Michaelis v. Farrell

1

No. 106,988

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JASON MICHAELIS,
Appellee,

v.

GERALD and PEGGY FARRELL,
Appellants.


SYLLABUS BY THE COURT

1.
A directed verdict is now referred to as a judgment as a matter of law. K.S.A. 2012
Supp. 60-250. Our standard of review on a motion for judgment as a matter of law is the
same as previously employed for a directed verdict.

2.
When ruling on a motion for a judgment as a matter of law, the trial court is
required to resolve all facts and inferences reasonably to be drawn from the evidence in
favor of the party against whom the ruling is sought. Where reasonable minds could
reach different conclusions based on the evidence, the motion must be denied. A similar
analysis must be applied by an appellate court when reviewing the grant or denial of a
motion for judgment as a matter of law.

3.

A motion for judgment as a matter of law must be denied when evidence exists
upon which a jury could properly find a verdict for the nonmoving party.

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4.
The statute of limitations starts to run in a tort action when the act first causes
substantial injury. K.S.A. 60-513(b).

5.
Kansas courts have interpreted the phrase "substantial injury" to mean "actionable
injury."

6.
The statute of limitations starts to run in a tort action when a negligent act causes
injury if both the act and the resulting injury are reasonably ascertainable by the injured
person.

7.
Inherent in the meaning of "to ascertain" is the need to investigate.

8.
When reason exists to suspect a negligent act and when information exists from
which negligence can be determined, the limitations period will start. In other words, the
Kansas "fact of injury" standard postpones the running of the limitations period until the
time the plaintiff is able to determine that his or her injury may have been caused by
some act of the defendant.

9.
The use of the phrase "substantial injury" in K.S.A. 60-513(b) does not require the
injured person to have knowledge of the full extent of his or her injuries, but the person
must have a reasonably ascertainable injury to justify an action for recovery of damages.

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10.
The true test to determine when an action accrues is that point in time at which the
plaintiff could have filed and prosecuted his or her action to a successful conclusion.
Both the act and resulting injury must be reasonably ascertainable to the injured party.

11.
If examining the surrounding circumstances shows that the plaintiff clearly has
knowledge of his or her injury and that the defendant was the likely cause, the trial court
can make the legal determination that the injury was reasonably ascertainable at that
point.

12.
If the trial court finds the evidence is in dispute as to when substantial injury first
appears or becomes reasonably ascertainable, the issue is for determination by the trier of
fact.

13.
It is the duty of the trial court to properly instruct the jury upon a party's theory of
the case. Error regarding jury instructions will not demand reversal unless it results in
prejudice to the appealing party. Instructions in any particular action are to be considered
together and read as a whole, and where they fairly instruct the jury on the law governing
the case, error in an isolated instruction may be disregarded as harmless. If the
instructions are substantially correct and the jury could not reasonably be misled by them,
the instructions will be approved on appeal.

Appeal from Johnson District Court; DAVID W. HAUBER, judge. Opinion filed March 8, 2013.
Affirmed.

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Ian M. Bartalos and Charles A. Edgeller, of McCausland Barrett & Bartalos P.C., of Kansas City,
Missouri, for appellants.

Gary Mardian, of Kansas City, Missouri, and Jonathan M. Soper, of Humphrey, Farrington &
McClain, P.C., of Independence, Missouri, for appellee.

Before ARNOLD-BURGER, P.J., GREEN, J. and HEBERT, S.J.

GREEN, J.: This litigation arises out of a negligence action where the plaintiff,
Jason Michaelis, sued the defendants, Gerald Farrell and Peggy Farrell, for an electrical
shock he suffered while at the defendant's property. A jury allowed recovery on plaintiff's
claim. Moreover, the jury determined that Michaelis did not reasonably ascertain that he
had sustained substantial injury until 5 years after receiving the electrical shock, which
allowed him to overcome the applicable 2-year statute of limitations hurdle. On appeal,
the Farrells contend that the trial court erred in denying their posttrial motions, (1)
arguing that Michaelis was barred from bringing his action under the applicable 2-year
statute of limitations, and (2) that jury instruction 8 misstated the law regarding this issue.
We disagree. Accordingly, we affirm.

Michaelis' plans were to spend the Fourth of July holiday with his mother and
stepfather at their lake home in Climax Spring, Missouri. Michaelis' stepfather had been
experiencing problems with the boat lift on his dock, and he asked Michaelis, an
electrician, to bring his tools when he came to the lake. While at the lake house on the
morning of July 2, 2005, Michaelis answered a knock on the door. A woman was frantic
because what she thought was a dead dog was floating in the lake. When Michaelis
walked down to the dock, he saw another man was about to enter the water. As the man
stepped onto a ramp, he fell in the water. Michaelis stated he understood the man to say
he was being "electrocuted." Michaelis thought the dock was electrified so he told the
man to move away from the dock. The man let go of the dock and disappeared under the
water. The man's daughter was present and asked Michaelis to save her father. Michaelis
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still believed the dock was conducting a current so he assumed if he jumped in the water
far enough from the dock he would avoid getting shocked. Michaelis jumped in the lake
and was immediately aware the water had become electrified and he was getting shocked.
Right before Michaelis jumped in the lake, he had yelled for someone to cut off the
electricity, and the next thing he knew, he had popped out of the water.

Michaelis testified that after the power was shut off, his body felt like it had been
through a workout; his body felt numb and was tingling. But other than those sensations,
Michaelis thought he was fine. Everyone survived the electrified water, including the
dog.

Beyond what he described as "nerves" after returning to work as an electrician,
Michaelis did not initially note any difficulties. Over time, however, he began
experiencing problems with memory and concentration which became progressively
worse over the years. In March 2007, he consulted Dr. George Wurster, a psychiatrist, for
severe overwhelming anxiety. Dr. Wurster was aware that Michaelis had suffered an
electrical shock in 2005, but it was not until late 2009 that the doctor noted possible
central nervous system syndrome secondary to the electrical shock. Dr. Wurster referred
Michaelis to Dr. Sandi Isaacson, a neuropsychologist, to help ascertain if Michaelis had
suffered neurological injury because of the electrical shock. After testing Michaelis in
March 2010, Dr. Isaacson concluded he had suffered a neurocognitive brain dysfunction
as a result of the electrical shock. Michaelis sued the Farrells for negligence on July 2,
2010.

The Farrells moved for summary judgment arguing that, as a matter of law,
Michaelis suffered an injury immediately after the accident, or soon thereafter, when
Michaelis was experiencing the problems he was having. Accordingly, the Farrells
maintained that Michaelis' suit was barred by the 2-year statute of limitations. The trial
court denied the motion, finding there was a genuine issue of material fact as to when
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Michaelis reasonably ascertained he had suffered substantial injury caused by the
electrical accident.

The matter went to trial and the jury awarded total damages of $120,412 and
assigned comparative fault at 50% for the Farrells and 50% for Michaelis. As a result, the
damages assessed against the Farrells totaled $60,206. In answer to the question asking
on what date did Michaelis reasonably ascertain he suffered a substantial injury, the jury
verdict stated: "Spring 2010."

Although Michaelis filed his petition in Johnson County, Kansas, where the
parties resided, Missouri law applied to the cause of action. Thus, Michaelis was still
entitled to recover damages despite the jury finding him equally at fault. See Mo. Rev.
Stat. § 537.765.2 (2000) ("Any fault chargeable to the plaintiff shall diminish
proportionately the amount awarded as compensatory damages but shall not bar
recovery."); cf. K.S.A. 60-258a(a) (the plaintiff's contributory negligence does not bar
recovery as long as that party's fault is less than the causal negligence of the defendant).
Nevertheless, the Farrells' statute of limitations defense was governed by Kansas
statutory law.

Did the trial court err in denying the Farrells' posttrial motions for directed verdict and
judgment as a matter of law as to their statute of limitations defense?

The Farrells moved for a directed verdict on their statute of limitations defense
during trial and timely renewed the motion after entry of judgment under K.S.A. 2012
Supp. 60-250(b). The Farrells argued that there was no genuine issue of material fact
regarding when Michaelis suffered an actionable injury as a result of the accident on July
2, 2005, and Michaelis filed his action outside the permissible 2-year statute of
limitations in K.S.A. 60-513(b). In their motion, the Farrells maintained that the evidence
showed Michaelis suffered an immediate shock and pain when he entered the water, and
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soon after the accident, Michaelis reported anxiety about continuing his employment as
an electrician. The Farrells further contended that Michaelis' problems following the
accident—trouble comprehending blueprints and issues with concentration and anxiety—
were associated by both Michaelis and his psychiatrist, Dr. Wurster, with the electrical
accident. The Farrells maintained Dr. Isaacson's 2010 diagnosis was merely verification
of the extent of Michaelis' injuries, which is not the standard to determine when there was
objective knowledge of the injury.

The trial court found the issue of when Michaelis reasonably ascertained he
suffered an injury as a result of the accident was similar to the case of Gilger v. Lee
Constr., Inc., 249 Kan. 307, 820 P.2d 390 (1991). As in Gilger, the trial court found there
were disputed facts regarding when Michaelis realized his injury was connected with the
electric shock. Consequently, the trial court determined this was a fact question for the
jury.

Standard of Review

Our Supreme Court in National Bank of Andover v. Kansas Bankers Surety Co.,
290 Kan. 247, 267, 225 P.3d 707 (2010), provides the following standard of review
regarding a motion for judgment as a matter of law (formerly a directed verdict) under
K.S.A. 2012 Supp. 60-250:

"Appellate courts apply the same standard as trial courts when considering a
motion for directed verdict, now known as a judgment as a matter of law under K.S.A.
60-250. See Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 (2007).
"'"'When ruling on a motion for directed verdict, the trial court is required to
resolve all facts and inferences reasonably to be drawn from the evidence in favor of the
party against whom the ruling is sought. Where reasonable minds could reach different
conclusions based on the evidence, the motion must be denied. A similar analysis must be
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applied by an appellate court when reviewing the grant or denial of a motion for directed
verdict.'" [Citations omitted.]' 285 Kan. at 40.
"Stated another way, the inquiry is 'whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,
91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see, e.g., Smith, 285 Kan. at 40 ('In other
words, a motion for judgment as a matter of law must be denied when evidence exists
upon which a jury could properly find a verdict for the nonmoving party.')."

Analysis

K.S.A. 60-513(a)(4) provides that an "action for injury to the rights of another, not
arising on contract, and not herein enumerated" shall be brought within 2 years. K.S.A.
60-513(b) provides, in relevant part:

"[T]he causes of action listed in subsection (a) shall not be deemed to have accrued until
the act giving rise to the cause of action first causes substantial injury, or, if the fact of
injury is not reasonably ascertainable until some time after the initial act, then the period
of limitation shall not commence until the fact of injury becomes reasonably
ascertainable to the injured party, but in no event shall an action be commenced more
than 10 years beyond the time of the act giving rise to the cause of action."

On appeal, the Farrells contend that K.S.A. 60-513(b) presents two alterative bases
to determine if a cause of action has accrued, which they arbitrarily label the "threshold
standard" and the "alternative standard." The Farrells maintain that throughout the case,
the trial court failed to consider the "threshold standard"—an action is deemed to have
accrued when the act first causes substantial injury—which would have entitled them to
judgment as a matter of law. According to the Farrells, the trial court wrongly found the
fact of injury was not reasonably ascertainable until sometime after the accident by
addressing only the "alternative standard."

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In response, Michaelis claims that this issue is raised for the first time on appeal
and, further, that the Farrells offer no authority to support a two-part distinction in K.S.A.
60-513(b). As a result, Michaelis contends that this issue is waived. But the Farrells
contend that they were merely providing a way to differentiate the two alternatives bases
from which a trial court could determine when a cause of action accrues; this was not a
new argument. The Farrells maintain that from the beginning they argued the electric
shock accident immediately gave rise to substantial injury and that, had the trial court
considered the first basis for accrual, it would have held that Michaelis suffered
substantial injury on July 2, 2005.

The Farrells seem to be arguing that the trial court erred in submitting this issue to
the jury because the electric shock caused substantial injury to Michaelis on July 2, 2005,
or soon thereafter, as a matter of law. There is no indication that the trial court did not
consider if the negligent act caused substantial injury when Michaelis received the
electric shock. Rather, the trial court found this was a disputed question of fact. The trial
judge stated, "I can see the arguments [whether there was actionable injury immediately
after the incident or not until years later] both ways."

Caselaw

The statute of limitations starts to run in a tort action when the act first causes
"substantial injury." K.S.A. 60-513(b). Kansas courts have interpreted the phrase
"substantial injury" to mean "actionable injury." Roe v. Diefendorf, 236 Kan. 218, Syl. ¶
2, 689 P.2d 855 (1984). "The rule which has developed is: The statute of limitations starts
to run in a tort action at the time a negligent act causes injury if both the act and the
resulting injury are reasonably ascertainable by the injured person." 236 Kan. at 222.
"[T]he term 'reasonably ascertainable' . . . suggests an objective standard based upon an
examination of the surrounding circumstances." P.W.P. v. L.S., 266 Kan. 417, 425, 969
P.2d 896 (1998).
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"Inherent in 'to ascertain' is 'to investigate.'" Davidson v. Denning, 259 Kan. 659,
675, 914 P.2d 936 (1996). When reason exists to suspect a negligent act and when
information exists from which negligence can be determined, the limitations period will
start. See 250 Kan. at 675-76. In other words, "Kansas' 'fact of injury' standard postpones
the running of the limitations period until the time the plaintiff is able to determine that
[his or her] injury may be caused by some act of the defendant." Benne v. International
Business Machines Corp., 87 F.3d 419, 427 (10th Cir. 1996).

The use of the phrase "substantial injury" in K.S.A. 60-513(b) does not require the
injured person to have knowledge of the full extent of his or her injuries, but the person
must have a "sufficient [reasonably] ascertainable injury to justify an action for recovery
of damages." 236 Kan. at 222. "'The true test to determine when an action accrues is that
point in time at which the plaintiff could first have filed and prosecuted his action to a
successful conclusion.' [Citation omitted.]" KPERS v. Reimer & Koger Assocs., Inc., 262
Kan. 110, 116, 936 P.2d 714 (1997). Both the act and resulting injury must be reasonably
ascertainable to the injured party. Roe, 236 Kan. at 222.

If examining the surrounding circumstances shows that the plaintiff clearly has
knowledge of his or her injury and that the defendant was the likely cause, the trial court
can make the legal determination that the injury was reasonably ascertainable at that
point. See Lehmann v. Young, No. 97,602, 2007 WL 3146699, at * 6 (Kan. App. 2007)
(unpublished opinion). But if the trial court finds the evidence is in dispute as to when
substantial injury first appeared or became reasonably ascertainable, the issue is for
determination by the trier of fact. Gilger, 249 Kan. at 311.

Underlying Facts

Michaelis testified that when he jumped in the water his body shook with
electricity; his arms would not move to bring him back to the surface; and he was afraid
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he would drown. On cross-examination, defense counsel asked Michaelis if feeling the
electrical current running through his body was painful. Michaelis answered, "Yes."
When asked about this answer on redirect, Michaelis stated, "It wasn't pain like
excruciating pain. It was . . . discomfort." Emergency medical personnel arrived and
checked Michaelis' vital signs, which were normal. They wanted to take Michaelis to the
hospital as a preventative measure, but he refused. Michaelis had been around people
who had suffered electrical shocks, and he knew he had not suffered any injury typically
seen from an electrical shock. Immediately after the accident, Michaelis' stepfather saw
him standing up in the water and he asked Michaelis if he was okay. Michaelis said he
was okay. Michaelis' stepfather further testified that Michaelis lifted the dog out of the
water and that the dog weighed around 100 pounds.

When Michaelis returned to work after the accident, he admitted he was afraid
when it came time to work on "hot" electrical panels, describing it as being "gun-shy."
Over time he began having trouble with his memory, focusing, and reading blueprints. He
thought he might be having problems with his eyes and that he might be developing
diabetes. When his symptoms became progressively worse, he investigated those
problems by seeking medical advice. He was referred to Dr. Wurster. Michaelis testified
that he told Dr. Wurster he had had those difficulties since the time of the electrical
shock, but Dr. Wurster dismissed the suggestion that his condition was caused by the
accident. According to Michaelis, Dr. Wurster finally referred him to Dr. Isaacson for
further investigation because medication had not ameliorated the symptoms. Michaelis
testified that Dr. Isaacson told him that he had suffered a physical brain injury as a result
of the electric shock.

Dr. Wurster testified that he first saw Michaelis in March 2007. Michaelis was
complaining of severe overwhelming anxiety, depression, memory problems, and
difficulty reading blueprints. Michaelis reported he could no longer supervise people at
work, and he was not able to follow directions like before. Dr. Wurster testified that
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Michaelis told him about the electrical shock, and Dr. Wurster thought it had something
to do with Michaelis' problems, but it was not until late 2009 that Dr. Wurster diagnosed
Michaelis with posttraumatic stress disorder brought on by the electric shock. When Dr.
Wurster was asked if this was the first time he had relayed to Michaelis that he believed
Michaelis' problems were due to the electrical shock, he answered:

"I probably made it more clear then. Initially, when I saw him over the months, I
wasn't—I don't know anything about electricity, so it was hard for me to understand the
severity of the shock. And I didn't understand that, and, therefore, I didn't want to jump to
that conclusion. But over time it became more and more obvious that that could be the
problem—part of the problem, and, therefore, I recommended he investigate it more."

That was when Dr. Wurster referred Michaelis to Dr. Isaacson.

Dr. Isaacson testified that she first saw Michaelis in February 2010. At that time,
he was complaining of multiple symptoms—memory issues, anxiety, inability to
concentrate, and difficulty with problem solving. Michaelis reported he noted those
problems after receiving a large dose of electricity, but he thought it might simply be part
of being depressed and was concerned that the depression had not remitted. After testing
Michaelis and reviewing medical research, Dr. Isaacson testified that she concluded that
Michaelis had a disruption in the way his brain cells communicate and that these changes
were brought on by the electric shock.

Dr. Isaacson explained that brain injuries from electrocution are different than
traumatic brain injuries. As opposed to traumatic brain injuries, which cause immediate
injury and get better over time, electrical shock injuries to the brain are insignificant
initially and worsen over time, particularly around the fourth or fifth year. Dr. Isaacson
further explained that electrical shock injuries to the brain cause cognitive functions to
deteriorate over time, including increased memory and attention problems and difficulty
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regulating emotions. In the spring of 2010, Dr. Isaacson diagnosed Michaelis with injury
to his brain caused by the electrical shock.

Arguments

The Farrells repeatedly assert that Michaelis suffered substantial or actionable
injury on July 2, 2005, because he knew he had suffered an electric shock when he
entered the water and, immediately thereafter, Michaelis experienced paralysis, pain,
fear, anxiety, and emotional distress. The Farrells note that the trial court relied on
Gilger, but they contend that case is distinguishable because the plaintiffs in Gilger
suffered symptoms at various times from carbon monoxide exposure but were unaware of
the cause for many years. The Farrells argue that Michaelis was aware he was receiving
an electric shock when it was occurring and he was equally aware of the symptoms he
experienced as a result of the shock. According to the Farrells, the only delayed aspect of
Michaelis' case was the formal diagnosis made by Dr. Isaacson; Michaelis knew or
reasonably should have ascertained that the electric shock caused his injuries. In that
respect, the Farrells contend that this case is similar to Friends University v. W.R. Grace
& Co., 227 Kan. 559, 608 P.2d 936 (1980), and Roe, 236 Kan. 218.

In Gilger, within a year of moving into their home, the plaintiffs began
experiencing health problems and suspected, at least in part, that gas in the house was the
source of their problems. Over the years, the furnace was repeatedly checked for gas or
carbon monoxide leaks, but none were found. About 4 years after moving into the house,
an inspection of the furnace showed it was improperly vented. The plaintiffs thereafter
filed a negligence action, claiming they did not discover their health problems were
caused by the furnace until the inspection showed it was improperly vented. The trial
court granted summary judgment in favor of the defendants, concluding that the plaintiffs
knew or could have reasonably ascertained before the 2-year statute of limitations that
their injuries were caused by the defendants' negligent acts.
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On appeal, the appellees argued that the appellants became aware of their
problems shortly after they moved into the house because they sought medical treatment
for their symptoms and were periodically suspicious of gas in the house. The appellants
admitted they were aware they were suffering substantial health problems, but they did
not know the nature and cause of their problems until they were told the furnace was
installed without proper venting.

As did the Farrells, the appellees in Gilger relied on Friends and Roe. Our
Supreme Court ruled that their reliance on Friends and Roe was misplaced. Gilger, 249
Kan. at 321. In Friends, the plaintiff's new roof began to leak soon after it was installed.
The plaintiff complained to the roofing company. At some point the roofing manufacturer
became involved and attempts were made to repair the roof. About 4 or 5 years after the
roof first started leaking, the plaintiff retained an expert, who determined the
manufacturer was at fault. The plaintiff brought an action within 2 years of the expert's
report but well beyond the 2-year statute of limitations. Our Supreme Court determined
that the plaintiff's failure to know the exact scientific nature of the problem did not toll
the statute of limitations when it was clearly apparent when the roof first started leaking
that there was a problem with the roof caused by a defective design, materials, or
workmanship. 227 Kan. at 563, 565.

In Roe, the plaintiff was in a car accident and suffered a back injury that caused
pain and required him to be laid off work for several days. Plaintiff did not file suit,
however, until he reinjured his back over 2 years later. Plaintiff argued that he did not
realize the full extent of his injuries until then. Our Supreme Court ruled that the action
accrued when the plaintiff sustained sufficient ascertainable injuries to justify an action
for damages regardless of the extent of the injuries. 236 Kan. at 222-23.

The Gilger court distinguished both Friends and Roe because in those cases the
party whose negligence caused the injuries was immediately known and the injuries were
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ascertainable within a short period of time. 249 Kan. at 322. Although the Gilger court
acknowledged that the appellants knew they were ill long before they filed suit and that
they suspected carbon monoxide gas poisoning, the court noted that the appellants
received different opinions on the cause of their symptoms and stated: "Injury and
damages alone are not sufficient for the accrual of a negligence action. Establishing when
the facts of injury were reasonably ascertainable is an essential element in determining
when a tort action accrued." 249 Kan. at 322. Because the evidence was controverted as
to when the appellants' injuries were reasonably ascertainable and when the cause of the
injuries was determined, the Gilger court ruled that a material question of fact existed
that should be resolved by a jury. 249 Kan. at 322.

The surrounding circumstances of Michaelis' case are more similar to Gilger than
either Friends or Roe. Contrary to the Farrells' assertions, when viewing the evidence in a
light favorable to Michaelis, the evidence indicates that no actionable injury existed on
July 2, 2005. Michaelis did not believe he suffered any injury at that time and, by all
appearances, he had no physical or acute injury immediately after the electric shock. At
some point Michaelis knew he was having difficulties with memory, concentration,
anxiety, and depression, and he suspected his problems were related to the electric shock.
Moreover, Michaelis investigated the symptoms that he was experiencing by seeking
medical help. But, as explained earlier, Dr. Wurster initially dismissed any connection
between Michaelis' symptoms and his electric shock. Arguably, unlike Friends or Roe,
Michaelis did not know that his injury was associated with the electrical shock until late
2009 or early 2010 when Dr. Isaacson told Michaelis that his test results and problems
were consistent with electrical injuries to the brain. The statute of limitations commenced
running at that time. Accordingly, Michaelis' claims would have to be brought no later
than late 2011 or early 2012 for his claims not be be barred by the 2-year statute of
limitations. Because Michaelis filed his cause of action on July 2, 2010, the applicable 2-
year statute of limitations did not bar his claims.

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The evidence was controverted as to when Michaelis' injury was reasonably
ascertainable and the cause of the injury was determined. We draw some guidance from
Hall v. Miller, 29 Kan. App. 2d 1066, 1073, 36 P.3d 328 (2001). In Hall, the court
pointed out that when dealing with mental conditions, bright-line events may not be
present under K.S.A. 60-513(b). Accordingly, the trial court properly submitted the
question to the jury and properly denied the Farrells' motion for a directed verdict and
motion for judgment as a matter of law.

Did the trial court err in denying the Farrells' motion for new trial because jury
instruction 8 misstated the law under K.S.A. 60-513(b)?

The Farrells filed a motion for new trial arguing the trial court's jury instruction
regarding K.S.A. 60-513(b) was a misstatement of the law because it failed to define
"substantial injury."

Jury instruction 8 stated: "If you find any fault on defendants and that plaintiff has
sustained damages, you must determine on the verdict form the date when plaintiff
reasonably ascertained that he had suffered a substantial injury related to the electric
shock received on July 2, 2005."

On appeal, the Farrells contend this instruction misstated Kansas law because (1)
it ignored the "threshold standard" language that would have allowed the jury to find
Michaelis suffered substantial injury on July 2, 2005; (2) the trial court should have
defined the phrase "substantial injury" in a manner consistent with Roe or used the phrase
"ascertainable injury" or "any injury"; and (3) the instruction provided the jury with a
subjective standard instead of an objective standard.

Michaelis contends that the Farrells did not properly object to jury instruction 8.
According to Michaelis, the Farrells indicated they were agreeable to the instruction but
17

wanted an additional instruction defining the word "substantial"; but they never proposed
a definition. Michaelis further contends that the Farrells are not just claiming the
instruction was incomplete but now, for the first time on appeal, maintain that the
instruction misstated the law in ways they never mentioned below. The Farrells disagree
and assert their objection was not a request for a jury instruction but an objection that
instruction 8 misguided and misled the jury. Accordingly, they contend that their
objection did not require a supplemental instruction.

Underlying Facts

Before the jury instruction conference, the Farrells submitted an instruction that
read: "Your verdict must be for the defendants if you believe plaintiff had an
ascertainable injury arising from the incident at issue, regardless of the extent, prior to
June 2, 2008."

On the record, defense counsel made the following statements regarding the trial
court's proposed instruction on this issue.

"THE COURT: . . . Anything else anybody else wants to state regarding the
instructions?
"MR. BARTALOS [Defense Counsel]: Judge, I think that we believe that
'substantial' should be defined or that it should be 'any injury' subject to Roe.
"THE COURT: I think that folks in a lay jury can figure out what the word
'substantial' means—
"MR. BARTALOS: Okay.
"THE COURT: —and 'reasonable' and 'ascertainable.'
"MR. BARTALOS: Okay.
"THE COURT: I think those are common English language words. I don't think
we need to lawyer that up."

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A little later, the trial court asked the parties if, after having seen the final draft of the jury
instructions, they had any other objections. Defense counsel stated:

"And Instruction No. 8 and the verdict form, we believe the use of the word, quote,
substantial, unquote, injury is improper without being defined pursuant to the Roe
decision that we've discussed; and to that extent believe it's misguiding and misleading
this jury in their determination and, therefore, the defendant is prejudiced."

Analysis and Standard of Review

K.S.A. 2012 Supp. 60-251(c) states that "[a] party who objects to an instruction or
the failure to give an instruction must do so on the record, stating distinctly the matter
objected to and the grounds for the objection."

The above exchange between the trial court and defense counsel could fairly be
interpreted as an objection to the trial court's instruction regarding K.S.A. 60-513(b).
Assuming the Farrells properly objected, the standard of review is as follows:

"'It is the duty of the trial court to properly instruct the jury upon a party's theory
of the case. Error regarding jury instructions will not demand reversal unless it results in
prejudice to the appealing party. Instructions in any particular action are to be considered
together and read as a whole, and where they fairly instruct the jury on the law governing
the case, error in an isolated instruction may be disregarded as harmless. If the
instructions are substantially correct, and the jury could not reasonably be misled by
them, the instructions will be approved on appeal.' [Citation omitted]" Wolfe Electric,
Inc. v. Duckworth, 293 Kan. 375, 383, 266 P.3d 516 (2011).

Here, the Farrells asked for a definition of "substantial" consistent with Roe. Roe
found there cannot be a legal distinction between an unsubstantial injury and a substantial
one. Thus, the Roe court construed the phrase to mean "actionable injury." 236 Kan. at
222-23. But still, defense counsel's offer of the phrase "any injury" may not have
19

conveyed the appropriate standard. See Olson v. State Highway Commission, 235 Kan.
20, 26-27, 679 P.2d 167 (1984) (finding the initial injury was not necessarily substantial
enough to trigger the running of the statute of limitations, reasoning that parties should
not be "forced into court at the first sign of injury, regardless of how slight it might be").
Further, as Michaelis contends, the use of the phrase "actionable injury" would have
asked the jury to form a legal conclusion. There was no PIK instruction available, but in
this case it seems the trial court attempted to follow the language of K.S.A. 60-513(b) by
using the term "substantial injury," which would have allowed the jury to find Michaelis
suffered his injury on July 2, 2005 (Farrells' alleged threshold standard) or anytime after
that.

The Farrells also argue that the jury instruction asked the jury to use a subjective
standard rather than an objective standard. They contend the instruction should have
asked when the injury was reasonably ascertainable to Michaelis, not when Michaelis
reasonably ascertained the injury. Michaelis asserts that this was the language found
appropriate in Gilger and, additionally, by using the term "reasonably," it was clear the
jury was asked to use an objective standard. The Farrells did not object to the instruction
on this ground; however, the instruction asked the jury to determine when Michaelis
"reasonably" ascertained his injury, which would satisfy the objective requirement.

Jury instruction 8 was a substantially correct statement of the law, and the jury
was not misled. Throughout the trial the Farrells tried to emphasize that Michaelis
suffered an injury on July 2, 2005. Because the jury rejected that premise, instruction 8
did not prejudice the Farrells.

Affirmed.