IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 90,511
BRENT E. PULLEN,
Appellant,
v.
MILO M. WEST, LAURA WEST, SHANE KREHBIEL, and BRIAN WEST,
Appellees.
SYLLABUS BY THE COURT
1. When the facts are undisputed, whether an activity is inherently or intrinsically dangerous is a question of law to be decided by the court. When ruling on a motion for summary judgment involving this question, the trial court as a matter of law must determine from the undisputed facts contained in the record whether the activity under review is inherently dangerous. When the facts are disputed, the question is to be determined by the jury.
2. Restatement (Second) of Torts § 523 (1976) regarding assumption of the risk from abnormally dangerous activity does not operate as a complete bar to recovery in this case because the common-law doctrine of assumption of the risk is restricted in Kansas to cases involving employer-employee relationships. Nevertheless, the benefit of strict liability does not run to a person participating in an activity deemed ultrahazardous.
3. The elements of negligence per se are (1) a violation of a statute, ordinance, or regulation and (2) the violation must be the cause of the damages resulting therefrom. In addition, the plaintiff must establish that an individual right of action for injury arising out of the violation was intended by the legislature.
4. The determination of whether a private right of action exists under a statute is a question of law. Kansas courts generally use a two-part test in determining whether a private right of action is created. First, the party must show that the statute was designed to protect a specific group of people rather than to protect the general public. Second, the court must review legislative history in order to determine whether a private right of action was intended.
5. The doctrine of negligence per se was inapplicable to this case because the provisions of the Kansas Fire Prevention Act, K.S.A. 31-132 et seq., and the National Fire Protection Association pamphlet No. 1123, Code for Fireworks Display, were designed to protect the general public and do not expressly create a private cause of action.
6. If the jury instructions, read as a whole, fairly instruct the jury on the law governing the case and are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal. Refusing to give an instruction is not error when its substance is adequately covered in other instructions. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party.
7. Under the facts of this case, prejudicial error occurred when the trial court refused to instruct the jury on industry standards contained in the National Fire Protection Association pamphlet No. 1123 to enable the jury to evaluate the degree of care owed by sponsors or participants of a class B fireworks display.
8. The qualification of an expert witness as well as the admissibility of expert testimony are matters to be determined by the trial court in the exercise of its broad discretion. The trial court's determination on those matters will not be overturned absent an abuse of such discretion.
9. Under K.S.A. 60-456(b), if a witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience, or training possessed by the witness.
10. In order for expert testimony to be admissible, the testimony must be helpful to the jury and the basis of the expert's opinion must be shown to be generally acceptable within the expert's particular scientific field. Expert conclusions or opinions are inadmissible where the normal experiences and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances.
11. Under the facts of this case, the trial court's exclusion of an expert's opinions regarding causation and violations of pertinent statutes, regulations, and the National Fire Protection Association pamphlet No. 1123 was proper, but the trial court abused its discretion by excluding the expert's opinions regarding which pertinent provisions of this authority might be applicable as industry standards.
12. Under K.S.A. 60-456(a), if a witness is not testifying as an expert, his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.
13. As a prerequisite for the testimony of a witness as an expert on a relevant or material matter, there must be evidence that he or she has personal knowledge thereof, or experience, training or education if such be required. Such evidence may be presented by the testimony of the witness himself or herself. The judge may reject the testimony of a witness that the witness perceived a matter if the judge finds that no trier of fact could reasonably believe that the witness did perceive the matter.
14. Under the facts of this case, the trial court did not abuse its discretion in determining that testimony regarding the number of times commercial, class B fireworks were launched from a mortar tube was expert in nature, that the testimony was subject to exclusion for failure to comply with court orders regarding expert testimony, and that such testimony lacked sufficient foundation.
Appeal from Butler district court, MIKE E. WARD, judge. Opinion filed June 25, 2004. Affirmed in part, reversed in part, and remanded with directions.
Ray E. Simmons, of Ayesh Law Offices, of Wichita, argued the cause, and Mark G. Ayesh, of the same firm, was with him on the briefs for appellant.
Craig Kennedy, of Johnson, Kennedy, Dahl & Willis, of Wichita, was on the brief for appellee Brian West.
Troy W. Purinton, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, argued the cause and was on the brief for appellee Shane Krehbiel.
Don D. Gribble, II, of Hite, Fanning & Honeyman L.L.P., of Wichita, argued the cause, and Vince P. Wheeler, of the same firm, was with him on the brief for appellees Milo M. West and Laura West.
The opinion of the court was delivered by
DAVIS, J.: This is an appeal from a personal injury action brought against the defendants for injuries the plaintiff sustained during a 4th of July fireworks display at the defendants' home. The plaintiff contends that the district court should have applied the doctrines of strict liability and negligence per se, that the court improperly excluded expert and lay opinion testimony, and that the trial court erred in excluding certain rules and regulations relating to the type of fireworks display that caused the plaintiff's injuries. The jury returned a verdict finding the plaintiff 92% at fault. This court has jurisdiction by transfer on its own motion pursuant to K.S.A. 20-3018(c).
On July 4, 2001, a party was held at the residence of defendants Milo and Laura West. Their son, defendant Brian West, and defendant Shane Krehbiel, co-hosted the party. The plaintiff, Brent Pullen, was among the invited guests; he knew that a fireworks display was planned, but he was not planning to assist with the display.
Pullen assisted Krehbiel in bringing some of the fireworks in his own truck, arriving at the party between 2 and 3 p.m. Before the fireworks display, Brian West observed Krehbiel and Pullen shooting some of the fireworks, trying to blow up a tree root. Pullen estimated that he had consumed 6 to 8 beers and half of a pina colada during the course of the party. Following Pullen's injury, his blood alcohol level was found to be .144, which according to his own toxicology expert would be more consistent with the consumption of 12 to 16 beers.
Krehbiel supplied the fireworks and was in control of the fireworks display. Later that evening, he asked several people at the party to assist him in shooting off the fireworks, but he denied that Pullen was among those recruited. Although Milo denied recruiting anyone to help with the display, Pullen testified that Milo asked him to help with the display.
Pullen further testified that Milo and Krehbiel instructed those assisting in the fireworks display. According to the plaintiff, Milo identified the fireworks to be used that night and told them where to put the 30-gallon barrels designed to hold the mortar cylinders used to launch the night works display. Pullen also testified that Milo told them not to drink alcohol while shooting off the fireworks. Milo, Brian West, Krehbiel, Stuart Peters, and Lance James all testified that Milo did not participate in the giving of these instructions, nor did he participate in supervising the fireworks display.
Pullen testified that Krehbiel instructed the shooters to verify that the firework was sitting firmly in the mortar tube, to twist the fuses together when lighting more than one firework at a time, and to back off about 10 to 15 feet from the barrel after lighting the fuses. Krehbiel provided him with a cigar to light the fuses, but Pullen was not provided with any safety equipment to use during the display. Krehbiel testified that he told the shooters not to drink while shooting off fireworks.
The fireworks shot during the display were commercial class B fireworks, which do not include consumer fireworks used by the general public. Because of the powerful explosive nature of class B fireworks, certain precautions recommended by rules and regulations adopted in Kansas must be taken in the display of such fireworks. These rules and regulations concern an important issue in this case and are more fully discussed within the opinion.
The fireworks were launched from three 30-gallon barrels which were filled 2/3 up with dirt. Three mortars tubes (paper and PVC plastic) were buried in each of the barrels. The first and third barrels accommodated 3- and 4-inch mortars, and the middle barrel accommodated 3-, 4-, and 6-inch mortars. Krehbiel estimated that each of the mortar tubes were used for 75 to 100 launchings the evening of the fireworks display. The barrels were set up about 20 yards from the house and about 15 yards apart. Hugh Castillo and Lance James manned the first barrel, Krehbiel manned the middle barrel, and Stuart Peters and Pullen manned the third barrel.
Pullen had assisted in lighting fireworks during the 90-minute fireworks display without incident. Krehbiel then said, "Stop, everybody stop," in anticipation of preparing a "cake" or special firework display that would serve as the grand finale. Six to 10 seconds later, Krehbiel heard a firework go off and saw Pullen on the ground about a foot from the 30-gallon barrel Pullen was using to fire off the mortars.
Lance James testified that Pullen was about 3 feet from the barrel. Stuart Peters watched Pullen light the fireworks, saw a flash, and then saw Pullen "get kicked up" and fall over by the barrel. Hugo Castillo testified that Pullen lit the fireworks while standing up and then fell flat down next to the barrel. The county 911 director, who went to the accident scene, observed Pullen lying 3 to 4 feet from the barrel.
Pullen testified that after he lit three fireworks in the barrel, he backed up 10 to 15 feet and was hit by a firework. At the time of his injury, an explosion or flash went off around roof level of the house. Pullen was taken to the hospital and as a result of his injury, he was blinded in one eye, suffered nerve damage, memory loss, and required steel plates to be inserted in his head.
Pullen's father testified that during a conversation at the hospital with Milo, Milo told him the launching tube used by the plaintiff was deformed because it had a bulge and was split open, causing a misfire in the tube. Pullen's mother testified that Krehbiel and Brian West told her one of the launching tubes in Pullen's barrel was bulged and melted, which caused the accident. Pullen's uncle also testified that Krehbiel had told him the launching tube used by Pullen had a hole in it.
Krehbiel testified that he examined the launching tubes in Pullen's barrel and noted that they were a little deformed or melted at the very top, but the tubes were not blown out so as to cause misfire. On July 5, 2001, Brian West took the launching tubes from Pullen's barrel in order to protect himself. Three launching tubes were admitted into evidence at trial.
Pullen's second amended petition alleged the defendants were negligent in their duties to him as an invitee and a licensee and under the doctrine of strict liability. In the pretrial orders, the trial court refused to apply the doctrines of strict liability and negligence per se. The trial court also prohibited any mention of the rules and regulations regarding class B fireworks displays by Pullen's expert, opinions as to causation by that same expert, and any opinions regarding the number of times certain launching tubes may have been used.
The jury was instructed under a negligence theory. PIK instructions relating to the duty owed by an owner or occupier of land, the duty of an injured party, and the duty of one in possession or control of an exceptionally dangerous instrumentality were given to the jury. See PIK Civ. 3d 126.02, 126.70, 126.81. The jury assessed 92% of the fault to Pullen and the remaining 8% of the fault to Krehbiel. Additional facts necessary to resolve the issues in this appeal are set forth in the opinion.
In the following analysis, we conclude that the trial court did not err by excluding the doctrines of strict liability and negligence per se and expert testimony concerning the number of times a mortar launching tube had been used. However, we conclude the trial court erred in refusing to permit the introduction of the National Fire Protection Association pamphlet No. 1123, Code for Fireworks Display (2000 ed.) (NFPA 1123), through Pullen's expert and by way of jury instructions, which contained rules and regulations regarding the handling of class B fireworks displays.
APPLICATION OF THE DOCTRINE OF STRICT LIABILITY
Before the trial, Pullen filed a motion for partial summary judgment, asking the court to rule as a matter of law that the use of commercial-quality, class B explosive fireworks during an illegal fireworks display constitutes an "abnormally dangerous activity" requiring the application of the strict liability doctrine.
In denying Pullen summary judgment on the issue of strict liability, the trial court avoided a decision on the issue of whether the use of class B explosive fireworks constituted an "abnormally dangerous activity," which is a necessary finding before the doctrine of strict liability may be applied. The trial court noted this was an issue of first impression in Kansas and that a split of authority existed on this issue among jurisdictions throughout the country. Our research confirms the above findings. See Litzmann v. Humboldt County, 273 P.2d 82, 88 (Cal. App. 1954) (doctrine of absolute liability not applicable to public fireworks display); Cadena v. Chicago Fireworks Mfg. Co., 297 Ill. App. 3d 945, 962, 697 N.E.2d 802 (1998) (public fireworks display not ultrahazardous activity); Haddon v. Lotito, 399 Pa. 521, 523-24, 161 A.2d 160 (1960) (a public fireworks display handled by competent operator in reasonably safe area and properly supervised is not ultrahazardous). But see Miller v. Westcor Ltd. Partnership, 171 Ariz. 387, 391-94, 831 P.2d 386 (1991), rev. denied (1992) (operating public fireworks display inherently dangerous activity); Lipka v. DiLungo, 2000 WL 295355 (Conn. Super.) (unpublished opinion filed March 8, 2000) (abnormally dangerous activity); Klein v. Pyrodyne Corporation, 117 Wash. 2d 1, 5-11, 810 P.2d 917, amended 117 Wash. 2d 1, 817 P.2d 1359 (1991) (strict liability applies).
The doctrine of strict liability for abnormally dangerous activities is derived from the English case of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). There, water from the defendants' reservoir broke through the disused and filled-up shaft of an abandoned coal mine and flooded the connecting mine belonging to the plaintiff. The defendants were held liable upon the theory the defendants had made a "non-natural use" of their land, which brought with it increased danger to others. See Williams v. Amoco Production Co., 241 Kan. 102, 113-15, 734 P.2d 1113 (1987). The Williams court adopted § 519 and § 520 of the Restatement (Second) of Torts (1976):
"The general rule imposing strict liability in tort for abnormally dangerous activities as set forth in the Restatement (Second) of Torts § 519 (1976) is stated and adopted: (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm; and (2) this strict liability is limited to the kind of harm the possibility of which makes the activity abnormally dangerous."
"In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) Existence of a high degree of risk of some harm to the person, land, or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. Restatement (Second) of Torts § 520 (1976)." 241 Kan. 102, Syl. ¶¶ 8, 9.
The Commentary to the Restatement (Second) of Torts § 520 states that whether the activity is an abnormally dangerous one is to be determined by the court, upon consideration of all the factors listed in the section defining an abnormally dangerous activity. Falls v. Scott, 249 Kan. 54, 60-61, 815 P.2d 1104 (1991). When ruling on a motion for summary judgment involving this issue, Falls is instructive:
"When the facts are undisputed, whether an activity is inherently or intrinsically dangerous is a question of law to be decided by the court. When ruling on a motion for summary judgment involving this question, the trial court as a matter of law must determine from the undisputed facts contained in the record whether the activity under review is inherently dangerous. When the facts are disputed, the question is to be determined by the jury." 249 Kan. 54, Syl. ¶ 3.
On appeal, Pullen argues that the trial court erred in finding that the fireworks display was not an abnormally dangerous activity and that the doctrine of strict liability was inapplicable to this case. We note that while the trial court discussed some of the factors to be considered in determining whether an activity is abnormally dangerous, its focus was upon the question concerning the plaintiff's participation in the very activity he asked the court to declare abnormally dangerous: "[T]he Court has a question regarding whether strict liability in this case would also apply to the plaintiff's actions."
Upon finding that the facts necessary to a proper disposition of this issue were not entirely undisputed, the trial court ultimately concluded "that the appellate courts of Kansas would not apply the strict liability doctrine under the facts of this case." Thus, without deciding the issue of whether the activity was abnormally dangerous, the trial court resolved the applicability of strict liability upon the fact that Pullen participated in the very activity he claimed was abnormally dangerous. The defendants based much of their arguments that the doctrine did not apply upon this crucial fact. In this determination, we conclude that the trial court's decision was correct and thus we need not reach a conclusion as to whether the class B fireworks display was an abnormally dangerous activity.
The defendants argue on appeal that Pullen's participation in the activity barred his recovery under § 523 and § 520 of the Restatement (Second) of Torts (1976).
"The plaintiff's assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm." Restatement (Second) of Torts § 523 (1976). Comment d to § 523 provides:
"The risk is commonly assumed by one who takes part in the activity himself, as a servant, an independent contractor, a member of a group carrying on a joint enterprise or as the employer of an independent contractor hired to carry on the activity or to do work that must necessarily involve it. Thus a plaintiff who accepts employment driving a tank truck full of nitroglycerin, with knowledge of the danger must be taken to assume the risk when he is injured by an explosion." (Emphasis added.)
However, in this argument, the defendants failed to note that the common-law doctrine of assumption of the risk in Kansas cases is restricted to cases involving employer-employee relationships. Tuley v. Kansas City Power & Light Co., 252 Kan. 205, 210, 843 P.2d 248 (1992). As this case does not present such a situation, § 523 does not operate as a complete bar to the Pullen's recovery.
Nevertheless, "[t]he benefit of strict liability does not run to a person participating in the activity deemed ultrahazardous." 57 Am. Jur. 2d, Negligence § 390, p. 429. One of the factors under Restatement (Second) of Torts § 520 is that the activity carries "(a) the existence of a high degree of risk of some harm to the person, land or chattels of others." (Emphasis added.) Defendants contend on appeal that by directing the assessment of the risk to "others," the drafters of the first Restatement (using the term ultrahazardous rather than abnormally dangerous) intended to prevent persons participating in ultrahazardous activities from utilizing the benefit of the strict liability doctrine. Restatement of Torts § 520 (1938).
In the case of Whitlock v. Duke University, 637 F. Supp. 1463, 1475 (M.D.N.C. 1986), aff'd 829 F.2d 1340 (4th Cir. 1987), relied upon by the defendants, the court noted:
"North Carolina recognizes ultrahazardous activities as a basis for applying strict liability. [Citations omitted.] However, in none of the cases cited by the plaintiffs does the benefit of strict liability run to a person participating in the activity deemed to be ultrahazardous. Indeed, plaintiffs cite Restatement of Torts § 520 (1938) as reflecting North Carolina's law of ultrahazardous activity; § 520 states an ultrahazardous activity is one which: 'a) Necessarily involves the risk of serious harm to the person, land, or chattels of others . . .' (emphasis added). Again, the benefit of strict liability under § 520 runs to 'others'; not to those engaged in the activity. See also Gaston v. Hunter, 121 Ariz. 33, 48, 588 P.2d 326, 341 (1978). In Trull, 264 N.C. 687, 142 S.E.2d 622 (1965), the plaintiffs sought to impose liability upon the defendant for vibration injury associated with well drilling. Plaintiffs had contracted with the defendant and brought defendant on their land to drill the well. The Trull court held plaintiffs could not recover because they were not innocent parties within the rule of strict liability. Id. at 693. The court stated, '[h]ere the activity was not upon adjoining or neighboring property . . . nor were the plaintiffs unconcerned with the activity itself.' In the instant case Mr. Whitlock was a participant in the very activity alleged to be ultrahazardous. Therefore, the Court is persuaded that North Carolina's law of ultrahazardous activity is inapplicable to the case at bar."
The defendants' argument is persuasive. As implicitly noted by the trial court, strict liability in the context of this case does not apply to the plaintiff who participated in the activity. Rather, it applies to others harmed by the abnormally dangerous activity. While Pullen is not completely barred from recovery based on his participation in an abnormally dangerous activity, he is unable to obtain the benefit of the doctrine of strict liability because he participated in the abnormally dangerous activity. As such, the trial court properly concluded that the doctrine of strict liability was not available to Pullen under the facts of this case.
The defendants also argue that if the trial court should have applied the doctrine of strict liability to this case, any error would be harmless. They reasoned that because the Kansas comparative negligence statute, K.S.A. 2003 Supp. 60-258a, applies to cases decided under the doctrine of strict liability, the jury would have reached the same conclusion that Pullen was 92% at fault, barring his recovery. See M. Bruenger & Co., v. Dodge City Truck Stop, Inc., 234 Kan. 682, 687, 675 P.2d 864 (1984).
While the evidence presented at trial would likely have been the same if the doctrine of strict liability had been applied, the possibility exists that the jury would have assessed more fault to all of the defendants if it were instructed as a matter of law that they were strictly liable for Pullen's injuries, even if comparative fault was applied. As such, this argument alone is not grounds for affirming the trial court.
APPLICATION OF THE DOCTRINE OF NEGLIGENCE PER SE
Pullen argues as he did before the trial court that the doctrine of negligence per se applies and he was entitled to a jury instruction on this theory. He contends that the Kansas Fire Safety and Prevention Act, K.S.A. 31-132 et seq., creates a cause of action based upon a violation of statutes governing the handling of fireworks.
"The elements of negligence per se are (1) a violation of a statute, ordinance, or regulation, and (2) the violation must be the cause of the damages resulting therefrom. In addition, the plaintiff must also establish that an individual right of action for injury arising out of the violation was intended by the legislature." Cullip v. Domann, 266 Kan. 550, Syl. ¶ 3, 972 P.2d 776 (1999).
"Generally, the test of whether one injured by the violation of a statute may recover damages from the wrongdoer is whether the legislature intended to give such a right. While, in some cases, statutes expressly impose personal liability on persons or entities for violation of the provisions thereof, or for failure to perform specified duties, the absence of such express provisions does not necessarily negate a legislative intent that the statute shall affect private rights. The legislative intent to grant or withhold a private cause of action for a violation of a statute, or the failure to perform a statutory duty, is determined primarily from the form or language of the statute. The nature of the evil sought to be remedied and the purpose the statute was intended to accomplish may also be taken into consideration. The generally recognized rule is that a statute which does not purport to establish a civil liability but merely makes provision to secure the safety or welfare of the public as an entity is not subject to construction establishing a civil liability.
"The question whether a liability arising from the breach of a duty prescribed by statute accrues for the benefit of an individual specially injured thereby, or whether such liability is exclusively of a public character, depends upon the nature of the duty imposed and the benefits to be derived from its performance, and the relevancy of the rule laid down by the statute to private rights. 73 Am. Jur. 2d, Statutes §§ 431 and 432, pp. 529-30." Greenlee v. Board of Clay County Comm'rs, 241 Kan. 802, 804, 740 P.2d 606 (1987).
The determination of whether a private right of action exists under a statute is a question of law. Kansas courts generally use a two-part test in determining whether a private right of action is created. First, the party must show that the statute was designed to protect a specific group of people rather than to protect the general public. Second, the court must review legislative history in order to determine whether a private right of action was intended. See Nichols v. Kansas Political Action Committee, 270 Kan. 37, 11 P.3d 1134 (2000) (quoting Nora H. Ringler Revocable Family Trust v. Meyer Land and Cattle Co., 25 Kan. App. 2d 122, 126, 958 P.2d 1162, rev. denied 265 Kan. 886 [1998]) (the Ringler test).
K.S.A. 31-133(a)(1) instructs the state fire marshal to adopt reasonable rules and regulations for the keeping, storage, use, sale, handling, transportation or other disposition of fireworks and firecrackers. K.S.A. 31-133(b) provides that any rules and regulations adopted pursuant to this statute may incorporate by reference specific editions or portions of nationally recognized fire prevention codes. The state fire marshal has adopted by reference the National Fire Protection Association's pamphlet, NFPA 1123 (Approved as an American National Standard on August 18, 2000; 2000 edition supercedes all previous editions.). See K.A.R. 22-1-3(x) (2003 Supp.). The state fire marshal prevention division has also issued pamphlets entitled Fire Fact FO-1, Licensing of Fireworks Operators, and Fire Fact FO-2, Guidelines for Fireworks Displays (which quote their references as NFPA 1123).
The trial court found, and we agree, that Fire Facts FO-1 and FO-2 are synopses of regulations as opposed to regulations themselves, and the primary focus of the analysis must be on the enabling legislation rather than upon the regulations promulgated pursuant thereto. The court found that it must look to what the particular legislative body intended as opposed to how the administrative agency interpreted their enabling legislation, and that the state fire marshal's office could not create a private cause of action not intended by the legislature.
Looking at the Fire Safety and Prevention Act, the trial court concluded that negligence per se was not applicable to this case, reasoning:
"Number one, this statute contains specific criminal penalties, as well as injunctive relief by the attorney general, the district attorney, or the county attorney at K.S.A. 31-150a and specific admini