BY THE COURT
K.S.A. 60-451 prohibits the admission of subsequent remedial
measures to prove negligence or culpable conduct.
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.
Post-event investigative reports or tests are not subsequent
remedial measures that fall within K.S.A. 60-451's
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.
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.
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.
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
Remarks of counsel in a civil case result in reversible error
when, because of them, the parties have not had a fair trial.
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.
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
of the judgment of the Court of Appeals in an unpublished
opinion filed August 7, 2015.
from Wyandotte District Court; David W. Boal, judge.
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
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.
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.
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
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.
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.
and Procedural History
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."
sued BNSF for negligence under FELA, and BNSF's defenses
included a claim that he was contributorily negligent.
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
• 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
district court overruled BNSF's objection, holding that
evidence of post-accident employee discipline was not a
subsequent remedial measure prohibited by the statute.
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.
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.
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.
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.
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
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
1: Post-accident employee discipline is a subsequent
remedial measure under K.S.A. 60-451.
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.
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.").
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
employee discipline is a subsequent remedial measure.
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
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]).
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
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).
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).
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).
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.
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:
• culpable conduct;
• a defect in a product or its ...