Smotherman v. Cass Reg'l Med. Ctr., SC 95464

• Decision Date: 20 September 2016
• Docket Number: No. SC 95464,SC 95464
• Citation: 499 S.W.3d 709
• Parties: Kristine Smotherman and Brian Smotherman, Appellants, v. Cass Regional Medical Center, Respondent.
• Court: Missouri Supreme Court

499 S.W.3d 709

Kristine Smotherman and Brian Smotherman, Appellants,

v.Cass Regional Medical Center, Respondent.

No. SC 95464

Supreme Court of Missouri, en banc .

Opinion issued September 20, 2016

Rehearing Denied November 22, 2016

The Smothermans were represented by Mark E. Parrish and Joshua A. Sanders of Boyd, Kenter, Thomas & Parrish LLC in Independence, (816) 471-4511; and Aaron N. Woods of Woods Law KC LLC in Lee's Summit, (816) 398-7877.

The medical center was represented by Sean T. McGrevey of Adam & McDonald PA in Overland Park, Kansas, (913) 647-0670.

Mary R. Russell, Judge

Introduction

Kristine Smotherman (Plaintiff) filed a petition for damages against Cass Regional Medical Center (Defendant) after she slipped and fell in a bathroom on Defendant's premises. The case was tried to a jury, which returned a verdict for Defendant. Plaintiff's counsel later discovered that one of the jurors during the trial had Googled the weather forecast for the day of the slip and fall. Plaintiff's motion for a new trial based on the juror's alleged misconduct was overruled. She now argues on appeal that the trial court erred in overruling her motion for a new trial. This Court disagrees.

“While every party is entitled to a fair trial, as a practical matter, our jury system cannot guarantee every party a perfect trial.” Fleshner v. Pepose Vision Inst., P.C. , 304 S.W.3d 81, 87 (Mo.banc 2010) (emphasis in original). Although Plaintiff's trial was not perfect due to the misconduct of one juror, the trial court did not abuse its discretion in finding that Plaintiff suffered no prejudice from the juror's misconduct in this case.

As the trial court presides over the entirety of a trial, it is familiar with the circumstances surrounding a juror's misconduct.

Accordingly, it is in the best position to determine what effect, if any, juror misconduct may have had on a jury's verdict. The trial court's determination that the extraneous evidence obtained by the offending juror was not material to the central issue in the case and was not prejudicial to Plaintiff is entitled to deference under the abuse of discretion standard of review. Id. at 87.

In its judgment overruling Plaintiff's motion for a new trial, the trial court found the testimony of the offending juror not credible and ascribed to it no weight. The testimony of eight other jurors, who followed their oaths and the trial court's instructions, revealed that the isolated statement of one juror colleague did not affect their deliberations or verdict in the case. The trial court explicitly found the testimony of the eight non-offending jurors credible and relied on their statements in concluding that the presumption of prejudice had been rebutted. The credibility of witnesses and the weight to be given to their testimony is a matter for the trial court, which is free to believe none, part, or all of their testimony. Herbert v. Harl , 757 S.W.2d 585, 587 (Mo.banc 1988). The trial court is in a superior position to determine the credibility of witnesses, and this Court defers to those determinations. State v. Johnson , 207 S.W.3d 24, 44 (Mo.banc 2006).

The trial court acted well within its discretion in concluding that Plaintiff was not prejudiced by the juror's misconduct based on the credible testimony of the non-offending jurors and the record as a whole. The judgment is affirmed.

Factual Background

While visiting the medical center for an appointment after knee surgery, Plaintiff fell in the bathroom. She testified that while she was getting up from using the toilet, the lights in the bathroom went out, her feet went out from underneath her, and she fell, hitting her head, back, and arm. A nurse found Plaintiff and took her to the emergency room. During her fall, Plaintiff sustained a cut, which became infected and required several surgical procedures to treat.

At trial, Plaintiff argued that the position of the soap dispenser in the bathroom allowed it to leak soap onto the floor, creating a dangerous condition that caused her to fall and subjected Defendant to liability. As evidence that the dispenser leaked, she offered photographs of a rusted strip on the heating element below the soap dispenser. Plaintiff noted that the soap dispenser was positioned relatively close to the bathroom door, which would allow those using the bathroom to track the leaked soap around the bathroom. As further evidence that she slipped on soap, Plaintiff testified that while she was in the emergency room, she overheard a nurse say that Plaintiff slipped and fell on soap on the bathroom floor. On cross-examination, Plaintiff conceded that the nurse had no opportunity to know whether there was soap on the floor when the nurse allegedly made that statement. Plaintiff also testified that she did not see what had caused her to slip, did not recall seeing anything on the bathroom floor, and saw nothing on her clothing to suggest why she had fallen.

Throughout the trial, Defendant called into question Plaintiff's credibility, emphasizing Plaintiff's multiple criminal convictions and that Plaintiff had changed her account of why she had fallen numerous times over the course of the lawsuit. Defendant argued that the rusted strip on the heating element was more likely caused from water dripping from people's hands as they reached from the bathroom sink to the soap dispenser and that, in any event, the soap dispenser was recessed toward the back of the sink, so any dripping fluid would land where no one was likely to tread. In its closing argument, Defendant argued that Plaintiff failed to present sufficient credible evidence that soap on the bathroom floor caused her to fall. Defendant concluded that it was more likely that Plaintiff fell due to her knee problems or water on the floor.

The jury was instructed to find Defendant liable if it found that “there was soap on the bathroom floor, and as a result [Defendant's] bathroom was not reasonably safe.” The jury was also instructed, pursuant to MAI 2.01(8), not to communicate with non-jurors during deliberations or conduct any independent investigation or research. The jury returned a verdict for Defendant.

After trial, Plaintiff's attorney asked two jurors about their verdict. One of the jurors mentioned that he had Googled the weather for the day of the fall and found that significant snowfall was in the forecast for that day. Plaintiff subsequently filed a motion for a new trial based on alleged juror misconduct. The trial court held a hearing on the motion, at which nine jurors testified. The juror who conducted the investigation admitted that he had Googled the weather forecast for the date in question. Most of the jurors who testified, however, did not recall ever hearing anything about the weather during deliberations. The jurors who remembered a comment about the weather on the day of the fall testified that the weather was immaterial to their deliberations.

The trial court overruled Plaintiff's motion for a new trial. Plaintiff appeals.¹

Analysis

Plaintiff argues that the trial court abused its discretion by overruling her motion for a new trial for alleged juror misconduct. This Court will not disturb a trial court's ruling on such a motion unless the trial court abused its discretion. Fleshner , 304 S.W.3d at 86–87. A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. at 87.

Missouri follows the Mansfield Rule, which provides that a juror's testimony about juror misconduct is generally not admissible to impeach the jury's verdict. Id. Nonetheless, juror testimony is admissible to establish that a juror committed misconduct by improperly gathering evidence outside of trial. Travis v. Stone , 66 S.W.3d 1, 4 (Mo.banc 2002).

Although the trial court found that the juror's research constituted misconduct, merely proving that a juror obtained extraneous evidence against the court's instructions does not automatically entitle a moving party to a new trial. State v. Stephens , 88 S.W.3d 876, 883 (Mo.App.2002). Instead, such misconduct raises a presumption of prejudice, and the burden shifts to the opposing party to rebut that presumption. Travis , 66 S.W.3d at 4. Plaintiff argues that Defendant failed to present sufficient evidence to rebut the presumption that she was prejudiced by the extraneous evidence. To be prejudicial, the extraneous evidence obtained from the juror misconduct must be material to the consequential facts of the case. Stephens , 88 S.W.3d at 883–84.

Plaintiff claims that the weather forecast was material evidence because the implication that it may have been snowing on the day of her fall supported Defendant's argument that something other than soap caused Plaintiff to slip and fall. The trial court disagreed and held that the weather forecast for the day of Plaintiff's fall was immaterial to the critical issue in the case, which was “whether there was soap on the bathroom floor” that caused Plaintiff to fall. In so holding, the trial court considered: (1) Plaintiff's verdict director, which required the jury to affirmatively find that there was soap on the bathroom floor to find for Plaintiff; (2) the presentation of other possible causes of Plaintiff's fall during the trial, including her preexisting knee problems; and (3) the weight of the evidence presented at trial, which supported the defense verdict rendered by the jury. In addition, the trial court considered the credible, live testimony of eight non-offending jurors that “established that the interjection of the extraneous evidence consisted of an isolated remark which was either not heard by the other jurors or was appropriately disregarded by them.” As a result, the trial court found that Plaintiff was not prejudiced.

Plaintiff further argues that, based on precedent from this Court, the...