## Facts

- Abbott Construction Co., Inc. performed excavation and construction work at Phillips County Hospital in Phillipsburg, Kansas.
- Abbott’s employees stretched a nylon string (“chalk line”) across a sidewalk leading to the hospital’s north-side entrance, near the excavation perimeter.
- Pedestrian Dick Culwell used the sidewalk, tripped over the chalk line, and fell against part of the building, claiming personal injuries.
- The parties disputed key circumstances, including the line’s color, height, visibility, and whether warnings, signs, or barriers were present.
- Culwell sued on three theories: (1) nuisance (unlawful obstruction of a public way), (2) punitive damages based on willful and wanton misconduct, and (3) ordinary negligence.
- After two mistrials and a venue change, a third jury returned a general verdict for Abbott.

## Issues

1. Whether the trial court erred by refusing to instruct the jury that the chalk line across a public sidewalk could constitute a nuisance distinct from negligence.
2. Whether the trial court erred by refusing to instruct on willful and wanton misconduct and punitive damages.
3. Whether the negligence and contributory-negligence instructions, considered as a whole, adequately and properly submitted the case to the jury.

## Decision

- The Kansas Supreme Court affirmed the judgment for Abbott.
- The trial court properly refused a nuisance instruction because the alleged wrong was adequately covered by ordinary negligence principles.
- The trial court properly refused willful-and-wanton and punitive-damages instructions because the evidence did not meet the Kansas standard for such misconduct.
- The negligence and contributory-negligence instructions were adequate when read together, and the general defense verdict was supported by the conflicting evidence.

## Legal Principles

- When a claimed “nuisance” consists of a hazardous condition created by an alleged lack of due care, the controlling theory is negligence; a separate nuisance instruction is unnecessary if negligence instructions allow the jury to evaluate the claimed hazard and fault.
- Willful and wanton misconduct in Kansas requires proof of realized imminent danger coupled with reckless disregard and complete indifference to probable consequences; ordinary disputes about visibility, warnings, and construction practices generally do not satisfy this standard.
- Appellate courts will not disturb a general verdict where the jury was properly instructed on negligence and contributory negligence and the record contains evidence supporting either side.

## Conclusion

The court upheld a defense verdict in a sidewalk-trip case, holding that the dispute was properly tried as an ordinary negligence action, that the evidence did not justify punitive-damages or willful-and-wanton instructions, and that the instructions given adequately presented the parties’ competing negligence and contributory-negligence theories to the jury.


Culwell v. Abbott Constr. Co., 211 Kan. 359, 506 P.2d 1191 (Kan. 1973)