DiPietro v. Cessna Aircraft Co., No. 84,205.

• Decision Date: 22 December 2000
• Docket Number: No. 84,205.
• Citation: 28 Kan. App.2d 372,16 P.3d 986
• Parties: VICTOR DiPIETRO, Appellant, v. CESSNA AIRCRAFT COMPANY, Appellee.
• Court: Kansas Court of Appeals

28 Kan. App.2d 372

16 P.3d 986

VICTOR DiPIETRO, Appellant, v. CESSNA AIRCRAFT COMPANY, Appellee.

No. 84,205.

Court of Appeals of Kansas.

Opinion filed December 22, 2000.

John W. Johnson and Shari R. L. Willis, of Bradshaw, Johnson & Hund, of Wichita, for appellant.

John C. Nettels, Jr., and Thomas E. Nanney, of Morrison & Hecker L.L.P., of Kansas City, Missouri, for appellee.

Before BEIER, P.J., GERNON, J., and JANICE D. RUSSELL, District Judge, assigned.

RUSSELL, J.:

In September 1997, Victor DiPietro traveled from his home in Washington to Wichita, Kansas to pick up a business jet he had purchased from Cessna Aircraft Company (Cessna). While at the Cessna Service Center, he met with a flight instructor to obtain a special certificate so he could fly his new plane back to Seattle. DiPietro and the flight instructor were conducting a preflight inspection of the aircraft when DiPietro tripped over a curb and fell backwards into a concrete drainage ditch, fracturing his lower right arm and wrist.

The aircraft was parked on a ramp area adjacent to the drainage ditch at the time that DiPietro fell. He sued Cessna, claiming Cessna was negligent for failing to provide adequate protective measures, such as a barrier, which would prevent customers from falling into the drainage ditch. He further alleged the drainage ditch posed a dangerous condition of which Cessna failed to provide adequate warning. Cessna defended by contending the ditch was an open and obvious hazard, of which DiPietro was fully aware.

After DiPietro's fall, Cessna erected a fence surrounding the area of the drainage ditch to prevent anyone else from falling into it.

The trial court ruled at the pretrial stage and again during trial that the subsequent erection of the fence was inadmissible pursuant to K.S.A. 60-451. The case was submitted to a jury, and the jury returned a defendant's verdict, finding Cessna 20 percent at fault and DiPietro 80 percent at fault. DiPietro challenges the propriety of the trial court's rulings on the inadmissibility of Cessna's subsequent remedial conduct in this appeal.

The admissibility of subsequent remedial conduct is governed by K.S.A. 60-451:

"When after the occurrence of an event remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event."

DiPietro argues that the trial court's rulings on the admissibility of this particular evidence should be reviewed de novo by this court. In support of his argument, he cites Glassman v. Costello, 267 Kan. 509, 517, 986 P.2d 1050 (1999), for its holding that statutory interpretation is a question of law, and an appellate court's review of questions of law is unlimited.

DiPietro misapprehends the scope of the holding of Glassman. Glassman does not deal with the admissibility of evidence. Rather, it concerns the qualifications of an expert witness under K.S.A. 60-3412, which is a purely statutory enactment. While it is true that the common-law rules of evidence have been adopted by the legislature in Article 4 of Chapter 60 of the Kansas Statutes Annotated, the statutory enactment did not convert questions of admissibility of evidence to questions of law subject to a de novo review.

"The standard of review applied to questions involving the admissibility of evidence at trial is one of abuse of discretion. [Citation omitted.] Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court." Smith v. Printup, 262 Kan. 587, 592, 938 P.2d 1261 (1997).

DiPietro filed a pretrial motion seeking to introduce evidence of the fence to rebut Cessna's allegation of his comparative fault. The trial court made a preliminary ruling that subsequent remedial conduct was inadmissible and directed plaintiff's counsel to make a motion outside the jury's presence regarding the evidence if he believed developments at trial made the evidence admissible for other purposes.

DiPietro attempted to bring in the evidence of the fence under two different theories during trial. First, he argued Cessna's cross-examination of him opened the door to rebut evidence of his comparative fault. Second, during DiPietro's direct examination of a Cessna employee, testimony was introduced as to how high a fence might be erected without hindering aircraft operations. DiPietro argued this testimony placed feasibility at issue, and that feasibility creates an exception to the statute barring evidence on subsequent remedial conduct.

When DiPietro argued during trial that evidence of the fence fell within the exceptions to K.S.A. 60-451, the trial court stated:

"To me it's subsequent remedial conduct which is prohibited by the statute, unless there's agreement among the parties.... [The s]tatute says not admissible. I believe the only way I would allow it is if the parties agree it is. Is there an agreement?"

The essence of the trial court's holding seems to be that evidence of subsequent remedial conduct is never admissible, except by agreement of the parties. The trial court spoke too broadly, as there are indeed exceptions to the general rule that prohibits the admissibility of evidence of subsequent remedial conduct. Those exceptions that are pertinent to this case are discussed below.

Even though the trial court misstated the criteria for admissibility of the evidence, we find it was harmless error. Evidence properly ruled inadmissible at trial is not grounds for reversal, even if the trial court relied upon incorrect reasoning in making its ruling, and evidence wrongfully excluded will not be overturned unless it affirmatively appears from the record the error prejudicially affected the substantial rights of the parties. Smith v. Massey-Ferguson, Inc., 256 Kan. 90, 122, 883 P.2d 1120 (1994).

We first examine DiPietro's contention that the evidence should have been admitted to prove the feasibility of erecting a barrier or fence. He correctly argues that K.S.A. 60-451 excludes evidence of subsequent remedial or precautionary measures taken by the defendant after an accident for the purpose of proving the defendant's negligence but permits the admission of such evidence when relevant to prove other matters at issue in the case. In support of this position, he cites several Kansas cases: Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982) (control); Siruta v. Hesston Corp., 232 Kan. 654, 666-68, 659 P.2d 799 (1983) (feasibility of alternate design in products liability case); and Huxol v. Nickell, 205 Kan. 718, 722-24, 473 P.2d 90 (1970) (responsibility for erecting barricade).

He primarily relies upon Siruta, arguing that Cessna placed at issue the feasibility of erecting a fence at that location. In that case, Justice Prager wrote: "We hold that where evidence of remedial or precautionary measures is not offered to prove negligence or culpable conduct, it is admissible when offered for other relevant purposes such as the feasibility of a design change in a products liability case." 232 Kan. at 668.

Siruta was a products liability case. The case at hand is a premises liability case. DiPietro admits that Kansas has never extended the feasibility concept to a premises liability case, but cites a line of cases from other jurisdictions which do so: Lundquist v. Nickels, 238 Ill. App.3d 410, 605 N.E.2d 1373 (1992); Pyle v. Prairie Farms Dairy Inc., 777 S.W.2d 286 (Mo. App. 1989); Cech v. Montana, 604 P.2d 97 (Mont. 1979); Kurz v. Dinklage Feed Yard, Inc., 205 Neb. 125, 286 N.W.2d 257 (1979); and Jones v. Robert E. Bayley Constr. Co., Inc., 36 Wash. App. 357, 674 P.2d 679 (1984).

We note that feasibility is a concept that developed out of products liability cases. We decline to decide whether it should be extended to premises liability cases, as DiPietro urges, because we find that the evidence upon which plaintiff relies to argue that feasibility had been put in issue simply does not meet the Siruta prerequisites for admissibility. The Siruta opinion meticulously analyzes the circumstances in which subsequent remedial conduct should be admitted to show feasibility of a design change.

In Siruta, defendant's motion in limine was granted, precluding plaintiff from submitting evidence of subsequent design changes in...