Laterra By and Through Commercial Nat. Bank v. Treaster

• Decision Date: 18 December 1992
• Docket Number: No. 67128,67128
• Citation: 17 Kan.App.2d 714,844 P.2d 724
• Parties: Steven Michael LATERRA, a Minor, By and Through COMMERCIAL NATIONAL BANK and Carole Greene, as Coconservators of the Conservatorship of Steven Michael Laterra, Appellee, v. Steven D. TREASTER, as Special Administrator for the Estate of Sheryl Steere, Deceased, Appellant.
• Court: Kansas Court of Appeals

Page 724

844 P.2d 724

17 Kan.App.2d 714

Steven Michael LATERRA, a Minor, By and Through COMMERCIAL NATIONAL BANK and Carole Greene, as Coconservators of the Conservatorship of Steven Michael Laterra, Appellee, v. Steven D. TREASTER, as Special Administrator for the Estate of Sheryl Steere, Deceased, Appellant.

No. 67128.

Court of Appeals of Kansas.

Dec. 18, 1992.

Syllabus by the Court

1. A trial judge has discretion to exclude otherwise relevant evidence if it may unfairly prejudice a jury or if its probative value is outweighed by its prejudicial effect.

2. A landowner is fully competent to testify as to the value of his or her property.

3. Pursuant to K.S.A.1991 Supp. 60-460(l )(1), hearsay statements by a decedent are admissible if offered to show the declarant's then-existing state of mind and if such statements were made in good faith and for no ulterior purpose which would encourage fabrication.

4. Based upon the unique facts of this case, the method used by an individual to commit suicide was an abnormally dangerous activity as defined in Restatement (Second) of Torts § 520 (1976). The factors a court must consider in determining whether an activity is abnormally dangerous include: (1) the existence of a high 5. In an action to recover pecuniary damages, a child should not be limited to the loss of financial support a deceased parent would have provided during the child's minority, but rather should be allowed to recover the amount of support the child could reasonably have expected to receive during the child's entire lifetime.

degree of risk of some harm to the person, land, or chattels of others; (2) the likelihood that the harm that results from it would be great; (3) the inability to eliminate the risk by the exercise of reasonable care; (4) the extent to which the activity is not a matter of common usage; (5) the inappropriateness of the activity to the place where it is carried on; and (6) the extent to which its value to the community is outweighed by its dangerous attributes.

6. Based upon the facts of this case, the trial court did not err by refusing to give a jury instruction on the reduction of any damage award to present value where the party requesting such an instruction failed to present proper foundation evidence or any guidance for the jury.

Leonard R. Frischer and Lee Hardee of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, for appellant.

Benjamin M. Kieler and Victor A. Bergman of Shamberg, Johnson, Bergman & Morris, Chartered, Overland Park, for appellee.

Before GERNON, P.J., and DAVIS and RULON, JJ.

GERNON, Judge:

Steven D. Treaster, as special administrator for the estate of Sheryl Steere, (Treaster) appeals from a jury verdict which awarded $500,000 to Steven Michael Laterra in a wrongful death action against Steere's estate.

FACTS

The underlying facts are tragic and undisputed. On July 11, 1989, Sheryl Steere committed suicide. She died in her garage from carbon monoxide fumes after starting her car and allowing the engine to run with the garage door closed. The tragedy of her death was compounded by the fact that she lived in one-half of a duplex. Steven Ray Laterra (Laterra) lived in the other half. Laterra, who was sleeping in his residence, died as a result of the exhaust fumes. Laterra's son, Steven Michael Laterra (Michael), brought an action by and through his mother, Carole Greene, alleging that the wrongful death of his father and the subsequent damage and loss Michael sustained were the proximate result of Steere's negligence.

The focus of evidence at trial was not on how the death occurred, as the facts were stipulated to by the parties, but rather on the loss Michael suffered due to his father's death. Treaster conceded that Steere's actions caused Laterra's death. A jury returned a verdict awarding $500,000 in compensatory damages for the pecuniary losses Michael suffered as a result of his father's death. After a motion for a new trial was overruled by the trial court, Treaster appealed.

ISSUES

On appeal, Treaster contends the court erred as follows: (1) by initially precluding defense counsel from introducing evidence regarding Laterra's previous criminal activity; (2) by admitting evidence of the existence and value of certain real property owned in joint tenancy by Laterra and his mother; (3) by allowing witnesses to testify as to statements made by Laterra prior to his death; (4) by directing a verdict against Treaster on the theory of strict liability; (5) by instructing the jury it could award Michael damages for future support beyond the age of majority; and (6) by refusing to instruct the jury that all awards for future damages were to be reduced to present value.

PRIOR CRIMINAL ACTIVITY

Prior to trial, Michael's attorney filed a motion in limine to preclude Treaster from making any use at trial of Laterra's guilty Michael's attorney argued that evidence of the prior conviction should not be admitted because it was not relevant to the issues of damages, because it would cause confusion as to the real issues in the case, and because the evidence was of a highly inflammatory nature. Treaster argued the evidence should be admissible because the conviction was directly relevant as to Laterra's earning capacity and future employment. Treaster also claimed that the conviction questioned the value of Laterra's contribution as a parental care giver, moral trainer, and source of guidance for his minor son.

plea and conviction on a charge of indecent liberties with a child.

The court accepted an affidavit from Laterra's former employer stating that she was aware of the conviction and that such knowledge had not prejudiced Laterra's continued employment or prospects for future advancement and increased earnings with her. The court then ruled that evidence of the conviction was not to be admitted due to its prejudicial nature unless Michael's counsel opened the door by eliciting testimony that Laterra was a good, moral, and law-abiding person.

On the second day of trial, the trial court, sua sponte, ruled that the door had been opened and allowed a journal entry of Laterra's conviction to be introduced.

On appeal, Treaster argues that, although the court ultimately allowed into evidence information concerning the conviction, the ruling came too late. Treaster claims that, by the time the evidence came in, the entire tone of the case had been established and the jury already had an untarnished image of Laterra which could not be effectively attacked by cross-examination at such a late stage in the proceedings.

"Subject to certain exclusionary rules, the admission of evidence lies within the sound discretion of the trial court." McGuire v. Sifers, 235 Kan. 368, 371, 681 P.2d 1025 (1984). "[A] trial judge has discretion to exclude otherwise relevant evidence when ... it may unfairly prejudice a jury, or its probative value is outweighed by its prejudicial effect." Doty v. Wells, 9 Kan.App.2d 378, 379-80, 682 P.2d 672, rev. denied 235 Kan. 1041 (1984).

We find no abuse of discretion in the way the trial court handled this delicate matter at trial. Although the conviction was arguably relevant and, therefore, admissible to show earning capacity, the trial court obviously weighed that factor against the possibility of prejudice and excluded the evidence until a later time.

"[T]he primary purpose of the motion in limine is to prevent prejudice during trial." State v. Quick, 226 Kan. 308, 311, 597 P.2d 1108 (1979). Such an order is temporary in nature and is entered before trial when no one knows exactly what will turn up later during trial. "It is possible events during the trial, bearing directly on questions of relevance, may support a change in the protective order." 226 Kan. at 312, 597 P.2d 1108.

Here, the trial court did not err by granting Michael's motion in limine, nor did the trial court err in changing its order. Once evidence of the conviction was admitted, Treaster had a full and fair opportunity to cross-examine witnesses on this issue. Treaster has failed to demonstrate any substantial prejudice.

VALUE OF REAL PROPERTY

Laterra's mother, Bonnie Laterra, testified as to a list of properties she owned in joint tenancy with Laterra, as well as property she owned solely. Bonnie Laterra testified as to the estimated value of each property and the estimated equity in the properties at the time of Laterra's death.

Treaster objected to the admission of this evidence on the grounds the information was not relevant or material to the proceedings and allowed the jury to translate entirely speculative information into a direct award of damages which unjustly inflated the jury's award for loss of financial support. Treaster claims admission of the evidence was erroneous for two reasons: (1) Michael was not legally entitled to the benefits The court ruled that the evidence was relevant to the issues in the case, and our standard of review upon such a challenge is whether the trial court abused its discretion. State v. Smith, 225 Kan. 796, 801, 594 P.2d 218 (1979). "The determination of relevancy is a 'matter of logic and experience, not a matter of law.' " Smelko v. Brinton, 241 Kan. 763, 767-68, 740 P.2d 591 (1987).

value, or equity of the properties upon Laterra's death; and (2) Michael cannot show any reasonable expectation to receive these specific benefits.

Michael's counsel argued that the evidence presented was highly probative of Laterra's extensive practical skills and abilities in construction-related activities. The evidence demonstrated that Laterra would buy inexpensive, run-down homes and fix them up himself, which significantly increased their market value. The evidence reflected Laterra's industriousness and productivity, as well as his propensity for creating personal financial growth.

The evidence further indicates that this information was relevant due to the unique relationship between...