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Bullock v. BNSF Railway Co.

Supreme Court of Kansas

August 4, 2017

Mark Bullock, Appellee,
v.
BNSF Railway Company, Appellant.

         SYLLABUS BY THE COURT

         1. K.S.A. 60-451 prohibits the admission of subsequent remedial measures to prove negligence or culpable conduct.

         2. Post-event employee discipline constitutes a subsequent remedial measure, and it is barred by K.S.A. 60-451 when used to prove negligence or culpable conduct.

         3. Post-event investigative reports or tests are not subsequent remedial measures that fall within K.S.A. 60-451's purview.

         4. When otherwise admissible evidence includes information that is barred by K.S.A. 60-451, the trial court should exclude whatever portions of the evidence are subsequent remedial measures and any evidence that would trespass inferentially into K.S.A. 60-451.

         5. While K.S.A. 60-451 bars evidence of subsequent remedial measures to establish negligence or culpable conduct, such evidence is admissible for other relevant purposes.

         6. K.S.A. 60-451 bars subsequent remedial measures evidence to establish causation because it is a necessary element of negligence, which itself is prohibited under the statute from being proven by such evidence.

         7. When no fault other than that of the plaintiff and defendant is to be compared, subsequent remedial measures evidence is not admissible to rebut the defense of plaintiff's contributory negligence because evidence that tends to exculpate the plaintiff of necessity places fault upon the defendant.

         8. Remarks of counsel in a civil case result in reversible error when, because of them, the parties have not had a fair trial.

         9. The reasonable probability test announced in State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), applies to claims that improper argument prevented a fair civil trial. So reversal of a jury verdict is appropriate when there is a reasonable probability that the error will or did affect the trial's outcome in light of the entire record.

         10. Juries are tasked with deciding cases based on the evidence presented and the law provided by the court's instructions, not with protecting their communities through their verdicts. So comments that appeal to community interests, like those made by counsel in this case, are improper.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed August 7, 2015.

         Appeal from Wyandotte District Court; David W. Boal, judge.

          Craig M. Leff, of Yeretsky & Maher, LLC, of Overland Park, argued the cause, and Gregory F. Maher and Spencer L. Throssell, of the same office, were with him on the briefs for appellant.

          Daniel J. Cohen, of Law Offices of Daniel J. Cohen, of St. Louis, Missouri, argued the cause, and Davy C. Walker, of Law Offices of Davy C. Walker, of Kansas City, was with him on the brief for appellee.

          OPINION

          NUSS, C.J.

         To recover for his injuries sustained after slipping on diesel fuel spilled by a coworker, Mark Bullock sued his employer under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. (2012). Over the objection of his employer BNSF Railway Company (BNSF), Bullock introduced evidence at trial that the coworker had been disciplined for his conduct in contrast to BNSF's concession that it had not disciplined Bullock.

         The jury found BNSF to be 100 percent at fault based on the coworker's actions and awarded Bullock $1, 720, 000 in damages. But the Court of Appeals panel held the evidence of the coworker's discipline was admitted in violation of K.S.A. 60-451. Bullock v. BNSF Railway. Co., No. 111, 599, 2015 WL 4879054, at *8 (Kan. App. 2015) (unpublished opinion). The panel also held the admission was harmful enough to require reversal of the verdict and remand for a new trial. We granted Bullock's petition for review under K.S.A. 60-2101(b) (review of Court of Appeals decision).

         We agree with the panel. Evidence of employee discipline qualifies as a subsequent remedial measure, and K.S.A. 60-451 prohibits its admission when offered to prove "negligence or culpable conduct in connection with the event." Because the disciplinary evidence was admitted for those improper purposes here, and because the error was not harmless, we reverse and remand for a new trial.

         We also agree with the panel that some statements Bullock's counsel made to the jury during his closing argument were improper. But because we already are reversing and remanding on the disciplinary evidentiary issue, we need not determine whether this additional error was harmless.

         Facts and Procedural History

         Bullock worked as a cab carpenter for BNSF. While working on coupled locomotives at a maintenance facility he walked through what he recognized to be diesel fuel. After calling to report the spill, Bullock continued his duties. As he stepped from the running board of one locomotive to another, his foot slipped, and he fell in the gap and was injured. It was later discovered that the fuel had been spilled by Bullock's coworker, Chris Wise, while changing fuel filters. BNSF Mechanical Foreman, Levi McNeely, conducted an injury investigation, and the ensuing "McNeely report" listed two causes of Bullock's injuries: (1) Wise left fuel on walkways creating a slip, trip, and fall hazard; and (2) Bullock's "inability to perform a proper risk assessment after walking through the fuel."

         Bullock sued BNSF for negligence under FELA, and BNSF's defenses included a claim that he was contributorily negligent.

         At trial, evidence was introduced showing Bullock was not disciplined for his conduct. Evidence was also introduced regarding the injury investigation and showing that Wise was later subjected to a disciplinary process-"alternative handling" that would not appear in his personnel record. Relevant to this appeal, BNSF objected to the evidence that Wise was subjected to alternative handling, arguing the discipline was a subsequent remedial measure barred by K.S.A. 60-451. This objection encompassed testimony from Wise and his supervisor, General Foreman Mark Stockman, concerning the alternative handling as well as several documents. Some of these documents included:

• A letter BNSF sent to Wise after he "acknowledged accountability" and accepted disposition by alternative handling. The letter outlined the disciplinary details, including a requirement that he "accept full responsibility" because his actions were in "clear violation" of rules and his "failure to clean up the residual fuel contributed to the injury of a fellow worker." It further required that he work with Stockman to create an alternative handling plan and encouraged Wise to make this a "learning experience that will help eliminate at risk behavior and prevent future incidents."
• An email drafted by Stockman containing a script Wise was required to read to his fellow employees as part of the alternative handling. Through that script, Wise admitted, "[M]y negligence contributed to an injury to another employee." Among other things, the script also expressed: "In the future, it is my hope that each employee remembers this statement, and by my speaking to you today, will help draw attention to the need to protect yourselves and your coworkers against slip, trip and fall hazards."

         The district court overruled BNSF's objection, holding that evidence of post-accident employee discipline was not a subsequent remedial measure prohibited by the statute.

         The jury found that BNSF negligently caused Bullock's injuries and that he was not contributorily negligent. It awarded $1, 720, 000 in damages-composed of $136, 500 for economic loss to date; $1, 208, 500 for future economic loss; $230, 000 for noneconomic loss to date; $145, 000 for future noneconomic loss; and $0 for future medical expenses.

         BNSF filed a motion for new trial, again arguing-in part-that Wise's discipline was a subsequent remedial measure. BNSF claimed this evidence was overly prejudicial because Bullock contended this discipline was "tantamount to an admission of liability" in contrast to BNSF's decision not to discipline Bullock. The district court denied the motion, holding, among other things, that Wise's disciplinary proceedings were relevant to BNSF's defense that Bullock was contributorily negligent.

         The Court of Appeals panel held the evidence of Wise's discipline was a subsequent remedial measure barred by K.S.A. 60-451 when admitted to prove negligence or culpable conduct. The panel also held that this evidence was not admissible to show lack of Bullock's contributory negligence, to show causation, or for impeachment purposes. Because the panel held a reasonable probability existed that the jury would have apportioned the parties' fault differently absent admission of such evidence, it ruled the error was not harmless. So it reversed and remanded for a new trial. Bullock, 2015 WL 4879054, at *8-13.

         In its analysis, the panel distinguished between (1) employee discipline and (2) the post-event investigation which is not considered a subsequent remedial measure barred from admission. To the extent the discipline overlapped with the investigative conclusions, the panel suggested that redactions may be required to ensure that the impermissible discipline evidence was not presented to the jury through the investigation evidence. But the panel declined to apply its holding to the evidence admitted at trial, leaving it to the parties and district court to apply the rules on remand.

         Even though the panel's evidentiary ruling alone was enough for reversal and remand to the district court, the panel also addressed BNSF's claim that Bullock's counsel improperly appealed to the conscience of the community during closing argument. The panel agreed the comments were improper but did not determine whether that error independently required reversal.

         Bullock petitioned for this court's review of some of the issues presented to the panel. Those petitioned issues and our analysis appear below. The remaining issues obviously are not among those granted for review by this court and, therefore, are not currently before us, e.g., use of disciplinary evidence as impeachment. See Supreme Court Rule 8.03(h)(1) (2017 Kan. S.Ct. R. 56) ("[T]he issues before the Supreme Court include all issues properly before the Court of Appeals which the petition for review or cross-petition allege were decided erroneously by the Court of Appeals.").

         Analysis

         Issue 1: Post-accident employee discipline is a subsequent remedial measure under K.S.A. 60-451.

         Bullock argues evidence of post-accident employee discipline is not a subsequent remedial measure, so it does not fall within K.S.A. 60-451's scope. He also argues even if the statute does apply, the disciplinary evidence nevertheless was admitted for permissible purposes-to prove causation and to rebut BNSF's defense of his contributory negligence. He further argues some of the disciplinary evidence is admissible to provide context for other evidence, e.g., the accident investigation. Taking each argument in turn, we disagree with them all.

         Standard of review

         Bullock's cause of action arises under FELA. Under this federal law, evidentiary and procedural questions are determined by the law of the forum, so Kansas law governs them here. St. Louis Southwestern R. Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985) ("As a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal.").

         Our review of evidentiary decisions is "guided by the character of the question considered." City of Wichita v. Denton, 296 Kan. 244, 257, 294 P.3d 207 (2013). Because the issue here centers on the district court's interpretation of K.S.A. 60-451, our review of its admissibility decision is de novo. See Schlaikjer v. Kaplan, 296 Kan. 456, 467, 293 P.3d 155 (2013) (district court's admissibility determination based on statutory interpretation).

         Post-event employee discipline is a subsequent remedial measure.

         K.S.A. 60-451 prohibits the admission of subsequent remedial measures to prove negligence or culpable conduct:

"When after the occurrence of an event remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event."

         Two primary reasons have been given for this exclusion. First, "[s]ubsequent remedial measures do not constitute admissions of culpability, and evidence of such conduct is inherently unreliable." DiPietro v. Cessna Aircraft Co., 28 Kan.App.2d 372, 378, 16 P.3d 986 (2000). Second, public policy should "encourage potential defendants to remedy hazardous conditions without fear that their actions will be used against them." 28 Kan.App.2d at 378 (citing TLT-Babcock, Inc. v. Emerson Elec. Co., 33 F.3d 397, 400 [4th Cir. 1994]).

         Previous Kansas appellate courts have not addressed the specific question of whether post-accident employee discipline constitutes a subsequent remedial measure under K.S.A. 60-451. Perhaps for this reason, the panel focused on federal court decisions interpreting Federal Rule of Evidence 407 which concerns the same subject. Bullock, 2015 WL 4879054, at *5-6 (discussing, e.g., Specht v. Jensen, 863 F.2d 700, 701-02 [10th Cir. 1988]). Bullock takes exception to this federal caselaw reliance by the panel.

         We start our analysis with a focus on K.S.A. 60-451. Adopted in 1964, this statute is identical to Rule 51 of the uniform rules committee of the National Conference of Commissioners on Uniform State Law. The committee was chaired by Kansan Spencer A. Gard, and its only comment to the rule was, "This states the well[-]settled common law rule." Uniform Rules of Evidence Rule 50, comment (1953) (later renumbered as Rule 51).

         The well-settled common law rule appeared to include prohibiting admission of post-accident employee discipline:

"The [subsequent remedial measures] rule finds its most common application in respect to evidence of subsequent repairs . . ., but it has been applied as well to changes in operating rules and to the discharge of an employee charged with causing an injury. As drawn, Rule 51 appears broad enough to cover any situation which, by existing law, is within the sweep of the exclusionary principle." (Emphases added.) Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L. Rev. 574, 591 (1956) (citing cases at n.74).

         We observe, for example, in one of the law review article's cited cases, the Washington Supreme Court stated in 1893 that, "We are also of the opinion that the court should not have permitted the respondent to show that the car driver was discharged by appellant soon after the accident occurred." Christensen v. Union Trunk Line, 6 Wash. 75, 83, 32 P. 1018 (1893); see also, e.g., Hewitt v. Taunton St. Ry. Co., 167 Mass. 483, 486, 46 N.E. 106 (1897) (employer's taking precaution of a virtual discharge of employee driver after accident is not admissible as employer's implied admission for purpose of showing negligence; "[t]o hold otherwise would tend to discourage the adoption of additional safeguards, by improving the quality and raising the standard of the service"); accord Rynar v. Lincoln Transit Co., 30 A.2d 406, 410 (N.J. 1943) ("Evidence that a driver has been discharged soon after an accident is not competent as an implied admission that the driver had been careless."); cf. Turner v. Hearst, 115 Cal. 394, 401, 47 P. 129 (1896) (error to allow plaintiff to prove newspaper's discharge of reporter in libel case; analogous to proof of precaution taken post-accident).

         Based upon the well-settled common law rule incorporated in Rule 51-and thus incorporated in Kansas' adoption of Rule 51, i.e., K.S.A. 60-451-we conclude post-accident employee discipline constitutes a subsequent remedial measure barred by the statute when used to prove negligence or culpable conduct in connection with Bullock's event. It therefore must be excluded from evidence.

         In addition to this statutory analysis and resultant conclusion, we agree with the panel's analysis that considered how federal courts have addressed the question under Federal Rule of Evidence 407. That rule states:

"When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
negligence;
culpable conduct;
• a defect in a product or its ...

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