Opinion
No. 109,664.
2014-10-17
FIRST NATIONAL BANK OF HUTCHINSON as Conservator for Hugh M. Hawkins and Southwest Kansas Co-op Services, L.L.C., Appellants, v. UNITED RENTALS NORTHWEST, INC., Appellee. Joshua Martin and Sharon Martin and Southwest Kansas Co-op Services, L.L.C., Appellants, v. United Rentals Northwest, Inc., Appellee.
Appeal from Stanton District Court; Kim R. Schroeder, Judge.Scott J. Mann and Michael J. Wyatt, of Mann Law Offices, of Hutchinson, for appellants.B. Scott Tschudy and Teresa L. Adams, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Overland Park, for appellee.
Appeal from Stanton District Court; Kim R. Schroeder, Judge.
Scott J. Mann and Michael J. Wyatt, of Mann Law Offices, of Hutchinson, for appellants. B. Scott Tschudy and Teresa L. Adams, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Overland Park, for appellee.
Before BRUNS, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Hugh M. Hawkins and Joshua Martin were seriously injured when a boom crane they were working in collapsed in November 2006. At the time of the accident, Hawkins and Martin were working for Southwest Kansas Co-op Services, L.L.C. (Southwest Kansas Co-op) in a rented boom crane. The crane had been manufactured by JLG Industries, Inc. (JLG Industries) in 1995 and was originally sold to the predecessor company of United Rentals Northwest, Inc., (United Rentals). In 1997, the crane was purchased by Western Steel and Automation, Inc. (Western Steel). Although Western Steel had the crane inspected by United Rentals in 1999, it was not inspected again before the accident.
Separate lawsuits were filed on behalf of Hawkins and Martin in 2007 against JLG Industries and Western Steel. Subsequently, United Rentals was added as a defendant in each case and the plaintiffs filed a joint amended pleading alleging fault against JLG Industries, Western Steel, and United Rentals. Prior to trial, Hawkins and Martin settled their claims against JLG Industries and Western Steel. At trial, however, their alleged fault was compared as was the alleged fault of the employer, Southwest Kansas Co-op, and United Rentals. At the conclusion of an 8–day trial, the jury attributed 75% of the fault on Western Steel, 0% of the fault to JLG Industries, 25% of the fault against Southwest Kansas Co-op, and 0% of the fault on United Rentals.
After the district court denied a motion for new trial, Hawkins and Martin appealed. On appeal, they contend that the district court erroneously gave the jury a superseding cause instruction; that the district court erroneously granted United Rentals a partial directed verdict; and that one of the jurors committed misconduct. At oral argument, however, counsel for Hawkins and Martin advised this court that his clients were no longer pursuing the juror misconduct issue. As such, although we have serious concerns regarding the procedure used by the attorneys for Hawkins and Martin in presenting the juror misconduct issue to the district court, we will not address the issue in this opinion.
For the reasons stated below, we conclude that the district court did not abuse its discretion in denying the motion for new trial. Specifically, we find that under the circumstances presented it was appropriate for the district court to instruct the jury on the theory of superseding causation. Likewise, we find no error in the district court's granting of a partial judgment as a matter of law on the issue of whether United Rentals crossed the cables underneath the extension cylinder of the boom crane Hawkins and Martin were using at the time of the accident. Accordingly, we affirm.
Facts
On November 8, 2006, Hawkins and Martin were working in a man-basket suspended by a telescopic boom crane to weld a spout on a grain elevator. Their employer, Southwest Kansas Co-op, had rented the boom crane from Western Steel. While Hawkins and Martin were suspended 65 to 70 feet in the air, the boom crane suddenly retracted, causing the man-basket to fall about 30 feet where it struck a roof. After striking the roof, Hawkins and Martin were ejected from the basket, and they fell another 35 to 40 feet to the ground. As a result of the fall, Hawkins and Martin suffered severe permanent injuries.
The telescopic boom crane in which Hawkins and Martin were working was manufactured by JLG Industries in 1995. The original purchaser of the crane was Sisco Equipment Rentals and Sales, Inc. (Sisco Equipment). On August 7, 1995, Sisco Equipment sold the crane to U.S. Rentals, Inc. (URI), the predecessor of United Rentals. In November 1997, URI sold the crane to Western Steel. In 1999, Western Steel retained United Rentals to inspect the telescopic boom crane. Although the boom crane was to be inspected annually, Western Steel did not have it inspected in 1998, 2000, 2001, 2002, 2003, 2004, 2005, or 2006.
On January 23, 2007, Hawkins and Martin filed separate civil actions in Stanton County District Court against JLG Industries and Western Steel. On October 30, 2007, the district court granted Hawkins and Martin's motion to amend the petition to add United Rentals as a defendant in the case. On November 19, 2007, Hawkins and Martin filed a joint amended petition, which asserted various claims against JLG Industries, United Rentals, and Western Steel.
Because Hawkins and Martin had been acting within the scope of their employment at the time of the accident, Southwest Kansas Co-op was not named as a defendant to the lawsuit. Instead, Hawkins and Martin pursued separate workers compensation claims against their employer. Subsequently, Southwest Kansas Co-op was added as a plaintiff in both cases to preserve a subrogation claim arising out of the workers compensation cases.
Over the next several years, discovery was completed and numerous motions were ruled upon by the district court. During that time, Martin settled his claims against Western Steel and it was dismissed as a party on June 15, 2009. Moreover, on April 26, 2010, the district court denied Hawkins and Martin's motion to amend petition to include a claim for punitive damages.
The district court entered an amended pretrial order on April 11, 2011. The amended pretrial order lists various acts of negligence that were alleged by Hawkins and Martin as well as Southwest Kansas Co-op against United Rentals. The amended pretrial order also lists various defenses asserted by United Rentals, including a denial of fault. In addition, the pretrial order reflects that United Rentals reserved the right to compare the fault of Southwest Kansas Co-op, Western Steel, and JLG Industries. In particular, United Rentals claimed that the crane was misused and that it was not properly maintained, repaired, or inspected. Shortly thereafter, JGL Industries also settled with Hawkins and Martin.
A jury trial began on April 26, 2011, with a day-long jury selection. Fourteen jurors were seated, including two alternates. During the trial, Hawkins and Martin called 22 witnesses. On May 3, 2011, the plaintiffs rested. After the district court took United Rentals' motions for a mistrial and for a directed verdict under advisement, United Rentals played a videotaped deposition of an expert witness, Dr. Edward Cox, before resting on May 3, 2011. United Rentals had recalled Dr. Lyle Baade to testify on its behalf back on May 2, 2011, for convenience of the parties because Dr. Baade was present that day to testify for Hawkins and Martin.
After the parties rested, the district court denied United Rentals' motion for a mistrial. The district court also denied in part and granted in part United Rentals' motion for a directed verdict, determining that whether Tim Vickers—an employee of United Rentals—properly inspected the crane in 1999 and whether it was reasonably foreseeable that injury could result were questions of fact for the jury to decide. On the other hand, the district court found that there was no evidence presented to support the claim that the crane was taken apart while it was owned by United Rentals' predecessor. Specifically, the district court found that allowing such a claim to be submitted would be “asking the jury to speculate as to when this crane was or wasn't taken apart....”
The district court then presented 30 jury instructions, and the parties made their closing arguments. At the end of the day, the district court declared a recess and the jury came back the following day—May 5, 2011—to deliberate. After several hours of deliberations, the jury reached a verdict during the afternoon. The jury did not find either United Rentals or JLG Industries to be at fault. Rather, it found that Western Steel was 75% at fault and that Southwest Kansas Co-op was 25% at fault.
Following the jury trial, both parties submitted proposed journal entries. On July 5, 2011, the district court signed the journal entry of judgment submitted by United Rentals. A few weeks later, on July 28, 2011, Hawkins and Martin filed a motion for a new trial. For the next year and a half, the parties and the district court dealt with the issue of alleged juror misconduct. Finally, on February 4, 2013, the district court denied the motion for a new trial, and Hawkins and Martin filed a timely notice of appeal a few weeks later.
Analysis
Standard of Review
On appeal, Hawkins and Martin contend that the district court erred in denying their motion for a new trial as well as in ruling as a matter of law that one of their claims should not be submitted to the jury. A district court may grant a new trial under K.S.A.2013 Supp. 60–259(a)(l)(B) based on erroneous rulings or instructions by the court. A ruling on a motion for new trial will not be disturbed on appeal unless the district court abused its discretion when denying the motion. Judicial discretion is abused if a judicial action was (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. Miller v. Johnson, 295 Kan. 636, 684–85, 289 P.3d 1098 (2012).
When ruling on a motion for judgment as a matter of law, a district court must 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. On appeal, we apply a similar analysis when reviewing the district court's decision on a motion for judgment as a matter of law. See City of Neodesha v. BP Corporation, 295 Kan. 298, 319, 287 P.3d 214 (2012). Superseding or Intervening Cause Instruction
The first issue presented by Hawkins and Martin is whether the district court committed reversible error by submitting a superseding or intervening cause instruction to the jury. Jury instruction issues require applying a progression of analysis. First, we must consider the reviewability of the issue. Second, we must determine whether the instruction was legally appropriate. Third, we must determine whether, viewing the evidence in the light most favorable to the requesting party, there was sufficient evidence that would have supported the instruction. Fourth, if we find that the district court erred in giving the instruction, we must determine whether the error was harmless. See Foster v. Klaumann, 296 Kan. 295, 301–02, 294 P.3d 223 (2013).
Because Hawkins and Martin objected to the superseding or intervening cause instruction before it was given and raised the issue in their motion for a new trial, we find that this issue was properly preserved for appeal. The second and third steps require us to consider that district courts should give an instruction if “ ‘the instruction is requested and there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence.’ “ Foster, 296 Kan. at 302, 294 P.3d 223 (citing Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 419, 228 P.3d 1048 [2010] ).
Here, United Rentals requested a superseding or intervening cause instruction that is identical to the language found in PIK Civ. 4th 104.03, which states:
“When an injury is caused by unrelated acts occurring at different times, you must consider whether the last act alone would have caused the injury. If so, the person committing the first act is not at fault, unless the last act could have reasonably been foreseen by the person responsible for the first act.”
In objecting to this instruction, counsel for Hawkins and Martin argued that it was improper because the note following PIK Civ. 4th 104.03 states that the “instruction should seldom be given.” Of course, had the PIK Civil Committee believed that a superseding or intervening cause instruction should never be given to a jury, it would not have included it in the 2010 Supplement to PIK Civ. 4th. Moreover, it is important to recognize that the Kansas Supreme Court has found that superseding causes continue to be recognized in some cases. See Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, 268–69, 43 P.3d 799 (2002).
As a general rule, proximate cause is a question of fact to be decided by the jury. Hale v. Brown, 287 Kan. 320, 324, 197 P.3d 438 (2008). In Hale, the Kansas Supreme Court expressly “retain[ed] the principle that an intervening cause component breaks the connection between the initial negligent act and the harm caused. ....“ 287 Kan. at 324, 197 P.3d 438. Moreover, “the length of time” between the alleged acts of negligence continues to be an appropriate factor to consider in determining proximate cause. 287 Kan. at 324, 197 P.3d 438.
Of course, “[i]f the intervening cause is foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause, notwithstanding the intervening cause. [Citation omitted.]” Miller v. Zep Mfg. Co., 249 Kan. 34, 51, 815 P.2d 506 (1991). Whether something was foreseeable is generally a question of fact to be determined by the trier of fact. See Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. at 434, 228 P.3d 1048 (stating that “ ‘[w]hether risk of harm is reasonably foreseeable is a question to be determined by the trier of facts. Only when reasonable persons could arrive at but one conclusion may the court determine the question as a matter of law.’ ”). Thus, the question of whether United Rentals should have foreseen Western Steel's negligence should have been left up to the jury in light of the conflicting evidence and the length of time since United Rentals owned the boom crane. Here, the district court determined that it would give a superseding or intervening cause instruction—in addition to a concurrent causes instruction based on PIK Civ. 4th 104.02—to adequately explain the options available to the jury in considering the conflicting evidence presented at trial. The district court believed—as do we—that “the length of time between [United Rentals'] last touch of the equipment and the date of accident” was a significant consideration. In fact, had the district court only given a concurrent cause instruction and not a superseding or intervening cause instruction, the jury would not have been fully advised regarding the status of Kansas law.
In denying the motion for new trial filed by Hawkins and Martin, the district court found:
“The Jury had many causation factors to consider: the crane, at the time of the accident, was being operated by an employee of Western Steel; the last time Western Steel had an annual inspection on the crane was April 8th, 1999; the choice to hire the crane from Western Steel; why the lack of safety precautions by the employer, Southwest Kansas Co–Op Services, L.L.C., to protect its employees; the failure of Plaintiffs to take safety precautions for their own benefit; the decision to use a crane to lift people in a basket outside of the design specifications from the manufacturer, JLG Industries, Inc.; the man basket was a ‘homemade job’ by Western Steel; the way the man basket was attached to the crane in violation of the specifications from the manufacturer, JLG Industries, Inc.; the failure of Western Steel in disregarding industry standards, all of the placards and decals on the crane and the crane manual to have an annual inspection on the crane; the credibility of [Leroy] Cabbage, as the President of Western Steel, to claim, as an individual in the crane industry, he didn't know its cranes needed to be inspected on an annual basis.”
Moreover, the district court determined based on the evidence presented at trial that “[i]f Western Steel had annually inspected the crane, the crossed cables would have, could have, or should have been found.” Specifically, the district court pointed to evidence that “the crane's manual, the placards, and the decals on the crane, all reflect United Rentals could not have reasonably foreseen Western Steel would not have had the crane inspected at least some time in seven years.” In conclusion, the district court stated that “when drafting the instructions, [it] considered all of the evidence presented by the Plaintiffs and Defendant and, given the totality of the evidence, gave [the concurrent cause instruction and the superseding or intervening cause instruction] to fully inform the Jury of the law applicable to this case.”
As the district court noted there was a substantial amount of evidence presented at trial regarding Western Steel's independent duty to perform periodic and annual inspections after it purchased the telescopic boom crane in 1997. This evidence includes the boom crane's service and maintenance manual as well as decals on the boom crane itself. Furthermore, there was evidence presented that annual inspections of the boom crane were required by Occupational Health and Safety Administration (OSHA) standards as well as by standards published by the American National Standards Institute (ANSI). Specifically, there was testimony presented that “OSHA and ANSI require frequent annual inspections by properly trained personnel.” Notwithstanding, the president of Western Steel admitted that annual inspections were not performed in 1998, 2000, 2001, 2002, 2003, 2004, 2005, or 2006.
At the time of the accident, Western Steel had owned the telescopic boom crane since 1997. In the following 9 years, however, Western Steel only had the boom crane inspected in 1999. It is reasonable to conclude that United Rentals would not have foreseen that Western Steel would not have the boom crane inspected at all—much less annually—between 1999 and 2006. At the very least, the evidence presented at trial was sufficient to make foreseeability a question of fact for the jury to decide. By giving both a concurrent causes instruction and a superseding cause instruction, the district court appropriately placed the questions of foreseeability and causation in the hands of the jury.
Accordingly, we find that under the unique circumstances presented in this case, the superseding cause instruction—which was given in conjunction with the concurrent causes instruction—was legally appropriate. Furthermore, viewing the evidence in the light most favorable to United Rentals as the requesting party, we find that there was sufficient evidence to support the giving of the superseding or intervening cause instruction. Finally, we find that even if the district court had erred, any error in giving the superseding or intervening instruction was harmless. See Foster, 296 Kan. at 301–02, 294 P.3d 223. As the Kansas Supreme Court has held:
“Jury instructions 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 have been misled by them, the instructions will be approved on appeal.” Puckett, 290 Kan. 406, Syl. ¶ 18, 228 P.3d 1048.
Here, the jury was instructed not only on superseding or intervening causation but also on concurrent causes and comparative fault. As such, when viewed as a whole, the instructions fairly informed the jury of the law governing this case. Moreover, Hawkins and Martin have not shown that the jury was misled. In fact, a review of the verdict form reveals that the jury understood and fully performed its obligation to apply the law to the facts. In particular, it is possible that the jury simply concluded that Hawkins and Martin failed to prove that United Rentals was negligent or otherwise at fault. We, therefore, conclude that the district court did not abuse its discretion in denying the motion for mistrial on the jury instruction issue. Partial Judgment as a Matter of Law
Hawkins and Martin also contend that that the district court erred in denying their motion for a new trial because it had improperly granted United Rentals a partial directed verdict on the claim that United Rentals crossed the cables at some point during the time it owned the crane. Although we recognize that it is not uncommon for attorneys and judges to continue to use the term directed verdict, this procedural devise was eliminated by the 1997 Kansas Legislature. L.1997, ch. 173, sec. 26. Since 1997, the analogous motion in jury trials is a motion for judgment as a matter of law pursuant to K.S.A.2013 Supp. 60–250. See 4 Gard & Casad's Kansas C. Civ. Proc. 5th Annot. § 60–250 (2012). Thus, because the present case involved a jury trial, we must determine whether the district court's partial judgment as a matter of law was appropriate under the terms of K.S.A.2013 Supp. 60–250.
K.S.A.2013 Supp. 60–250(a)(1) states: “If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) Resolve the issue against the party....” In other words, a district court may enter judgment as a matter of law against a party when the court finds there is no legally sufficient evidentiary basis upon which a reasonable jury could rely to find for that party on that issue. City of Neodesha v. BP Corporation, 295 Kan. 298, 319–20, 287 P.3d 214 (2012).
In the present case, Hawkins and Martin contend that they are entitled to a new trial because the district court's failure to present to the jury their claim that United Rentals crossed the cables constitutes reversible error. In declining to grant a new trial based on this alleged error, the district court found that Hawkins and Martin failed to produce any evidence showing when the cables were crossed, much less that United Rentals had crossed them. Hence, the district court determined that they were asking the jury to speculate regarding this claim. The district court noted that United Rentals presented evidence that the cables were not crossed when they inspected the crane in 1999. But the only evidence presented by Hawkins and Martin relating to the crossed cables was that they were crossed on the date of the accident and that they had been crossed for some unknown amount of time.
On appeal, Hawkins and Martin argue the following evidence supports their claim that United Rentals crossed the cables:
(1) A deposition of Steven I. Forgas that was read to the jury at trial. Unfortunately, the deposition is not in the record on appeal so it is impossible for us to determine whether the evidence was sufficient to present this claim to the jury.
(2) The trial testimony of Dr. David Pope, a material science and metallury expert retained by Hawkins and Martin, which Hawkins and Martin argue offered circumstantial evidence that United Rentals crossed the cables. Nevertheless, Dr. Pope merely testified that based on his inspection of the boom crane, he could not tell the age of the damage to the cylinder by looking at the wear patterns. He, therefore, decided to determine whether the cables were crossed at the time of manufacture and whether the cable system and hydraulic telescope cylinder had been removed from the crane. Pope's opinion based on observing the crane after the accident was that the back plate of the boom had been removed at least once since it left the factory. However he began his testimony by stating that the back plate had already been disassembled when he began inspecting the crane. Pope also believed the “telescopic cylinder had been removed” subsequent to manufacture. Nevertheless, this testimony does not provide evidence as to when the plate was removed or, more specifically, when or how the cables got crossed.
(3) The trial testimony of Leroy Cabbage, the president of Western Steel. Although he admitted that Western Steel only had the boom crane inspected once in 1999, this does not mean that United Rentals crossed the cables. In fact, in the testimony cited by Hawkins and Martin, Cabbage talked about parts that Western Steel employees installed on the crane during the years 2000 and 2002.
(4) Two entire witnesses' testimony under the statement that it was evidence presented by Hawkins and Martin that United Rentals was the only party who owned the crane and was “properly equipped to disassemble the crane and access the extend and retract cables in such a way that they could be crossed.” This is also not evidence that United Rentals crossed the cables.
(5) The entire testimony of Tim Vickers. This evidence, regarding what Vickers did during his inspection in 1999, has nothing to do with what might have happened while United Rentals owned the crane from 1995–1997.
United Rentals points out that Hawkins and Martin were still allowed to claim that United Rentals was negligent by failing to inspect the crane when it owned the crane, and they were permitted to claim that Vickers crossed the cables when he performed the inspection in 1999. Evidence supporting those contentions does not support a finding that the district court erred in granting a directed verdict based on lack of evidence supporting a contention that United Rentals crossed the cables during the 2 years it owned the crane. The district court did not abuse its discretion in finding that the Plaintiffs were not entitled to a new trial on this issue.
Affirmed.