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contractlawsuitdamagesnegligenceliabilitytrialverdictjury trialjury instructions
plaintiffdefendantdamagesnegligencetrialpunitive damages

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Ettus v. Orkin Exterminating Co., Inc., 233 Kan. 555, 665 P.2d 730

Facts

In April 1978, Mary Ettus purchased a home in North Topeka from Alfred and Ethel Hohnbaum, who had previously contracted with Orkin Exterminating Co. for termite treatment. Despite Orkin's certification that the house was termite-free, Ettus discovered extensive termite damage shortly after the purchase. She filed a lawsuit against the Hohnbaums and Orkin for fraud and negligence, leading to a jury trial where the jury found the Hohnbaums negligent and awarded Ettus damages, while also ruling in favor of the Hohnbaums on their fraud claim against Orkin.

In April, 1978, the plaintiff Mary Ettus bought a home in North Topeka from Alfred L. and Ethel M. Hohnbaum (Hohnbaums) through the Ken Bueltel real estate agency (Bueltel) and one of its salesmen, Wilbur T. Gorrell (Gorrell).

Issue

The main legal issues included whether the vendors breached their duty to the purchaser and whether the pest control company's liability was limited to the purchase price of the house.

The evidence is clear that the Hohnbaums became aware of live termite infestation as early as 1976 and that numerous repairs were made to the property at that time.

Rule

Negligence is defined as the lack of ordinary care, and a party is liable for injuries that are the natural and probable result of their wrongful acts. The court must resolve all facts in favor of the party against whom a directed verdict is sought, and jury instructions must be considered as a whole.

‘Negligence’ is the lack of ordinary care. It is the failure of a person to do something that an ordinary person would do, or the act of a person in doing something that an ordinary person would not do, measured by all of the circumstances then existing.

Analysis

The court found sufficient evidence for the jury to determine that the Hohnbaums breached their duty to Ettus by failing to disclose known termite issues. The jury was instructed on the definition of negligence and the natural consequences of wrongful acts, allowing them to award damages based on the totality of the circumstances, including the extensive damages caused by the termites.

The evidence is clear that the Hohnbaums became aware of live termite infestation as early as 1976 and that numerous repairs were made to the property at that time.

Conclusion

The court affirmed the jury's verdicts, concluding that the evidence supported the findings of negligence against the Hohnbaums and that the damages awarded to Ettus were appropriate given the circumstances.

The judgment entered was consistent with the maximum amount of relief sought by the Hohnbaums and with the pretrial order and they cannot now complain when their recovery was limited to the maximum amount sought.

Who won?

Mary Ettus prevailed in her negligence claim against the Hohnbaums, as the jury found them liable for failing to disclose the termite infestation, which was a breach of their duty as sellers.

The jury found against the plaintiff as to all the defendants on her claim for fraud. However, the jury found in plaintiff's favor on her claim for negligence and awarded actual damages of $33,195.00 and punitive damages of $50,000.00.

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