60-414. Effect of presumptions. Subject to K.S.A. 60-416, and except for presumptions which are conclusive or irrefutable under the rules of law from which they arise, (a) if the facts from which the presumption is derived have any probative value as evidence of the existence of the presumed fact, the presumption continues to exist and the burden of establishing the nonexistence of the presumed fact is upon the party against whom the presumption operates; (b) if the facts from which the presumption arises have no probative value as evidence of the presumed fact, the presumption does not exist when evidence is introduced which would support a finding of the nonexistence of the presumed fact, and the fact which would otherwise be presumed shall be determined from the evidence exactly as if no presumption was or had ever been involved.
History: L. 1963, ch. 303, 60-414; January 1, 1964.
Law Review and Bar Journal References:
Survey of law of evidence, Spencer A. Gard, 12 K.L.R. 239, 242 (1963).
Mentioned as establishing change in Kansas law as to presumption against suicide, James L. Crabtree, 12 K.L.R. 458, 460 (1964).
"Prosecutorial Misconduct in Closing Argument," Alan V. Johnson and Jeffrey S. Southard, 49 J.B.A.K. 205, 239 (1980).
"Survey of Kansas Law: Evidence," 29 K.L.R. 497, 506 (1981).
"Workers' Compensation Review," Patrick Nichols, J.K.T.L.A. Vol. XV, No. 5, Review p. 4 (1992).
"Will Contests in Kansas," Dennis M. Feeney & Jeffery L. Carmichael, 64 J.K.B.A. No. 7, 22, 30 (1995).
CASE ANNOTATIONS
1. Inconsistent presumptions considered in holding that school board not required to transfer teachers between schools for the purpose of achieving integration of faculty. Londerholm v. Unified School District, 199 Kan. 312, 323, 430 P.2d 188.
2. "Love of life" instruction had no place in lawsuit pursuant to guest statute because of abundant evidence showing negligence; presumption comes within subsection (b) of statute. Akin v. Estate of Hill, 201 Kan. 306, 310, 311, 440 P.2d 585.
3. Subsection (a) cited in case concerning evidence of whether or not defendant was represented by counsel in a previous conviction. State v. Duke, 205 Kan. 37, 41, 468 P.2d 132.
4. Subsection (b) controlling in regard to presumption of negligence; erroneous to instruct jury on presumption; negligence was to be determined as if no presumption involved. Hampton v. State Highway Commission, 209 Kan. 565, 587, 498 P.2d 236.
5. Presumption of due care overcome where substantial evidence to the contrary. Hagood v. Hall, 211 Kan. 46, 50, 505 P.2d 736.
6. Notary's certificate of acknowledgment gives rise to the presumption of execution of mortgages; party against whom the presumption operates must overcome by clear and convincing evidence; judgment affirmed. McMurray v. Crawford, 3 Kan. App. 2d 329, 332, 333, 334, 335, 336, 594 P.2d 1109.
7. Presumption that plaintiff's leukemia was caused by manufacturer's inadequate warnings of benzene's carcinogenic propensities fit within statute as stated. Mason v. Texaco, Inc., 741 F. Supp. 1472, 1506 (1990).
8. Money found in close proximity to controlled substance (K.S.A. 65-4135(a)(6)) has probative value as evidence of presumed fact under subsection (a). State v. 1978 Chevrolet Automobile, 17 Kan. App. 2d 144, 835 P.2d 1376 (1992).
9. Whether application of K.S.A. 38-1585 presumption of unfitness violated mother's procedural due process rights under facts examined. In re J.L., 20 Kan. App. 2d 665, 668, 891 P.2d 1125 (1995).
10. Presumption favoring forfeiture of property seized from defendant successfully rebutted requiring return of certain property. Kansas Highway Patrol v. 1985 Chevrolet Astro Van, 24 Kan. App. 2d 841, 843, 954 P.2d 718 (1998).
11. Subsection (b) presumption created in case regarding fitness of mother. In re E.T., 36 Kan. App. 2d 56, 73, 137 P.3d 1035 (2006).
12. Prior to applying presumption of unfitness under K.S.A. 38-2271, court must determine whether presumption is a K.S.A. 60-414(a) or (b) presumption. In re J.S., 42 Kan. App. 2d 113, 208 P.3d 802 (2009).
13. District court erred in its application of a presumption of unfitness; termination of mother's parental rights reversed. In re K.R., 43 Kan. App. 2d 891, 233 P.3d 746 (2010).
|
|