Ingram v. Howard-Needles-Tammen and Bergendoff, HOWARD-NEEDLES-TAMMEN

Decision Date16 November 1983
Docket NumberNo. 55254,HOWARD-NEEDLES-TAMMEN,55254
Citation672 P.2d 1083,234 Kan. 289
Parties, 43 A.L.R.4th 893 Waunetta W. INGRAM, et al., Appellees, v.AND BERGENDOFF, Appellant, and Kansas Turnpike Authority, Defendant.
CourtKansas Supreme Court

Syllabus by the Court

1. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

(Following Restatement [Second] of Torts § 324A [1965].)

2. Consulting engineers, who contracted to render services to the Kansas Turnpike Authority by making annual safety inspections of the turnpike bridges, had a legal duty to members of the traveling public to exercise reasonable care in making such safety inspections.

3. Where a charge of excessive verdict is based on passion or prejudice of the jury and depends for support solely on the size of the verdict, the trial court will not be reversed for refusing a new trial, nor will a remittitur be ordered, unless the amount of the verdict in the light of the evidence shocks the conscience of the appellate court.

Herbert A. Marshall of Marshall, Hawks, Hendrix, Schenk & Nichols, Topeka, argued the cause, and Robert J. Perry, Topeka, was with him on the brief for appellant.

Edward M. Boyle of Payne & Jones, Chartered, Olathe, argued the cause and was on the brief for appellees.

PRAGER, Justice:

This is an action brought by Waunetta W. Ingram, on behalf of herself and the surviving children of Robert E. Ingram, to recover damages for his wrongful death and also to recover damages suffered by the decedent's estate which occurred prior to death. The facts in the case are not greatly in dispute and are essentially as follows: Robert E. Ingram died on February 20, 1979, as a result of fatal injuries suffered in an accident which occurred on the Kansas turnpike in the city of Topeka. The decedent was driving a tractor and trailer truck across bridge No. 231, which was supposed to be maintained by the Kansas Turnpike Authority (KTA). After entering onto bridge No. 231, the truck struck a 4' by 5'6"' hole on the bridge caused by deck deterioration in its final stages. This caused the truck to swerve, hit the guardrail, and plunge 25-30 feet to the ground. Ingram's truck burst into flames. Various witnesses on the scene observed the crash and attempted to remove Ingram from the cab of the truck. Their attempts were unsuccessful. The cab of the truck was in flames and the cries of Ingram for help could be heard. An explosion then occurred in the cab of the truck which consumed the life of Robert E. Ingram. The autopsy report states that the cause of death was "severe carbonization of the soft structures of the face and carbonization of the scalp." The report further states that the remainder of the deceased's body was badly burned, showing third-degree burns on its entire surface.

The Kansas turnpike was opened for travel in 1956. KTA hired the defendant-appellant, the firm of Howard-Needles-Tammen & Bergendoff (Howard-Needles), to serve as its consulting engineers. As one of their duties, the Howard-Needles engineers performed an annual inspection of all the bridges and other facilities of which the turnpike is comprised. Prior to the construction of the turnpike, the KTA entered into a trust agreement with Guaranty Trust Company of New York and Fourth National Bank of Wichita, as cotrustees. The trust agreement is dated October 1, 1954. The trust agreement required KTA to employ an engineering firm "having a nation-wide and favorable repute for skill and experience" to perform the duties required by the trust agreement. Howard-Needles performed its first annual inspection in August of 1957, and each year thereafter performed a similar inspection. After each inspection, Howard-Needles filed a report of its findings with KTA in a published report. The 1978 inspection was performed by Lowell Renner and Stephen Pellegrino on behalf of Howard-Needles. The report of their findings was made to KTA on October 25, 1978. In addition to employing a consulting engineering firm, KTA retained and employed a chief engineer and staff who were responsible for the maintenance and repair of the turnpike on a day-to-day basis. Howard-Needles had no responsibility in the daily operations, maintenance, and repair of the turnpike.

Following the death of Robert E. Ingram, the plaintiff filed her petition in Shawnee County District Court on November 15, 1979. The only named defendant was KTA. In her petition, she asserted not only a wrongful death action but also a survival action on behalf of the estate of Robert E. Ingram. On September 5, 1980, following discovery, the trial court granted plaintiff leave to include as an additional party defendant, Howard-Needles, the consulting engineering firm, which had offices in Kansas City, Missouri, and at other locations throughout the United States. After various pretrial conferences and motions, the matter was set for trial to a jury on April 12, 1982. On the morning of the trial, plaintiff and defendant KTA notified the court that all claims of plaintiff against KTA had been settled and compromised. The case then proceeded to trial by jury against the remaining defendant Howard-Needles. KTA remained as a party only for the purpose of consideration of its comparative negligence.

On April 16, 1982, the jury returned a verdict determining the comparative fault of the parties, finding the accident and the resulting death of Robert E. Ingram to be 75% the fault of Howard-Needles and 25% the fault of KTA. The jury assessed damages in favor of the estate of Robert E. Ingram for damages accruing prior to death in the amount of $350,000. The jury assessed the damages suffered by the heirs of Robert E. Ingram to be $25,000 for limited nonpecuniary damages and $335,000 by way of pecuniary damages.

On April 20, 1982, defendant Howard Needles filed motions for a new trial, for judgment notwithstanding the verdict, and for an order of remittitur. The district court denied these motions, upholding the verdicts of the jury in all respects. The trial court entered final judgments in accordance with the jury's verdicts. Defendant Howard-Needles appealed. The questions on appeal involve the usual liability issues which arise in negligence cases and also an attack on the amount of damages awarded by the jury.

In the area of liability, defendant Howard-Needles, in its post-trial motions before the trial court and again on this appeal, raises the following basic questions for determination:

(1) What legal duty, if any, was owed by the consulting engineers, Howard-Needles, to Ingram as a traveler on the Kansas turnpike, in making annual inspections of turnpike bridges?

(2) What was the standard of care required of the defendant to be used in determining whether the defendant breached its legal duty?

(3) Is there substantial evidence in the record to show that the defendant breached its legal duty by failing to perform in compliance with the standard of due care?

(4) Is there substantial evidence in the record to show that defendant's breach of duty was a contributing cause to the decedent's injuries and death, and resulting damages suffered by the estate and heirs?

Defendant Howard-Needles also maintains that the amount of damages awarded by the jury was so excessive as to show passion and prejudice by the jury as a matter of law, and thus, a new trial should be granted defendant or a remittitur of damages ordered. Defendant also claims that the trial judge and opposing counsel were guilty of misconduct which denied Howard-Needles a fair trial. We will consider each of these issues separately.

The Duty of the Inspecting Engineers to a Member of the Traveling Public

In regard to the question of a legal duty owed by Howard-Needles to the decedent Ingram, as a member of the traveling public, Howard-Needles maintains that it fulfilled all of its implied obligations and duties under the employment contract and under the trust agreement, and thus, as a matter of law, had no legal obligation or duty to the decedent or his heirs in making the annual inspections of turnpike bridges.

Simply stated, it is the position of Howard-Needles that it was employed to perform a visual inspection of the turnpike bridges on behalf of the bondholders, and that, under the trust agreement, it was required to perform no more than visual inspection of the bridges which its engineers proceeded to do. It argues that it is not a guarantor or insurer of its work or of the public safety. It maintains that, as a consulting engineer, it had no duty and hence no liability to the plaintiff as a matter of law, since there was no privity existing between it and the traveling public. The district court rejected this contention and we agree.

We have concluded that Howard-Needles had a legal duty to exercise reasonable care in conducting an annual safety inspection which it owed to the decedent, Ingram, and to other members of the traveling public. It has been held that the Kansas Turnpike Authority is an arm or agency of the State, created by the legislature to perform an essential governmental function. Flax v. Kansas Turnpike Authority, 226 Kan. 1, 596 P.2d 446 (1979). The Kansas statutes which created KTA, K.S.A. 68-2001 et seq., clearly recognize that KTA has a duty to exercise its powers for the benefit of the people of this State and to maintain the turnpike in a condition of safety for the traveling public. In this regard, we note...

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