Summers v. Montgomery Elevator Co.

• Citation: 757 P.2d 1255,243 Kan. 393
• Decision Date: 24 June 1988
• Docket Number: No. 60658,60658
• Parties: James L. SUMMERS, Appellant, v. MONTGOMERY ELEVATOR COMPANY; Oak Park Investment Company, a Kansas General Partnership, et al., and Lerner Shops, Inc., d/b/a Lerner Shop, Appellees.
• Court: United States State Supreme Court of Kansas

Page 1255

757 P.2d 1255

243 Kan. 393

James L. SUMMERS, Appellant, v. MONTGOMERY ELEVATOR COMPANY; Oak Park Investment Company, a Kansas General Partnership, et al., and Lerner Shops, Inc., d/b/a Lerner Shop, Appellees.

No. 60658.

Supreme Court of Kansas.

June 24, 1988.

Syllabus by the Court

1. The trial court did not abuse its discretion in failing to grant a new trial, pursuant to K.S.A. 60-259(a)(Sixth) concerning corruption of evidence, where the evidence of subsequent injuries was not discovered before trial because both parties correctly considered such evidence irrelevant.

2. The trial court did not abuse its discretion in failing to grant a new trial, pursuant to K.S.A. 60-259(a)(Fifth) concerning newly discovered evidence, where the facts of the case show both that the evidence could have been produced by the use of due diligence and that such evidence would not have been admissible at trial.

3. Pursuant to K.S.A. 1987 Supp. 60-232(a)(1), deposition statements are admissible as evidence in a subsequent unrelated trial to attack the credibility of a witness by showing prior inconsistent statements.

4. Under the facts of the case, the trial court did not abuse its discretion by excusing an appellee's violation of its order in limine and overruling the order to allow evidence of relevant prior inconsistent statements.

5. Two separate requirements must be met before attorney fees and expenses can be assessed pursuant to K.S.A. 60-2007(b): (1) The claim asserted was without reasonable basis in fact; and (2) the claim was not asserted in good faith.

6. The trial court did not abuse its discretion, under the facts of the case, in imposing sanctions against the appellant pursuant to K.S.A. 60-2007(b) and K.S.A. 1987 Supp. 60-211.

7. There is insufficient evidence under the facts of the case to support a punitive damage instruction or an instruction on reckless or wanton conduct.

8. The facts of the case do not support a holding that an elevator is a common carrier, and an instruction on a higher duty of care was thus properly denied.

9. Instructions on strict liability, intervening acts, hidden defects, and the doctrine of res ipsa loquitur were properly denied under the facts of the case.

Thomas Francis Sullivan, Mission Woods, argued the cause and was on the brief for appellant.

Kevin Bennett of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, argued the cause and Frank Saunders, Jr. of the same firm, was with him on the brief for appellee Montgomery Elevator Co.

James E. Kelley, Kansas City, Mo., argued the cause, and Elizabeth M. Drill of Brown, Koralchik & Fingersh, Overland Park, was on the brief for appellee Oak Park Inv. Co.

Ronald W. Nelson of the Law Office of Ronald W. Nelson, Overland Park, argued the cause and was on the brief for appellee Lerner Shop.

HERD, Justice:

This is a personal injury action wherein plaintiff James Summers appeals an adverse jury verdict.

Summers is an employee of Graves Truck Line and as such made regular deliveries to Lerner Shops, Inc., located in Oak Park Mall in Overland Park. The deliveries were made through a service elevator owned and controlled by Oak Park Investment Company, manufactured by Harris-Preble, and serviced and maintained by Montgomery Elevator Company. The service elevator was not open to the public and its use was authorized only to Oak Park tenants, their suppliers, and Oak Park management and staff.

The elevator doors were designed to be closed manually by the person using the elevator. To close the doors, one pulled a strap hanging from the upper door. This would cause the doors to meet horizontally in the middle. There was one strap inside and one outside. If the inner strap was missing, there was a two-inch ledge inside the upper door which could be used. Vandals often cut the straps completely off or shortened them so they could not be properly used. There were complaints the doors were erratic and difficult to close even when the straps were present.

On the date of the accident, March 3, 1983, the inner strap was missing. Summers attempted to close the doors from inside the elevator by reaching outside the doors with his left hand and pulling on the outer strap. The doors suddenly slammed together, catching Summers' left hand and injuring his index finger.

The first two issues allege the trial court erred in overruling Summers' motion for new trial pursuant to K.S.A. 60-259(a)(Fifth) and (Sixth), which provide:

"(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues when it appears that the rights of the party are substantially affected:

....

"Fifth. For newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.

"Sixth. That the verdict, report or decision was procured by the corruption of the party obtaining it. In this case the new trial shall be granted as a matter of right, and all the costs made in the case up to the time of granting the new trial shall be charged to the party obtaining the decision, report or verdict.

"On motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, and direct the entry of a new judgment."

The trial court has wide discretion in reviewing the evidence and determining whether a new trial should be granted pursuant to K.S.A. 60-259 because of corrupt evidence. Smith v. Union Pacific Railroad Co., 214 Kan. 128, 130-31, 519 P.2d 1101 (1974).

Summers' allegations of corruption are based on Oak Park's answers to an interrogatory which asked for the details of injuries since the installation of the elevator. Oak Park answered "none" to all questions. Summers also asked for all prior correspondence concerning claims for personal injuries in the same time frame. Oak Park replied it had no documentation of any injuries.

Oak Park manager David Sprinkle testified in a deposition there could have been complaints filed of which he was not personally aware. He testified he himself knew of no other individuals who had been injured by the elevator doors. Defense counsel stated in closing argument that Summers was the only person ever injured by the elevator.

After the trial, Summers discovered two individuals had injured their hands in closing the elevator in July of 1984, after his accident but prior to the answering of the interrogatories. These individuals, Cary Pierce and George Hull, had reported their injuries to Jim Edwards, Chief of Security for Oak Park. Correspondence between Hull's attorney and Oak Park's insurer concerning investigation of his accident was discovered. Summers contends this is clear evidence Oak Park intentionally withheld information.

The trial court stayed its decision on Summers' K.S.A. 60-259 motion for a new trial to allow him to reopen discovery in order to make certain no individuals had been injured by the elevator prior to his accident. The court ordered Oak Park to pay attorney fees and costs ultimately totalling $2,234.73 for the reopened discovery. When no prior injuries were discovered, the trial court denied Summers' motion, holding evidence of subsequent injuries would not have changed the result at trial.

Although admitting its response was inaccurate in light of the wording of Summers' discovery requests, Oak Park argues it replied in good faith and its omission was purely inadvertent. It claims Security Chief Edwards had not informed anyone of the reported injuries and, in fact, had been fired by the time of discovery for continued failure to communicate with other Oak Park personnel. Oak Park had disclosed Edwards as a former employee during discovery and Summers' counsel talked with him after the trial.

Oak Park says Sprinkle was unaware of any subsequent accidents when he answered the interrogatories. Its attorneys searched to verify Sprinkle's answers but, assuming records subsequent to the March 3, 1983, accident would be irrelevant, they did not discover the two subsequent accidents. Oak Park does not explain how the insurance company could have acted on one of the complaints without Sprinkle's knowledge since it was standard practice for him to see insurance reports.

Oak Park notes security reports prior to the accident were produced for inspection and copying by Summers' attorney. He was informed other reports could be produced if necessary but he stated he had seen all he needed to see. Such a search would have produced the report which showed the injury of George Hull. Oak Park argues it cannot be accused of attempting to conceal information which was made available.

A new trial may be granted only if we find the trial court abused its discretion in denying Summers' motion after allowing subsequent discovery to be held at the cost of Oak Park. Judicial discretion is abused when the court's action is arbitrary, fanciful, unreasonable, or unwarranted. See Cook v. Cook, 231 Kan. 391, 394, 646 P.2d 464 (1982). Summers contends the subsequent accidents were relevant and his rights were substantially affected. However, subsequent accidents are not relevant to a defendant's culpability at the time of the first accident. Even if deemed to be newly discovered, producing evidence which is incompetent is not a ground for a new trial. See Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 360, 437 P.2d 219 (1968).

Even if the newly discovered evidence could have clearly affected the outcome of the trial, we have consistently held a new trial will not be granted if the evidence could have been produced by the use of due diligence. We found there was no abuse of discretion in refusing a new trial in Bott v. Wendler, 203 Kan. 212, 229-30, 453 P.2d 100 (1969), where the appellants had not interviewed witnesses before trial who would have been able to supply material information.

In Douglas...