Kusy v. K-Mart Apparel Fashion Corp.

Decision Date24 April 1984
Docket NumberK-MART,No. 18360,18360
Citation681 P.2d 1232
PartiesArthur Dennis KUSY, Plaintiff and Appellant, v.APPAREL FASHION CORP., a Delaware corporation, and John Doe, an individual, Defendants and Respondents.
CourtUtah Supreme Court

Wilford A. Beesley, Jack Fairclough, Salt Lake City, for plaintiff and appellant.

Alan L. Larson, Salt Lake City, for defendants and respondents.

OAKS, Justice:

In this personal injury action, the jury found no negligence on the part of defendant K-Mart. On appeal, plaintiff claims that the trial court erred by refusing to admit into evidence defendant's answer to an interrogatory. He also cites error in the failure to give his proffered jury instruction on res ipsa loquitur and in the instruction given on avoidable accident. We reverse.

Plaintiff was employed as a truck driver. In May 1976, he delivered a load of trees and shrubbery to one of defendant's stores in Murray. In the unloading process, plaintiff requested assistance from the garden shop manager, Hunt. Hunt designated his employee, Coupe, to deliver pallets by forklift to the door of plaintiff's truck. Coupe selected pallets from a pile on the store's premises and raised them to the level of the truck's bed, approximately five feet from the ground. Plaintiff then placed from twenty-five to thirty trees on each pallet.

Plaintiff's injury occurred after he successfully unloaded two pallets of trees. He contends that he noticed some damaged boards toward the back of the third pallet Coupe delivered. Fearing that the boards might break and spill some of the trees, he requested a new pallet. Coupe refused. After plaintiff unloaded six or eight trees onto this pallet, some of its boards (not those he had originally noticed) broke under plaintiff's foot, causing him to lose his balance, fall to the ground, and break his wrist. Plaintiff alleged that defendant negligently maintained or negligently failed to inspect the pallets to insure their safety. 1


Plaintiff was the only eyewitness to testify about the accident. Coupe, the other eyewitness, was apparently out of the country. Defendant presented only one witness, Hunt. He was on the premises when the accident occurred and approached the scene immediately thereafter. Hunt testified that he did not know whether the pallet broke or whether plaintiff merely fell from the pallet. He testified that he observed no broken boards or debris on the ground when he first walked up to the scene. Thus, Hunt's testimony at least to some degree refuted plaintiff's version of the accident and implied that plaintiff had merely slipped from the pallet.

While cross-examining Hunt, plaintiff's attorney sought to read one of defendant's answers to interrogatories. (The answers were signed by Michael Street, general manager of the K-Mart store, on behalf of the corporate defendant.) In that answer, defendant admitted that "the pallet board where [plaintiff] stepped broke off and plaintiff fell to the ground." The trial judge refused to allow counsel to read this answer, ruling that since the interrogatories were signed by someone other than the testifying witness, they could not be used for impeachment. This was reversible error.

Rule 33(b), Utah R.Civ.P., allows answers to interrogatories to be used at trial "to the extent permitted by the rules of evidence." Utah Rules of Evidence 63(7), in effect at the time of trial, provided that a statement made by a party would not be excluded under the hearsay rule when the statement was offered against him. See Terry v. Panek, Utah, 631 P.2d 896, 898 (1981). 2 An admission of a party, when offered against him, comes in as substantive evidence of the facts stated. Geldert v. State, 3 Haw.App. 259, 649 P.2d 1165, 1172 (1982). This is especially appropriate when the evidence is embodied in answers to interrogatories, since a declarant has ample time to consider such a statement and submits it under oath.

Defendant argues that the admission in the answer to the interrogatory was inappropriately used to impeach Hunt, since Hunt did not sign it. We disagree. Hunt was the only witness who testified on behalf of defendant. Through his testimony, Hunt gave the impression that the boards on the pallet did not break and that plaintiff had merely fallen off the pallet. Plaintiff was then entitled to introduce whatever substantive evidence he had to contradict the witness and support his own version of the facts. Specifically, "answers to interrogatories can be used by an adverse party for any purpose, including attacking the credibility of a party as a witness." Farkas v. Sadler, R.I., 375 A.2d 960, 964 (1977). That rule covers the proposed use of the answer to the interrogatory to impeach the witness in the circumstances of this case.

We are unable to say that the error in excluding the answer to the interrogatory was harmless in this case. Hunt's testimony implied that plaintiff had merely fallen off the pallet and that the pallet had not broken. The only evidence that the pallet had in fact broken was plaintiff's own testimony, which the jury could have viewed as self-serving. Plaintiff's credibility would have been greatly enhanced if the jury had been informed that defendant, in sworn answers to interrogatories, had given the same rendition of the facts. Failure to allow the evidence was prejudicial to plaintiff's case. We must therefore reverse and remand the case for a new trial.

For the guidance of the district court on remand, we proceed to address the issues regarding jury instructions.


Plaintiff requested jury instructions on res ipsa loquitur. For reasons that do not appear in the record, the trial court refused to give them. On appeal, defendant argues that plaintiff failed to make out the elements that are necessary before such an instruction is given.

Res ipsa loquitur is an evidentiary rule that permits an inference of negligence on the part of a defendant under well-defined circumstances. Before being entitled to such a jury instruction, a plaintiff must show:

(1) [T]hat the accident was of a kind which, in the ordinary course of events, would not have happened had due care been observed; (2) that the plaintiff's own use or operation of the agency or instrumentality was not primarily responsible for the injury; and (3) that the agency or instrumentality causing the injury was under the exclusive management or control of the defendant.

Anderton v. Montgomery, Utah, 607 P.2d 828, 833 (1980) (citations omitted). One of the purposes of the res ipsa instruction is to "cast the burden upon [the person who controlled the agency or instrumentality causing the injury] to make proof of what happened." Id. at 833, quoting Lund v. Phillips Petroleum Co., 10 Utah 2d 276, 280, 351 P.2d 952, 954 (1960). It should be noted, however, that "[o]nce the elements of res ipsa loquitur have been established, it merely permits and does not compel the inference of negligence by the fact finder." Archibeque v. Homrich, 88 N.M. 527, 532, 543 P.2d 820, 825 (1975). See also Brizendine v. Nampa Meridian Irrigation District, 97 Idaho 580, 585, 548 P.2d 80, 85 (1976).

Once the plaintiff makes a prima facie showing of the elements, he is entitled to a res ipsa instruction. The trial court should not weigh conflicting evidence of the elements; this is the jury's function. In order to determine the appropriateness of a res ipsa instruction, the court must view the evidence "in a light most favorable to the plaintiff...." Anderton v. Montgomery, 607 P.2d at 833.

Under the standard discussed above, this plaintiff introduced sufficient evidence at the trial to entitle him to a res ipsa loquitur instruction. There was a prima facie showing of each of the three elements. First, plaintiff testified about his extensive experience utilizing pallets during the course of his work. He testified that pallets are able to bear far greater weight than was placed on the pallet that broke here. This testimony would support an inference that the pallet would not have broken if due care had been observed, as discussed below. E.g., DiMare v. Cresci, 23 Cal.Rptr. at 776, 373 P.2d at 864 ("[o]rdinarily steps which are part of a common stairway do not collapse when used by a tenant in a normal manner unless the landlord who has had the duty to maintain and inspect them was negligent"). Second, plaintiff testified that he unloaded the truck in the usual manner, consistent with the directions of the manager of the garden department. Third, defendant retrieved the pallets from its own yard and brought them to the truck for plaintiff's use.

Defendant argues that the first element ("kind of accident") was lacking because the jury found that neither party was negligent. This begs the question. Plaintiff's evidence entitled him to the res ipsa instruction, and he does not lose that entitlement because of what the jury found without the instruction.

Defendant further argues that the third element ("exclusive management or control") was lacking, since there was testimony that some of the pallets were not owned by defendant and that pallets were always being delivered and picked up from defendant's premises. However, the issue is not ownership but control. The control necessary for a res ipsa instruction is control exercised at the time of the negligent act. Town of Reasnor v. Pyland Construction Co., Iowa, 229 N.W.2d 269 (1975); Birmingham v. Gulf Oil Corp., Tex., 516 S.W.2d 914, 918 (1974). It is clear from uncontradicted evidence that defendant had exclusive control of the instrumentality that caused the injury as of the time the alleged negligent act occurred.

In this case, we know from defendant's admission in its answer to the interrogatory that plaintiff's injury was caused by his fall and that his fall was caused by the breaking of the pallet. We do not know what caused the pallet to break. Similarly in Kitto...

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  • Randle v. Allen, 900189
    • United States
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    • October 8, 1993
    ...our prior cases to the extent they approve the use of the instruction, even in limited situations. See, e.g., Kusy v. K-Mart Apparel Fashion Corp., 681 P.2d 1232, 1237 (Utah 1984); Anderson v. Toone, 671 P.2d 170, 174 (Utah 1983); Anderton v. Montgomery, 607 P.2d 828, 833 (Utah 1980); Strin......
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