City of Neodesha v. BP Corp.
| Decision Date | 22 August 2014 |
| Docket Number | No. 109,111.,109,111. |
| Citation | 50 Kan.App.2d 731,334 P.3d 830 |
| Parties | CITY OF NEODESHA, Kansas, Individually and as Representative of Those Persons and Entities Similarly Situated, Appellants, v. BP CORPORATION NORTH AMERICA, INCORPORATED, f/k/a BP Amoco Corporation, et al., Appellees. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. K.S.A. 2012 Supp. 60–250(a) allows a trial court to enter judgment as a matter of law against a party when the court finds there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. When ruling on such motions the trial court must resolve all facts and inferences reasonably drawn from the facts in favor of the party against whom the ruling is sought. If reasonable minds could reach different verdicts based on the evidence, the motion must be denied. An appellate court must undertake a similar analysis when reviewing the ruling on such a motion.
2. Under Supreme Court Rule 181 (2013 Kan. Ct. R. Annot. 277), a juror may be called to testify at a hearing on a posttrial motion only if the court—after a hearing to determine whether all or any jurors should be called—grants a motion to call the juror.
3. K.S.A. 2012 Supp. 60–259(a)(1)(C) grants the trial court authority to order a new trial when the jury verdict was given under the influence of passion or prejudice.
4. An appellate court reviews the trial court's decision on a motion for a new trial for an abuse of discretion.
5. If jury misconduct causes a fundamental failure of the trial process that is substantially prejudicial to the complaining party, the trial court may order a new trial.
6. An appellate court will use a two-step process in determining whether a challenged jury instruction is clearly erroneous. First, the court must determine whether there was any error at all by considering whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record. If the court finds error, it must assess whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming error in the instruction has the burden to prove the degree of prejudice necessary for reversal.
7. The trial court is required to properly instruct the jury on a party's theory of the case. Errors regarding jury instructions will not require reversal unless they result in prejudice to the appealing party. Instructions in any particular case 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.
8. It is the appellant's burden to designate the record to establish any claim of error. Without a record, this court will not presume error.
9. When the trial court denies a motion in limine and the subject evidence is introduced later at trial, the moving party must object at trial to the admission of the evidence in order to preserve the issue for appeal.
10. K.S.A. 60–404 generally precludes an appellate court from reviewing an evidentiary challenge unless there appears of record an objection to the evidence, timely interposed, and so stated as to make clear the specific ground of objection.
11. Under K.S.A. 2012 Supp. 60–226(b)(4), documents prepared in anticipation of litigation or for trial by or for a party are not discoverable by another party in the absence of some specific showing of need. The work-product rule is not an absolute privilege but rather a limitation on discovery.
12. K.S.A. 60–456(a) states that if a witness is not testifying as an expert, his or her testimony in the form of opinions or inferences is limited to such opinions or inferences the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clear understanding of his or her testimony. This statute permits opinion testimony by a nonexpert witness if the opinion is incidental to the witness' actual knowledge of the facts and circumstances of the case.
13. The qualification of an expert witness and the admission of that witness' testimony are matters within the broad discretion of the trial court.
14. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue.
15. Sanctions should be designed to accomplish the objectives of discovery rather than for the purpose of punishment. The dismissal or granting of a default judgment is a drastic remedy to impose as a discovery sanction and should be used as a last resort when other lesser sanctions are clearly insufficient to accomplish the desired outcome.
David W. Edgar, of Edgar Law Firm LLC, of Denver, Colorado, John M. Edgar, John F. Edgar, and Matthew J. Limoli, of Kansas City, Missouri, and James P. Frickleton, of Bartimus, Frickleton, Robertson & Gorny, P.C., of Leawood, for appellants.
Richard C. Hite, Arthur S. Chalmers, and F. James Robinson, Jr., of Hite, Fanning & Honeyman, L.L.P., of Wichita, and Richard C. Godfrey, Andrew B. Bloomer, Catherine L. Fitzpatrick, Michael Chu, and Megan M. New, of Kirkland & Ellis, LLP, of Chicago, Illinois, for appellees.
Before HILL, P.J., ATCHESON and BRUNS, JJ.
Everything in our world moves. This means the pollutants and poisons produced by a century of oil refining rarely stay in one place, safely secured in some snug unseen underground cell. Instead, such noxious compounds slowly migrate, leaching from one substratum to another. No neighbor is safe from this march of toxins. These moving subsurface fields of pollution, euphemistically called “plumes” by some, are dangerous for these feathers are toxic.
Fortunately, what is done by human effort can be, for the most part, undone by human effort. Messes can be cleaned up. Pollutants, even those buried deep below the surface, unseen but nonetheless lethal, can be diverted, contained, and reduced. When engaged in such efforts, questions arise. Is there pollution at this site? If so, what are the pollutants and how extensive is the danger? What can be done to protect the public? Finally, who is going to pay for these measures?
When a group of citizens, some businesses, and two local governments sued BP Corporation North America (BP), a company that owns a closed oil refinery in Neodesha, Kansas, they sought answers to those questions. After a 17–week jury trial, the jury determined that BP was not legally responsible to do more than what it was already doing.
In an interlocutory appeal of the trial court's posttrial order granting a new trial to the Plaintiffs on the theory of strict liability, the Kansas Supreme Court reversed, holding the Plaintiffs were not entitled to a new trial on that theory. Upon the case's return to the district court, the Plaintiffs moved for a new trial for many reasons. This appeal arises from the trial court's denial of that motion.
When the Supreme Court reviewed this case, the court offered a detailed history, beginning in 1897, of the background of this growing environmental problem. We need not repeat all of those facts here. See City of Neodesha v. BP Corporation, 295 Kan. 298, 300–02, 287 P.3d 214 (2012) ( Neodesha I ).
In late 2002, certain city officials began questioning BP's remediation efforts. Several officials and citizens visited Sugar Creek, Missouri, another site where BP had been remediating wastes from a former refinery. It was at this time the City of Neodesha (the City) retained the services of the Technical Outreach Services for Communities (TOSC) group, an advisory group from Kansas State University, to review BP and Kansas Department of Health and Environment materials and educate the City about the issues.
In the summer of 2003, an advisory group composed of various representatives of Neodesha industry, citizenry, and governmental entities held meetings with BP and Department of Health and Environment officials concerning the environmental conditions around the old refinery. The group unanimously approved BP's proposed “Corrective Action Study” that created a detailed cleanup plan. About that same time, Neodesha's mayor and city administrator requested that BP provide financial “reinvestments” within the City that did not directly tie into the ongoing remediation work. In light of the City's request, BP formed a working group in an effort to negotiate a settlement. When subsequent negotiations failed, this lawsuit followed.
This Lawsuit Was Large in Scope.
In March 2004, the City filed this action on behalf of itself and all other real property owners in Neodesha. The trial court granted the Plaintiffs' motion for class certification, defining the class as “[a]ll persons and entities who owned real property on or after March 19, 2004, which has been exposed to or otherwise suffered economic harm from the hazardous wastes released from the [BP] operations in and around Neodesha, Kansas.” Although the Plaintiffs' petition was amended several times, the allegations against BP ultimately included claims of negligence, strict liability, nuisance, trespass, violation of K.S.A. 65–6203 (), unjust enrichment, fraudulent concealment/fraud by silence, breach of fiduciary duty, and breach of contract. The Plaintiffs also sought declaratory and injunctive relief.
The Plaintiffs based their claims on allegations that BP and its predecessors released petroleum, petroleum products, and hazardous substances into the soil and groundwater from the refinery which was located within the city. The Plaintiffs also claimed that BP had...
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City of Neodesha v. BP Corp. N. Am., 109,111.
...50 Kan.App.2d 731334 P.3d 830CITY OF NEODESHA, Kansas, Individually and as Representative of Those Persons and Entities Similarly Situated, Appellantsv.BP CORPORATION NORTH AMERICA, INCORPORATED, f/k/a BP Amoco Corporation, et al., Appellees.109,111.Court of Appeals of Kansas.Aug. 22, 2014.......