Adkins v. Hontz

• Decision Date: 15 March 2011
• Docket Number: WD 72550,WD 72571.,Nos. WD 72549,s. WD 72549
• Citation: 337 S.W.3d 711
• Parties: Natalie ADKINS, et al., Appellants–Respondents,v.Jill HONTZ, Respondent–Appellant.
• Court: Missouri Court of Appeals

337 S.W.3d 711

Natalie ADKINS, et al., Appellants–Respondents,

v.Jill HONTZ, Respondent–Appellant.

Nos. WD 72549

WD 72550

WD 72571.

Missouri Court of Appeals, Western District.

March 15, 2011.

Herbert W. McIntosh, Kansas City, MO, for appellants–respondents.Kevin D. Weakley, Overland Park, KS, for respondent–appellant.

Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, JAMES E. WELSH, Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.

The parties have cross appealed from a judgment of the Buchanan County Circuit Court on jury verdicts in favor of Natalie and Bryan Adkins individually in their suit for the wrongful death of their daughter, Malorie, and also in favor of the Estate of Malorie Adkins in a survival action. We affirm.

Factual Background

This case arises out of the tragic death of Malorie Adkins (“Malorie”) at age thirteen from a car accident in Kansas. On October 2, 2004, Jill Hontz (“Hontz”) was driving four children, including Malorie Adkins, home from a volleyball tournament. Travelling on U.S. 36 highway at sixty miles per hour in clear weather conditions, Hontz took her eyes off the road and her vehicle's tires went off the pavement and onto the shoulder. Hontz pulled back onto the highway but over-corrected, crossed the center line, swerved back to her lane and lost control of the vehicle. Before her vehicle, a 1997 Ford Expedition, tipped, she told the children to “hold on.” The vehicle rolled several times and came to rest in a ditch on the side of the highway.

All of the children were ejected from the vehicle and had varying degrees of injury. Malorie was thrown from the vehicle on its third or fourth roll. Emergency responders arrived shortly thereafter and found vomit coming out of Malorie's mouth as Hontz attempted to perform CPR on her on the shoulder of the highway. She was taken by ambulance to Hiawatha Community Hospital. Malorie's injuries included massive chest trauma, head trauma, a skull fracture, broken ribs, and laceration and bruising to her head and arms. She was pronounced dead at 2:20 p.m., approximately thirty-five minutes after the wreck.

Two lawsuits were filed as a result of this accident. First, Natalie and Bryan Adkins (“the plaintiffs”),¹ Malorie's parents, filed suit for wrongful death on August 25, 2005 in the Circuit Court of Buchanan County. Her parents also opened an estate in Kansas, where they were appointed Special Administrators by the Doniphan County District Probate Court. They subsequently commenced a survival action on behalf of the estate seeking damages for the injuries Malorie sustained prior to her death. This action was filed in the Circuit Court of Buchanan County on September 29, 2006, seeking actual and punitive damages.

The wrongful death and survival actions were consolidated. After a dismissal in July 2007 for forum non conveniens, and reversal by this Court,² the case was tried from January 4 to January 6, 2010.

Hontz admitted liability in negligence at trial, so the only issues to be decided by the jury pertained to damages. In Verdict A for the wrongful death of Malorie, the jury awarded her parents the following: $100,000 for past non-economic damages; $375,000 for future non-economic damages; $17,771.16 for past economic loss; and $0 for future economic loss. In Verdict B, the jury found Malorie experienced conscious pain and suffering prior to her death and awarded the Estate $50,000. On January 26, 2010, Judgment was entered, from which the instant appeal is taken.³

Both parties now appeal. Further factual details will be outlined as relevant in the analysis section below.

Analysis

I. Plaintiff's Appeal

The Plaintiffs raise five points on appeal.

A. Wrongful Death Case

In Point One, the plaintiffs argue the trial court abused its discretion and deprived them of their right to a fair and impartial jury by preventing them from inquiring during voir dire whether any panel member had in mind a preconceived dollar figure as to damages that he or she would never exceed regardless of the evidence because that question was reasonably calculated to expose juror bias or prejudice and did not suggest any amount or ask any juror to commit to a specific amount of damages in advance of hearing the evidence.

The essential purpose of voir dire is to provide for the selection of a fair and impartial jury through questions which permit the intelligent development of facts which may form the basis of challenges for cause, and to learn such facts as might be useful in intelligently executing peremptory challenges. It is designed to insure that the parties have fair and impartial individuals serving as jurors.

Pollard v. Whitener, 965 S.W.2d 281, 286 (Mo.App. W.D.1998) (internal citations omitted). “While a ‘necessary component of a guarantee for an impartial jury is an adequate voir dire that identifies unqualified jurors [,] ... the trial judge is vested with the discretion to judge the appropriateness of specific questions, and is generally vested with wide discretion in the conduct of voir dire.’ ” State v. Baumruk, 280 S.W.3d 600, 614 (Mo. banc 2009) (quoting State v. Oates, 12 S.W.3d 307, 310 (Mo. banc 2000)).

Because rulings by the trial court are reviewed only for an abuse of discretion and “[a]n appellate court will find reversible error only where an abuse of discretion is found and the [challenger] can demonstrate prejudice,” [the challenger] “has the burden of showing a ‘real probability’ that he was prejudiced by the [alleged] abuse.”

Id. (quoting Oates, 12 S.W.3d at 311). The trial court abuses its discretion when a ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.

Pollard, 965 S.W.2d at 286. However, voir dire is one of the highest duties of the courts in administering justice, to select a fair and impartial jury to hear each case. Id. In the case at bar, because Hontz stipulated to liability and the only question for the jury was the issue of appropriate damages, restrictions on the parties' ability to fully question the venire regarding their views on damages must be carefully scrutinized.

In voir dire, the plaintiffs were able to extensively inquire into the venire's beliefs with respect to monetary awards regarding the following: (1) personal beliefs that people should not sue; (2) religious beliefs that people should not sue; (3) beliefs against suing for money damages; (4) beliefs that no one should sue for wrongful death; (5) beliefs that they personally would not sue for wrongful death; (6) beliefs concerning the inability of money to bring the deceased back; (7) beliefs that Hontz had suffered enough or that sympathy would negate the need for damages; (8) beliefs that would prevent awards for future economic damages; (9) beliefs that would prevent an award for future non-economic damages.

After these lines of inquiry, the plaintiffs asked whether a venire member had in mind a figure “more than X amount of dollars” that he/she would not award to the plaintiffs. The trial court sustained an objection to the question. Then, the plaintiffs asked whether there was any venire member “who feels that no matter what the evidence is, [he or she] would not award a verdict in excess of $1 million?” An objection was again sustained. The plaintiffs placed in the record the question they wished to ask: “Do you have in your mind a set figure that, regardless of what the evidence is, that you would never exceed that figure.”

The proposed question that asked if the venire person had in mind any amount, in the abstract, above which they would not award the plaintiff no matter what the evidence revealed was proper and not objectionable. In Wright v. Chicago, Burlington & Quincy Railroad Co., 392 S.W.2d 401, 408 (1965), the Supreme Court of Missouri held that counsel has “the right to ascertain from the jury panel any bias or prejudice by reason of the amount sued for which would render it impossible or difficult for them to render a fair and impartial verdict based upon the evidence and the instructions of the court,” but counsel does not have the right to “to commit or pledge the jury to a certain verdict or amount thereof in advance of hearing all of the evidence.” Here, the proposed question did not commit the jury to a specific verdict or amount of damages. In Berra v. Danter, the venire was asked the following analogous question: “I realize you haven't heard the evidence. Is there some amount you think, and I know you're hearing this in the abstract, is there some amount you think, boy, that just would be too large, I don't care what the evidence is?” 299 S.W.3d 690, 701 (Mo.App. E.D.2009). There was no objection at trial and, analyzing the issue under plain error, the Eastern District held that “there was no plain error in the question allowed by the court as it did not commit or pledge the jury to a certain verdict or amount of damages.” Id. at 702. We agree that the information sought by the question in the case at bar was permissible and the court ought not to have sustained the objection. ⁴

“We will not reverse the trial court's rulings made during voir dire, unless they clearly and manifestly indicate an abuse of such discretion. An abuse of discretion is found when a ruling clearly violates the logic of the circumstances or is arbitrary or unreasonable.” Ashcroft v. TAD Res. Int'l, 972 S.W.2d 502, 505 (Mo.App. W.D.1998) (citations and quotation marks omitted). In Ashcroft, counsel for the plaintiff was completely prohibited from asking any questions of the venire regarding the issue of punitive damages. In that case, we held that the failure of the trial court to allow the plaintiff a satisfactory opportunity to inquire as the potential bias or prejudice that the venire may have regarding punitive damages clearly violated the logic of the circumstances and was arbitrary and unreasonable, so...