Cott v. Peppermint Twist Management Co., Inc.

• Decision Date: 14 July 1993
• Docket Number: No. 67575,67575
• Citation: 253 Kan. 452,856 P.2d 906
• Parties: , 21 UCC Rep.Serv.2d 553 John H. COTT, et al., Appellees and Cross-appellants, v. The PEPPERMINT TWIST MANAGEMENT COMPANY, INC., et al., Appellants and Cross-appellees.
• Court: Kansas Supreme Court

Page 906

856 P.2d 906

253 Kan. 452, 21 UCC Rep.Serv.2d 553

John H. COTT, et al., Appellees and Cross-appellants, v. The PEPPERMINT TWIST MANAGEMENT COMPANY, INC., et al Appellants and Cross-appellees.

No. 67575.

Supreme Court of Kansas.

July 14, 1993.

Syllabus by the Court

1. The granting of a new trial is a matter of trial court discretion and, as with all discretionary matters, will not be disturbed on appeal except by a showing of abuse of that discretion.

2. Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only if no reasonable person would take the view the trial court adopted.

3. On appellate review, a party may not complain of rulings or matters to which it has consented or take advantage of error that it invited or in which it participated.

4. If a verdict is attacked on the grounds that it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or to pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the successful party, will support the verdict, this court should not intervene.

5. The inability to calculate damages with absolute exactness does not render them too uncertain to preclude their award.

6. It is the function of the trier of fact to determine the amount of damages that should be awarded to a party, based upon evidence of the loss suffered. A reasonable basis for computation and the best evidence obtainable under the circumstances should enable the trier of fact to make an estimate that provides an adequate recovery of damages.

7. Aggravation of a preexisting condition is compensable in a personal injury action.

8. In reviewing an award for an objective element of damages such as loss of past and future income, an appellate court must look to the record to see if there is evidence to support the jury's calculation of pecuniary loss.

9. In determining the amount to be awarded for decreased earning capacity, the jury should consider the health of the injured party and the party's physical ability to maintain himself or herself before the injury, as compared with his or her condition in these respects afterward.

10. A juror may not impeach his or her verdict on any ground inherent in the verdict itself in a proceeding seeking a new trial; a juror may not divulge in a court proceeding what considerations personally influenced him or her in arriving at the verdict or what reasoning personally led him or her to the final decision.

11. A juror's mental process in reaching a verdict or the factors that influence the mental process cannot be inquired into for the purpose of impeaching a verdict. Public policy forbids the questioning of a juror on these matters for a very obvious reason, that is, there is no possible way to test the truth or veracity of the answers.

12. A quotient verdict is one in which the jurors agree in advance to return and do return as their verdict the amount obtained by averaging the figures each juror records as his or her verdict.

13. Upon an allegation that a jury returned a quotient verdict, narrow questions may be directed to the jurors to determine whether they agreed in advance to be bound by an averaging technique.

14. Only if a common-law right has been abrogated must this court determine whether the legislature has provided an adequate substitute remedy, that is, whether a quid pro quo exists.

15. The United States Constitution does not require unanimous jury verdicts.

16. Neither the number of persons necessary to compose a jury nor the proportion of the jury that must concur in the verdict is specified constitutionally and unalterable by statute.

17. In Kansas the right to a 12-member jury is not a matter of substantive law, but is subject to regulation by the legislature, the local courts, and the parties to the specific case.

18. If a statute is attacked as violating due process, the test is whether the legislative means selected have a real and substantial relation to the objective sought. This rule has been restated in terms of whether the statute is reasonable in relation to its subject and is adopted in the interests of the community.

19. A statute comes before the court cloaked in a presumption of constitutionality, and it is the duty of the party attacking the statute to sustain the burden of proof.

20. The control of discovery is entrusted to the sound discretion of the trial court, and orders concerning discovery will not be disturbed on appeal in the absence of a clear abuse of discretion.

21. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by the instructions, then such instructions do not constitute reversible error although they may be in some small way erroneous.

22. An express warranty is created by any direct and positive affirmation of fact the seller made concerning the article to be sold during sale negotiations and as part of the contract upon which the seller intends the buyer to rely in making the purchase.

23. The plain language of K.S.A.1992 Supp. 60-19a02 requires that noneconomic damage awards be capped at $250,000 in personal injury actions, which are defined as any action seeking damages for personal injury or death. The statutory cap is applicable to any suit, including breach of express warranty, in which personal injuries are claimed.

Steve R. Fabert, of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause, and James P. Nordstrom, of the same firm, was with him on the briefs for appellants and cross-appellees.

Richard F. Hayse, of Morris, Laing, Evans, Brock & Kennedy, Chartered, Topeka, argued the cause, and Robert W. Coykendall, of the same firm, Wichita, and Dan E. Turner and Phillip L. Turner, Topeka, were with him on the briefs for appellees and cross-appellants.

ABBOTT, Justice:

This is an appeal by The Peppermint Twist Management Co., Inc., (Peppermint Twist) from judgments in a personal injury case in favor of Cindia "Cindi" Cott and John Cott. The Cotts were injured when Peppermint Twist's employees served them Eco-Klene dishwashing liquid containing sodium hydroxide in place of a similar-looking alcoholic beverage. Peppermint Twist presents four issues with five subissues on appeal. The Cotts raise two issues on cross-appeal.

Cindi Cott; her husband, Charles Price; and her father, John Cott joined friends for an evening at the Peppermint Twist in Topeka, Kansas, on September 23, 1989. The nightclub promoted its drink specials. That evening, Peppermint Twist advertised watermelon shots for one dollar by posting it on a portable sign in the nightclub's parking lot, by writing it in grease pencil on a board at the entrance of the nightclub, and by periodic announcements over the loudspeaker. A watermelon shot contains Southern Comfort, Creme de Noyaux, and orange juice.

The front bar area of the nightclub had sinks for handwashing glasses. A "normal" dishwashing liquid was used at these sinks; however, the club ran out of this soap several weeks prior to September 23, 1989. The testimony was conflicting whether additional soap had been ordered and whether management authorized the use of Eco-Klene at these sinks. Heavy Duty Eco-Klene was the detergent used in the high-volume automatic dishwasher in the kitchen and was purchased and stored in five-gallon containers. The label on each Eco-Klene container warned that the product contains sodium hydroxide, that the product causes severe chemical burns, and that ingestion of the product could be fatal.

Sodium hydroxide is an alkaline substance and is commonly known as lye. It is an extremely dangerous corrosive and will burn human tissue very quickly if ingested. The degree of the injury will vary depending upon the manner in which the lye is ingested, that is, whether it is "gulped down" or sipped. Eco-Klene contains 30 percent sodium hydroxide in solution, which upon contact will burn tissue instantaneously and continuously, causing liquefaction, a dissolving of tissue. Liquefaction continues until the lye is diluted by the liquid released from the breakdown of the cells. The ingestion of this liquid lye produces intense pain.

A Peppermint Twist employee transferred Eco-Klene from the five-gallon container into an unmarked pour-and-serve or hurricane container. The container was placed in the front bar area underneath the sinks. On September 23, the unmarked pour-and-serve container of Eco-Klene was placed on top of the bar and was mistaken for a container of watermelon shots. Both are red in color and similar in appearance. Eco-Klene has no odor. The container of Eco-Klene was placed on the tray of Mary Cottrell, one of the cocktail waitresses.

Mary stopped by the table where Cindi, Charles, John, and their friends were seated and solicited orders for watermelon shots. Cindi testified that she asked Mary about the drink and that Mary responded, "Yes, I've drank them. They're good. They taste just like watermelon." Cindi said she relied upon Mary's representations when she ordered a watermelon shot. Three watermelon shots were ordered. Mary poured the liquid from the pour-and-serve container into the shot glasses on her tray and then served them. Cindi and John each drank one of the watermelon shots.

Cindi testified that after she took a drink, she was in a state of shock because the drink was "very, very hot." She remembered sitting there staring and then grabbing her stomach and spitting. Cindi went to the bathroom and laid down on the floor of the handicap stall because she could not breathe. She described the sensation as "a fire, a very hot fire, burning inside of you from your belly all the way up and you [were] gasping trying to get air." Cindi thought she was dying and was...