Rhoten v. Dickson

1

THE SUPREME COURT OF THE STATE OF KANSAS

No. 98,837

DANIELLE RHOTEN, AS AN INDIVIDUAL AND AS
HEIR-AT-LAW OF XAVIER RHOTEN (DECEASED),
Appellant,

v.

BRUCE DICKSON, IV, Defendant,
AND
FRANK PASE, AS AN INDIVIDUAL AND AN EMPLOYEE OF TOPEKA, KANSAS,
AND THE CITY OF TOPEKA, KANSAS, AS THE PRINCIPAL AND EMPLOYER OF FRANK PASE,
Appellees.


SYLLABUS BY THE COURT

1.
Under K.S.A. 60-212(b), a motion to dismiss for failure to state a claim is treated like a
motion for summary judgment if matters outside the pleadings are considered by the court.

2.
Failure to comply with Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 225) may
constitute harmless error if subsequent filings of findings of fact allow for proper presentation of
the uncontroverted facts establishing summary judgment is proper.

3.
Whether the doctrines of issue preclusion or claim preclusion apply in a certain situation
is a question of law. An appellate court may analyze the question using de novo review.

4.
A pending appeal does not suspend the finality of a judgment for claim preclusion
purposes.


2

5.
State courts are bound to apply federal law in determining the preclusive effects of a
federal court decision on issues of federal law.

6.
Federal courts traditionally adhere to the related doctrines of res judicata (claim
preclusion) and collateral estoppel (issue preclusion). Under claim preclusion, a final judgment
on the merits of an action precludes the parties or their privies from relitigating claims that were
or could have been raised in that action. Under issue preclusion, once a court has decided an
issue of fact or law necessary to its judgment, that decision may preclude relitigation of the same
issue in a suit on a different cause of action involving a party to the first case.

7.
A federal court's refusal to consider a plaintiff's state law theories does not prevent claim
preclusion from applying to theories subsequently filed in a state lawsuit if those theories arose
out of the same claim or factual transaction determined by the federal court.

8.
A court of last resort will follow the rule of law it established in its earlier cases unless
clearly convinced the rule was originally erroneous or is no longer sound because of changing
conditions and more good than harm will come by departing from precedent.

9.
To satisfy the burden of proof for causation in a negligence claim, the plaintiff must
produce evidence affording a reasonable basis to conclude it is more likely than not the
defendant was a cause in fact of the result.

Review of the judgment of the Court of Appeals in 40 Kan. App. 2d 433,192 P.3d 679 (2008). Appeal
from Shawnee district court; LARRY D. HENDRICKS, judge. Judgment of the Court of Appeals affirming the district
court is affirmed. Judgment of the district court is affirmed. Opinion filed January 29, 2010.

Keith Renner, of Renner Law Office, P.A., of Topeka, argued the cause and was on the brief for appellant.
3


David R. Cooper, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka, argued the cause, Teresa
L.Watson, of the same firm, and Deanne Watts Hay, of Parker & Hay, LLP, of Topeka, were with him on the briefs
for appellees.

The opinion of the court was delivered by

BILES, J.: This appeal asks whether the doctrines of res judicata (claim preclusion) and
collateral estoppel (issue preclusion) bar plaintiff's negligence and negligence per se claims in
state court against the City of Topeka and one of its police officers after those same claims were
dismissed without prejudice in federal court. We hold these claims are barred and decline
plaintiff's invitation to overrule Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 949 P.2d 602
(1997), cert. denied 525 U.S. 831 (1998), which found claim preclusion barred plaintiff's claims
under parallel circumstances.

FACTUAL AND PROCEDURAL BACKGROUND

This controversy arises from an intersection collision between a pickup truck driven by
defendant Bruce Dickson, IV, and a van in which plaintiff Danielle Rhoten was a passenger.
Rhoten sustained serious injuries and a miscarriage 2 weeks before her due date. Defendant
Frank Pase was working at the time of the accident as a police officer for the City of Topeka.
The material facts are not in dispute.

Pase was on duty, driving an unmarked patrol car, on the evening of February 5, 2004.
Several inches of snow had fallen with accumulations of up to 10 inches. The road in places was
wet, slushy, or slick when Pase noticed Dickson's truck about one block ahead weaving in and
out of traffic and making quick lane changes. The officer also noticed a dark-colored car closely
following the pickup as it maneuvered around traffic. Pase accelerated from approximately 35
m.p.h. to about 55 m.p.h., intending to stop the pickup.

Pase's unmarked patrol car was equipped with a rear-facing red and blue flashing light
mounted on the vehicle's interior rear window, a red and blue flashing strobe light on the
4

passenger sun visor, "wig-wag" headlights, a siren, and a chrome spotlight mounted on the front
driver's side windshield pillar. Pase intended to activate his lights and siren when he got closer to
the pickup, but he did not do so prior to the collision nor did he notify his dispatcher that he was
in pursuit of the vehicles.

Both the pickup and the dark-colored car preceded Pase southbound onto the Topeka
Boulevard bridge. The bridge inclines as one proceeds southbound and rises to a crest, after
which there is a flat expanse across the river. Pase accelerated to 65 m.p.h. in a 35 m.p.h. zone as
he approached the bridge's crest and reached the flat expanse, but Pase could not see Dickson's
pickup. The dark-colored car following the pickup reduced its speed, discontinued passing, and
moved into the right lane. Pase passed it and other vehicles in his attempt to locate the pickup,
which by then was out of sight over the bridge's southern crest.

As Pase approached the bridge's south end, he spotted the pickup, approximately 2 blocks
ahead. The officer then saw the pickup accelerate and drive through several green lights before it
collided with a van traveling the opposite direction. The van was attempting to turn onto a cross
street. Pase was still about 2 blocks from the collision, still attempting to follow the pickup.
When Pase arrived at the accident scene, he told Dickson he clocked his speed and was
"following and/or chasing" him. Pase also commented to another person at the scene that the
officer had "been trying to catch this guy since North Topeka." Plaintiff was a passenger in the
van.

Rhoten filed her first lawsuit in the United States District Court for the District of
Kansas against Dickson, Pase, and the City of Topeka. Rhoten v. Dickson, IV, 2006 WL 2524157
(D. Kan. 2006) (unpublished opinion). She brought a substantive due process claim against Pase
and the City pursuant to 42 U.S.C. § 1983 (2000), and supplemental state law claims for
negligence and negligence per se against Pase, the City, and Dickson. Her allegations against
Pase were premised upon two theories: (1) Pase's actions, i.e. speeding while pursuing Dickson;
and (2) Pase's inactions, i.e. his failure to activate the car's lights and siren.

5

Following discovery, the federal district court granted summary judgment on the
substantive due process claim in favor of Pase and the City. The court found Pase's actions were
causally unrelated to plaintiff's injuries because Dickson testified in his deposition that nothing
done by any car following him that night influenced the way he drove his pickup. Similarly, and
on the strength of the same testimony, the court found Pase's alleged inactions to be causally
unrelated, concluding Pase did not create any danger or cause plaintiff or anyone else to be any
more vulnerable to any danger than otherwise would have been the case. The court held that
"[b]ecause defendant Dickson's speed and other manner of driving was totally unaffected by
Pase's actions or inactions, any danger posed to plaintiff by virtue of Dickson's driving already
existed." Dickson, 2006 WL 2524157, at *9. These findings also terminated Rhoten's due process
claim against the City because a municipality is not liable if there is no underlying constitutional
violation by the officer. Trigalet v. City of Tulsa, Oklahoma, 239 F.3d 1150, 1155-1156 (10th
Cir. 2001).

Having found against plaintiff on her federal allegations, the federal district court then
declined to exercise supplemental jurisdiction over the remaining state law claims and dismissed
them without prejudice. In doing so, the federal court rejected an argument by Pase and the City
that the court's findings regarding causation in Rhoten's substantive due process claim also were
dispositive of the negligence claims. As to that point, the court said this "may or may not be so,
as causation in the context of a negligence claim may differ somewhat from causation in the
context of a substantive due process claim." Dickson, 2006 WL 2524157, at *12. Rhoten
appealed the federal district court's summary judgment decision to the Tenth Circuit Court of
Appeals, which affirmed. Rhoten v. Pase, 2007 WL 3088226 (10th Cir. 2007) (unpublished
opinion).

While the federal appeal was pending, Rhoten timely refiled the state law negligence and
negligence per se theories in state district court against Dickson, Pase, and the City. The
negligence claims alleged "defendants failed to . . . operate their vehicle in a safe and reasonable
manner and in a manner designed to provide warning to other drivers and pedestrians." The
negligence per se theory was brought under K.S.A. 8-1506, stating "defendants engaged in a
6

violation of K.S.A. 8-1506 (and possibly other statutes)." But Rhoten never asserted the violation
of another statute.

Pase filed a motion to dismiss for failure to state a claim upon which relief may be
granted under K.S.A. 60-212(b)(6). The City filed a motion to dismiss under K.S.A. 60-
212(b)(6), or, in the alternative, a motion for summary judgment. A certified copy of Rhoten's
federal district court complaint, the federal district court's order, and judgment were filed with
the state district court motions. Pase and the City argued Rhoten's claims were barred by the
doctrines of claim and issue preclusion due to the federal district court's dismissal without
prejudice.

During the course of subsequent proceedings on those motions, the state district court
ordered Rhoten, Pase, and the City to submit findings of fact and conclusions of law. All parties
complied, filing separate pleadings. The district court then heard oral arguments. During those
arguments, Rhoten's counsel conceded that this court's Stanfield decision controlled whether
claim preclusion applied, adding that if the district court strictly followed Stanfield, it would be
required to grant defendants' motions.

The district court dismissed Rhoten's claims against Pase and the City for failure to state
a claim upon which relief could be granted. The district court did not grant summary judgment
because it held it was not considering evidence beyond the pleadings. The district court then
certified its orders as a final judgment under K.S.A. 60-254(b), severing the litigation in this
appeal from Rhoten's lawsuit against Dickson.

The district court held the claim preclusion doctrine barred Rhoten's state law claims
because the federal due process claim arose from a common nucleus of operative facts, forming
part of a single transaction or claim. The district court reasoned that because the federal due
process claim reached final judgment in the federal court case, and the parties were identical,
claim preclusion prevented the state law claims from resurfacing in another court action. Citing
Stanfield, the state district court also held the federal court's decision to decline supplemental
jurisdiction over the negligence theories did not change this outcome.
7

The state district court also found Rhoten's state law claims against Pase and the City
were barred by the issue preclusion doctrine. The court reasoned the causation question was
common to both the state law claims and federal claims as to those particular defendants. It held
the federal court's determination that there was no material question of fact as to causation
between Pase's alleged actions or inactions and Rhoten's injuries was binding on plaintiff in state
court. The district court held:

"If Plaintiff was allowed to proceed on her negligence claims, a relitigation of that issue would be
inevitable because causation is an element of negligence. The relitigating of causation, which
Plaintiff has already failed to prove, is strictly prohibited by issue preclusion."

Rhoten timely appealed those rulings. Her motion to transfer the appeal directly to this
court was denied.

Before the Court of Appeals, Rhoten made three arguments: (1) Pase and the City failed
to comply with Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 225), which governs
summary judgment motions, and the district court prejudiced plaintiff by not treating the motions
as ones for summary judgment; (2) the district court erred by following Stanfield; and (3) the
district court erred in finding issue preclusion barred her claims.

In a published decision, the Court of Appeals affirmed the district court's dismissal of the
claims against Pase and the City. Rhoten v. Dickson, 40 Kan. App. 2d 433, 192 P.3d 679 (2008).
The court found there was substantial compliance with Rule 141 because the defendants' motions
identified the federal district court's decision as the basis for applying res judicata and collateral
estoppels as a bar to plaintiff's claims and attached to those motions a certified copy of that
decision as well as Rhoten's federal civil complaint. 40 Kan. App. 2d at 439-40. The court
further held any violations with Rule 141 in the initial motions to dismiss were cured by the
district court's subsequent requirement that the parties file proposed findings and conclusions,
which contained statements of fact in separately numbered paragraphs as required by the rule. 40
Kan. App. 2d at 440.

8

On the claim preclusion issue, the Court of Appeals stated it was duty bound to apply
Stanfield unless this court had signaled a willingness to depart from it. 40 Kan. App. 2d at 441.
Noting this court recently cited Stanfield in State v. Flores, 283 Kan. 380, 384, 153 P.3d 506
(2007), for the proposition that res judicata requires a prior final judgment on the merits, the
Court of Appeals determined there was no intent to depart from this prior ruling. 40 Kan. App.
2d at 441. Accordingly, the court found Stanfield controlled the analysis, and then stated:

"To apply the ruling in Stanfield to this case, we must first decide if Rhoten's state lawsuit
for negligence arises out of the same transaction as her lawsuit in federal court for § 1983
violation. Obviously, both of Rhoten's claims arose out of the traffic accident between Dickson
and Conley and Lt. Pase's conduct in that accident. Further, similar to Stanfield, the facts
necessary to prove Rhoten's federal and state law theories relate in time and origin. Also, Rhoten's
statement of facts in her federal complaint and state petition discloses the witnesses and proof
needed in both actions are identical. Thus, because Rhoten's state claim arose out of the same
transaction as her federal lawsuit, we find that res judicata applies. The district court was correct."
40 Kan. App. 2d at 443-44.

On issue preclusion, the Court of Appeals affirmed only part of the district court's
analysis. It agreed that issue preclusion barred Rhoten's negligence claims, but it held the district
court erred in finding the negligence per se claims were barred under this doctrine. 40 Kan. App.
2d 445-46. It concluded the causation elements of Rhoten's negligence per se claims were not
identical to the federal issue and were not reached by the federal court in its judgment in
defendants' favor. In doing so, the Court of Appeals sua sponte cited to K.S.A. 8-1738(d)
regarding a driver's duty to activate a siren when reasonably necessary to warn others of a public
safety vehicle's approach. 40 Kan. App. 2d at 445-46. But Rhoten claimed Pase violated K.S.A.
8-1506, which requires drivers of authorized vehicles to activate the signal if violating
enumerated traffic laws. The Court of Appeals did not address the statute cited by plaintiff.

Rhoten's appeal comes to this court on cross-petitions for review, which were each
granted. Plaintiff asks us to reverse the Court of Appeals on the summary judgment question
regarding compliance with Rule 141, its adherence to Stanfield, and its ruling regarding issue
preclusion on plaintiff's negligence claim. Defendants seek to reverse the Court of Appeals on its
sua sponte application of K.S.A. 8-1738(d) on the issue preclusion question.
9

It should be emphasized the issue preclusion question is a secondary matter in this case
because the claim preclusion doctrine alone is sufficient to bar plaintiff from proceeding with her
lawsuit against Pase and the City. Issue preclusion would impact the result only if we decide to
depart from Stanfield and reach a different result on the claim preclusion issue. But as will be
explained below, we find all of plaintiff's claims are barred by claim preclusion, and the state law
negligence theories based on Pase's actions are barred also by issue preclusion.

COMPLIANCE WITH RULE 141

First, Rhoten argues the district court was barred procedurally from considering
defendants' motions to dismiss, or the City's alternative motion for summary judgment, because
the motions failed to state the uncontroverted facts in separately numbered paragraphs as
required by Rule 141. She cites McCullough v. Bethany Med. Center, 235 Kan. 732, 683 P.2d
1258 (1984), as controlling. Defendants argue Rule 141 does not apply because the district court
granted a motion to dismiss, not summary judgment, and the Rule 141 requirements only apply
to summary judgment motions. In the alternative, defendants claim they substantially complied
with the rule. The interpretation of a Kansas Supreme Court rule is a question of law subject to
unlimited review. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997).

Rule 141(a) states a motion for summary judgment shall not be heard or deemed finally
submitted until the following requirements are satisfied:

"(a) The moving party has filed with the court and served on opposing counsel a
memorandum or brief setting forth concisely in separately numbered paragraphs the
uncontroverted contentions of fact relied upon by said movant (with precise references to pages,
lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits,
or other supporting documents contained in the court file and otherwise included in the record)."
(Emphasis added.) 2009 Kan. Ct. R. Annot. 225-26.

Plaintiff is correct in noting McCullough found strict compliance with Rule 141 was
required on a motion for summary judgment, but other decisions have not treated McCullough as
controlling. See Key v. Hein, Ebert and Weir, Chtd., 265 Kan. 124, 133, 960 P.2d 746 (1998)
10

(holding failure to comply with Rule 141 was harmless error); Calver v. Hinson, 267 Kan. 369,
377-78, 982 P.2d 970 (1999) (distinguishing McCullough because the noncomplying motion for
summary judgment was denied, thereby holding substantial compliance was enough); Kelley v.
Barnett, 23 Kan. App. 2d 564, 566, 932 P.2d 471, rev. denied 262 Kan. 961 (1997) (holding
"[s]ince the major dispute between the parties is a legal one rather than a factual one, we view
this technical compliance [with Rule 141] as superfluous").

We believe we must examine two questions to resolve this issue: (1) whether the district
court erred by characterizing these motions as motions to dismiss; and (2) whether there was
compliance with Rule 141 if the motions properly should have been considered motions for
summary judgment. A more detailed review of the record is required to address Rhoten's Rule
141 argument.

Additional Facts

Pase's motion to dismiss asserted the following as the statement of facts:

"1. The petition herein was filed on September 28, 2006, and pertains to a motor
vehicle accident which occurred on February 5, 2004.

"2. Plaintiff filed a substantially similar pleading in federal district court on
November 30, 2004, styled as Danielle Rhoten and Xavier Rhoten (Deceased), by and through his
Heir-at-Law, Danielle Rhoten v. Bruce Dickson IV; Frank Pase; and City of Topeka, Kansas,
Case no. 04-4160. (The Court may take judicial notice of this pleading, though a copy will be
supplied to the Court.)

"3. On August 30, 2006, Federal Senior District Judge Sam A. Crow, in Case No.
04-4160, entered judgment against plaintiff on plaintiff's claims under 42 U.S.C. § 1983, declined
to exercise supplemental jurisdiction over the state law negligence and negligence per se claim
asserted in plaintiff's petition herein. Rhoten v. Dickson, et al., 2006 WL 2524157 (D. Kan. Aug.
30, 2006). (The Court may also take judicial notice of this decision . . . .)"

In the motion's analysis section, Pase argued Rhoten's claims were barred by the
doctrines of claim and issue preclusion. He argued claim preclusion applied because the federal
11

suit was composed of the same "claim," and the federal district court had granted summary
judgment against Rhoten. Pase also argued issue preclusion applied because Rhoten had fully
litigated the issue of causation, and the federal court held there was no evidence Pase caused
Rhoten's injuries. These statements were not presented in separately numbered paragraphs.

The City's motion to dismiss or, alternatively, for summary judgment adopted the
analysis from Pase's motion to dismiss. The City also attached a memorandum with the
following statement of facts:

"1. The court is requested to take judicial notice of Plaintiff's complaint and the
allegations contained in it, filed in the federal court lawsuit case of Danielle Rhoten and Xavier
Rhoten (Deceased), by and through his Heir-at-Law, Danielle Rhoten v. Bruce Dickson IV; Frank
Pase; and City of Topeka, Kansas, Case No. 04-4160. . . .

"2. The court is requested to take judicial notice of the federal court's Memorandum
Decision and Order filed in the federal district court lawsuit of Danielle Rhoten and Xavier Rhoten
(Deceased), by and through his Heir-at-Law, Danielle Rhoten v. Bruce Dickson IV; Frank Pase;
and City of Topeka, Kansas, Case No. 04-4160 in the United States District Court for the District
of Kansas. . . .

"3. The court is requested to take judicial notice of Judgment filed in the federal
court lawsuit case of Danielle Rhoten and Xavier Rhoten (Deceased), by and through his Heir-at-
Law, Danielle Rhoten v. Bruce Dickson IV; Frank Pase; and City of Topeka, Kansas, Case No.
04-4160 in the United States District Court for the District of Kansas. . . ."

Rhoten submitted one response to both motions. She objected to defendants' motions
because, she argued, neither defendant complied with Rule 141. She asked the district court to
strike the statement of facts due to the defendants' failure to make specific statements of
uncontroverted fact supporting judgment. The district court ordered Rhoten, Pase, and the City to
submit findings of fact and conclusions of law.

Both the City and Pase submitted statements of fact in separately numbered paragraphs
detailing the federal district court's factual findings, the claims filed by Rhoten in both lawsuits,
and the federal district court's decision. Rhoten did not renew her Rule 141 objection at oral
12

argument on the defendants' motions. The district court did not address the Rule 141 objection
because it granted defendants' motion to dismiss for failure to state a claim.

On appeal, Rhoten renewed her Rule 141 objection and argued the district court erred by
granting the motions to dismiss because it considered matters outside the pleadings. Rhoten
contends the defendants' pleadings should have been treated as summary judgment motions and
that summary judgment was inappropriate because defendants failed to comply with the rule.
The Court of Appeals implicitly agreed the defendants' pleadings more properly should have
been treated as summary judgment motions, but found substantial compliance. 40 Kan. App. 2d
at 439. The court went on to recognize Rule 141's purpose is to identify the facts that are or are
not controverted and the evidence on which the parties are relying, and "[b]y identifying
Rhoten's federal civil lawsuit and the federal district court's decision in their motions and further
providing facts in separately numbered paragraphs in later documents which were filed before
oral arguments, Pase and [the City] substantially complied with Rule 141." 40 Kan. App. 2d at
440.

Discussion

We agree with Rhoten that defendants should have styled their motions to dismiss as
motions for summary judgment and complied with Rule 141. To do otherwise risks confusion
among the litigants and the court and runs a substantial prejudicial risk to the fair presentation of
the facts and law. The district court should have treated the pleadings as motions for summary
judgment and insisted on compliance with the rule.

But we also agree with the Court of the Appeals that the error was insignificant in this
particular context because it was very easy to determine what evidence Pase and the City relied
upon. Whether issue or claim preclusion applies is a question of law and a minimal number of
uncontroverted facts are required to determine these questions in this instance. The subsequent
remedial measures employed by the district court to have the parties submit findings of fact and
conclusions of law prior to oral argument sufficiently ameliorated the potential prejudice to
avoid reversal now.
13

Under K.S.A. 60-212(b), a motion to dismiss for failure to state a claim is treated like a
motion for a summary judgment if matters outside the pleadings are presented and not excluded
by the court. Whether matters outside the pleadings were considered "must be decided from the
allegations of the petition." State ex rel. Slusher v. City of Leavenworth, 279 Kan. 789, 790, 112
P.3d 131 (2005). Dismissal is only justified if the petition's allegations clearly demonstrate
petitioners do not have a claim, after viewing all claims in the light most favorable to petitioner
and resolving every doubt in their favor. 279 Kan. at 790.

In this case, Rhoten's petition on its face stated valid negligence and negligence per se
claims. In order to address the claim and issue preclusion arguments, the district court had to
consider the federal court decision when deciding those arguments. This is a matter outside the
pleadings. Therefore, the motions to dismiss needed to be treated like summary judgment
motions, and Rule 141 applied.

This court required strict compliance with Rule 141 in McCullough. In that case, the
party moving for summary judgment did not set forth any uncontroverted statements of facts in
separately numbered paragraphs. 235 Kan. at 735. The non-moving party objected, and the
district court held the movant had substantially complied with the rule. In a harsh rebuke of the
moving party's failure to comply with Rule 141, the McCullough court made the following
statement:

"Rule 141 is not just fluff – it means what it says and serves a necessary purpose. Contrary to the
opinion of [movant's] counsel, a moving party's compliance with Rule 141(a) is even more crucial
in complex cases than in simple ones. In accordance with the express language of the rule, the
district court could not even hear the motion until the moving party was in compliance with the
requirements of the rule. On this basis alone, the summary judgment . . . must be reversed." 235
Kan. at 736.

But reversal was required in McCullough because, as the court emphasized, "summary
judgment was granted with no way to determine then or now what facts are or are not
controverted or on what evidence the parties rely." 235 Kan. at 736. Four years after McCullough
was decided, this court held the failure to comply with Rule 141's requirement that the moving
14

party file a memorandum setting forth uncontroverted facts with references to the supporting
documents contained in the record and court file was harmless error. Key, 265 Kan. at 130, 133.
In Key, many of the facts cited by the moving party referred to a deposition that was not filed
with the district court. 265 Kan. at 130-31. This court held the error was harmless because the
district court did not rely on any of those facts. 265 Kan. at 133.

This court also has found the failure to comply with Rule 141 by providing extraneous
facts in multiple summary judgment motions was not reversible error since the error did not
infect the district court's analysis. In City of Arkansas City v. Bruton, 284 Kan. 815, 166 P.3d 922
(2007), the moving party submitted an amended motion for summary judgment and numerous
statements of uncontested facts in response to the non-moving party's Rule 141 objection. 284
Kan. at 834. The Court of Appeals determined Rule 141 required a single memorandum by the
movant with uncontroverted contentions of fact and said it was the better practice to disallow the
shifting or refining of arguments before resolution of summary judgment. 284 Kan. at 835. This
court disagreed, focusing instead on whether the district court undertook the correct legal
analysis and identified the facts necessary to resolve the motion. 284 Kan. at 837. The issue was
different from the instant case because the moving party submitted extraneous uncontroverted
facts as opposed to submitting insufficient findings. But the Bruton holding recognizes a Rule
141 violation should not be considered fatal if the party complies with the rule in subsequent
filings before the district court renders judgment.

To summarize, Pase and the City were wrong to have filed their motions to dismiss when
they relied on a federal court decision from an earlier litigation between the same parties. The
district court was wrong to grant dismissal instead of summary judgment. But we find the district
court's error harmless in this particular instance because the subsequent filings of findings of fact
prior to oral arguments allowed for the proper presentation of the minimal number of
uncontroverted facts required to establish defendants' entitlement to issue and claim preclusion.
This minimum showing necessitated that Pase and City: (1) identify the federal district court
decision; (2) demonstrate Rhoten's claims from both suits concerned the same accident; and (3)
show the federal court's holding that Rhoten had not established causation on the federal claim
and granted summary judgment. Pase and the City satisfied these requirements in their proposed
15

findings of fact and conclusions of law. For these reasons, we affirm the district court and Court
of Appeals on this issue.

CLAIM PRECLUSION

Rhoten next argues the district court erred in finding the state law negligence claims were
barred by claim preclusion, also termed res judicata. As mentioned briefly above, this argument
was decided adversely to Rhoten's interest in Stanfield v. Osborne Industries, Inc., 263 Kan. 388,
949 P.2d 602 (1997), cert. denied 525 U.S. 831 (1998). We accepted review of this case, in part,
to re-examine that holding.

Standard of Review

Whether the claim preclusion doctrine applies is a question of law subject to unlimited
review. Stanfield, 263 Kan. at 396. But this court must apply federal law since the issue is
whether Rhoten's state law claims are precluded by a federal court decision. 263 Kan. at 396
(quoting Heck v. Humphrey, 512 U.S. 477, 488, 129 L. Ed. 2d 383, 114 S. Ct. 2364 [1994])
(holding '"state courts are bound to apply federal rules in determining the preclusive effect of
federal-court decisions on issues of federal law'"). This distinction, though, appears academic
because this court previously recognized "Kansas law does not appear to differ significantly from
the federal law regarding the preclusion doctrines." 263 Kan. at 396.

Under federal law, the claim preclusion doctrine prevents a party from relitigating a claim
that was, or could have been, the subject of a previously issued final judgment. Mactec, Inc. v.
Gorelick, 427 F.3d 821, 831 (10th Cir. 2005), cert. denied 547 U.S. 1040 (2006). Claim
preclusion applies if the following three elements exist: (1) There is a final judgment on the
merits in an earlier action; (2) the same parties are involved in the two suits; and (3) there is the
same cause of action in both suits. 427 F.3d at 831. The majority of federal courts, including the
United States Supreme Court and the Tenth Circuit, recognize an exception if the party seeking
to avoid preclusion did not have a full and fair opportunity to litigate the claim in the prior suit.
Although some courts treat this exception as a fourth element, the Tenth Circuit agrees it is an
16

exception that only needs to be addressed in limited circumstances. Yapp v. Excel Corp., 186
F.3d 1222, 1226 n.4 (10th Cir. 1999).

The Stanfield Decision

Review of Rhoten's state court litigation necessarily requires us to discuss and re-
examine Stanfield because that case addressed the same issue. In Stanfield, the plaintiff first filed
an action in federal district court invoking both federal questions and supplemental jurisdiction.
Plaintiff alleged two federal trademark claims under the Lanham Act and state law claims for
slander, disparagement, and misappropriation of plaintiff's name. 263 Kan. at 391-92.
Defendants filed for summary judgment, which was granted on the federal law claims only. 263
Kan. at 393. The federal district court then declined supplemental jurisdiction over the state law
claims, which was affirmed by the Tenth Circuit on appeal. 263 Kan. at 394. Plaintiff then filed
the same state law claims in state court. Defendants moved again for summary judgment,
asserting the issue preclusion doctrine as a bar to further proceedings. The district court found
both issue and claim preclusion applicable. 263 Kan. at 395. On appeal, this court declined to
address whether issue preclusion applied after determining plaintiff's claims were barred by
claim preclusion.

The Stanfield court held the so-called "transactional approach" was the test used to define
what claims were precluded by the doctrine. Under this approach, a claim is defined as a natural
grouping or common nucleus of operative facts. 263 Kan. at 401. Then, the court held the federal
claims dismissed on summary judgment arose from the same nucleus of operative facts as the
state law claims because the facts were identical in time and origin and required the same
witnesses and proof. On this basis, the court held both the state law and federal law theories
comprised the same claim, and plaintiff was precluded from relitigating the state law claims. 263
Kan. at 402.

Next, the Stanfield court addressed whether an exception should be created because the
federal district court declined to exercise supplemental jurisdiction. This court held claim
17

preclusion applies even though the federal court declines to exercise supplemental jurisdiction,
explaining:

"Claim preclusion prohibits a party from asserting in a second lawsuit any matter that might have
been asserted in the first lawsuit. [Citation omitted.] Thus, a legal theory does not even need to be
raised in the first action, more or less considered by the court, in order for it to be precluded in a
later action under the claim preclusion doctrine, if it arose out of the same claim or factual
transaction which the first action determined. [Citation omitted.] The fact that the federal court did
not consider the plaintiff's state law theories does not prevent claim preclusion from applying to
the theories, since the theories arose out of the same claim or factual transaction which the federal
court did determine." 263 Kan. at 404.

Rhoten makes the following arguments to challenge the application of claim preclusion in
her case: (1) The federal district court's orders were a not final judgment; (2) the state law
negligence theories do not arise from the same claim or common nucleus of operative facts as the
federal due process claim; (3) she did not have an opportunity to fully and fairly litigate the state
law claims; and (4) Stanfield should be overruled.

In deciding Rhoten's case, the district court and the Court of Appeals relied upon
Stanfield, and it controls several issues. But the Stanfield court did not discuss the exception
recognized by the Tenth Circuit when a party did not have an opportunity to fully and fairly
litigate its claims. We will need to address that point when deciding Rhoten's third argument, as
well as deciding whether Stanfield remains consistent with federal law in deciding her other
contentions.

Is the federal district court's order a final judgment on the merits?

Rhoten argues her state law negligence claims were not addressed on the merits and did
not reach final judgment. She argues Stanfield erroneously interprets federal law because federal
courts do not treat a dismissal on jurisdictional grounds as reaching final judgment. Pase and the
City argue Rhoten's federal suit proceeded to final judgment on the merits because the federal
court granted summary judgment on Rhoten's federal claims. They argue Stanfield correctly
applied federal law and should be upheld.
18

The Court of Appeals declined to address whether summary judgment was a final
judgment on the merits. Instead, it dismissed the issue, noting the federal district court's decision
was affirmed later on appeal. 40 Kan. App. 2d at 440-41. In this respect, the Court of Appeals
erred by implying the federal district court's decision was not final for purposes of res judicata
while Rhoten's federal appeal was pending. Both federal and Kansas courts have held a pending
appeal does not suspend the finality of the lower court's judgment for claim preclusion purposes.
Roberts v. Anderson, 66 F.2d 874, 875-76 (10th Cir. 1933) (citing Deposit Bank v. Frankfort,
191 U.S. 499, 48 L. Ed. 276, 24 S. Ct. 154 [1903]); Willard v. Ostrander, 51 Kan. 481, 489-90,
32 P. 1092 (1893) (holding a lower court's judgment remains in full force pending appeal for the
purposes of res judicata even though this may "work great hardship in some cases").

The Stanfield court held "[f]ederal courts treat a summary judgment as a judgment on the
merits." 263 Kan. at 400. While the Tenth Circuit does not appear to have directly addressed this
issue under federal law, other federal circuits have held summary judgment is a final judgment
on the merits for purposes of establishing claim preclusion. See Maher v. GSI Lumonics, Inc.,
433 F. 3d 123, 127 (1st Cir. 2005) (summary judgment is a traditional basis supporting claim
preclusion in the second suit); First Pacific Bancorp, Inc. v. Helfer, 224 F.3d 1117, 1128 (9th
Cir. 2000) (claim preclusion arises from summary judgment); King v. Hoover Group, Inc., 958
F.2d 219, 222 (8th Cir. 1992) (summary judgment constitutes final judgment on the merits). In
this respect, Stanfield remains consistent with federal law, and the federal district court's
summary judgment order should be treated as a final judgment for claim preclusion purposes.

Is the state lawsuit based upon the same claim as the federal suit?


Rhoten argues the state law negligence theories do not comprise the same claim as the
federal due process theories. She also argues Stanfield was wrong when it determined a legal
theory does not need to be determined by a prior court to be precluded in a later action arising
out of the same claim. In other words, Rhoten argues the federal district court had to address her
negligence claims before they could be precluded. Defendants argue the state law and federal
law claims compose the same claim because they are based upon the same series of factual
transactions. The state district court and Court of Appeals agreed with defendants, and so do we.
19


Stanfield held federal law determines whether Rhoten's legal theories comprise a single
claim. 263 Kan. at 396. In 1988, the Tenth Circuit adopted the transactional approach from the
Restatement (Second) of Judgments to determine whether separate legal theories constitute the
same claim for claim preclusion purposes. Petromanagement Corp. v. Acme-Thomas Joint
Venture, 835 F.2d 1329, 1335 (10th Cir. 1988); Restatement (Second) of Judgments § 24 (1980).
This approach was most recently employed in 2006, and there is no evidence the Tenth Circuit is
moving away from it. Hatch v. Boulder Town Council, 471 F.3d 1142 (10th Cir. 2006).

The transactional approach focuses on the facts underlying the separate legal theories,
and a "'claim arising from the same "transaction or series of connected transactions" as a
previous suit, which concluded in a valid and final judgment, will be precluded.'" Hatch, 471
F.3d at 1149 (quoting Restatement [Second] of Judgments § 24). To determine whether separate
legal theories comprise the same transaction or series of transactions, courts examine whether the
facts are related in time, space, origin, or motivation and whether they would form a convenient
trial unit. 471 F.3d at 1149. We find the Stanfield court correctly applied the transactional
approach and that this approach remains an accurate reflection of federal law.

In Rhoten's case, all theories arise from the traffic accident and the parties' conduct
leading up to the accident. The federal and state law theories relate in time and origin. The same
witnesses and proof are required for both claims, and they form a convenient trial unit. The
district court and Court of Appeals were correct in finding Rhoten's federal claims comprise the
same series of transactions as her state negligence claims.

Were the state law claims fully and fairly litigated?

Rhoten argues next that "[i]n filing this present action, plaintiff was only attempting to
have the claims which were not fully and fairly litigated to final judgment in the federal action
addressed by a court with jurisdiction." We take this to mean Rhoten is seeking to invoke the
federal court's exception to the claim preclusion doctrine.

20

Under this exception, preclusion may be avoided if a party did not have an opportunity to
fully and fairly litigate the claim. Mactec, 427 F.3d at 831. When determining whether a claim
was fully and fairly litigated, federal courts consider the following factors: (1) whether there
were significant procedural limitations in the prior proceeding; (2) whether the party had the
incentive to fully litigate the issue; and (3) whether effective litigation was limited by the parties'
nature or relationship. Burrell v. Armijo, 456 F.3d 1159, 1172 (10th Cir. 2006). None of these
factors weigh in Rhoten's favor.

We find no procedural limitations in the federal court proceedings. The state district court
ruling held the federal court "carefully considered all of the evidence regarding Pase's actions
and inactions." The federal district court's opinion reinforces this conclusion by noting the
extensive discovery conducted before the defendants filed their summary judgment motions. The
parties took depositions that were submitted to the federal court in support of arguments for and
against summary judgment and stipulated to the admission of several documents. It is apparent
the parties fully briefed the issues. Rhoten does not claim otherwise. In addition, Rhoten filed a
motion for clarification after the federal court granted summary judgment, which the court
treated as a motion for reconsideration and then denied. Rhoten v. Dickson, 2006 WL 2949530,
at *3 (D. Kan. 2006) (unpublished opinion). Those decisions were appealed to the Tenth Circuit,
which affirmed. Rhoten v. Pase, 2007 WL 3088226, at *5 (10th Cir. 2007) (unpublished
opinion).

As to the remaining matters, Rhoten had the incentive to fully litigate the federal claim
because the existing law regarding claim preclusion would have barred the same theory
underlying the state law claims. Finally, there is no reason to believe the parties' relationship had
any undermining effect on the federal litigation. As such, we find Rhoten's federal theories were
fully and fairly litigated, and the exception recognized under federal law does not apply.

Should Stanfield be overruled?

The remaining issue is whether this court should overturn the Stanfield court's decision
not to create an exception for claims that were dismissed without prejudice. The essence of
21

Rhoten's claim in this regard is that it seems unjust that claim preclusion prevents a party from
bringing a state law claim in state court. To be sure, this outcome does seem counterintuitive, but
this court recognized long ago that preclusion doctrines sometimes present difficult questions.
See Willard v. Ostrander, 51 Kan. at 488.

The Stanfield court clearly considered this difficulty and determined the claim preclusion
doctrine should apply when the elements of claim preclusion are satisfied, even though a claim
was dismissed without prejudice. Stanfield, 263 Kan. at 404. This holding continues to comport
with federal law, and we find no reason to overrule the decision.

The doctrine of stare decisis holds that "'once a point of law has been established by a
court, that point of law will generally be followed by the same court and all courts of lower rank
in subsequent cases where the same legal issue is raised.'" Crist v. Hunan Palace, Inc., 277 Kan.
706, 715, 89 P.3d 573 (2004) (quoting Samsel v. Wheeler Transport Services, Inc. 246 Kan. 336,
356, 789 P.2d 541 [1990], overruled on other grounds Bair v. Peck, 248 Kan. 824, 844, 811 P.2d
1176 [1991]). A court of last resort will follow the rule of law it established in its earlier cases
unless clearly convinced the rule was originally erroneous or is no longer sound because of
changing conditions and more good than harm will come by departing from precedent. Crist, 277
Kan. at 715. The doctrine is designed to "'promote system-wide stability and continuity by
ensuring the survival of decisions that have been previously approved by a court.'" 277 Kan. at
715. While this court is not inexorably bound by its own precedent, it will follow the law of
earlier cases unless "'clearly convinced that the rule was originally erroneous or is no longer
sound because of changing conditions and that more good than harm will come by departing
from precedent.'" 277 Kan. at 715.

Based on the Stanfield decision's continuing strength, we affirm the district court and the
Court of Appeals' decisions that claim preclusion barred Rhoten from renewing her state law
claims in state court after they were dismissed without prejudice in federal court. This holding is
determinative of this case, but we also address the issue preclusion arguments for the reasons
stated below.

22

ISSUE PRECLUSION

As mentioned above, Rhoten brought state law negligence and negligence per se claims.
Both claims were premised upon two theories of liability: (1) Pase's actions, i.e. speeding while
following Dickson, and (2) Pase's inactions, i.e., failure to activate the vehicle's lights and siren.
Failing to distinguish between these theories of liability, the Court of Appeals affirmed the
district court's order applying issue preclusion to Rhoten's negligence claims, but it held the
causation elements were not identical to the negligence per se claims. It arrived at this conclusion
by analyzing the issue under K.S.A. 8-1738(d), even though Rhoten brought her negligence per
se claims under K.S.A. 8-1506. Therefore, it held Rhoten's negligence per se claims were not
barred by issue preclusion. Rhoten, 40 Kan. App. 2d at 445-46.

Both parties seek review of this determination. Rhoten argues the Court of Appeals erred
by applying issue preclusion to the negligence claims, while Pase and the City object to the
Court of Appeals reaching beyond the allegations in Rhoten's petition to deny issue preclusion
on the negligence per se claims based upon K.S.A. 8-1738(d). The dispute is academic because
claim preclusion, as described above, operates to stop the litigation against these defendants dead
in its tracks regardless of the issue preclusion analysis. But we discuss it here because the Court
of Appeals reviewed the issue, and both parties challenge the result.

Standard of Review

As with claim preclusion, this court reviews issue preclusion de novo. Stanfield, 263 Kan.
at 396. Federal law controls because this court is examining the preclusive effects from a federal
court judgment. 263 Kan. at 396.

According to the Tenth Circuit, the four elements required to establish issue preclusion
are whether: (1) the previously decided issue is identical to the one presented in the current
action; (2) the previous action reached final judgment; (3) the party against which the doctrine is
invoked was a party or in privity with a party from the prior adjudication; and (4) the party
against whom the doctrine is invoked had a full and fair opportunity to litigate the issue in the
prior action. Burrel, 456 F.3d at 1172 (citing Dodge v. Cotter Corp., 203 F.3d 1190, 1198 [10th
23

Cir. 2000]). Unlike claim preclusion, the "full and fair opportunity to litigate" question is treated
as an element in the analysis, rather than as an exception.

As discussed above regarding claim preclusion, the federal district court's summary
judgment order was a final judgment, the parties are identical, and Rhoten had the opportunity to
fully and fairly litigate her federal liability theories. So this court's review is focused on the first
element—whether the causation elements in Rhoten's federal claims are identical with her state
law negligence and negligence per se claims. We discuss negligence and negligence per se
separately because the elements differ.

Negligence

Rhoten argues the Court of Appeals erred in finding her negligence claim was barred by
issue preclusion, claiming the issues of fact required to prove a substantive due process claim
under 42 U.S.C. § 1983 (2000) are not identical to the factual issues in her negligence claim. She
contends the due process claim requires her to show intent, which is not required to prove
negligence. Pase and the City counter by arguing both the federal and state law liability theories
employ the same "substantial factor" test to determine causation. Both the state district court and
Court of Appeals assumed the causation elements were identical and failed to provide any
analysis on this issue. But the Tenth Circuit employs distinct tests to determine causation for acts
or omissions in a § 1983 substantive due process claim, so Rhoten's two negligence theories
must be examined separately.

Pase's Actions

The federal district court employed the substantial factor test when analyzing whether
there was a material question of fact as to causation on Rhoten's federal claim. Kansas employs a
different test with a higher burden of proof. In Kansas, an injured party's right to recover is
limited to when the injury is a direct and proximate result of a defendant's negligence. Deal v.
Bowman, 286 Kan. 853, 859, 188 P.3d 941 (2008). Proximate cause is cause "which in natural
and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and
without which the injury would not have occurred, the injury being the natural and probable
24

consequences of the wrongful act." Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065
(2006). To satisfy the plaintiff's burden of proof on the causation element, the plaintiff must
produce evidence that "'affords a reasonable basis for the conclusion that it is more likely than
not that the conduct of the defendant was a cause in fact of the result.'" 282 Kan. at 628 (quoting
Prosser & Keeton on Torts § 41, pp. 269-70 [5th ed. 1984]).

Pase and the City erroneously argue Kansas employs the substantial factor test used by
the Tenth Circuit, relying primarily on a decision by this court, Roberson v. Counselman, 235
Kan. 1006, 686 P.2d 149 (1984). Roberson is a medical malpractice loss of chance to survive
case that applied the substantial factor test for causation. 235 Kan. at 1021. But this court later
clarified that the substantial factor test only applies to loss of chance cases. Delaney v. Cade, 255
Kan. 199, 211, 873 P.2d 175 (1994).

In Delaney, this court held "[t]he loss of a chance cause of action, although grounded in
negligence, relies upon a lesser or reduced standard of causation than the traditional standard
applied in negligence cases." 255 Kan. 199, Syl. ¶ 3. The substantial factor test was adopted in
loss of chance cases to allow plaintiffs who have less than a 50 percent chance of survival to
bring a medical malpractice action. Roberson, 235 Kan. at 1021. Under the "more likely than
not" standard, plaintiffs with less than a 50 percent chance of survival could not bring a
negligence claim for even the grossest forms of malpractice. 235 Kan. at 1021.

Since Rhoten could not satisfy the lower burden of proof in the federal action, the district
court properly held that issue preclusion applied to bar her negligence claims based on Pase's
actions.

Pase's Inactions

State negligence law does not impose a different causation standard if the breach was
caused by an act or omission, but federal due process law requires an additional showing.
Generally, federal liability does not attach if state actors do nothing when suspicious
circumstances require action unless the state actor recklessly created the danger through some
25

affirmative conduct on the state's part that placed plaintiff in danger. This is called the "danger
creation" theory. Christiansen v. City of Tulsa, 332 F.3d 1270, 1279-80 (10th Cir. 2003).

The federal district court relied upon Rhoten's failure to establish that Pase created the
danger when granting summary judgment under the omission theory of liability. It held there was
no § 1983 liability, reasoning that Pase did not change the status quo or place Rhoten in a worse
position by following Dickson. But this additional showing is not required under Kansas
negligence law, and the issue decided by the federal district is not identical to the causation
analysis in Kansas.

Since Rhoten's omission theory was rejected by the federal district court based upon the
failure to establish Pase created the danger, it did not decide whether Pase's failure to activate his
lights and sirens caused Rhoten's injury. Therefore, issue preclusion would not bar Rhoten's
negligence claim.

Negligence Per Se

Rhoten's petition in state court alleged Pase violated K.S.A. 8-1506. She did not assert
any other statutory violations. The state district court did not specifically address Rhoten's
negligence per se claim. The Court of Appeals analyzed the claim under K.S.A. 8-1738(d),
which is a different statute than the one referenced by plaintiff in the petition. Based on that
statute, the Court of Appeals found the negligence per se theory was not precluded. Rhoten, 40
Kan. App. 2d at 445-46. Pase and the City filed a cross-petition for review arguing the Court of
Appeals erred by citing the wrong statute and in finding the causation elements are not identical.

Did the Court of Appeals examine the wrong statute?

Rhoten asserted her negligence per se claim under K.S.A. 8-1506. It permits the driver of
an authorized emergency vehicle to disregard certain enumerated traffic laws when pursuing an
actual or suspected criminal, if the driver activates the vehicle's lights and siren. It states:

26

"(a) The driver of an authorized emergency vehicle, when responding to an emergency
call or when in the pursuit of an actual or suspected violator of the law, or when responding to but
not upon returning from a fire alarm, may exercise the privileges set forth in this section, but
subject to the conditions herein stated.

"(b) The driver of an authorized emergency vehicle may:

. . . .

"(3) Exceed the maximum speed limits so long as such driver does not endanger life or
property;

. . . .

"(c) The exceptions herein granted to an authorized emergency vehicle shall apply only
when such vehicle is making use of an audible signal meeting the requirements of K.S.A. 8-1738
and visual signals meeting the requirements of K.S.A. 8-1720 . . . ." K.S.A. 8-1506.

Without explanation, the Court of Appeals treated Rhoten's claim as if she alleged a
violation of K.S.A. 8-1738(d), which states:

"(d) Every authorized emergency vehicle shall be equipped with a siren . . . but such
siren shall not be used except when such vehicle is operated in response to an emergency call or in
the immediate pursuit of an actual or suspected violator of the law, in which said latter events the
driver of such vehicle shall sound said siren when reasonably necessary to warn pedestrians and
other drivers of the approach thereof." (Emphasis added.)

The statutes are not identical, even though K.S.A. 8-1738(d) is referenced in K.S.A. 8-
1506 and both statutes impose a requirement upon drivers of authorized vehicles to activate their
sirens. In K.S.A. 8-1506, the statute referenced by Rhoten, the emergency vehicle driver is
required to activate the signal if violating the enumerated traffic laws. In K.S.A. 8-1738, the
driver is required to activate the siren when reasonably necessary to warn others of the vehicle's
approach.

27

Appellate courts do not ordinarily consider issues the parties failed to raise unless an
issue's consideration is necessary to serve the ends of justice or to prevent the denial of
fundamental rights. State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007). No such
circumstances are presented in this case, and Rhoten makes no claim that there was such
justification for the Court of Appeals to analyze her claim under a different statutory basis than
the one she asserted in her petition. The Court of Appeals erred and should have considered
Rhoten's claim under K.S.A. 8-1506.

Is causation identical between the federal and state law claims?

To establish negligence per se, a plaintiff must show (1) the defendant violated a statute;
(2) the violation caused plaintiff's damages; and (3) the legislature intended to create an
individual right of action arising from the violation. Pullen v. West, 278 Kan. 183, Syl. ¶ 3, 92
P.3d 584 (2004).

Rhoten argues K.S.A. 8-1506 imposed a duty on Pase to "activate his lights and siren
when driving in violation of traffic laws." She argues Pase violated this duty when he "drove at
speeds in excess of 65 miles per hour on icy roads while pursuing Dickson."

Applying this theory to the elements of negligence per se, Rhoten would have to establish
Pase violated K.S.A. 8-1506 by failing to activate his lights and siren while speeding and his
failure to activate his lights caused Rhoten's injuries. Causation under this theory is identical to
causation under her second negligence claim because they both require a showing that Pase's
inactions, or failure to activate his lights or siren, caused her injuries. The same analysis recited
above applies here. Since the federal district court did not determine this issue, but instead
analyzed the § 1983 claim under a danger creation theory, issue preclusion does not bar this
theory of recovery.

But since Rhoten's claims are barred completely under the claim preclusion doctrine, we
do not reverse because the state district court and Court of Appeals erred in their issue preclusion
analysis.
28

The judgments of the district court and the Court of Appeals are affirmed.

ROSEN, J., not participating.
ELLIOTT, J., assigned.
1


1
REPORTER'S NOTE: Judge Jerry G. Elliott, of the Kansas Court of Appeals, was appointed
to hear case No. 98,837 vice Justice Rosen pursuant to the authority vested in the Supreme Court
by K.S.A. 20-3002(c).