Jordan Curtis v. Price Holdings, Inc. D/B/A Franklin Drive-In ( 2020 )

RENDERED: SEPTEMBER 4, 2020; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-001777-MR
JORDAN CURTIS APPELLANT
APPEAL FROM SIMPSON CIRCUIT COURT
v. HONORABLE JANET J. CROCKER, JUDGE
ACTION NO. 17-CI-00049
PRICE HOLDINGS, INC. d/b/a
FRANKLIN DRIVE-IN APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
ACREE, JUDGE: The Simpson Circuit Court entered a final judgment upon jury
verdict in favor of appellee, Price Holdings, Inc. d/b/a Franklin Drive-In (Price).
Appellant, Jordan Curtis, brings this appeal claiming the circuit court erred by
excluding evidence of subsequent remedial measures and by failing to give a
missing evidence instruction. After careful review, we affirm.
BACKGROUND AND PROCEDURAL HISTORY
Shortly before October 2016, Price bought 80 tons of asphalt to
repave areas near the concession stand at the Franklin Drive-In outdoor theater.
(Gary Price Depo., pp. 12-15). The events giving rise to this action occurred
before that delivery and repaving could happen.
On October 1, 2016, Curtis was attending the drive-in with family and
friends. Near the end of the first movie, Curtis’s three-year-old daughter needed to
use the bathroom at the concession stand. Curtis carried her to and from the
restroom. On her return, Curtis fell.1 She sustained a distal fibial fracture
requiring surgery and was taken away by ambulance. Gary Price, co-owner of
Price Holdings, was operating the drive-in that night, though he did not see the fall
or learn that night the specific location of the fall.
A few days later, Curtis sent Price a Facebook message, seeking his
insurance information. Price provided the information, informed his insurer of the
accident and, at the insurer’s request, took several photographs of the “general
area” where Curtis fell.2 Curtis’s attorney or her attorney’s representative also
visited the drive-in and took photos of the “general area” of the accident.
1
The concession/restroom is located on asphalt. Adjacent to this asphalt area is a gravel area,
where the Curtis vehicle was parked. It is not refuted that she fell in the vicinity where asphalt
meets gravel.
2
One of the evidentiary obstacles that had to be maneuvered was avoidance of disclosure that the
photos were taken for insurance purposes. Finch v. Conley, 422 S.W.2d 128, 130 (Ky. 1967)
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On October 12, Curtis’s attorney sent Price a spoliation letter, stating:
In order to represent Jordan Curtis to the best of our ability,
we must secure all potential evidence. At this time, we
would like to request you to secure the video footage
involved in this incident and make it available for our
expert to inspect.[3] Please contact our office to make
arrangements for this inspection.
Do not alter the evidence in any way until we have had an
opportunity to do our inspection. Failure to comply would
be considered spoliation of evidence and could result in
penalties assigned by the court.
If your insurance company has possession of the evidence,
please forward a copy of this letter to them immediately.
We will deal with them directly.
(Record (R.) at 116).
The 80 tons of asphalt were delivered in early November and the area
around the concession stand was paved, including where Curtis fell.
Curtis filed a tort action against Price alleging negligence and
premises liability. Soon, Curtis filed a motion for summary judgment as to Price’s
liability or, in the alternative, for a missing evidence instruction on the basis that
Price destroyed evidence of the uneven or broken asphalt. The circuit court denied
(“[R]eference to . . . insurance . . . except in the absence of a clear showing of non-prejudice, will
constitute a reversible error.” (Citation and internal quotation marks omitted)).
3
Price acknowledged that he received the letter, but the video footage automatically had been
recorded over several days before the spoliation letter was written.
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summary judgment and reserved ruling on a missing evidence instruction pending
presentation of evidence.
However, the court granted Price’s motion to exclude evidence of the
subsequent remedial measure but did so only provisionally. The circuit court’s
order stated, in pertinent part, as follows:
[E]vidence of Price’s subsequent remedial measures is
inadmissible so long as Price does not assert that Curtis is
unable to identify the location where she fell. However, if
Price “opens the door,” then Curtis will be allowed to
impeach his testimony with proof that Price paved the area
in and around the location of her accident.
(Order, entered October 5, 2018, R. at 376).
At trial, Curtis sought to question Gary Price on this subsequent
remedial measure, contending Price had opened the door to this line of questioning
by his testimony denying the existence of any dangerous conditions, “and that the
property was as safe as it could be[.]” (Appellant’s brief, p. 11). Curtis wanted to
present evidence of the subsequent repairs to impeach that statement. The circuit
court would not allow that line of questioning.
The jury returned a verdict for Price. This appeal followed. Other
facts will be provided as necessary in the context of the analysis.
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ANALYSIS
Curtis argues the circuit court erred in two ways: (1) by excluding
evidence of Price’s subsequent repairs; and (2) by failing to give a missing
evidence jury instruction. We are not persuaded by either argument.
We review a circuit court’s evidentiary ruling for an abuse of
discretion. Benjamin v. Commonwealth, 266 S.W.3d 775, 791 (Ky. 2008).
Likewise, “[i]t is within the trial court’s discretion to deny a requested instruction,
and its decision will not be reversed absent an abuse of discretion.” Auslander
Properties, LLC v. Nalley, 558 S.W.3d 457, 469 (Ky. 2018) (citing Olfice, Inc. v.
Wilkey, 173 S.W.3d 226, 229 (Ky. 2005)). “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999) (citations omitted).
Subsequent Remedial Measures
The admissibility of evidence of subsequent remedial measures is
governed by KRE4 407. That Rule says:
When, after an event, measures are taken which, if taken
previously, would have made an injury or harm allegedly
caused by the event less likely to occur, evidence of the
subsequent measures is not admissible to prove
negligence, culpable conduct, a defect in a product, a
defect in a product’s design, or a need for a warning or
4
Kentucky Rules of Evidence.
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instruction. This rule does not require the exclusion of
evidence of subsequent measures when offered for another
purpose, such as proving ownership, control, or feasibility
of precautionary measures, if controverted, or
impeachment.
KRE 407 (emphasis added).
Curtis argues that the last two exceptions to KRE 407 apply. First,
she contends Price controverted the feasibility of precautionary measures and that
proof of subsequent remedial repairs should have been allowed to refute that
testimony. As Curtis puts it, Gary Price said, “the property was as safe as it could
possibly be.” (Appellant’s brief, p. 15).
Second, she characterizes Price’s testimony as refuting that he knew,
or that anyone could know, where Curtis fell. She argues that proof of subsequent
repairs, had it been allowed, would have impeached his credibility by showing he
knew where to repair the ground that caused her fall.
The record shows that, after cautiously and thoughtfully considering
these issues, the circuit court disagreed with Curtis’s interpretations of Gary
Price’s testimony. To understand the rulings, we need to put Price’s testimony into
context. We focus first on Curtis’s claim that Price controverted the feasibility of
making safer the place where Curtis fell.
Curtis’s first witness was her father, Jessie. He testified that, before
the movie started, and while it was still light, he went to the concession stand. He
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could not say it was the same path his daughter took, but he testified generally that
the way to and from the concession stand was “rough” and that was “just the way it
is.” (Jessie Curtis testimony: Video Record (V.R.) 10/17/18; 4:23:10-4:24:20).
He examined two contemporaneous photos (Plaintiff’s Exhibits 1 and 2) and said
they showed the general area where his daughter fell. (Id.). He added that there
was “broken pavement” in the area. (V.R. 10/17/18; 4:38:10-4:38:50).
Curtis then called Gary Price as her second witness to testify on her
behalf. Among other questions, Curtis asked whether five photos Price had taken
shortly after the incident (Plaintiff’s Exhibits 3 through 7) accurately depicted the
condition of the ground where Curtis fell. He was hesitant to swear that the photos
depicted the specific location of Curtis’s fall. Out of hearing of the jury, the circuit
court characterized Price’s reticence as “non-responsive” and “evasive” on that
question.5 However, the circuit court had already ruled in a pre-trial order, without
objection, that all seven photographs “depict where the parking lot transitions
‘from asphalt to gravel.’” (R. at 373). It was unrefuted that Curtis fell along this
transition.
5
At least twice, the circuit court found it necessary during direct examination to instruct Price to
answer only the question asked. (See, e.g., V.R. 10/18/18; 8:55:07-8:56:14). On cross-
examination he was able to clarify that he had been at the concession stand preparing for
intermission when he heard of the accident, grabbed a bag of ice, went briefly to the scene, saw
that a nurse who happened to be at the drive-in was caring for Curtis, and realized he needed to
be at the exit gate to allow an ambulance to enter. (V.R. 10/18/18; 9:28:25-9:29:02).
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Curtis argues that Price’s testimony on direct examination was a
denial of the feasibility of making the premises safer. She points to the following
testimony: “[I] try to be as safe as possible. . . . We try every way we can, to
again, make it safe. . . . I spend nights, evenings, weekends, days making sure that
place is as safe as I possibly can . . . . I try to make things as safe as possible.”
(Appellant’s brief, p. 11 (citing to the Video Record)).
When Curtis finished direct examination, she turned her witness over
to Price’s counsel for cross-examination. Cross-examination lasted about fifteen
minutes, beginning with some general questions about the business. Inexplicably,
the circuit court cautioned defense counsel about leading the witness,6 and the
questions became largely open-ended.
Price said on cross-examination that Curtis’s accident occurred just a
few minutes before intermission. This was consistent with Curtis’s subsequent
testimony. Price said, “We try to be as safe as possible. At intermission we have
flood lights go up . . . . We turn on the concession lights. We try every way we
can, again, to make it safe.” (V.R. 10/18/18; 9:27:52-9:28:10).
6
Apparently forgetting that Curtis called Price as her own witness and conducted a direct
examination, the court, sua sponte, stated, “Let me caution you about leading your own witness.”
Just as inexplicably, counsel acquiesced, stating, “I will. Sorry, your honor.” (V.R. 10/18/18;
9:26:26-9:26:30). If there was an order or agreement of the parties for Price’s counsel to
examine Price during Curtis’s case-in-chief only as if on direct examination, it was not brought
to the attention of this Court.
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Curtis argues the foregoing testimony satisfied KRE 407’s non-
feasibility controversy exception. We agree with the circuit court that it did not.
For this exception to apply, the premises liability defendant must clearly refute or,
to use the language of the rule, controvert the feasibility of making the premises
safer. Price did not do that.
In fact, it was through Gary Price’s testimony that Curtis first
presented evidence that, despite his safety efforts, the ground surface where asphalt
meets gravel might have become disturbed. (V.R. 10/18/18; 9:07:50-9:07:59).
This was consistent with his deposition testimony that, “unfortunately, our lot is
not – not perfect in any way shape or form. . . . It’s definitely not smooth. I would
never testify to that.” (Gary Price Depo., pp. 18-19). To the extent Curtis believed
Price’s trial testimony contradicted what he said previously, she could have
impeached him with this deposition testimony, but she did not.
Price did not refute the only evidence that preceded his testimony –
that of Curtis’s father – that the surface of the lot was rough. Curtis had not
established a controversy through Price’s testimony regarding the feasibility of
improving the lot’s surface condition. “Pursuant to the plain language of the rule,
in the absence of controversy, the feasibility exception of KRE 407 simply does
not apply.” Davis v. Fischer Single Family Homes, Ltd., 231 S.W.3d 767, 775
(Ky. App. 2007).
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Curtis’s second argument for getting around KRE 407’s prohibition of
evidence of subsequent remedial measures was to impeach Gary Price’s testimony
“that it could not be known where [Curtis] fell, that his own photographs did not
show the hazard on which she fell, and that his own photographs were inaccurate
and not reliable.” (Appellant’s brief, p. 7). The circuit court appears not to have
interpreted Price’s testimony in that way. From our examination of the record, we
agree and see no abuse of discretion in the circuit court’s ruling.
Contrary to Curtis’s argument, Price’s testimony about the photos did
not demonstrate his intent to prove the site of Curtis’s fall could not be identified.
He said nothing more than that he was not certain as to the specific location, but
that the photos depicted the general area of the fall. His trial testimony was
consistent with his deposition testimony in describing the photos that, “to my
knowledge, that’s pretty close to the general area” where Curtis fell. (Gary Price
Depo., p. 12). Again, this prior testimony was not used to impeach Price.
When cross-examined by his own counsel, Price testified
unequivocally that his photos showed “a broader view of the general area where
[he] believed Miss Curtis fell that night.” (V.R. 10/18/18; 9:32:10-9:32:17).
When Price’s counsel attempted to clarify Price’s testimony regarding whether the
photos showed the “specific” location of the fall, the circuit court again
admonished counsel for asking leading questions:
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Counsel: Is it correct you did not take those pictures
specifically because that’s where Miss Curtis
fell?
Court: Mr. Smith, I’m going to admonish you again.
You’re leading the witness.
Counsel: Just a little leeway, Judge?
Court: Not much, this is your witness, and this is
direct examination.
Counsel: Alright.
(V.R. 10/18/18; 9:33:27-9:33:43). The record is clear that Gary Price had been
called as Curtis’s witness, that Curtis conducted direct examination of Price, and
that Price’s counsel was cross-examining Price when the admonitions were given.
We do not understand why the admonition was given when “leading questions
should be permitted on cross-examination . . . .” KRE 611(c). Despite this
hindrance, counsel elicited testimony from Price that, taken as a whole, indicates
he had taken photos he believed showed the general area of Curtis’s fall, but he
could not be certain of the specific location.
When Price’s counsel finished cross-examining Price, Curtis’s
counsel asked for a bench conference and said, “I think he opened the door judge,
clearly.” Counsel pointed particularly to Price’s testimony about being uncertain
where Curtis fell. Curtis’s counsel cited the exceptions to KRE 407 as allowing
evidence of subsequent remedial measures to impeach a party’s testimony, and to
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refute a party’s denial that further safety precautions were unfeasible. The court
convened a bench conference to discuss the issues out of the jurors’ hearing. (V.R.
10/18/18; 9:37:47-10:04:49).
The initial focus of the sidebar conference was Price’s testimony
regarding the photos he had taken depicting the asphalt-to-gravel transition. The
circuit court viewed Price’s testimony as, “at times, non-responsive and evasive,
but as best I could follow it was that he wasn’t there and so he is not sure where it
is that she fell.” (V.R. 10/18/18; 9:42:34-9:42:44). The court continued:
My greater concern with respect to his testimony is that he
has repeatedly testified and volunteered, even when not
asked, is that this was the safest it could be . . . .
[Evidence of] subsequent remedial measures can come in
for impeachment purposes to impeach that testimony that
there wasn’t anything else [Price] could do to make the
premises any more safe.
(V.R. 10/18/18; 9:43:19-9:43:30).
Price’s unsolicited testimony concerned the circuit judge, who had
admonished Price to answer only questions asked of him. Although the court said
it was “not sure [Price] hasn’t cracked the door at this time[,]” it overruled Curtis’s
motion to allow evidence of subsequent remedial measures, but reserved the right
to reconsider the ruling after more testimony. (V.R. 10/18/18; 9:48:43-9:50:35).
Then, when asked by Price’s counsel how to avoid opening the door to a KRE 407
exception, the circuit court said:
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[T]he short answer is this: we’ve got skilled and
competent attorneys on both sides of this case and as long
as [Price] answers the questions that are asked of him that
door will not open. If he continues to volunteer and ad lib
and embellish on the questions that are asked of him, he’s
gonna open that door without even realizing that he’s done
it. There hasn’t been a question asked of him today that
ultimately would have opened that door . . . .
(V.R. 10/18/18; 9:51:37-9:52:16). Wrapping up, the circuit court reiterated that if
Price responded only to the questions asked, “ultimately that door will remain
safely closed.” (V.R. 10/18/18; 9:52:38-9:52:42).
Price spent about eight more minutes on the witness stand and he
responded concisely to the questions. His testimony in Curtis’s case-in-chief
concluded. Curtis then took the stand and examined the two photos her father had
examined and the five photos Price examined. She then testified that they
accurately depicted the condition of the ground where she fell. (V.R. 10/18/18;
1:11:37-1:13:10). The issue of subsequent remedial measures did not come up
again during the trial.
Guarding against a loose application of KRE 407 and its exceptions is
necessary to avoid the danger Professor Lawson warned against – that “the general
rule against the use of [subsequent remedial measures] will be swallowed if
plaintiffs are permitted to use [the impeachment] exception as a mere pretext for
using the evidence to establish culpability.” Robert G. Lawson, The Kentucky
Evidence Law Handbook § 2.50[3][d] (2019 ed.) (quotations omitted). Having
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carefully examined the record and thoroughly considered counsels’ arguments, we
conclude that the circuit court did not abuse its discretion by disallowing evidence
of subsequent remedial measures.
Missing Evidence Instruction
Curtis next asserts she was entitled to a missing evidence instruction
to remedy Price’s spoliation of evidence, i.e., his intentional destruction of
evidence by paving over the general area where Curtis fell. We find no abuse of
discretion in the circuit court’s disallowance of a missing evidence instruction.
The latest word on missing evidence instructions came just a few
months ago, in Norton Healthcare, Inc. v. Disselkamp, 600 S.W.3d 696 (Ky.
2020), where the Supreme Court said:
While we acknowledge that parties in civil litigation must
not destroy evidence the parties know is relevant to
potential litigation, we do not agree . . . that a party is
always entitled to a missing-evidence instruction, to
uphold “judicial integrity,” in all cases where evidence is
not available after the party responsible for the evidence
was put on notice of potential litigation.
Id. at 733 (footnote omitted).
Relying, in large part, on University Medical Center, Inc. v. Beglin,
375 S.W.3d 783 (Ky. 2011), the Supreme Court further stated:
[T]he trial court is within its discretion to give a missing-
evidence instruction when: (1) the evidence is material or
relevant to an issue in the case; (2) the opponent had
“absolute care, custody, and control over the evidence;”
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(3) the opponent was on notice that the evidence was
relevant at the time he failed to produce or destroyed it;
and (4) the opponent, “utterly without explanation,” in fact
failed to produce the disputed evidence when so requested
or ordered. In so finding, we [noted] . . . that
“nonproduction alone ‘is sufficient by itself to support an
adverse inference even if no other evidence for the
inference exists[.]’”
Disselkamp, 600 S.W.3d at 731 (footnotes omitted).
“In fact,” said the Supreme Court, “the Beglin court explicitly
declined to adopt ‘a special rule for measuring the quantum or quality of evidence
that will authorize a missing evidence instruction.’ [Beglin, 375 S.W.3d] at 790.
Instead, the Beglin court opted for a flexible standard that grants wide discretion to
the trial court.” Id. at 730 n.112. We keep these flexible standards in mind as we
assess whether the circuit court abused this wide discretion in denying the missing
evidence instruction.
The first shortcoming we see in Curtis’s argument for a missing
evidence instruction is that Price was not put on notice to preserve the drive-in
grounds as they were the night of Curtis’s fall. The spoliation letter addresses only
“the video footage involved in this incident” and asks that it be preserved and
made “available for our expert to inspect.” (R. at 116). Nothing is said about the
drive-in grounds themselves.
Secondly, Curtis testified that the seven photos accurately depicted the
location and condition of the site where she fell. Some of those photos were taken
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by Curtis’s representative, indicating she had access to the premises before the
ground maintenance that occurred more than a month after her fall. Obviously,
proof of the condition of the ground where Curtis fell was obtainable, and
obtained, before maintenance occurred. There is no suggestion that Curtis
intended a site visit by the jury. Certainly, Curtis did not intend to bring that patch
of asphalt and gravel to the courtroom. We see no abuse of discretion in the
decision of a circuit court to decline a missing evidence instruction when there is
no suggestion that the party seeking it intended ever to introduce that evidence.
Third, “there is absolutely no evidence that this evidence was
unavailable due to anything other than negligence or normal purging procedures.”
Id. at 735. Here, Price was engaging in normal maintenance procedures. Gary
Price was asked in deposition why, when he learned he had ordered more asphalt
than he needed, he instructed some of the excess to be placed in the general area
where Curtis fell; he said, “I just felt like if it had been an issue with Ms. Curtis,
that it would be better to put it in that area than it would be in some other area.”
(Gary Price Depo., p. 14).
A missing evidence instruction must be predicated upon proof of
spoliation. “‘Spoliation’ is a label for evidence of litigant misconduct that is
probative enough to satisfy the relevance requirement of KRE 401 and 402.”
Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.70[3][a] (2019 ed.).
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“[A] party’s destruction of evidence is admissible as spoliation evidence . . . but
only upon showings that the destroying party acted deliberately and with
knowledge of the evidence’s importance.” Id. Curtis presented no such evidence.
Accordingly, we conclude the circuit court did not abuse its wide
discretion when it declined to instruct the jury on missing evidence.
CONCLUSION
Based on the foregoing, we affirm the Simpson Circuit Court’s trial
order and final judgment entered October 30, 2018.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Kelli Lester Aaron D. Smith
Adrian Mendiondo David W. Anderson
Bowling Green, Kentucky Bowling Green, Kentucky
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