Faber v. Roelofs

• Decision Date: 16 November 1973
• Docket Number: No. 43703,No. 581,E,581,43703
• Parties: Wilbert FABER, Father and Natural Guardian of Kim Faber, a Minor, and Wilbert Faber, Individually, Respondents, v. James ROELOFS and Arnold Brouwer, Respondents, Independent School Districtdgerton, Appellant, Edgerton Christian Elementary School (formerly Southwest Christian ElementarySchool), Respondent.
• Court: Minnesota Supreme Court

Page 856

212 N.W.2d 856

298 Minn. 16

Wilbert FABER, Father and Natural Guardian of Kim Faber, a Minor, and Wilbert Faber, Individually, Respondents, v. James ROELOFS and Arnold Brouwer, Respondents, Independent School District No. 581, Edgerton, Appellant,

Edgerton Christian Elementary School (formerly Southwest

Christian ElementarySchool), Respondent.

No. 43703.

Supreme Court of Minnesota.

Nov. 16, 1973.

Rehearing Denied Dec. 27, 1973.

Syllabus by the Court

1. Although evidence of precautions taken after an accident is inadmissible as an admission of previous neglect of duty, it may be admissible for other evidential purposes such as showing the feasibility of precautionary measures. If the evidence is admissible for other purposes, the trial court should clearly charge the jury to confine its consideration of the evidence to the issue on which it was admitted and caution them that it should not be considered on the question of defendant's negligence. The trial court is entitled to weigh the need for such evidence against the risk that the jury may improperly infer negligence therefrom. On appeal, the trial court's ruling on such evidence will be upheld except upon a showing of abuse of discretion. Here, the trial court did not abuse its discretion by admitting evidence that defendant public school district changed its school bus routes and loading procedures after plaintiff's accident for the limited purpose of showing the feasibility of safer procedures.

2. The fact that the trial court read to the jury as part of the instructions certain portions of the Minnesota School Bus Drivers Handbook does not constitute reversible error.

3. Plaintiffs did not disclose to the court and the other parties until after all the evidence was in that, during the trial, they had entered into a covenant not to sue with one of several defendants. While we do not condone the secret settlement, we do not find prejudice to defendant public school district which requires a new trial.

4. Minn.St. 466.04 limits a municipality's liability to 'any claimant' to $50,000. Since a parent's action for an injured child's medical expenses is essentially separate from the child's action, an injured child and his parent are both claimants under § 466.04 and each may recover up to $50,000.

5. The issue of whether the activities of defendant public school district in establishing school bus routes come within the 'discretionary function or duty' exception to its liability for its torts was not raised before the trial court and may not be asserted for the first time on appeal.

6. The evidence is sufficient to support the verdict.

Skewes & Vollmer, Luverne, Faegre & Benson, and Wright W. Brooks, Minneapolis, for appellant.

Winter, Lundquist, Sherwood & Athens, Marvin E. Lundquist and Donald B. Pedersen, Columbus, Ohio, for Faber.

Robert Rice, Pipestone, Erickson Zierke, Kuderer & Utermarck, Charles R. Zierke, Fairmont, for Roelofs & Brouwer.

Benjamin Vander Kooi, Luverne, for Southwest Christian Ele. Sch.

Heard and considered en banc.

MacLAUGHLIN, Justice.

This appeal is taken by defendant Independent School District No. 581, a public school district in Edgerton, Minnesota, from a judgment in favor of plaintiffs, Kim Faber and Wilbert Faber, Kim's father. Plaintiffs were awarded damages as a result of injuries Kim received in an accident involving a school bus provided to Kim's parochial school by defendant public school district. We affirm.

Plaintiff Kim Faber was a second-grade pupil at defendant Edgerton Christian Elementary School, a parochial school located in Edgerton. At the time of Kim's accident, defendant public school district was providing bus transportation for defendant parochial school pursuant to Minn.St. 123.76 to 123.79. Bus routes were established at a meeting in August 1969, attended by the bus drivers, Allen Vis, principal of defendant parochial school, and Jerome Harrington, superintendent of defendant public school district. The street abutting Kim's school had a curb on the school side, but the opposite side had no curb and the edge of the street was rather undefined. On the noncurb side, the hard surface merged into a gravel area, and the gravel area merged into a grass area. Kim's bus was routed to arrive each day on the noncurb side of the street opposite the school sometime after the children were dismissed from school. This choice of routing was an important factor in plaintiffs' claim of negligence.

On March 24, 1970, Kim, who was then 7 years old, his older siblings, and others were waiting on the noncurb side of the street for their school bus to take them home from school. As the bus approached them, Kim and the others ran into the street along the side of the bus. Kim slipped and fell under its right rear wheel and was severely injured.

Kim and his father, Wilbert Faber, brought this action against the public school district; Kim's parochial school; James Roelofs, the owner of the bus; and Arnold Brouwer, the driver of the bus.

Pursuant to a special jury verdict, the trial court found that Roelofs and Brouwer were not negligent; that the public school district was 40 percent negligent; ¹ that the parochial school was 25 percent negligent by reason of its acts or failure to act in providing supervision of the students; that Kim was 35 percent negligent; and that the negligence so apportioned combined in the same proportions to directly cause the accident.

1. Defendant public school district claims it is entitled to a new trial because the trial court admitted evidence that the district changed its school bus routes and loading procedures after Kim's accident. Generally, evidence of repairs made or precautions taken after an injury is inadmissible to prove a negligent condition at the time of injury. 13B Dunnell, Dig. (3 ed.) § 7055. Exclusion of such evidence rests on a social policy of not discouraging people from taking steps in furtherance of added safety. Further, subsequent repairs or precautions should not be viewed as an admission of negligence. After an unexpected accident has occurred, a person may, in the light of his new experience, adopt additional safeguards, even though he exercised due care at the time of the accident. Morse v. Minneapolis & St. L. Ry. Co., 30 Minn. 465, 16 N.W. 358 (1883).

However, although evidence of subsequent precautions is inadmissible as an admission of previous neglect of duty, it may be admissible for other evidential purposes. For example, in Lunde v. National Citizens Bank, 213 Minn. 278, 6 N.W.2d 809 (1942), we held evidence that a doorstop had been placed upon a door after an accident was properly admitted for the purpose of informing the jury, who had observed the scene of the accident, that the conditions they observed were not the same as those at the time of the accident. In McKnight v. City of Duluth, 181 Minn. 450, 232 N.W. 795 (1930), the plaintiff was injured when his automobile entered an unguarded gutter alongside the pavement. We held that certain photographs taken a considerable time after the accident were properly admitted for the limited purpose of showing the width of the street and the location of objects at the place of the accident which had remained unchanged, although some of the photographs incidentally showed a guard constructed after the accident.

If the evidence is admissible for other purposes, the trial court should clearly charge the jury to confine its consideration of the evidence to the issue on which it was admitted and caution them that it should not be considered on the question of defendant's negligence. Lunde v. National Citizens Bank, Supra; McKnight v. City of Duluth, Supra.

Plaintiffs argue that the evidence in the instant case of subsequent routing and loading practices was admitted solely to show the feasibility of safer procedures. Although the admissibility of such evidence under the circumstances of this case seems to be of first impression, we hold, based upon the available authorities, that the trial court properly admitted the evidence.

In Fonder v. General Const. Co., 146 Wis. 1, 130 N.W. 884 (1911), the Wisconsin Supreme Court held that evidence that construction workers were moved from a dangerous working position after the plaintiff's injury was admissible, not for the purpose of showing prior negligence, but for showing that it was practicable to so place the workers that they would be out of danger.

Several cases have held that evidence of a change in design or location of machinery following an accident, although inadmissible to show prior negligence, is admissible to show the practicability or feasibility of added safety features. For example, in Kanz v. J. Neils Lbr. Co., 114 Minn. 466, 131 N.W. 643 (1911), the plaintiff lost his balance while working in a sawmill and fell into certain dangerous machinery. This court held that evidence as to a change in the location of the dangerous machinery was properly admitted for the purpose of showing the practicability of making the work site safer in this way. The trial court in its charge expressly stated that the jury should consider the evidence only on this point.

In Boeing Airplane Co. v. Brown, 291 F.2d 310 (9 Cir. 1961), the court held that, although evidence of a change in a machine after an accident is generally inadmissible to show prior negligence, such evidence was admissible where its limited purpose was to show that it would have been feasible and practicable to incorporate safety features in the design at the time the machine in question was built. See, Johnson v. United States, 270 F.2d 488 (9 Cir. 1959), certiorari denied, 362 U.S. 924, 80 S.Ct. 677, 4 L.Ed.2d 742 (1960); Skeeters v. Skeeters, 237 Or. 204, 389 P.2d 313, (1964); Franklin v. Webber, 93 Or. 151, 182 P. 819 (1919); Brown v. Quick Mix Co., 75 Wash.2d 833, 454 P.2d 205 (1969); Hatcher v. Globe Union Mfg. Co., 178 Wash. 411, 35 P.2d 32 (1934); Banks v....