Crane Co. v. Lynda I. Kitzinger
Annotate this Case
Download PDF
IN THE SUPREME COURT OF MISSISSIPPI
NO. 2001-CA-00909-SCT
CRANE CO. d/b/a CRANE DEFENSE SYSTEMS
v.
LYNDA I. KITZINGER, INDIVIDUALLY, AND AS
MOTHER AND NEXT FRIEND OF ROBERT
JAYCE KITZINGER, AND AS EXECUTRIX OF
THE ESTATE OF ROBERT L. KITZINGER, JR.,
DECEASED
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
2/21/2001
HON. DALE HARKEY
JACKSON COUNTY CIRCUIT COURT
J. COLLINS WOHNER, JR.
WILLIAM F. GOODMAN, JR.
MARK D. JICKA
MARK A. DOMBROFF
MARK E. McKINNON
SUZANNE N. SAUNDERS
VINCENT J. CASTIGLIOLA
JOHN A. BANAHAN
CIVIL - WRONGFUL DEATH
REVERSED AND REMANDED - 11/20/2003
EN BANC.
EASLEY, JUSTICE, FOR THE COURT:
¶1.
¶2.
This case involves the unfortunate death of Robert L. Kitzinger (Bob). On August 25,
1998, Bob fell down a drill rig elevator hoistway to his death. In May 1999, Lynda Kitzinger
(Kitzinger) filed suit for the wrongful death of her husband against Noble Drilling Corporation
(the owner of the Paul Romano), Noble (US) Inc. (Bob's employer), Friede Goldman
Offshore, Inc. (formerly Ham Marine and the shipyard hired by Noble to convert the Paul
Romano to a drill rig) and Crane Unidynamics/St. Louis, Inc. (Unidynamics, a division of
Crane Co.) Prior to trial, Kitzinger settled with Noble Drilling Corporation, Noble (US) Inc.
and Friede Goldman Offshore, Inc. Kitzinger, also amended the complaint prior to trial to
name Crane Co.(Crane) as a defendant.
¶3.
On January 31, 2001, a trial was conducted in Jackson County Circuit Court, Judge Dale
Harkey presiding. The jury returned a verdict of 2.5 million in compensatory damages and
apportioned liability as follows: 15% to Noble, 35% to Bob and 50% to Crane. The issue of
punitive damages was submitted to the jury. After the jury heard evidence, a verdict was
returned against Crane in the amount of 15 million dollars in punitive damages. The trial court
denied Crane's subsequent motions for JNOV and new trial. Judgment was entered against
Crane for 1.25 million (50% of the 2.5 million compensatory damages) and 15 million in
punitive damages. From these rulings, Crane now appeals to this Court.
FACTS
¶4.
Bob was a former U.S. Navy Master Chief Petty Officer. In 1997, Bob retired from the
Navy and pursued a job in the private sector. In November 1997, Bob started work at Noble
as an electronics technician (ET).
2
¶5.
An elevator was installed on the Paul Romano. A safety feature was installed in the
elevator which prevented it from moving when the door of the elevator was open. Prior to
Bob's accident, the elevator had not worked on a few occasions because the door was either
not properly closed or vibrations caused the door to open.
¶6.
On August 25, 1998, Bob was working with Ed Seger (Seger)on the drilling rig's ballast
control system. During the course of the night the elevator became stuck and was not available
for use. Robert Wallis (Wallis), an electrician, did not look at the elevator before he went to
sleep at 3:30 a.m. on August 25. Bob called Seger at 8:00 a.m. from the pump room that same
morning. Bob asked Seger to see if Wallis could get the elevator to operate. On August 24,
Wallis had worked his 6 a.m. to 6 p.m. shift, then continued to work until 9 p.m. after which
time Wallis briefly slept and was awakened at midnight to work on a crane until 3:30 a.m. on
August 25. Once Seger learned of Wallis' work schedule, Seger declined to wake Wallis for
the elevator repair.
¶7.
Eventually, Bob and Seger went to the elevator hoistway together. Bob descended the
hoistway. When Bob was approximately half way down the shaft, he stated that he would need
help. Shortly thereafter, Bob fell from the hoistway to the bottom of the shaft and called for
help. Bob later died from the injuries that he sustained from the fall.
STATEMENT OF ISSUES
I.
Whether the trial court erred by excluding Noble's Policy and
Procedures Manual, Safety Handbook, and related testimony.
II.
Whether the trial court erred by excluding the testimony of O'Neil
Mendoza.
III.
Whether punitive damages were properly assessed.
3
IV.
Whether, in the alternative, punitive damages should be remanded
or remitted.
V.
Whether the trial court erred by refusing to order disclosure of
settlements or to consider a credit.
VI.
Whether the Mississippi statutory appeal
unconstitutional as applied to punitive damages.
penalty is
LEGAL ANALYSIS
¶8.
After careful review, we find that the first and second issues are dispositive of the case.
The exclusion of the Noble Policy and Procedures Manual, the Safety Handbook and
accompanying testimony was an abuse of discretion and prejudiced Crane. However, the trial
court did not abuse its discretion by excluding the testimony of O'Neil Mendoza. Accordingly,
we find that the case is reversed and remanded for a new trial not inconsistent with this
opinion.
I.
¶9.
Whether the trial court erred by excluding Noble's Policy and
Procedures Manual, Safety Handbook, and related testimony.
This Court has held that the standard of review for either the admission or exclusion of
evidence is abuse of discretion. Whitten v. Cox, 799 So.2d 1, 13 (Miss. 2000); Floyd v. City
of Crystal Springs, 749 So.2d 110, 113 (Miss. 1999). The court will not reverse the
admission or exclusion of evidence unless the error adversely affects a substantial right of a
party. Floyd, 749 So.2d at 113. “[F]or a case to be reversed on the admission or exclusion of
evidence, it must result in prejudice and harm or adversely affect a substantial right of a party."
Terrain Enter., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995).
¶10.
Kitzinger filed a motion in limine to exclude Noble's safety handbook and policy and
procedure manual. The trial court granted Kitzinger's motion. Thus, Crane was prohibited
4
from admitting the handbook and manual into evidence. The trial judge based his decision on
Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216 (Miss. 1969) and Sumrall
v. Miss. Power Co., 693 So.2d 359 (Miss 1997). In addition, the judge determined that the
jury may be confused about the issue of the standard of care.
¶11.
In Jaquith, a high school student was injured when he ran into a gymnasium wall.
Jaquith, 224 So.2d at 219. The student subsequently died from the head injury following
surgery. Id. The plaintiffs in the case claimed that the gym should have had padded walls and
attempted to introduce a book and pamphlet which recommended the use of padded walls. Id.
at 220. This Court held that "[t]he general rule in this state, as elsewhere, is that books,
pamphlets and treatise are not admissible into evidence to prove facts contained therein since
they are generally considered hearsay evidence." Id. The Court held that the admission of the
evidence in Jaquith was erroneous, but amounted to harmless error in that instance. Id. at 221.
¶12.
In Sumrall, the trial court prohibited evidence of Occupational Safety and Health Act
(OSHA) regulations. Sumrall, 693 So.2d at 366. This Court found that the trial court did not
abuse its discretion by refusing to allow the evidence. Id. at 367. Mississippi has declined to
give compulsory force to OSHA regulations. Id. at 366. "We are persuaded by the district
court's reasoning and hold that, in light both of it and of this Court's clearly stated rule that
governmental codes and regulations are not admissible unless given compulsory force by the
state legislature, evidence of OSHA regulations is not admissible to show negligence." Id. at
367. Consequently, the regulations were not admissible to show negligence on the part of the
5
company. See Accu-Fab & Construction, Inc. v. Ladner, 778 So.2d 766, 771 (Miss.
2001)(OSHA regulations were admitted for other purposes such as a measure of reasonable
care consistent with industry standards).
¶13.
Crane argues that the trial court's reliance on Jaquith and Sumrall does not justify the
exclusion of the handbook and manual evidence. Crane asserts that the evidence in Jaquith had
no factual connection to the case, and the evidence in Sumrall dealt with policy and statutory
considerations unique to OSHA. In this case, Crane claims that the handbook and manual are
directly and factually relevant to the case. The evidence would establish the type of safety
information available to Bob and allow the jury to determine the reasonableness of his actions.
Crane, also, argues that it had to redact the deposition testimony of Jack Frost pertaining to
safety information and training available to Bob. This testimony included information that
Noble employees receive a copy of the handbook; are required to read the handbook; sign a
form acknowledging that the employee has received, read and are familiar with its contents;
and that a written test is administered to employees. Furthermore, redactions from Frost and
other witness depositions testimony concerning fall protection also was excluded by the trial
court.
¶14.
Kitzinger argues that the manual and handbook were prepared by a third-party
organization and are hearsay. In addition, she claims that there were no claims in issue between
Noble and Crane. Kitzinger asserts that Bob's duty to Crane was to act as a reasonable man and
that he had no duty to Crane to follow Noble's handbook or manual.
¶15.
When Kitzinger first filed her wrongful death lawsuit, Noble was included among the
listed defendants. Subsequent to the filing, Kitzinger made an undisclosed settlement with
6
Noble and other party defendants. A joint motion for dismissal was filed. The trial court then
granted a judgment of dismissal with prejudice. Furthermore, in Unidynamics' answer and
defense, contributory negligence on the part of Bob was asserted in both the answer and the
affirmative defenses. The trial court granted Kitzinger's motion to file an amended complaint.
The amended complaint, among other things, includes the named defendant Crane Co. d/b/a/
Crane Defense Systems. Again, contributory negligence was asserted in the amended answer
and affirmative defenses.
¶16.
It is not contested that Bob received a copy of the Noble handbook. Bob was employed
by Noble. The handbook was furnished to each Noble employee. The handbook referenced the
manual and both addressed fall protection. The handbook and manual would show Bob's state
of mind and the extent of his exercise of reasonable care at and prior to the time of the
incident. This in turn could assist the jury in its determination of the reasonableness of Bob's
actions and of the allocation of comparative fault under the facts of this case.
¶17.
The record reflects that the handbook was proffered by Crane for identification before
the trial judge. The record also reflects that the safety manual was not proffered at trial.
Despite the lack of this proffer, the trial court did conduct a hearing on the motion in limine.
¶18.
The Court of Appeals in Sims v. Collins, 762 So.2d 785, 788 (Miss. Ct. App. 2000),
held that the trial court erred by not allowing the jury to hear evidence that Collins wielded a
weapon at the Simes after a car collision. The appeals court determined that the jury should
be able to hear the “entire series of events connected with the accident” and that a grant of a
motion in limine should not “unduly restrict the opposing party’s presentation of its case.” Id.
In addition, the appellate court held that even though Collins argued that the Simes failed to
7
make a proffer of evidence, “the pleadings in this case provide an adequate record of what
evidence the Simes would have offered had the court not sustained the motion in limine. Id.
at 789. Based upon the Sims case, the hearing and motion and response to the motion
discussed the manual, gave an adequate record of the evidence and suffices as a proffer to the
trial court.
¶19.
Accordingly, the trial court abused its discretion by excluding the handbook, manual and
accompanying deposition testimony. The evidence concerns the reasonableness of Bob's
actions.
II.
¶20.
Whether the trial court erred by excluding the testimony of O'Neil
Mendoza.
The standard of review for the admission or exclusion of testimony is abuse of
discretion. Whitten, 799 So.2d at 13. "The admission of expert testimony is addressed to the
sound discretion of the trial judge. Unless we conclude that the discretion was arbitrary and
clearly erroneous, amounting to an abuse of discretion, that decision will stand." Roberts v.
Grafe Auto Co., 701 So.2d 1093, 1098 (Miss. 1997).
¶21.
Crane next complains that the trial court erred by excluding specific testimony of
O'Neil Mendoza, a project manager for the Paul Romano. This exclusion, Crane asserts,
severely prejudiced Crane. Kitzinger called Mendoza to testify concerning pay scales for
Noble Drilling ET employees, conversion costs for the Paul Romano and Noble's general
experience with elevators.
¶22.
On cross-examination, Mendoza testified that Noble chose to have a non-ABS class
elevator.
Crane wanted Mendoza to testify to certain facts on cross-examination.
8
Specifically, Crane attempted to question Mendoza concerning whether Noble intended to have
the elevators certified under ABS rules; how Noble intended to service the hoistway in the
absence of a ladder; and whether the ABS class designation applied to the elevator. After
listening to testimony provided to the jury and proffered testimony, the trial court sustained
Kitzinger objection. The judge determined that Mendoza was not an expert, the questions
posed were not fact questions, and he was not designated as an expert. During the proffer, the
trial judge asked Mendoza a number of questions to determine the extent of his knowledge.
The questions were, in part, as follows:
By the Court:
Mr. Mendoza, I think you said earlier that this was the first
elevator system installed on a Noble rig?
By the Witness:
That I know of. That is correct.
By the Court:
Have you worked on other rigs with elevators?
By the Witness:
No, I have not.
By the Court:
Okay. Are you familiar with ABS standards for shipboard
elevators?
By Mr.. Castigliola: Specifically the ABS Guide to Shipboard Elevators.
By the Court:
Are you familiar with the ABS Guide for Shipboard
Elevators?
By the Witness:
I know the guide exists, and I am not familiar with the
details of the rules. I have read them in the past during a
deposition last summer, and that's the first and only time
that I have read the rules.
By the Court:
You read them in connection - - the first time you ever
read those rules was in connection with this litigation?
By the Witness:
That is correct. And the reason for that is I have never
been on a rig that had an elevator. I had no
knowledge.
By the Court:
I can understand that, and I can see why you wouldn't
bother with something you are not associated with. You
have never had to - - in your work history experience
have you ever certified elevators as in compliance or
not in compliance with ABS Guide to Shipboard
Elevators?
By the Witness:
No, I have not.
9
By the Court:
By the Witness:
By the Court:
By the Witness:
By the Court:
By the Witness:
By the Court:
By the Witness:
By the Court:
By the Witness:
By the Court:
By the Witness:
By the Court:
By the Witness:
* *
* *
By the Court:
By the Witness:
By the Court:
By the Witness:
By the Court:
By the Witness:
By the Court:
Have you ever had any involvement with such a
process, or procedure or protocols involved in that at
all?
No, I have not.
I had another one, and I can't - - With respect to your
response that I heard from an earlier deposition that you
read just a few minutes ago, am I to understand that when
you observed this particular hoistway, this particular
elevator hoistway, you assumed based upon your other
experience in dealing with the - - what did you call them?
The elevator shaft.
The elevator shaft. You never had to deal with an elevator
shaft?
No, I have not, Your Honor.
But you have dealt with structural supports, the big tubes
that the rig sits on. Right?
Yes I have.
That supports the main platform?
Yes, I have.
And your experience in servicing those structures had
been to hook a line on to somebody and lower them down
maybe?
That's correct.
And you just assumed without any reference to any
guidelines, safety features or anything else, that that's
how y'all would service this hoistway?
That's correct.
Do you know whether the ABS Guide applies to an
elevator, to this elevator?
I know the ABS Guide does not apply to this elevator
because the elevator was not a classed system on the
rig.
And what's the basis for that opinion that you have?
The basis for that opinion is based on what I saw go on
in the certification process of the elevator. The ABS
surveyor on the rig, which we had one full time, did not
certify or issue any class paperwork on the elevator.
So, based on your observation of that process that's your
conclusion?
That is my conclusion.
I don't see that either. I don't see him to be an expert. I
don't see these to be fact questions to the extent that you
10
are going to inquire into them based upon your earlier
questions. I don't see a designation as an expert. I will
sustain the objection.
(emphasis added). The trial court, also, instructed the jury to disregard any questions or
responses of Mendoza "with respect to the application or non-application of the ABS
Guidelines for Shipboard Elevators with respect to compliance or non-compliance of the
elevator system here at issue." Mendoza was determined to not be an expert nor designated as
an expert and the questions were not fact questions. Crane's argument concerning personal
knowledge is without merit. Based on the trial judge's examination of the witness, we cannot
say that the judge abused his discretion by excluding the testimony of Mendoza. Accordingly,
this issue is without merit.
CONCLUSION
¶23.
For the foregoing reasons, the trial court did not abuse his discretion by excluding the
testimony of Mendoza. The trial court did abuse its discretion and erroneously excluded the
handbook, manual and accompanying testimony, thus, severely prejudicing Crane. This case
is reversed and remanded for a new trial not inconsistent with this opinion.
¶24.
REVERSED AND REMANDED.
PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND CARLSON, JJ., CONCUR.
GRAVES, J., CONCURS IN RESULT ONLY. McRAE, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
