*1 55,254 No. al., Appellees, W. et Ingram, v. Howard-Needles-
Waunetta Turnpike Appellant, Bergendoff, Au Tammen thority, Defendant.
(672 1083) P.2d Opinion filed November 1983. Marshall, Marshall, Hawks, Hendrix, Herbert A. Nichols, Schenk and opeka, cause, Perry, argued firm, T and same him on J. appellant. the brief for the Boyle, Payne Chartered, Olathe, Edward M. Jones, argued & the cause appellees. and was on the brief for the opinion court was delivered brought by This is an Ingram, action Waunetta W. Prager, J.: surviving on behalf of herself and the children of Robert E. Ingram, damages wrongful to recover for his death and also to recover the decedent’s estate which oc- curred greatly to death. The facts the case are dispute essentially Ingram and are as follows: Robert E. died on February 20, as a result of fatal suffered in city turnpike in the which occurred on accident and trailer truck driving a tractor Topeka. The decedent *2 231, supposed to be maintained bridge which was across No. (KTA). Authority entering After onto Turnpike 231, hole the caused die struck a 4’ 5’6” on No. truck the truck to stages. final This caused deck in its deterioration ground. swerve, plunge feet to the guardrail, hit and 25-30 the the Ingram’s Various witnesses on scene truck into flames. burst Ingram the cab attempted and remove from observed crash cab of the attempts unsuccessful. The of truck. Their Ingram help could be truck the cries of was flames and explosion the truck which heard. An then cab of occurred autopsy report E. states Ingram. consumed life of Robert The of soft the cause of death was “severe carbonization scalp.” report structures of the face carbonization of body was further states the deceased’s remainder of badly burned, showing third-degree burns on its entire surface. turnpike opened in 1956. KTA hired
The Kansas for travel firm defendant-appellant, of Howard-Needles-Tammen (Howard-Needles), consulting engi- & Bergendoff to serve as duties, engineers neers. As one the Howard-Needles an and other performed annual of all the comprised. turnpike facilities of which the Prior to con- agreement turnpike, entered into a trust struction of KTA Guaranty National Company Trust of New York and Fourth Wichita, agreement Bank trust is dated as cotrustees. The 1,1954. required employ agreement KTA October The trust repute engineering “having nation-wide and favorable firm a by the experience” perform skill and the duties trust inspec- agreement. performed its first annual Howard-Needles 1957, August year performed a tion in and each thereafter inspection. inspection, similar After Howard-Needles filed each report. report published The 1978 findings a with KTA in a Stephen performed Lowell Renner Pel- their find- legrino on behalf Howard-Needles. 25, ings 1978. In addition to was made to KTA on October firm, employing engineering KTA retained consulting responsible employed engineer and staff who were chief day-to-day basis. repair maintenance daily operations, responsibility had no maintenance, repair turnpike.
Following Ingram, plaintiff the death of E. filed her Robert petition in County Shawnee District Court on November petition, 1979. The named defendant was KTA. In her she only a wrongful asserted not death action but a survival also Ingram. September action on behalf of the E. estate On 5, 1980, following discovery, granted plaintiff the trial court defendant, leave to as an party include additional Howard- Needles, firm, the consulting engineering which had offices in City, Missouri, throughout and at other locations motions, pretrial United States. After various conferences matter was April set for trial to 1982. On the morning defendant KTA notified plaintiff against court that all claims of KTA had settled and been compromised. proceeded The case against then to trial *3 remaining defendant KTA as a Howard-Needles. remained party only purpose comparative consideration of its of negligence. April 16, 1982,
On jury determining returned a verdict comparative finding fault of parties, the accident and the resulting death Ingram of Robert E. to be the fault of 75% jury Howard-Needles and the fault of KTA. The assessed 25% damages Ingram E. damages favor of estate of Robert accruing prior $350,000. jury to death in the of The amount damages by Ingram assessed E. heirs $25,000 $335,000 by to be nonpecuniary damages for limited and way pecuniary damages. April 20, 1982,
On defendant Howard-Needles filed motions verdict, for a judgment notwithstanding new and for motions, order remittitur. The district court denied these upholding jury respects. the verdicts in all trial The court entered final judgments jury’s in accordance with the verdicts. Defendant appealed. questions appeal Howard-Needles on liability involve usual in negligence issues arise cases and an attack damages jury. also on the amount awarded In liability, Howard-Needles, the area of defendant in its post-trial again appeal, motions before trial court and following questions raises the basic for determination: duty, legal any, What if consulting engi- owed neers, Howard-Needles, Ingram as a traveler bridges? making inspections of turnpike, annual required defendant What was the standard of care legal its the defendant breached determining be used in whether duty? in the record to show
Is there substantial evidence failing perform in com duty by legal defendant breached pliance care? with the standard of due show that in the record to there substantial evidence
Is contributing cause to duty was a defendant’s breach of death, damages suffered resulting decedent’s the estate heirs? that the amount also maintains
Defendant Howard-Needles passion as to show by the was so excessive awarded law, thus, a new trial prejudice as a matter damages ordered. granted or a remittitur of should be defendant counsel opposing judge that the trial Defendant also claims fair guilty which denied of misconduct separately. trial. each of these issues We will consider Inspecting Engineers a Member of Duty Traveling Public duty Howard- owed regard question traveling Ingram, as member
Needles
to the decedent
all
it fulfilled
public, Howard-Needles maintains
employment
contract
implied obligations
and duties under
law, had
thus,
as matter of
agreement,
and under
the trust
making
his heirs
legal obligation
the decedent or
turnpike bridges.
inspections
the annual
that it
Simply stated,
position
of Howard-Needles
*4
bridges
turnpike
inspection
the
visual
employed
a
perform
to
of
bondholders,
that,
agree-
the
on
under
trust
the
and
behalf of
inspection
visual
ment,
perform
than
it was
to
no more
argues that
proceeded
do. It
engineers
its
to
of the
which
safety. It
public
work or of the
guarantor
it is not a
insurer of its
duty
it
and
that,
consulting
engineer,
had no
as
maintains
a
law,
there
a
since
liability
as matter of
hence no
to
traveling public. The
and the
existing between it
privity
was no
agree.
and we
rejected this contention
district court
duty
a
to
had
that Howard-Needles
We have concluded
safety inspec-
conducting an annual
care in
exercise reasonable
decedent,
to
Ingram, and
other mem-
to
tion which
owed
bers
that
traveling public.
of the
It has been held
Turnpike Authority
State,
an arm agency
created
legislature
perform
governmental
to
function.
essential
Authority,
Flax v.
Turnpike
226 Kan.
The trust 504 which deals with the section consulting specifically requires duties engineers, engineers consulting inspection turnpike to make an at least year October, once each or before first of to submit authority report setting findings whether forth turnpike order, good repair, working has been maintained in condition, conditions, and to make recommendations maintenance, repair turnpike during ensuing year. years reports each its annual through appeal, which are in the included record report states to each introduction complete given entire has been close and consulting particular engineers and architects given impose might attention “to items which hazard to public safety or if not result increased future maintenance promptly published report corrected.” in a dated Furthermore 1977, KTA, March & is entitled “Reconstruction 1987,” Program through importance Renewal language: is emphasized following maintenance importance bridges carrying Turnpike traffic is the utmost “Maintenance *5 roadway pavement operation Turnpike. can There a failure to the be provided danger patrons, and detour without serious to a suitable could safety However, quickly. cause loss of life. The of the a failure of a could safety necessarily patron. bridges Turnpike apparent is not however, engineers regularly per- apparent, is who structures structural inspections.” form annual inspection that that report, Howard-Needles states several methods have been used in the evaluation deck deterioration. Among the is a machine which scans methods mentioned use of separations in laminations or within deck search of an electrical-resis- the concrete deck. method utilizes Another requires third tant detection device. The method corrosion asphalt wearing surface and a visual-audio removal of technique important it inspection. This is because clearly importance recognized shows safety traveling public inspections protection its of the for contemplated. inspection than a visual is simple professional inspectors were engineers
At the
several
They
making bridge
called to
the witness stand.
testified
inspections
obligation
have in mind not
safety
public.
is also in the
bondholders but also the
There
Howard-
record
letter dated
November
proposal
engineering
Needles
its
services to the
submitted
generally
that Howard-
language
KTA.
of this letter states
turnpike
Needles shall make an
annual
physical
report summarizing findings
with a
condition thereof
and re-
making
proper
recommendations
maintenance
At
limit
pair.
place
the letter does Howard-Needles
inspections
inspections,
visual
does
indicate that
nor
inspections
solely
protection
are to be
made
traveling public.
and not
bondholders
above,
clear,
statutory provisions
set
that the
It
from
forth
statutory
Authority
duty
keep
Turnpike
has
good
and to take
repair
on the Kansas
necessary,
reasonably
including
proper
steps
whatever
are
question is
bridges,
achieve that result. The
then
any
duty
legal
presented as to the existence
nature
owed
Howard-Needles,
consulting
engineers who
con-
inspections
turnpike bridges,
tracted to make the annual
parties
including
traveling public.
members
That
third
clearly
of this
has
established
the decision
been
*6
City
Shawnee,
v.
Schmeck
court in
Kan.
person things, subject liability person physical or his is to to the third harm resulting protect undertaking, from his failure to exercise his if reasonable care to “(a) harm, his failure to exercise reasonable care increases the risk of such “(b) perform duty person, he has undertaken to owed the other to the third “(c) person the harm is suffered because of reliance of the other or the third upon undertaking.” Schmeck, City Company, Light Power and which had system contracted to maintain the traffic control city Shawnee, argued duty that it owed no to the members of the traveling public for three reasons:
(1) only Its obligation contractual, and, having was contracted city, duty plaintiff; no was created benefit of (2) A duty contractor owes general public legal to the act; nonfeasance or failure to
(3) plaintiffs recovery must be based on some sort of negligent breach of contract KCPL. rejected contentions,
The court holding each of these that Re- (Second) § statement applied. opinion of Torts 324A cited prior Kansas cases which recognize public policy consider- impose duty ations upon parties contracts, private running persons, third negligence performance danger where in creates a general to the public.
Clearly, us, Howard-Needles, in the case now before as con- sulting engineers, contracted to render services to KTA mak- ing safety inspections annual consulting engineers which the recognized necessary safety should have for the traveling public. principles adopted Under of law Schmeck, duty Howard-Needles owed a to the members of the traveling public, including Ingram, E. exercise rea- Robert sonable providing safety inspection care in In this services. regard, we also note the annotation at 6 A.L.R.2d which cites holding cases liability persons there is to third for breach of duty inspect assumed property danger public where Howard-Needles, involved. We hold that defendant duty travel- engineers, had a to members consulting ing public, including Ingram, E. exercise reasonable turnpike bridges. safety inspections care providing Inspections Making Required Care The Standard of Bridges this: standard of presented
The second issue What required care in order to fulfill making annual traveling public exercise reasonable care a visual bridge inspections P Howard-Needles contends required and that it was to conduct engi- professional follow-up tests. The contends require neering have been standards established *7 bridge. than the inspection a mere visual a At of protect safety public by following proper engineering of recognized without inspecting bridges standards was of by There substan- professional contradiction witnesses. presented prove required tial care of evidence the standard of professional engineers inspection bridges of with concrete evidence, exhibit, decks. There was introduced into prepared 1978” Inspection Bridges “Manual for Maintenance of by Highway Bridges and Structures of Subcommittee Transportation Of- Highway American Association of State ficials. governs inspection procedures part 2.4.2 and states in
Section as follows: Inspection inspection neces- “2.4.2 Procedures. The should include but not
sarily following be limited to the observations: “(10) Deck. cracking, leaching, scaling, pot-holing, “Concrete decks must checked be spalling, Each must be and other evidence of deterioration. item evaluated of determine its effect on the structure the work to restore the loss integrity riding structural maintain a surface. Evidence deteriora- smooth of closely reinforcing
tion in its extent. steel must be examined to determine deicing Decks air which are are located in a salt environment treated salts or apt especially are to be affected. may “Asphaltic type wearing a hide or other surface on deck defects very surfacing deck must be until are well advanced. The examined carefully defects show as for evidence in the deck. Such of deterioration cracking breaking up surfacing where in excessive deflection. Areas of may require suspected deck removal small sections deterioration of thorough investigation. a more of the deck slab surfacing for The underside always any should be indications deterioration or distress. Note examined for through permanent passing When evidence of water cracks in the slab. forms deck, panels been used in should be construction removed (Emphasis Engineer.” supplied.) determined standard of care also shown professional various witnesses called both appellant. expert, Thorn, architect-engineer Defendant’s designed question, particular bridge who deck in testified that the in inspection standard with concrete followed decks similar to this was the “Manual for Maintenance Inspection Bridges” He mentioned above. noted require pieces standards of small of the slab a removal thorough inspection where areas of deterioration are sus- pected. regard, appropriate testified he that would asphalt thorough inspection remove section make more Shedd, of the concrete Mr. who was the underneath. Howard- employee charge inspections, Needles testified as inspection including various tests used in decks number procedures. that, testified if audio electrical He inspection deterioration, visual suggests bridge inspec- then the go stated, tor could step. He next without equivocation, the manual introduced into evidence is the profession authoritative his source of standards followed bridges. expert testified, Other witnesses were called who without *8 exception, inspection that bridge the standard for is first a inspection.” However, they agreed “careful visual that a careful inspection visual bridge certain in the reveal deficiencies or may lead suspicion to a the extent that deficiencies to inspector beyond inspection” go should the “careful visual perform satisfy other tests himself the condition to as to bridge Clearly evidence, jury deck. under would have justified been concluding bridge inspec- in that the standard for in tions a “careful engineering begins with visual profession inspection” follow-up inspection tests or forms of other likely which would be to reveal true condition of the more bridge testimony deck. expert The witnesses further that, performing inspections, indicated in factors should be other history taken into Such factors include the consideration. would bridge, prior reported bridge, the traffic flow across the 298 suspicion concerning deck de-
condition, areas other simply, Stated was substantial evidence from terioration. there of care have that standard which the could concluded bridge professional inspecting re- engineer aof inspection. quired simple than a visual Legal Duty by Evidence that Defendant Breached Its Fail- ing Required of Care Conform to the Standard post-trial The that its should defendant next contends motions sustained, substantial evidence been because there was no duty by prove that record to the defendant breached failing inspection failing than to make more a visual adequate report inspections. make an A review of record bridge inspectors, shows Lowell Renner and that defendant’s Stephen they only Pellegrino, had made a visual admitted they inspection follow-up specifically with no test because were supervisor inspection. told visual The make bridges approximately there showed that were system. was informed The Pellegrino made Renner and of those 345 turnpike system and all was ac- of the facilities of the Kansas complished period days. in a five Suffice it to approximately say,'the jury which it had substantial evidence from before bridge 231 was could have concluded that the No. negligent reports done in a manner. The of Howard- various bridge Needles reflect that the deck of No. showed severe specific area that through deterioration from 1964 years prior failed at Ingram’s the time of Robert E. death. Ten accident, a recommen- contained purpose considering dation whether that tests made for the reports, replacement deck Further while reflect- advisable. ing repairs bridge that some deck were accom- minor repairs plished, inspections did not reflect further years performed. reports ever did not indi- 1977-78 any deterioration, cate did recommend conditions of nor repairs sufficient deck. The thus evidence Howard-Needles, acting through its em- show that defendant ployees, inspecting failed exercise reasonable care No. where fatal accident occurred. post-trial point appeal is that its defendant’s next sustained, there was no
motions
have been
because
should
*9
substantial
evidence in the record to show that the defendant’s
breach
contributing
inju-
was a
cause to the decedent’s
ries and
resulting damages.
point
death and to the
findWe
Ordinarily,
question
negligent
without merit.
of whether
act
proximate
is the
injury
or efficient cause of an
is one for the
jury.
Rapp,
Steele v.
(1958).
183 Kan.
state. subject is rule, this: What is unconscionable simply is shocking to What is precise unequivocal and definition. as related upon amount of verdict depends conscience that each given case. He notes and circumstances the facts for the lack explanation facts. The case must stand on own is discussed uniformity in cases and dollars cents Pence, v. (1958), as Domann follows: 325 P.2d Kan. dimensions, suffering financial. There “Pain and have no known mathematical or money injury relationship physical is or suffer- exact and mental or between proof capable ing, in dollars cents. and the factors are not and various involved very practical is such this reason standard for evaluation amount For injuries suffered, persons compensation and reasonable fair estimate to be impartial con- the law has entrusted the administration this criterion to reasonably, expected judgment jurors, and who to act science harmony p. intelligently 141. and evidence.” noting jury in this judge, The trial that the verdict of while substantial, shocking or “outrageous case was find it to be did not jury indicated to the conscience of the court.” The court in which Mr. verdict reflective of horrible manner Ingram untimely met death. The evidence disclosed his Ingram ground his survived the fall of truck to below ultimately that, doubt, greatly without he before he that Mr. consumed the flames. The coroner’s showed Ingram’s of the soft death was caused the carbonization scalp deep of the entire structures of his face and burns court, body. agree majority The of this court with the trial pain jury’s $350,000, substantial award of for conscious any passion suffering, as a matter of law did not indicate that, prejudice part jury. under all of the on the We hold $350,000 E. circumstance, award of estate Ingram harmony was “in with the evidence.” de- compensatory
As to the awarded $360,000, jury had cedent’s heirs in the before amount customary age, his his Ingram, evidence of the income of Robert expenses, earning during the living expected capacity and his say life cannot amount expectancy. remainder his We $360,000 any passion was so excessive indicate prejudice part shock the conscience of court. point
The trial defendant’s final that a new should be granted because trial and of the trial of misconduct of counsel carefully regard court. We have considered the in this record point find to be without merit. judgment of the district court is affirmed. C.J., dissenting: in this case es-
Schroeder, Ingram tablished the death E. occurred of Robert to have almost instantaneously following the accident. One witness who ob- attempted served the accident Ingram to free from the cab of truck moving testified the decedent was around inside the *11 cab the truck screaming for three minutes. Other to four witnesses explosion who reached the truck and the saw said Ingram succumbed to the flames after to two minutes. one
In brief appellant damages does not contend awarded pain survival action for the decedent’s suffering recovery plaintiff. amount ato windfall or double to the appellant merely damages (for asserts s total wrongful combined) death and are survival actions so excessive passion prejudice by demonstrate as a matter of law so that appellant a remittitur should be ordered. The bases this on the presented jury consisting pictures evidence to the body, decedent’s charred of witnesses describing death, agony prior the decedent’s screams to his indicating and the coroner’s the cause death was severe burns to the face and head.
Prior inequity Kansas cases not addressed results when permitted the heirs a decedent are to assert both (for wrongful cetera) claim for support, death loss of et and a (for pain survival action and suffering on behalf decedent experienced prior death) by presented the facts situations this case. by brought, Most states statute allow actions to be both seq. See K.S.A. 60-1801 et including (survival action) Kansas. seq. et (wrongful action). K.S.A. 60-1901 death Most courts which have addressed the have held do not issue the two actions allow compen- heirs, recovery double as the action survival sates the decedent he for which could have survived, wrongful recovered had he death whereas the action compensates things support, for such com- heirs as loss §126; panionship 2d, Damages 22 See Am. 3 comfort. Jur. Damages jurisdictions §20.12 (1982). most Tort Actions 302 death is suffering precluded is where
recovery pain and time the is unconscious from victim instantaneous [1, §21.11 Damages 3 in Tort Actions injury until death. occurred §128. 2]; 2d, Damages 22 Am. Jur. for double recov- statutory potential schemes
Under some statutes ery state survival is limited. A number of the heirs pain suffer- recovery specifically decedent’s exclude (1975); §14-3110 Code ing. Ann. Cal. Probate See Ariz. Rev. Stat. (1973); §13-20-101 §573 Stat. (West Supp.); Rev. Colo. (1981). §4.20.046 for the exclusion The reason Wash. Rev. Code pain alone endured decedent the belief that since longer award, can no there is no reason benefit from suffering. 3 survivors to be enriched as a of the decedent’s result (1982). least other Damages At one §21.11[5] Tort Actions requires action to be state has a statute which one enacted pain the decedent brought damages suffered recover as well as the heirs as result recovery for the death, “there one to ensure that shall be (1981). 18-A, 2-804(c) § injury.” tit. same See Me. Rev. Stat. Ann. party whole damages is make a principle The basic position it was putting that back in the same party Foundry, v. Inc. a windfall. Service Iron injury, granting Co., M. 662, 679, (1978). See A. Bell App. 588 P.2d Kan. 2d Bonding §3; v. Merchants Mutual Koch C.J.S., also 25 *12 Damages Co., 397, 401, (1973). assessing dam- 211 Kan. 507 189 P.2d equita- ages, apply it is within the of the trial court discretion plaintiff may ble be made whole. standards in order Co., v. App. Seaman U.S.D. No. 345 Casson Constr. 3 Kan. 2d (1979). ¶ decedent suffers Syl. P.2d 241 Where the almost instanta- severe which result immediate or may death, decedent be “made neous it is absurd to maintain the pain suffering which he compensated when whole” for experienced longer can no benefit prior death. The decedent damages damages. Recovery from such an award of for decedent, heirs, recovering guise behalf of under heirs, solely they are entitled to results in a windfall for, among things, right their other maintain an action in own bereavement; society, anguish, suffering, loss “mental or support and loss of companionship, protection,” comfort or here, words, heirs are under In other K.S.A. 60-1904. compensated damages by being fully “made whole” wrongful death action. their be limited actions should damages Awards in survival for §3: Damages C.J.S., possible. whenever As stated in may injury rule, general person or receive “As a who has sustained loss injury just compensation entitled to sustained. He not more than for the loss or whole, may an amount made than not recover from all sources and he sustained, damages put than he would in a condition excess of the or be better wrong . . . have been had the not been committed. recovery damages generally recognized for “It is that there can be one recovery permitted; wrong injury. damages the law does is not one Double permit single injury. not recover a double satisfaction for a A simply damages injury has because he two twice for the same pp. theories . . . 627-29. rightfully re- In the instant the heirs of the decedent case $360,000 earnings and for future lost covered for the decedent’s They resulting death. nonpecuniary losses from the made whole in their cause action. The decedent’s therefore pain permitted heirs should from not be benefit in this case to his suffering experienced by the decedent death, made whole where the decedent himself could not be recovery damages. The award such of those merely recovery the heirs of results in windfall double instantaneous injury resulting the decedent in almost wrongdoing. arising appellant’s single death act of out of the My judgment in this case which conscience is shocked permits recovery single act of the heirs to benefit double damage award wrongdoing. respectfully It is submitted that $350,000 in be set aside. Absent the survival action should justice the facts court the administration action to control case, suggested it is presented and circumstances recovery. limit legislature take immediate action to