Opinion
No. 110970.
07-02-2015
The ESTATE OF Ruth I. BELL, deceased, by and through its Administrator, Lois BAALMAN, and Lois Baalman, Mary Ellen Bell, and Wilma Rohr, heirs at law of Ruth I. Bell, deceased, Appellants, v. Raymond A. RUMPEL, Appellee.
Matthew L. Bretz, of Bretz & Young, of Hutchinson, for appellants. Donald F. Hoffman, of Dreiling, Bieker & Hoffman, LLP, of Hays, for appellee.
Matthew L. Bretz, of Bretz & Young, of Hutchinson, for appellants.
Donald F. Hoffman, of Dreiling, Bieker & Hoffman, LLP, of Hays, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.
MEMORANDUM OPINION
BUSER, J.
In this wrongful death and survival action, Ruth Bell's estate and heirs at law (plaintiffs) sued Raymond Rumpel after he struck and killed Bell with his pickup truck as she was attempting to walk across the street in an unmarked crosswalk. Following a trial, the jury determined that Bell and Rumpel were each 50% at fault for the collision and Bell's resultant death. As a result of the verdict, the trial court entered judgment in favor of Rumpel.
On appeal, the plaintiffs challenge the district court's decision to instruct the jury on comparative fault and its denial of motions for a directed verdict and new trial. Finding no error, we affirm the judgment.
Factual Background
On November 29, 2008, at about 5:46 p.m., Rumpel, who was 73 years old, struck Bell while driving his Chevy Luv pickup truck. At the time of the collision, Rumpel was attempting to cross the street at the intersection of Barclay Avenue and Sixth Street in Wakeeney. Tragically, Bell, who was 82 years old, died from her injuries 2 days later.
On March 15, 2010, the plaintiffs brought a wrongful death and survival action against Rumpel. The Plaintiffs alleged the collision, and Bell's fatal injuries, occurred because Rumpel operated his truck in a negligent, reckless, willful, and wanton manner. In his answer, Rumpel denied he was negligent in causing the collision and claimed the defense of comparative negligence. See K.S.A.2014 Supp. 60–258a.
Prior to trial, the plaintiffs sought a ruling from the district court which the parties characterized as a “partial summary judgment” that Bell had a statutory right-of-way at the time of the collision because she was walking in the unmarked crosswalk. After Rumpel's counsel conceded the issue, the district court granted the motion and ruled, as a matter of law, that “Bell had the right of way at the time of the collision since she was walking in the crosswalk directly between the adjacent sidewalks at a[n] intersection when the collision occurred.”
The 2–day jury trial began on September 17, 2013. Witness testimony revealed it was dark at the time of the collision, but there were several streetlights on Barclay Avenue and lights inside a Dairy Queen situated on one comer of the intersection. Barclay Avenue, which is part of Highway 283, is a two lane highway running in an east/west direction with a posted speed limit of 30 miles per hour. Officer Chad Mann of the Wakeeney Police Department testified that Barclay Avenue is probably one of the busiest streets in Wakeeney. Similarly, longtime resident Kevin Gosser, described Barclay Avenue as a “heavy traffic area,” utilized by pedestrians, including children. But Gosser observed there were “[n]ot too many” pedestrians on Barclay Avenue at night.
Intersecting Barclay Avenue is 6th Street, which is controlled by stop signs, and accommodates traffic proceeding in a north/south direction. Gosser testified that prior to the collision, he saw Bell, who was about 4 and 1/2 feet tall, standing “pretty close to the curb” at the comer of this intersection adjacent to the Dairy Queen. At the time, Gosser was traveling eastbound on Barclay Avenue. According to Gosser, Bell's presence “startled [him]”; he remembered “thank[ing] God that [Bell] ... didn't step out in front of [him], because [he] could barely see her over the head of [his] pickup ... [and] ‘there was no way [he] could have stopped .’ “ Gosser acknowledged, however, that just before he noticed Bell, he had missed his turn because he had been engaged in conversation with a passenger.
Gosser drove through the 6th Street intersection, turned into a nearby parking lot, and made a U-turn with the intent of entering the westbound lane of traffic on Barclay Avenue. While there were no vehicles traveling eastbound on Barclay Avenue, Gosser waited for westbound traffic to clear before he could merge onto the highway. As he looked over his left shoulder, about 30 to 45 yards away, Gosser saw Bell walking in the unmarked crosswalk in a northerly direction across Barclay Avenue. Bell was pushing a metal cart of groceries and moving at a “normal walking speed.” Gosser noticed nothing unusual about the way Bell was walking across the street.
As Gosser watched Bell, a westbound vehicle, three or four car lengths in front of Rumpel, passed through the intersection and crosswalk. Bell continued walking, and according to Gosser, he never saw her look back towards the east and Rumpel's oncoming truck.
After Bell had crossed more than halfway across the street, Gosser saw Rumpel's truck, which Gosser estimated was traveling at a “[n]ormal highway speed,” or about 20 to 25 miles per hour, strike Bell. Gosser explained, “I [saw] Ms. Bell walk across the street, and [Gosser's] vehicle was westbound on Barclay, and he just didn't see her or something. I don't know. And hit her. That vehicle hit her.” According to Gosser, he observed Rumpel apply his brakes “[p]robably 30, 40 feet” before impact. Gosser noted that Rumpel's vehicle and the vehicle in front of him had their headlights on that evening, but it was dark and he did not know what Rumpel could see of Bell shortly before impact.
After the collision, Gosser dialed 9–1–1, and Officer Mann responded to the scene moments later. Officer Mann observed Bell lying in the street just slightly to the west of the intersection near the sidewalk. While Rumpel testified he did not see any reflective clothing on Bell that night, Officer Mann testified she was wearing a long, dark trench coat and an orange, reflective vest. Officer Mann opined, however, that the vest was probably not reflective because it was very dirty, and when he had previously seen Bell wearing the vest it had little, if any, reflectivity.
Rumpel spoke to Officer Mann at the scene. He indicated he was traveling about 30 miles per hour when he struck Bell. According to Officer Mann, although Rumpel told him at the scene that he had been “coming to town and didn't see anyone until after he had struck her,” Rumpel later stated that he applied his brakes prior to striking Bell. Officer Mann opined that Rumpel did, in fact, apply his brakes before striking Bell because he noticed that Rumpel's left rear tire left a skid mark measuring 10 feet 11 inches long.
Officer Mann explained to the jury that when a pedestrian is walking in an unmarked crosswalk located directly between two opposing sidewalks (as was the case with the intersection of Barclay Avenue and 6th Street) the pedestrian has the right-ofway, and drivers are legally required to yield to the pedestrian.
Rumpel, a lifelong resident of Wakeeney, testified during the plaintiffs' case in chief. According to him, in addition to his driver's license, he also had a commercial driver's license which authorizes him to “drive a big truck like something with tandems on or trailers.” Rumpel testified that he has suffered from diabetes for 25 to 30 years, he had been seeing “floaters” for years, and almost 4 months after the collision, he told his optometrist he “saw flashes of light at night.” Still, Rumpel maintained he did not have any eye problems, nor trouble with his vision at night.
Rumpel conceded that although pedestrians crossed Barclay Avenue at the 6th Street intersection “from time to time,” there are “[n]ot a real lot” of them. While Rumpel described the visibility conditions at the time of the collision as “dark,” he acknowledged the sun was “still halfway above the horizon,” Rumpel testified he did not have any difficulty driving, and he did not see any floaters or flashes of light.
Rumpel explained that as he approached the intersection there was another car traveling about three or four car lengths ahead of him. Rumpel described the collision, “I was headed west, and I got to the intersection there. And I, a silhouette popped up in front of me just after I started into the intersection, and I hit my brakes to stop.... But it was just a little too late.” Rumpel testified that he was driving under the speed limit, about 25 miles per hour, and he explained that when he came upon Bell, there were oncoming vehicles traveling in the eastbound lane.
Rumpel acknowledged that because Bell was walking within the unmarked crosswalk he had “the absolute duty, to yield the right-of-way to her” and he said that he never saw Bell leap from the curb or dart into traffic. When asked if he was “driving fast enough when [he] first saw [Bell] that [he] couldn't stop, [he] could not slow, and [he] couldn't turn aside to avoid hitting a pedestrian who had the right-of-way,” Rumpell answered affirmatively. Rumpel also conceded he had been “overdriving [his] headlights”—driving at a speed which prohibited him from stopping within the range of illumination provided by his headlights.
Towards the end of trial, the trial court held an instructions conference, and plaintiffs objected to instructing the jury on comparative negligence because “[Bell] did absolutely nothing in violation of the law.” The objection was overruled.
Rumpel did not present evidence in his case in chief. At the close of evidence, the plaintiffs moved for judgment as a matter of law on the issue of liability which was also overruled. The jury returned a verdict finding that Bell and Rumpel were both 50% at fault. As a result, the plaintiffs were not entitled to recover any damages. See K.S.A.2014 Supp. 60–258(a).
After the trial, the plaintiffs renewed their motion for judgment as a matter of law on the issue of liability and, in the alternative, for a new trial. Plaintiffs submitted three reasons their motion should be granted. First, plaintiffs asserted “there was no legally sufficient evidentiary basis for the jury's finding that Ruth Bell was 50 percent at fault for the accident since she had no duty and since there was no evidence that she breached any duty.” Second, the plaintiffs claimed “the verdict was contrary to the evidence.” Third, the plaintiffs asserted “the verdict was given under the influence of passion and prejudice.” After a hearing held on November 11, 2013, the district court denied the plaintiffs' motion.
The plaintiffs filed this timely appeal.
Did the Trial Court Err in Instructing the Jury on Comparative Fault and Denying the Plaintiffs' Motions for Judgment as a Matter of Law?
For their first issue on appeal, Plaintiffs contend:
“The district court erred in submitting comparison of Ms. Bell's fault to the jury and in not granting judgment as a matter of law on the issue of Ruth Bell's fault because Ms. Bell had no legal duty to do anything after she entered the crosswalk with the right of way, and because there was no evidence that Ms. Bell breached any duty.”
Rumpel counters: “The presence or absence of negligence in any degree should be left to the trier of fact. Only when reasonable persons cannot reach differing conclusions from the same evidence may the issue be decided as a question of law.”
Preliminarily, it is necessary to summarize our standards of review. Appellate courts review a trial court's decision on a motion for judgment as a matter of law under the former directed verdict standard of review. Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 706, 317 P.3d 70 (2014). When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences that may reasonably 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. Appellate courts must apply a similar analysis when reviewing the grant or denial of a motion for judgment as a matter of law. City of Neodesha v. BP Corporation, 295 Kan. 298, 319, 287 P.3d 214 (2012) ; Bussman, 298 Kan. at 706–07.
Next, we consider our standards of review with regard to analyzing the propriety of jury instructions:
“ ‘For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).’ [Citation omitted.]” Foster v. Klaumann, 296 Kan. 295, 301–02, 294 P.3d 223 (2013).
Prior to analyzing plaintiffs' two-fold argument, it is necessary to set forth and clarify the procedural background upon which the comparison of fault issue arose in the district court. In part, plaintiffs base their argument on what they characterize as the “partial summary judgment” order, which was entered after the pretrial order and which stated that, at the time of the collision, Bell had a statutory right of way. Plaintiffs contend that in light of this order, the trial court should not have instructed the jury on comparative fault but rather should have entered judgment for them as a matter of law.
At the outset, we disagree with plaintiffs' characterization of the trial court's order as a partial summary judgment. The order was not a judgment in this case. To the contrary, there was a jury trial, based, in part, on representations made by plaintiffs' counsel at the hearing on their motion for partial summary judgment. Rumpel had argued in opposition to the motion, “it is for the jury to determine under all the facts and circumstances which of the parties was greater at fault.” In response, counsel for the plaintiffs told the trial court, “[W]e're not asking the court to determine as a matter of law who was at fault or [to ] apportion fault, and that seems to be what the defense argues in their response to the motion for partial summary judgment.” The district judge correctly observed, “I don't know whether it's really a partial summary judgment motion as much as it is that you would be entitled to that instruction,” i.e., that Bell had the right of way. Plaintiffs' counsel responded, “Okay. That is what we're requesting, Your Honor.”
Thus, the district court's order was only an agreed order to instruct the jury that, as a matter of law, Bell had the right of way at the time of the collision. If plaintiffs believed Bell's right of way was in itself sufficient to determine the question of fault, they could have made that argument. Having obtained a ruling from the district court based on an assurance they were not making that argument, however, the plaintiffs are estopped from taking a contrary position later in the litigation. See Estate of Belden v. Brown County, 46 Kan.App.2d 247, Syl. ¶ 3, 261 P.3d 943 (2011) (“Judicial estoppel precludes a party from taking one position in a case to induce the court to act in a certain way and then taking a contrary or conflicting position in a related proceeding involving the same opposing parties.”).
Next, we consider the legal propriety of the trial court providing the jury with comparative fault instructions given the factual circumstances of this case. Once again, the procedural background is important.
In accordance with the Pattern Instructions for Kansas (PIK) Civ. 4th 105.01, 105.03, and 105.05, the trial court provided the jury with the following instructions (in relevant part) pertaining to the theory of comparative fault and its effect on the case:
“No. 8
“You must decide this case by comparing the fault of the parties. In doing so, you will need to know the meaning of the terms ‘negligence’ and ‘fault.’
“Negligence is the lack of reasonable care. It is the failure of a person to do something that a reasonable person would do, or it is doing something that a reasonable person would not do, under the same circumstances.
“A party is at fault when he or she is negligent and that negligence caused or contributed to the event which brought about the claim(s) for damages.
“I am required to reduce the amount of damages you may find for any party by the percentage of fault, if any, that you find is attributable to the party.
“A party will be able to recover damages only if that party's fault is less than 50 percent of the total fault assigned. A party will not be able to recover damages, however, if that party's fault is 50 percent or more.” See PIK Civ. 4th 105.01.
“No. 9
“When answering questions on the verdict form, you should keep the following things in mind:
“Fault
“You first obligation is to determine if any party is at fault.
“If you decide that any person is at fault, you must then assign a percentage of fault to each party you find to be at fault.
“For a person not at fault, show 0% on your verdict form.
“If you find any person at fault, show 1% to 100% on the verdict form for that person.
“If one or more persons are assigned fault, the total of all fault must be 100%.” See PIK Civ. 4th 105.03.
“No. 10
“The percentage of fault of a person is not determined merely by the number of negligent acts that person committed.
“You must decide whether one person's negligence contributed more to the event that brought about damages than any negligence committed by another person.” See PIK Civ. 4th 105.05.
At the instructions conference during the trial, the plaintiffs objected to the inclusion of these instructions because the trial court had already determined, as a matter of law, that Bell had the right-of-way and, in their view, Rumpel had neglected to present any evidence that Bell acted negligently. According to the plaintiffs, the evidence showed that Bell “did exactly what she was supposed to do. She was crossing at the intersection. She was crossing directly between the sidewalks.” On the other hand, Rumpel's attorney responded that this was clearly a comparative fault case because “[Bell] had a corresponding duty to look out for herself ... [a]nd she did leave the curb or other place of safety and walk into the path of a vehicle.”
The trial judge agreed with Rumpel:
“I anticipated that and I, I'm not foreclosing—Mr. Bretz [Plaintiffs' attorney], I would expect that at the conclusion of the defendant's case you would make a motion on directed verdict on liability, and in anticipation of that I did some research.
“It is rare that the courts take away the jury's ability to compare fault, and it's in very limited circumstances. And I don't believe this is one, and the reason is that the jurors will be allowed to consider, based on all the evidence, whether Mrs. Bell had an opportunity to avoid the accident. In other words, was she keeping a proper lookout.
“I'm going to give the instruction about the law and the facts established that she had the right-of-way, but that does not foreclose the jury from, in my reading of Kansas law, from considering potential comparative fault. In fact, [there are] cases where defendants in personal injury actions have run stop signs and the court has said that it is proper to allow the jury to compare fault even though they committed that traffic infraction; in other words, the plaintiff having the right-of-way and not having a controlled signal. I found a case that the court said the jury still should have that right.
“So we're going to get to the right-of-way and that instruction, but I am going to put in comparative fault. However, I will listen to your argument, Mr. Bretz, regarding directed verdict at the close of the defendant's case.”
With regard to the comparative fault instructions, the trial court also informed the jury as to the parties' contentions in the litigation. In particular, that Rumpel was alleging that Bell “was more at fault in this accident” and specifically stated that “[Bell] was at fault in failing to look out.” In this regard, the trial court provided the jury with the following instruction regarding negligence determinations:
“No. 7
“Negligence is the lack of reasonable care. It is the failure of a person to do something that a reasonable person would do, or doing something that a reasonable person would not do, under the circumstances.”
With regard to Bell's contention that Rumpel was at fault in causing Bell's death, the trial court provided PIK Civil jury instructions regarding several rules of the road that, if violated, constitute negligence. Of particular relevance was one rule of the road pertaining to a driver's duty to yield to pedestrians in crosswalks:
“No. 15
“When traffic-control signals are not in place or in operation the driver of a vehicle shall yield the right of way, slowing down or stopping to yield to a pedestrian crossing the roadway within a marked or unmarked crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger.
“You are instructed that as a matter of law that Ruth Bell was walking in an unmarked crosswalk and that she had the right of way when she was crossing the street at the time of the collision. You must accept this as true and may not disregard it.”
(Emphasis added.)
Following the close of Rumpel's case, plaintiffs' counsel renewed his objection to allowing the jury to consider the comparative fault of Rumpel and Bell. In response, the trial judge stated:
“While maybe not clearly set out on the record, it's the court's understanding that Mr. Bretz, on behalf of the plaintiffs, has made a motion for directed verdict on the issue of liability. I think we've discussed that. The court has denied that motion. And I know that you want to preserve that issue for appeal.”
On appeal, Bell argues that if she “had the right of way, as the Court determined as a matter of law, she could not also have had a duty to yield. And if Mrs. Bell did not have a duty to yield, she obviously could not be negligent for failing to yield.” But Rumpel did not assert that Bell was required to yield to his vehicle, nor did the trial court so instruct the jury. Rumpel claimed that Bell had a duty to maintain a proper lookout, and the trial court allowed Rumpel to argue that theory of negligence to the jury.
As a result, the jury was provided with contrasting theories of negligence and there was a trial on fault, which in Kansas meant a trial on comparative fault. In this regard, “[s]ince the adoption of comparative negligence in 1974, Kansas courts compare percentages of fault of all alleged wrongdoers.” Yount v. Deibert, 282 Kan. 619, 633, 147 P.3d 1065 (2006). “It will be the jury's duty to decide, based on the evidence presented at trial, the percentages of fault attributable to the parties.” 282 Kan. at 634. Although some of the cases cited by plaintiffs on appeal were determined under the old contributory negligence rule, “[t]he comparative fault statute expressly abolished contributory negligence.” Simmons v. Porter, 298 Kan. 299, 306, 312 P.3d 345 (2013). Thus, “ ‘the “all or nothing” concepts are swept aside.’ “ Yount, 282 Kan. at 633–34 (quoting Kennedy v. City of Sawyer, 228 Kan. 439, Syl. ¶ 6, 218 P.2d 788 [1980] ).
Bell also complains there is no law that Bell had a duty to keep a lookout under the circumstances. We disagree. As one authority states:
“The statutory right of way given to a pedestrian at a crosswalk or intersection is not an absolute right, but rather means only that the pedestrian is entitled to the first use of the crossing, and it is the duty of others to give the pedestrian reasonable opportunity to make that use.
“The fact that a pedestrian has a right of way by statute does not relieve the pedestrian's duty to exercise ordinary care to avoid collisions with vehicles, should the driver of a vehicle disregard the pedestrian's right of way; and the pedestrian may not blindly rely on that right of way or insist on it in the face of obvious danger.” 4 Blashfield Automobile Law and Practice § 142:20 (4th ed.2011).
Similarly, a Kansas case has referred to the “rights and duties ” of “a pedestrian using the crosswalk.” (Emphasis added .) Kendrick v. Manda, 38 Kan.App.2d 864, Syl. ¶ 2, 174 P.3d 432 (2008). A pedestrian's common law duty to keep a lookout is best exemplified in a Colorado case, McCall v. Meyers, 94 P.3d 1271, 1273 (Colo.App.2004), which considered a situation similar to the right of way at issue here. In Colorado, a statute requires drivers approaching “ ‘a person who has an obviously apparent disability of blindness, deafness, or mobility impairment’ [citation omitted],” to take certain precautions before proceeding. 94 P.3d at 1273. In a suit brought by such a pedestrian against a driver who struck him, the pedestrian argued the driver could not plead comparative fault. The Colorado Appeals Court ruled against the pedestrian, however, holding that because he had a duty of care, the comparative fault instruction was appropriate. 94 P.3d at 1273–74. We similarly hold the comparative fault instructions provided in this case were legally appropriate.
Next, Bell argues, “if we accept [Rumpel]'s flawed premise that Ms. Bell had a duty to ‘keep a lookout,’ there was still no evidence that she breached that duty or that her alleged failure to keep a lookout actually and proximately caused her injuries.” This argument necessitates our review of the trial evidence viewed in the light most favorable to Rumpel. See Foster v. Klaumann, 296 Kan. 295, 301–02, 294 P.3d 223 (2013).
Considering the trial evidence, the intersection was relatively busy and not well lighted on the evening of the accident. Bell was quite short (4 and 1/2 feet tall), wearing a long dark trench coat and a “very dirty” reflective vest that, according to Officer Mann, had little if any reflectivity. An eyewitness, Gosser, confirmed that, from his oncoming driver's perspective, Bell was difficult to see next to the curb shortly before she was struck by Rumpel. Most importantly, Gosser testified that Bell did not look in the direction of Rumpel's oncoming vehicle as she crossed the street. Considering these facts and the rest of the evidence in the light most favorable to Rumpel, we are persuaded there was sufficient evidence that Bell did not keep a lookout for oncoming vehicles at the time she was walking in the crosswalk. Accordingly, the trial court did not err by providing the jury with comparative fault instructions.
For the same reasons as discussed above, the trial court did not err in denying plaintiffs' judgment as a matter of law. It is apparent that reasonable minds could disagree on the fault attributable to Bell and Rumpel. Contrary to plaintiffs' argument on appeal, Rumpel was not necessarily “100 percent at fault.” Because the trial court's pretrial order finding that Bell had the right of way at the time of the collision did not determine the question of fault, and since Bell also had a duty of care to keep a proper lookout, the facts plaintiffs identify on appeal, that “Bell had the right of way,” and Rumpel “failed to yield to her,” did not exclusively determine, as a matter of law, the question of liability.
As was explained in Krentz v. Haney, 187 Kan. 428, 431–32, 357 P.2d 793 (1960) :
“Negligence is the lack of due care. The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged had been established. Before the court should make such a holding the evidence should be so clear that reasonable minds considering it could have but one opinion; namely, that the party was negligent. [Citation omitted.]
....
“The law favors trial by jury and the right should be carefully guarded against infringements. It is a right cherished by all free people. A trial court, in the exercise of its prerogative in determining questions of law only in these kinds of cases, should not usurp the power and function of the jury in weighing evidence and passing upon questions of fact.”
See Deal v. Bowman, 286 Kan. 853, 867, 188 P.3d 941 (2008).
Accordingly, the trial court did not err in denying the plaintiffs' motions for judgment as a matter of law.
Was the Verdictin Fluenced by Passion and Prejudice?
For their final issue on appeal, the plaintiffs contend the district court erred when it found the jury's verdict was not based on the influence of passion and prejudice, and therefore, denied their motion for a new trial. In particular, the plaintiffs argue that during voir dire, some of the jurors and potential jurors made comments that were favorable to Rumpel and unfavorable towards Bell. Rumpel counters that the plaintiffs were not entitled to a new trial because they waived any objection to the jury panel by neglecting to challenge the array prior to trial or move for a mistrial.
Motions for new trial are governed by K.S.A.2014 Supp. 60–259, and a district court may, on motion, grant a new trial for several reasons including situations where “the verdict, report or decision was given under the influence of passion or prejudice.” K.S.A.2014 Supp. 60–259(a)(l)(C). It is within the discretion of the trial court to grant or deny a new trial under K.S.A.2014 Supp. 60–259, and a ruling on such a motion will not be disturbed on appeal except upon a showing of abuse of discretion. Miller v. Johnson, 295 Kan. 636, 684, 289 P.3d 1098 (2012). A judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view adopted by the court, (2) guided by an erroneous legal conclusion, or (3) based upon an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S.Ct. 162 (2013). The plaintiffs, as the party asserting the trial court erred, have the burden to show an abuse of discretion. See 296 Kan. at 935.
Although plaintiffs argue, based on answers given by some potential jurors during the selection process, that the jury was biased, they do not argue the jury selection process was flawed. We note the trial court excused every potential juror challenged for cause by plaintiffs' counsel. The trial court then allotted counsel three peremptory challenges, and Plaintiffs' counsel did not request additional challenges. See K.S.A.2014 Supp. 60–247(c)(2).
We conclude the plaintiffs did not properly preserve their challenge to the district court's findings relating to the jurors' alleged prejudice against Bell. At the hearing on plaintiffs' motion for new trial, the trial court reasoned, “any challenge now on the basis of the jury being tainted is probably waived by passing them for cause.” We agree. Plaintiffs may not wait until after the verdict to complain the jury was biased based on the jury selection process. See State v. Sanders, 223 Kan. 273, 275–76, 574 P.2d 559 (1977) ; Sultani v. Bungard, 35 Kan.App.2d 495, Syl. ¶ 5, 131 P.3d 1264 (2006).
Moreover, the plaintiffs did not brief the propriety of the trial court's findings on this issue. This is important because an issue not briefed by the appellant or raised incidentally in a brief and not argued therein is deemed waived and abandoned. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011) ; Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013).
Plaintiffs also argue that the passion and prejudice “problem was compounded when defense counsel pulled out a cancelled check which had not been identified or produced in discovery, and which was not identified as an exhibit at trial, and had [Rumpel] testify that he had made a contribution to a memorial fund in memory of Ruth Bell.”
The record shows, however, that plaintiffs' counsel invited any error associated with the admission of the check because he specifically questioned Rumpel as to his conduct following Bell's death in an apparent attempt to suggest that Rumpel felt no remorse for Bell's death. A part of the exchange between plaintiffs' counsel and Rumpel is instructive:
“[PLAINTIFF'S ATTORNEY:] Did you send flowers to [Bell]?
“[RUMPEL:] No.
“[PLAINTIFF'S ATTORNEY:] Did you send [a] condolence card to her family after her death?
“[RUMPEL:] No.
Rumpel's counsel attempted to rehabilitate his client by pointing out that Rumpel attended Bell's burial and also contributed to her memorial fund:
“[DEFENDANT'S ATTORNEY:] After this accident occurred, did you have any occasion to talk with any of the family members of Ruth Bell?
“[RUMPEL:] No.
“[DEFENDANT'S ATTORNEY:] I mean did you talk, did any of them invite you to the funeral dinner?
“[RUMPEL:] At the funeral, I talked to them out at the cemetery.
“[DEFENDANT'S ATTORNEY:] Okay. And I'm going to hand you what's been marked as Defendant's Exhibit 118. Do you know what that is?
“[RUMPEL:] Yes. That's where we sent a memorial offering to [the] Ruth Bell Memorial Fund.”
Following this exchange, Rumpel's attorney moved to have the check admitted into evidence. Plaintiffs' attorney objected on the ground that the check was not “identified or produced or disclosed in discovery.” The trial court overruled the objection. We find no error.
First, plaintiff's attorney objected because the check was not “identified or produced or disclosed in discovery.” The plaintiffs did not assert the check was inadmissible because it created passion or prejudice with the jury. K.S.A. 60–404 generally precludes an appellate court from reviewing an evidentiary challenge absent a timely objection made on the record “and so stated as to make clear the specific ground of objection.” See Foster v. Stonebridge Life Ins. Co., 50 Kan.App.2d 1, 25, 327 P.3d 1014 (2012), rev. denied 297 Kan. 1244 (2013). A party may not object at trial to the admission of evidence on one ground and then argue a different ground on appeal. Butler v. HCA Health Svcs. of Kansas, Inc., 27 Kan.App.2d 403, 435, 6 P.3d 871, rev. denied 268 Kan. 885 (1999). This objection was not preserved for appellate review.
Second, we are persuaded that plaintiffs' counsel invited any potential error associated with the admission of Rumpel's check by bringing up the extraneous subject matter of whether Rumpel was appropriately remorseful after Bell's death. Generally, when a party has invited error, that party may not complain of the error on appeal. Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1203, 308 P.3d 1238 (2013).
For their last argument, plaintiffs complain that defense counsel's question regarding whether Bell was receiving Social Security benefits compounded the passion and prejudice that improperly influenced the jury.
At trial, Rumpel's attorney attempted to elicit testimony that Bell had been receiving Social Security disability benefits prior to her death. Plaintiffs' counsel objected to the question and the trial court questioned the admissibility of such evidence where “there's no claim of any lost income of any kind.” In response, Rumpel's attorney replied, “That's fine,” and he did not pursue the issue.
Kansas law provides: “Unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is ground for granting a new trial; for setting aside a verdict; or for vacating, modifying, or otherwise disturbing a judgment or order.” Leffel v. City of Mission Hills, 47 Kan.App.2d 8, Syl. ¶ 3, 270 P.3d 1 (2011).
Under the circumstances, justice clearly does not require a new trial, as a mere question by Rumpel's attorney pertaining to whether Bell received Social Security disability benefits was timely objected to and essentially sustained by the trial court. We are not persuaded that the asking of this question incited the jury to passion and prejudice either alone or considered together with the other instances wherein plaintiffs claim the jury was improperly influenced by passion and prejudice. We hold the trial court did not abuse its discretion when it denied the plaintiffs' motion for a new trial.
Affirmed.