This diversity action against an equipment manufacturer1 for personal injuries occurring on the job in which plaintiff, Ms. Prince, caught her hair in the rotating shaft of her employer's machine is based on the theory of products liability. It was first filed in Missouri before the two-year statute of limitations expired but was dismissed by the district court for Missouri for lack of personal jurisdiction after the two years' limitation period expired. It was refiled in Kansas within six months thereafter. Plaintiff's employer, who is immune from liability under the Kansas worker's compensation law, was not named as a defendant but was added by the court as a "phantom" party. In order to reach a judgment the jury was required to allocate among all the actors, including plaintiff's employer, their appropriate share of fault in causing the injury. The jury found plaintiff's damages to be $200,000 and allocated fault as follows:

Plaintiff--35%

Defendant manufacturer--5%

C.M. Moore Company (plaintiff's employer)--60%Thus plaintiff's net recovery against the defendant was $10,000.2

Plaintiff has appealed on a variety of issues, most of which involve the interpretation of the Kansas Comparative Negligence Act as applied to the doctrine of strict liability. Defendant has cross-appealed on a jurisdictional issue and on the issue of whether, as a matter of law, the negligence of C.M. Moore was a superseding cause under the doctrine of shifting responsibility. It is necessary to address the jurisdictional issue first.

Defendant contends that plaintiff's action is barred by Kansas' two-year statute of limitations for personal injury in tort. Kan.Stat.Ann. Sec. 60-513(a)(2) (1976). When plaintiff originally filed the action in Missouri, she was within the two-year time period. The Missouri action was dismissed after the two years had run. The action was refiled in Kansas two years, five months after the accident. The issue is whether the Kansas savings statute applies. That statute provides that "[i]f any action be commenced within due time, and the plaintiff shall fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff ... may commence a new action within six (6) months after such failure." Kan.Stat.Ann. Sec. 60-518 (1976).

Defendant argues that the statute applies only when the first action is filed in the forum state.3 Although Kansas has not directly decided the issue, defendant cites the dictum of Jackson v. Prairie Oil & Gas, 115 Kan. 386, 391, 222 P. 1114, 1116 (1924), in which the Kansas Supreme Court noted that the rule of Herron v. Miller, 96 Okl. 59, 220 P. 36 (1923), appeared to be well taken. The rule of Herron --that the forum's savings statute does not apply when the initial action is brought in another state--is the general rule among older cases.4 More recently, however, both circuit and state courts have split on the issue of whether savings statutes apply to suits originally filed in sister states.5

Absent compelling precedent from a state, we see no reason to follow old dicta when virtually every state has a savings statute and no significant policy would be advanced by holding such a statute inapplicable to actions originally filed in sister states. Defendant here was put on notice of the action in a timely manner and there was no more delay involved than if the action had been filed in the forum state and dismissed there for procedural reasons. Nor would holding that a savings statute is inapplicable to actions filed in sister states further any policy of the forum state to protect its citizens from discrimination by other states.

Defendant's second argument is that as a matter of law, the intervening fault of C.M. Moore Company was a superseding cause under the doctrine of shifting responsibility. See Restatement (Second) of Torts (1965) Sec. 452. As defendant admits, the general rule is that mere intervening negligence does not normally supersede a prior act of negligence and the question of shifting responsibility is a question of fact for the jury. Defendant contends, however, that the issue of superseding negligence and shifting responsibility may be decided as a matter of law "where the parties do not dispute the critical facts and only their legal effect remains in issue." Meuller v. Jeffrey Mfg., 494 F. Supp. 275, 277 (E.D.Pa.1980). Even if this circuit were to adopt this exception, it would not apply in the instant case. As discussed below, the parties here dispute virtually all of the critical facts. Thus, the issue of superseding cause and shifting responsibility was properly decided by the jury.

Plaintiff's first argument is that the trial court erred in submitting the question of her assumption of risk to the jury because there was no evidence that she assumed the risk. In Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976), Kansas adopted the rule of strict liability as defined in Section 402A of the Restatement (Second) of Torts (1965), including the assumption of risk defense.6 To establish this defense, defendant must prove that the injured plaintiff (1) discovered the defect; (2) was aware of the danger; and (3) unreasonably continued to use the product. The jury instruction given by the trial court reflected these elements.7

After trial, plaintiff moved for a judgment notwithstanding the verdict challenging the instruction. The court denied plaintiff's motion holding that the instruction complied with Brooks and that there was sufficient evidence to warrant its submission to the jury.

On appeal plaintiff does not challenge the substance of the instruction but only whether there was enough evidence to submit the issue to the jury. The parties presented conflicting evidence as to every element. Plaintiff testified that she did not in fact know of the defect, was not aware of the danger, and did not unreasonably continue to use the product after discovering the defect. She testified that she was given no instruction as to how to wear her hair and that any applicable rule was not strictly enforced. She also presented evidence to establish that the defect and danger was not obvious to the average person, including new employees.

Defendant, on the other hand, presented evidence to establish that the defect was so obvious that any adult would be aware of the danger. Defendant also presented evidence that plaintiff was instructed to wear her hair tied up.

In view of this clearly conflicting evidence, the question was properly for the jury to resolve. Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1149 (10th Cir.), cert. denied, 439 U.S. 862, 99 S. Ct. 183, 58 L. Ed. 2d 171 (1978). The evidence was sufficient to support the jury's conclusion.

Plaintiff's second contention is that jury instructions Nos. 16 and 188 applied erroneous duties and burdens to plaintiff's employer. In essence, plaintiff argues that the instructions permitted the jury to assess the employer's ordinary negligence when it should have been permitted to allocate part of the liability to the employer only on a showing that the employer assumed the risk of plaintiff's injury. Plaintiff's argument is based on Comment n to Sec. 402A of the Restatement (Second) of Torts (1965) and Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976). Since C.M. Moore, the employer, was a user or consumer of the equipment, plaintiff argues its fault can be considered only if it meets the elements of assumption of risk. Plaintiff misconstrues Brooks. Brooks deals only with plaintiff's contributory negligence and assumption of risk. In any event, since Brooks the Kansas court has shifted directions because of the effect of the Kansas Comparative Negligence Act. It has applied the doctrine of comparative fault to strict liability actions. Kennedy v. City of Sawyer, 228 Kan. 439, 452, 618 P.2d 788, 798 (1980). "[A]ll parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible." Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 374, 634 P.2d 1127, 1132 (1981). Section 258a(c) of the Kansas Comparative Negligence Act allows a defendant to force a comparison of fault with third parties, even though formal joinder is not required. Kennedy v. City of Sawyer, 228 Kan. 439, 460, 618 P.2d 788, 803 (1980). This comparison of fault of phantom parties has been extended to products liability cases. Forsythe v. Coats Co., 230 Kan. 553, 639 P.2d 43 (1982); Lester v. Magic Chef, Inc., 230 Kan. 643, 641 P.2d 353 (1982).

In essence, what Kansas has done is to let the jury determine the degree to which each actor has departed from his or her respective duty9 and apportion fault accordingly. As explained in Kennedy, all types of fault, regardless of degree, are to be compared with that of defendant whether the fault is characterized as contributory negligence, assumption of risk, product misuse, or unreasonable use. All of these defenses depend on the reasonableness of plaintiff's conduct, a negligence concept. Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788, 796-97. As we pointed out in Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 455 n. 5 (10th Cir.1982), this approach is analytically difficult to harmonize with traditional notions of strict liability and negligence. Yet,

[w]e are persuaded that what Kansas intends by the overarching application of comparative negligence to all forms of death, personal injury or property damage cases is to override prior notions of liability to the extent that they are based on notions of spreading the risk or notions of insurance, and to now examine such cases in light of the sundry duties which the cases have heretofore imposed on various parties related in some form or other to the claimed injury. Thus injured consumers will be examined by contributory negligence standards to determine the degree to which they have departed from their duty of ordinary care.

Id. (emphasis added).

The same general principles apply to phantom employers. The court must instruct on their duties and the standards by which to measure any departure from duty by an employer. The jury instructions at issue here properly defined the employer's duty of care and enabled the jury to determine the extent to which, if at all, the employer departed from its duty. We noted in Hardin, id., that a jury instruction based on the concepts of Sec. 402A Restatement (Second) of Torts (1965) would not constitute reversible error, but 402A does not define the ultimate parameters of an appropriate instruction. While the Kansas law is in this state of transition, we do not find that an instruction based on contributory negligence is reversible error.

Plaintiff also contends that jury instructions Nos. 16 and 18 violated her right to due process and equal protection of the laws under the fifth and fourteenth amendments to the United States Constitution. She argues that applying comparative causal responsibility in cases involving workmen's compensation discriminates against industrial workers, thus violating the equal protection clause. She claims that because her recovery is reduced by the percentage of the employer's fault, she is deprived a property right (the jury award) without due process of law.

In Davidson v. Hobart Corp., 643 F.2d 1386, 1387 (10th Cir.1981), this court held that the exclusive remedy provision of the Kansas Worker's Compensation Act does not involve a suspect classification or a fundamental constitutional right. Thus, being rationally related to a legitimate state objective, the statute does not offend the equal protection clause of the fourteenth amendment. The application of comparative causation to cases involving worker's compensation does not change this analysis. The same class, workers covered by worker's compensation, is involved with or without the application of comparative causation. This class is no more suspect after the application of comparative causation than it was before. Further, it would not be rational to increase another defendant's liability above the level of his fault simply because worker's compensation is involved. The rational purpose of the Kansas Comparative Negligence Act, Kan.Stat.Ann. Sec. 60-258a (1976), is to hold each defendant liable only in proportion to that defendant's fault. Even though the employer is a nonsuable phantom in this case, plaintiff is not without a remedy against the employer. Worker's compensation provides a remedy even if the employer was guilty of no fault at all.

The plaintiff also contends that a jury instruction allowing the jury to assess causal responsibility against her employer, thereby reducing her final recovery, constitutes the taking of private property without due process, in violation of the fifth and fourteenth amendments. Assuming arguendo that plaintiff has a protectable property right,10 only her remedy has been affected and the same rational basis analysis applies as applied to plaintiff's equal protection claim. Plaintiff's right to recover for that portion of damages attributable to her employer has merely been left to the preexisting scheme embodied in the worker's compensation statute. Thus, we do not find that plaintiff's due process or equal protection rights have been violated.

Finally, plaintiff argues that jury instructions Nos. 5 and 711 improperly defined the defendant's burden of proof as only requiring a showing that plaintiff was negligent as opposed to requiring a showing that plaintiff assumed the risk. This argument is premised on Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976), and fails for the reasons discussed above with respect to plaintiff's second argument.

AFFIRMED.