The opinion of the court was delivered by BEIER, J.:
This is a premises liability case with a twist. Plaintiff Shelly K. Herrell successfully sued defendant National Beef Packing Co., LLC (National Beef) to recover for a knee injury she suffered while working in its Dodge City beef-packing plant. National Beef appeals, arguing that Herrell's status as an employee of an independent contractor, Terracon Consultants, Inc. (Terracon), and her receipt of workers compensation meant that it did not owe her the landowner's usual duty of reasonable care.
The district judge denied National Beef's pretrial motion for summary judgment and mid-trial motion for judgment as a matter of law on the duty issue. A panel of our Court of Appeals reversed and remanded. Herrell v. National Beef Packing Co., 41 Kan.App.2d 302, 304, 202 P.3d 691 (2009). A majority of the panel remanded only for entry of judgment as a matter of law in favor of National Beef, relying on Dillard v. Strecker, 255 Kan. 704, 877 P.2d 371 (1994), and held that Herrell's remedy was limited to workers compensation because National Beef did not maintain substantial control over her employer's activities on the premises. In a concurring and dissenting opinion, Court of Appeals Judge Patrick D. McAnany rejected the application of Dillard to most of Herrell's claims. He would have remanded for retrial on all but one claim dependent upon National Beef's alleged noncompliance with an Occupational Safety and Health Administration (OSHA) regulation.
National Beef's beef-packing plant in Dodge City slaughters approximately 4,000 head of cattle a day. This understandably messy endeavor at times causes nonconsumable rendering, that is, bovine blood and guts, to spill onto the floor of the plant. National Beef employees are generally responsible for cleanup of such spills.
At the time of Herrell's injury, National Beef had contracted with J-A-G Construction Company (J-A-G) to build a new roof on its rendering building. National Beef chose to continue its plant's normal operations during the construction, and J-A-G was aware of that choice and of the conditions in the building. The construction of the new roof required holes to be drilled in the building's floor for placement of support footings. In turn, placement of the footings required testing of the underlying soil. J-A-G hired Herrell's employer, Terracon, to conduct the necessary soil tests.
Herrell was one of two Terracon employees who came to the plant to perform the soil tests. She and her fellow employee checked in at National Beef's guard station, where they were met by a J-A-G onsite foreman who showed them where the holes to be tested were located. After the J-A-G foreman left, Herrell and her fellow employee retrieved equipment from their vehicle and then began walking to the soil-testing site. Once back inside the plant, Herrell stepped off a ledge and into a hole, resulting in an injury to her knee. She and her coworker testified that the hole was covered by rendering and thus not visible. After the accident, when Herrell's fellow employee returned to the area, the rendering covering the hole had been cleared away, and he saw a grate in a nearby corner and tape on a column close to the hole. By the time this lawsuit began, well after the construction project was complete, no witness could determine exactly where the hole would have been or who had dug it or exposed it.
Because of her knee injury, Herrell was unable to continue her employment at Terracon.
Herrell also filed this lawsuit against National Beef, alleging that National Beef "was negligent in maintaining a dangerous condition; in failing to warn of a dangerous condition; and in other respects."
National Beef moved for summary judgment pretrial. It initially argued that Herrell could not meet her burden to demonstrate that National Beef had knowledge of the hole or, even if it did, that it had control over the area in which the hole was located. Herrell's response argued that National Beef not only had notice and knowledge of the hole but also created the dangerous condition by operating during construction and allowing rendering to cover it; she also argued that National Beef controlled the area where the injury occurred. In its reply, National Beef argued for the first time that it owed no landowner duty to Herrell because of public policy considerations recited in the Dillard case. National Beef also filed an amended pretrial questionnaire to incorporate this new argument.
The district judge denied National Beef's motion for summary judgment, stating that he had reviewed Dillard "extensively." He emphasized that Dillard recognized the right of an injured employee to bring an action against a negligent third party, see K.S.A. 44-504(a), and wrote:
Also, pretrial, National Beef filed an unsuccessful motion in limine to exclude Herrell's evidence regarding the existence and content of a federal OSHA regulation pertaining to safety precautions regarding holes in workplace floors. National Beef renewed its objection to this evidence at trial and was, again, unsuccessful. After argument by the parties at the instructions conference, the district judge also decided to include a mention of the OSHA regulation in the jury instruction detailing Herrell's contentions. The instruction listing the several ways in which Herrell alleged that National Beef was at fault included language characterizing the OSHA regulation as the industry standard. Herrell was not permitted to state that National Beef had violated the regulation. The final jury instruction thus read in pertinent part:
National Beef's mid-trial motion for directed verdict, also known as a motion for judgment as a matter of law, based in part on the Dillard legal argument, was also unsuccessful. The district judge refused to change his pretrial ruling, adding:
During closing argument, Herrell's counsel referred briefly to the instruction excerpt concerning the OSHA regulation:
The jury returned a general verdict in favor of Herrell, assessing damages of $251,197.86. The verdict form did not permit the jury to attribute all or any part of its decision to a particular theory of fault advanced by Herrell. The jury assigned 47.5 percent of fault to National Beef, 32.5 percent of fault to J-A-G, 15 percent to Terracon, and 5 percent to Herrell.
National Beef raised only one issue in its appeal brief filed with the Court of Appeals: Was there a duty as a matter of law? Both parties agreed that the question is one of law subject to unlimited review. See South v. McCarter, 280 Kan. 85, 94, 119 P.3d 1 (2005).
National Beef, as it did before the district court, placed heavy reliance on this court's 1994 decision in Dillard, which it regarded as indistinguishable on a policy basis from this case. The court, it stressed, "must decide whether Kansas law would allow employees of independent contractors to recover more for their injuries than a property owner's own employees can recover for the same injur[ies]."
For her part, Herrell insisted that Dillard was distinguishable in important factual and legal respects and stressed the following self-limiting language of its holdings:
The majority of the Court of Appeals panel reversed and remanded for entry of judgment as a matter of law in favor of National Beef. Herrell, 41 Kan.App.2d at 325, 202 P.3d 691. It relied on Dillard to conclude that "an employee of an independent contractor covered by workers compensation insurance cannot recover in negligence from the landowner, regardless of the employee's underlying theory of the landowner's liability." Herrell, 41 Kan.App.2d at 315, 202 P.3d 691. An exception to this rule would arise only if the landowner maintained substantial control over the activities of the independent contractor on the premises. Herrell, 41 Kan. App.2d at 320, 202 P.3d 691.
In the alternative, the Court of Appeals majority predicted that this court would require a landowner to control the details of the project and the contractor's activities in order to impose liability on the landowner. Herrell, 41 Kan.App.2d at 322, 202 P.3d 691. Because, in its view, the record contained inadequate evidence of such control by National Beef, judgment in its favor as a matter of law also was appropriate and must be upheld. Herrell, 41 Kan.App.2d at 323, 202 P.3d 691.
Judge McAnany agreed with his colleagues that the panel was required to set aside the judgment against National Beef, but only because the general verdict may have been influenced by Herrell's theory of liability
We accepted this case on Herrell's petition for review. Although the petition lists two issues, the second is actually a subissue of the first. We therefore ask ourselves the same question National Beef asked when it initially took this appeal: Did National Beef owe a duty of care to Herrell?
We also note another initial refinement of the issue before us. In its response to Herrell's petition for review and again at oral argument before this court, National Beef relied entirely on the Court of Appeals majority's application of Dillard to argue that it should prevail. National Beef argues the only issue is "[whether] the Court of Appeals properly appl[ied] Dillard in finding that Appellee had no duty of care with respect to Appellant." It no longer argued that the Court of Appeals should be affirmed because National Beef lacked control over the workplace or the contractor's activities. Given that National Beef does not contest, for purposes of summary judgment, that rendering was covering whatever hole Herrell fell into, and that the existence of the rendering was an inevitable byproduct of its continued operation of the plant, its decision to push its control argument into the tall grass appears to be prudent appellate strategy. In any event, we need address the control argument no further here. See State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004) (appellant abandons issue on appeal by not adequately briefing issue).We focus our full concentration on whether Dillard can stretch as far as National Beef would have it go.
The parties are correct that the existence of a duty is a question of law and that we have unlimited review. See South, 280 Kan. at 94, 119 P.3d 1.
A landowner generally owes to entrants upon his or her land a duty of reasonable care under the circumstances. Jones v. Hansen, 254 Kan. 499, 509, 867 P.2d 303 (1994). This duty includes a duty to warn of a dangerous condition on the property. Restatement (Second) of Torts § 343 (1964).
The Dillard opinion carved out an exception to these general rules of Kansas premises liability, absolving a landowner of any duty in certain circumstances. In order to decide whether the general rule or the Dillard exception governs this case, we must first understand what the Dillard case did and did not do and then discuss how our workers compensation statutes address the possibility of third-party liability.
Dillard involved a collapse of a wall at a building site for a church and school. Plaintiff Lee Dillard, who was employed by a masonry subcontractor, was seriously hurt in the collapse and was covered by workers compensation for his injuries. He sued the owners of the site, the Roman Catholic archdiocese and its then archbishop, Ignatius J. Strecker, alleging that the defendants were directly liable because of their failure to obtain legally required inspections and vicariously liable for the negligence of his employer, the subcontractor, and/or the general contractor under the inherently dangerous activity doctrine. The plaintiff argued "that while the Workers Compensation Act provides an `exclusive remedy' against an employer, the act does not bar recovery against negligent third parties," and the defendants qualified as such third parties. Dillard, 255 Kan. at 708, 877 P.2d 371.
The Dillard defendants' principal counterargument was that a landowner owed "`no duty to an employee of an independent contractor performing work for the landowner.'" 255 Kan. at 708, 877 P.2d 371. Instead, the injured employee's recovery should be limited to workers compensation benefits provided by his or her employer. To allow recovery against the landowner would permit "`an end-run around the workers compensation law,'" a form of "`double recovery.'" 255 Kan. at 708, 877 P.2d 371.
When the case reached this court, we began our opinion by assuming that the archbishop had a nondelegable duty under the local building code to provide an independent inspector for the masonry work, and that the masonry work qualified as an inherently dangerous activity. Dillard, 255 Kan. at 707, 877 P.2d 371. We stated the issue broadly: "[W]hether a landowner is liable for the negligence of an independent contractor which results in a work-related injury to an employee of the independent contractor when the employee is covered by workers compensation." 255 Kan. at 707, 877 P.2d 371.
To resolve this issue, this court relied entirely on cases from other jurisdictions and the policy justifications we culled from them. Cases from Missouri, Maryland, and Connecticut had figured most prominently in the resolutions arrived at in the district court and in the Court of Appeals. Each case protected a defendant landowner when an injured employee of an independent contractor working on the landowner's property sought imposition of direct liability for violation of a nondelegable duty or vicarious liability under the inherently dangerous activity doctrine. See Dillard, 255 Kan. at 710-18, 877 P.2d 371 (discussing Zueck v. Oppenheimer Gateway Properties, 809 S.W.2d 384 [Mo.1991] [inherently dangerous activity]; Parker v. Neighborhood Theatres, 76 Md.App. 590, 547 A.2d 1080 [1988] [nondelegable duty]; Ray v. Schneider, 16 Conn.App. 660, 548 A.2d 461 [1988] [inherently dangerous activity, nondelegable duty]).
Zueck, the Missouri case, dealt with a landowner's vicarious liability. The Zueck court recognized that a landowner generally exercised no right of control over the manner in which an independent contractor performed work on the landowner's property and was thus protected from vicarious liability for the contractor's negligence. Dillard, 255 Kan. at 711, 877 P.2d 371 (quoting Zueck, 809 S.W.2d at 386 [citing Prosser & Keaton, The Law of Torts, p. 509 (5th ed. 1984)]). An exception to landowner protection from vicarious liability existed at common law if the landowner knew or should have known that the work to be performed by the independent contractor was abnormally dangerous and the contractor failed to take adequate precautions. See Dillard, 255 Kan. at 711, 877 P.2d 371 (discussing Zueck, 809 S.W.2d at 386). The narrow scope of the exception discouraged landowners from hiring inexpensive but unqualified or careless contractors.
The Missouri court believed that this inherently dangerous activity exception was undercut by the adoption of comprehensive workers compensation statutes, under which injured employees sacrificed the ability to sue their employers but not necessarily owners of the premises who contracted with employers in exchange for certain recovery of limited amounts. See Dillard, 255 Kan. at 712, 877 P.2d 371 (discussing Zueck, 809 S.W.2d at 390). The Missouri court did not want to provide an incentive for landowners to have their own, less-than-expert employees perform dangerous tasks, preferring to encourage landowners to hire independent contractors when the contractors' skills were appropriate for the work. It also reasoned that the contract price included a markup for the cost of the contractors' workers compensation coverage, and it did not want to force landowners to pay this portion of the contract price twice by allowing liability. Dillard, 255 Kan. at 713, 877 P.2d 371 (citing Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128 [Mo.1993] [relying on Zueck, 809 S.W.2d at 388]).
In the Maryland case, Parker, 76 Md.App. 590, 547 A.2d 1080, an injured contractor employee claimed that he was owed a nondelegable duty by the defendant landowner under a county building code requiring the premises to be kept in a reasonably safe condition. See Dillard, 255 Kan. at 714, 877 P.2d 371 (discussing Parker, 76 Md.App. at 594, 547 A.2d 1080). The Maryland court refused to recognize such a duty, even though it conceded that the landowner's responsibilities under the code could not be farmed out to a contractor: "`As to the public generally, the duty remains[;] but it does not extend to employees of the contractor
The Connecticut case, Ray, 16 Conn.App. 660, 548 A.2d 461, involved an independent contractor's employee who sued a landowner under both vicarious and direct liability theories. As our Dillard opinion explained:
The Connecticut court concluded that liability would not be permitted, distinguishing an employee of an independent contractor with workers compensation coverage from a member of the general public, and noting that the contract price charged to the landowner presumably would have included the cost of workers compensation coverage. The court also wanted to avoid the perversity of imposing greater liability on a landowner when an employee of an independent contractor was injured, as compared to when an employee of the landowner was injured. Again, the court hoped to encourage landowners to hire contractors with needed expertise. The court also believed that the employee's knowledge of any hazard would be superior to that of the landowner, making imposition of liability on the landowner unfair. Dillard, 255 Kan. at 718, 877 P.2d 371 (quoting Ray, 16 Conn.App. at 668-70, 548 A.2d 461).
In addition to these three cases, our Dillard opinion also cited cases from 6 federal circuits, 2 federal district courts, and 17 additional states as consistent in rejecting landowner liability on at least one of the two theories before it. See Dillard, 255 Kan. at 721, 877 P.2d 371 (citing Scofi v. McKeon Const. Co., 666 F.2d 170 [5th Cir.1982]; Evans v. Transportacion Maritime Mexicana, 639 F.2d 848 [2d Cir.1981]; Nelson v. United States, 639 F.2d 469 [9th Cir.1980]; Chavis v. Finnlines Ltd., OY, 576 F.2d 1072 [4th Cir. 1978]; Hess v. Upper Mississippi Towing Corp., 559 F.2d 1030 [5th Cir.1977], cert. denied 435 U.S. 924, 98 S.Ct. 1489, 55 L.Ed.2d 518 [1978]; Craig v. Olin Mathieson Chemical Corporation, 427 F.2d 962 [7th Cir.], cert. denied 400 U.S. 964, 91 S.Ct. 365, 27 L.Ed.2d 383 [1970]; Parsons v. Amerada Hess Corporation, 422 F.2d 610 [10th Cir. 1970]; Lipka v. United States, 369 F.2d 288 [2d Cir.1966], cert. denied 387 U.S. 935, 87 S.Ct. 2061, 18 L.Ed.2d 997 [1967]; Galbraith v. United States, 296 F.2d 631 [2d Cir.1961]; Wallach v. United States, 291 F.2d 69 [2d Cir.], cert. denied 368 U.S. 935, 82 S.Ct. 373, 7 L.Ed.2d 197 [1961]; Corban v. Skelly Oil Company, 256 F.2d 775 [5th Cir.1958]; Hurst v. Gulf Oil Corporation, 251 F.2d 836 [5th Cir.1958]; Ackerman v. Gulf Oil Corp., 555 F.Supp. 93 [D.N.D.1982]; Olson v. Kilstofte and Vosejpka, Inc., 327 F.Supp. 583 [D.Minn.1971]; Morris v. City of Soldotna, 553 P.2d 474 [Alaska 1976]; Sloan v. Atlantic Richfield Company, 552 P.2d 157 [Alaska 1976]; Matanuska Electric Association, Inc. v. Johnson, 386 P.2d 698 [Alaska 1963]; Mason v. Arizona Public Serv. Co., 127 Ariz. 546, 622 P.2d 493 [Ct.App.1980]; Welker v. Kennecott Copper Company, 1 Ariz.App. 395, 403 P.2d 330 [1965]; Jackson v. Petit Jean Electric Co-op., 270 Ark. 506, 606 S.W.2d 66 [1980]; Florida Power and Light Co. v. Price, 170 So.2d 293 [Fla.1964]; Pearson v. Harris, 449 So.2d 339 [Fla.Dist.App.1984]; Peone v. Regulus Stud Mills, Inc., 113 Idaho 374, 744 P.2d 102 [1987]; Johns v. New York Blower Co., 442 N.E.2d 382 [Ind.App.1982]; King v. Shelby Rural Electric Cooperative Corp., 502 S.W.2d 659 [Ky.1973], cert. denied 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 235 [1974]; Vertentes v. Barletta Co., 392 Mass. 165, 466 N.E.2d 500 [1984]; Conover v. Northern States Power Co., 313 N.W.2d 397 [Minn.1981]; Sierra Pac. Power Co. v. Rinehart, 99 Nev. 557, 665 P.2d 270 [1983]; Donch v. Delta Inspection Services, Inc., 165 N.J.Super. 567, 398 A.2d 925 [1979]; Hader
The Dillard opinion acknowledged contrary rulings from one federal circuit and five other states but characterized them as "inapposite to the specific issue under discussion" because they did not discuss the policy justifications central to the majority rule. See Dillard, 255 Kan. at 722, 877 P.2d 371 (citing Lindler v. District of Columbia, 502 F.2d 495 [D.C.Cir.1974]; Van Arsdale v. Hollinger, 68 Cal.2d 245, 66 Cal.Rptr. 20, 437 P.2d 508 [1968]; Makaneole v. Gampon, 70 Haw. 501, 777 P.2d 1183 [1989]; Giarratano v. The Weitz Co., Inc., 259 Iowa 1292, 147 N.W.2d 824 [1967]; Perry v. McLouth Steel Corp., 154 Mich.App. 284, 397 N.W.2d 284 [1986]; Vannoy v. City of Warren, 15 Mich.App. 158, 166 N.W.2d 486 [1968]; Elliott v. Public Serv. Co. of N.H., 128 N.H. 676, 517 A.2d 1185 [1986]).
On its way to its public policy-based outcome, the Dillard opinion also dismissed the implications of an earlier Kansas vicarious liability case, Balagna v. Shawnee County, 233 Kan. 1068, 668 P.2d 157 (1983). Balagna involved the death of an employee of a general contractor on a construction project, and the main issue was whether the landowner could be liable for the contractor's negligent failure to shore up the ditch in which the employee was fatally injured. This court embraced both the general principal of no landowner vicarious liability set forth in Restatement (Second) of Torts § 409 (1964) and the inherently dangerous activity exception to the general principal set forth in Restatement (Second) of Torts § 427 (1964). Yet, under these rules, it ultimately held that there could be no landowner liability in the case before it, because the activity engaged in by the employee did not qualify as inherently dangerous. Balagna, 233 Kan. at 1082, 668 P.2d 157.
The Dillard opinion gave Balagna and cases akin to it short shrift:
The Dillard opinion had already specifically stated that the controlling policy considerations applied to both the vicarious liability and direct liability claims before it. See Dillard, 255 Kan. at 715, 877 P.2d 371. It then enumerated nine policy rationales to support its conclusion that the archbishop and archdiocese had no duty:
The opinion also assigned numbers to its specific substantive holdings:
All of the discussion of Dillard above outlines what it did. But this court was at least as emphatic about what it did not do. As Herrell has emphasized, its third numbered "holding" read: "Our decision is limited to the facts herein and to those instances where the injured employee of an independent contractor covered by workers compensation seeks to hold a landowner liable under the theories discussed in the opinion." 255 Kan. at 727, 877 P.2d 371. Furthermore, this court had already twice taken pains to point out that it was considering only the two theories of recovery advanced—direct liability based on the archbishop's and archdiocese' failure to comply with the building code's nondelegable inspection requirement and vicarious liability under the inherently dangerous activity doctrine. Dillard, 255 Kan. at 707-08, 877 P.2d 371 (setting out plaintiff's two theories), 709-10 (noting authorities from other jurisdictions had intertwined direct nondelegable duty liability, vicarious liability).
Herrell is not urging us to overrule Dillard, and we accept its continuing controlling force on the two theories of landowner liability it so thoroughly addressed. Yet its limitations—and the court's intention that those limitations have meaningful impact in future cases—could not be more clear. Herrell's premises cause of action alleging direct negligence by National Beef in creating a hazardous condition and failing to warn of it is not controlled by Dillard. It is neither based on a nondelegable statutory or regulatory duty of National Beef nor based on negligence of Herrell's employer for which National Beef may be exposed to vicarious liability. See also Dye v. WMC, Inc., 38 Kan.App.2d 655, 665, 172 P.3d 49 (2007) (recognizing application of Dillard in "some" negligence contexts). In these circumstances, we are unwilling to absolve National Beef of any duty to Herrell based purely on the policy considerations upon which Dillard exclusively relied. Compare McCubbin v. Walker, 256 Kan. 276, 297, 886 P.2d 790 (1994) (declining to extend Dillard to all cases involving landowners, injured employees of independent contractors; issue not directly determinative); Cuiksa v. Hallmark Hall of Fame Productions, Inc., 252 F.Supp.2d 1166, 1175 (D.Kan.2003) (limiting reach of Dillard to landowner defendants); Martin v. Mapco Ammonia Pipeline, Inc., Nos. CIV.A. 93-2218-GTV and CIV.A. 93-2303-GTV, 1994 WL 409591, *7 (D.Kan.1994) (unpublished opinion) (limiting reach of Dillard to landowner defendants). Rather, we turn to our
When we must interpret statutes, our touchstone is legislative intent.
As described in the Dillard decision,
"[i]t has long been the law of Kansas that an employer's liability for injury to an employee is limited exclusively to recovery under the Workers Compensation Act. As such, where the injury and the employer-employee relationship fall within the scope of the Act, the exclusive remedy provision of K.S.A. 44-501(b) precludes an employee from maintaining a civil action against the employer. Tomlinson v. Owens-Corning Fiberglas Corp., 244 Kan. 506, Syl. ¶ 3, 770 P.2d 833 (1989). In Hollingsworth v. Fehrs Equip. Co., 240 Kan. 398, 401, 729 P.2d 1214 (1986), this court discussed the relevant statutory provision, stating:
"However, while the liability of the employer is limited, the employee can still bring an action against and recover damages from a negligent third party. K.S.A. 44-504(a) provides:
Neither the exclusive remedy provision of K.S.A. 44-501(b) nor the third-party provision of K.S.A. 44-504(a) was amended from the time Dillard discussed them in 1994 until the time of Herrell's accident. See K.S.A. 44-504(a) (showing no amendments since 1993); K.S.A. 44-501(b) (nonpertinent amendments L. 1996, ch. 79, sec. 1; L. 2000, ch. 160, sec. 5; L. 2005, ch. 54, sec. 1).
Under the plain language of these two statutes, a landowner in National Beef's position is not excluded from liability if its negligence causes injury to an independent contractor's employee while that employee is working on the landowner's property. It is not the employer, so it cannot claim the protection of K.S.A. 44-501(b)'s exclusive remedy provision. And it is not omitted from the ranks of third parties that "shall" be subject to suit under K.S.A. 44-504(a). The workers compensation statutory scheme simply does not respond to the general common law of premises liability. It certainly could do so if the legislature chose this policy route. Thus National Beef owed Herrell the same duty it owed to other entrants onto its property—a duty of reasonable care under the circumstances, including a duty to warn of any dangerous condition. The district judge was correct to deny judgment as a matter of law to National Beef on this claim.
This ruling does not completely dispose of this appeal, however. We must also deal with Herrell's pursuit of National Beef because of its failure to comply with the OSHA regulation, a subject we turn to now.
The district judge included in his instructions to the jury a description of OSHA Reg. 1910.23(a)(8), which deals with precautions to be taken when there is a hole in a workplace floor. The jury was told Herrell alleged that her injuries and damages were caused by National Beef's violation of the "industry standard" set by the regulation, and the general verdict form did not permit the jury to designate whether all or part of the damages awarded to Herrell were attributable to any particular legal theory. In other words, we cannot be certain on the record before us whether the OSHA regulation played any role in the jury's decision or, if it did play a role, how to account for it on this appeal.
This uncertainty matters because Herrell's OSHA regulation violation theory of recovery is foreclosed by Dillard's first substantive holding. It qualifies as a direct negligence action against National Beef based on its alleged violation of a nondelegable regulatory duty. This claim is legally indistinguishable from that dependent on the archbishop's and archdiocese' failure to ensure the performance of inspections under the building code. See Dillard, 255 Kan. at 727, 877 P.2d 371. Thus, Dillard does control this theory; no duty arose, and the claim should have been disposed of as a matter of law. Its inclusion in the jury instructions, with no opportunity for the jury to differentiate any liability based upon it in the general verdict form, polluted the trial of this case and necessitates reversal. Because of our
The Court of Appeals is affirmed in part and reversed in part. The district court is affirmed in part, and reversed in part, and this case is remanded to the district court for further proceedings consistent with this opinion.
DAVIS, C.J., not participating.
JOHN C. GARIGLIETTI, District Judge, assigned.
