably relied. The dissents of Justices Herd, Holmes, and Fromme, reported along with the original opinion in 231 Kansas at pages 192 to 195, fully set forth the logical and proper resolution of the issues, and I need not repeat what is there said. The judgment of the trial court should be reversed.

I respectfully dissent.

Holmes and Herd, JJ., join in the foregoing dissenting opinion. Herd, J.,

dissenting: I adhere to my previous dissent and that of Fromme, J., (231 Kan. at 192-95) and I join the dissent of Miller, J. *196The majority opinion effectively eliminates the intended use of K.S.A. 60-258a(c). There is henceforth no reason for a defendant to formally join any other person whose causal negligence is claimed to have contributed to the damages sought. Informal joinder for determination of comparative fault will produce the same result.

Miller and Holmes, JJ., join in the foregoing dissenting opinion.