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Fitzpatrick v. Allen2/27/1998
William J. Fitzpatrick, as conservator for Jessica Baty, a minor, appeals from a jury verdict and Judgement entered in favor of Samantha S. Allen, in a personal injury action.
We affirm.
Jessica Baty is the minor child of Tina and Brent Baty. Jessica was struck by a van driven by Samantha S. Allen. At the time, Jessica and her parents were purchasing ice cream from a Mel-O-Dy Ice Cream van parked across the street from their home. As a result of the accident, Jessica sustained a broken wrist, lacerations, and a hairline fracture to her skull.
A summary of the trial testimony will be helpful in understanding the issues raised on appeal and our resolution of those issues.
The jury trial began on March 20, 1996. The testimony of the witnesses will be summarized as follows. On May 14, 1994, the Baty family lived on South 17th Street in Independence, Kansas. This is a busy street running north and south. The day was warm and clear. In the afternoon, an ice cream van playing music entered the Batys' neighborhood travelling south on 17th Street. Brent and Tina took their children--Jessica (age 4), Briar (age 2), and Charlie (age 1)--outside to get ice cream.
The ice cream van had stopped on the west side of the street, which does not have a curb, across from the Baty home. The van pulled to the side of the road and was parked halfway on the street and halfway on the grass. The parents held the children's hands as they crossed 17th Street toward the van. Tina stated there were several people already at the van as they approached. The ice cream van was operated by David Hammack and his wife, Patricia. The Hammacks testified that the Batys were the only customers. The Batys went to the west (passenger) side of the van to order ice cream.
The ice cream vehicle was a regular white van with blue stripes on each side. The passenger side had pictures of the different kinds of ice cream available. The driver's side of the van had a Mel-O-Dy ice cream sign with letters 3 or 4 inches tall. There were no caution or warning signs on the back of the ice cream van to warn oncoming drivers. There is a dispute whether the van's emergency flashers were operating when the van stopped.
The Hammacks had been working for Mel-O-Dy Ice Cream company for 2 or 3 weeks. The van had musical equipment with a speaker on the top of the cab to attract children.
Hammack testified that his training by Mel-O-Dy was limited to getting instructions and riding around with another driver for about 3 hours. Hammack did not get any instructions on safety, and he did not review any videotape about safety. Dianna Fender, president of Mel-O-Dy, testified that Mel-O-Dy had a training tape which it sometimes showed to its drivers; in other cases, it verbally goes over the matters covered in the tape with the drivers. She testified that Mel-O-Dy preferred that all drivers watch the tape, but each branch office might do things differently.
Testimony about the actual accident differed. Tina testified that after getting the ice cream, she was walking back toward their home, with Jessica holding onto her wrist. As they were walking toward the front of the ice cream van, Patricia Hammack called Tina back to get more ice cream. Tina turned back toward the van's passenger door, and Jessica released her wrist. After receiving the additional ice cream, Tina reached for Jessica's hand but Jessica was no longer there. When Tina turned, she saw Jessica standing still in front of the ice cream van between the headlights; Tina could not specify how far in front of the van Jessica was standing. Tina testified that Jessica turned to look at her mother when anothe
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