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No. 106,988 IN THE COURT OF APPEALS OF THE STATE OF KANSAS JASON MICHAELIS, Appellee, v. GERALD and PEGGY FARRELL, Appellants.

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

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

3.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Michaelis' plans were to spend the Fourth of July holiday with his mother and stepfather at their lake home in Climax Spring, Missouri. Michaelis' stepfather had been experiencing problems with the boat lift on his dock, and he asked Michaelis, an electrician, to bring his tools when he came to the lake. While at the lake house on the morning of July 2, 2005, Michaelis answered a knock on the door. A woman was frantic because what she thought was a dead dog was floating in the lake. When Michaelis walked down to the dock, he saw another man was about to enter the water. As the man stepped onto a ramp, he fell in the water. Michaelis stated he understood the man to say he was being "electrocuted." Michaelis thought the dock was electrified so he told the man to move away from the dock. The man let go of the dock and disappeared under the water. The man's daughter was present and asked Michaelis to save her father. Michaelis 4

still believed the dock was conducting a current so he assumed if he jumped in the water far enough from the dock he would avoid getting shocked. Michaelis jumped in the lake and was immediately aware the water had become electrified and he was getting shocked. Right before Michaelis jumped in the lake, he had yelled for someone to cut off the electricity, and the next thing he knew, he had popped out of the water.

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

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

The Farrells moved for summary judgment arguing that, as a matter of law, Michaelis suffered an injury immediately after the accident, or soon thereafter, when Michaelis was experiencing the problems he was having. Accordingly, the Farrells maintained that Michaelis' suit was barred by the 2-year statute of limitations. The trial court denied the motion, finding there was a genuine issue of material fact as to when 5

Michaelis reasonably ascertained he had suffered substantial injury caused by the electrical accident.

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

Although Michaelis filed his petition in Johnson County, Kansas, where the parties resided, Missouri law applied to the cause of action. Thus, Michaelis was still entitled to recover damages despite the jury finding him equally at fault. See Mo. Rev. Stat.

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