Crane Co. v. Kitzinger

• Decision Date: 20 November 2003
• Docket Number: No. 2001-CA-00909-SCT.,2001-CA-00909-SCT.
• Citation: 860 So.2d 1196
• Parties: CRANE CO. d/b/a Crane Defense Systems v. Lynda I. KITZINGER, Individually, and as Mother and Next Friend of Robert Jayce Kitzinger, and as Executrix of The Estate of Robert L. Kitzinger, Jr., Deceased.
• Court: Mississippi Supreme Court

860 So.2d 1196

CRANE CO. d/b/a Crane Defense Systems v. Lynda I. KITZINGER, Individually, and as Mother and Next Friend of Robert Jayce Kitzinger, and as Executrix of The Estate of Robert L. Kitzinger, Jr., Deceased.

No. 2001-CA-00909-SCT.

Supreme Court of Mississippi.

November 20, 2003.

J. Collins Wohner, Jr., William F. Goodman, Jr., Mark D. Jicka, Mark A. Dombroff, Mark E. McKinnon, Suzanne N. Saunders, Jackson, attorneys for appellant.

Vincent J. Castigliola, John A. Banahan, Pascagoula attorneys for appellee.

EN BANC.

ON MOTION FOR REHEARING

EASLEY, Justice, for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. This case involves the unfortunate death of Robert L. Kitzinger (Bob). On August 25, 1998, Bob fell down a drill rig elevator hoistway to his death. In May 1999, Lynda Kitzinger (Kitzinger) filed suit for the wrongful death of her husband against Noble Drilling Corporation (the owner of the Paul Romano), Noble (US) Inc. (Bob's employer), Friede Goldman Offshore, Inc. (formerly Ham Marine and the shipyard hired by Noble to convert the Paul Romano to a drill rig) and Crane Unidynamics/St. Louis, Inc. (Unidynamics, a division of Crane Co.) Prior to trial, Kitzinger settled with Noble Drilling Corporation, Noble (US) Inc. and Friede Goldman Offshore, Inc. Kitzinger, also amended the complaint prior to trial to name Crane Co.(Crane) as a defendant.

¶ 3. On January 31, 2001, a trial was conducted in Jackson County Circuit Court, Judge Dale Harkey presiding. The jury returned a verdict of 2.5 million in compensatory damages and apportioned liability as follows: 15% to Noble, 35% to Bob and 50% to Crane. The issue of punitive damages was submitted to the jury. After the jury heard evidence, a verdict was returned against Crane in the amount of 15 million dollars in punitive damages. The trial court denied Crane's subsequent motions for JNOV and new trial. Judgment was entered against Crane for 1.25 million (50% of the 2.5 million compensatory damages) and 15 million in punitive damages. From these rulings, Crane now appeals to this Court.

FACTS

¶ 4. Bob was a former U.S. Navy Master Chief Petty Officer. In 1997, Bob retired from the Navy and pursued a job in the private sector. In November 1997, Bob started work at Noble as an electronics technician (ET).

¶ 5. An elevator was installed on the Paul Romano. A safety feature was installed in the elevator which prevented it from moving when the door of the elevator was open. Prior to Bob's accident, the elevator had not worked on a few occasions because the door was either not properly closed or vibrations caused the door to open.

¶ 6. On August 25, 1998, Bob was working with Ed Seger (Seger)on the drilling rig's ballast control system. During the course of the night the elevator became stuck and was not available for use. Robert Wallis (Wallis), an electrician, did not look at the elevator before he went to sleep at 3:30 a.m. on August 25. Bob called Seger at 8:00 a.m. from the pump room that same morning. Bob asked Seger to see if Wallis could get the elevator to operate. On August 24, Wallis had worked his 6 a.m. to 6 p.m. shift, then continued to work until 9 p.m. after which time Wallis briefly slept and was awakened at midnight to work on a crane until 3:30 a.m. on August 25. Once Seger learned of Wallis' work schedule, Seger declined to wake Wallis for the elevator repair.

¶ 7. Eventually, Bob and Seger went to the elevator hoistway together. Bob descended the hoistway. When Bob was approximately half way down the shaft, he stated that he would need help. Shortly thereafter, Bob fell from the hoistway to the bottom of the shaft and called for help. Bob later died from the injuries that he sustained from the fall.

STATEMENT OF ISSUES

I. Whether the trial court erred by excluding Noble's Policy and Procedures Manual, Safety Handbook, and related testimony.

II. Whether the trial court erred by excluding the testimony of O'Neil Mendoza.

III. Whether punitive damages were properly assessed.

IV. Whether, in the alternative, punitive damages should be remanded or remitted.

V. Whether the trial court erred by refusing to order disclosure of settlements or to consider a credit.

VI. Whether the Mississippi statutory appeal penalty is unconstitutional as applied to punitive damages.

LEGAL ANALYSIS

¶ 8. After careful review, we find that the first and second issues are dispositive of the case. The exclusion of the Noble Policy and Procedures Manual, the Safety Handbook and accompanying testimony was an abuse of discretion and prejudiced Crane. However, the trial court did not abuse its discretion by excluding the testimony of O'Neil Mendoza. Accordingly, we find that the case is reversed and remanded for a new trial not inconsistent with this opinion.

I. Whether the trial court erred by excluding Noble's Policy and Procedures Manual, Safety Handbook, and related testimony.

¶ 9. This Court has held that the standard of review for either the admission or exclusion of evidence is abuse of discretion. Whitten v. Cox, 799 So.2d 1, 13 (Miss.2000); Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999). The court will not reverse the admission or exclusion of evidence unless the error adversely affects a substantial right of a party. Floyd, 749 So.2d at 113. "[F]or a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party." Terrain Enter., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995).

¶ 10. Kitzinger filed a motion in limine to exclude Noble's safety handbook and policy and procedure manual. The trial court granted Kitzinger's motion. Thus, Crane was prohibited from admitting the handbook and manual into evidence. The trial judge based his decision on Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216 (Miss.1969) and Sumrall v. Miss. Power Co., 693 So.2d 359 (Miss 1997). In addition, the judge determined that the jury may be confused about the issue of the standard of care.

¶ 11. In Jaquith, a high school student was injured when he ran into a gymnasium wall. Jaquith, 224 So.2d at 219. The student subsequently died from the head injury following surgery. Id. The plaintiffs in the case claimed that the gym should have had padded walls and attempted to introduce a book and pamphlet which recommended the use of padded walls. Id. at 220. This Court held that "[t]he general rule in this state, as elsewhere, is that books, pamphlets and treatise are not admissible into evidence to prove facts contained therein since they are generally considered hearsay evidence." Id. The Court held that the admission of the evidence in Jaquith was erroneous, but amounted to harmless error in that instance. Id. at 221.

¶ 12. In Sumrall, the trial court prohibited evidence of Occupational Safety and Health Act (OSHA) regulations. Sumrall, 693 So.2d at 366. This Court found that the trial court did not abuse its discretion by refusing to allow the evidence. Id. at 367. Mississippi has declined to give compulsory force to OSHA regulations. Id. at 366. "We are persuaded by the district court's reasoning and hold that, in light both of it and of this Court's clearly stated rule that governmental codes and regulations are not admissible unless given compulsory force by the state legislature, evidence of OSHA regulations is not admissible to show negligence." Id. at 367. Consequently, the regulations were not admissible to show negligence on the part of the company. See Accu-Fab & Construction, Inc. v. Ladner, 778 So.2d 766, 771 (Miss. 2001)

(OSHA regulations were admitted for other purposes such as a measure of reasonable care consistent with industry standards).

¶ 13. Crane argues that the trial court's reliance on Jaquith and Sumrall does not justify the exclusion of the handbook and manual evidence. Crane asserts that the evidence in Jaquith had no factual connection to the case, and the evidence in Sumrall dealt with policy and statutory considerations unique to OSHA. In this case, Crane claims that the handbook and manual are directly and factually relevant to the case. The evidence would establish the type of safety information available to Bob and allow the jury to determine the reasonableness of his actions. Crane, also, argues that it had to redact the deposition testimony of Jack Frost pertaining to safety information and training available to Bob. This testimony included information that Noble employees receive a copy of the handbook; are required to read the handbook; sign a form acknowledging that the employee has received, read and are familiar with its contents; and that a written test is administered to employees. Furthermore, redactions from Frost and other witness depositions testimony concerning fall protection also was excluded by the trial court.

¶ 14. Kitzinger argues that the manual and handbook were prepared by a third-party organization and are hearsay. In addition, she claims that there were no claims in issue between Noble and Crane. Kitzinger asserts that Bob's duty to Crane was to act as a reasonable man and that he had no duty to Crane to follow Noble's handbook or manual.

¶ 15. When Kitzinger first filed her wrongful death lawsuit, Noble was included among the listed defendants. Subsequent to the filing, Kitzinger made an undisclosed settlement with Noble and other party defendants. A joint motion for dismissal was filed. The trial court then granted a judgment of dismissal with prejudice. Furthermore, in Unidynamics' answer and defense, contributory negligence on the part of Bob was asserted in both the answer and the affirmative defenses. The trial court granted Kitzinger's motion to file an amended complaint. The amended complaint, among other things, includes the named defendant Crane Co. d/b/a/ Crane Defense Systems. Again,...