Banks v. Village Enterprises, Inc.

• Decision Date: 05 December 2000
• Citation: 32 S.W.3d 780
• Parties: (Mo.App. W.D. 2000) . Edward Devon Banks and Florence Louise Banks, Respondents, v. Village Enterprises, Inc., A Kansas Corporation, D/B/A Kentucky Fried Chicken of Brookfield, Mo, Appellant WD57244 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

32 S.W.3d 780 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Edward Devon Banks and Florence Louise Banks, Respondents, v. Village Enterprises, Inc., A Kansas Corporation, D/B/A Kentucky Fried Chicken of Brookfield, Mo, Appellant

WD57244

Missouri Court of Appeals Western District

Handdown Date: 12/05/2000

Appeal From: Linn County Circuit Court, Hon. Gary E. Ravens, Judge

Counsel for Appellant: William Stuart Lewis

Counsel for Respondent: David Allen Masters

Opinion Summary: Defendant-Appellant Village Enterprises, Inc., d/b/a Kentucky Fried Chicken appeals the denial of its Motion for New Trial in a case arising out of a choking incident at its restaurant in Brookfield, Missouri. Respondents Edward Banks and Florence Banks were customers at the restaurant when Mr. Banks choked on a piece of "trussing cord" that the restaurant had left in his chicken. Mr. Banks sued KFC for personal injuries, including depression and post-traumatic stress disorder, and Mrs. Banks sued for loss of consortium. The jury returned a verdict for the Banks.

AFFIRMED.

Division Two holds:

1) A juror did not engage in nondisclosure in failing to disclose his in-laws' acquaintance with the Banks during voir dire, for counsel's question asked only whether any members of the venire were acquainted with the Banks, not whether any of the their relatives were acquainted with the Banks. In any event the juror did not learn of the acquaintance until after voir dire.

2) No error occurred in a juror's failure to disclose during voir dire that her husband's nephew's daughter had suffered a choking incident, as KFC asked only whether any member of the venire or their "immediate family" had ever suffered a choking incident. In any event, the court below was free to believe the juror's later testimony that she did not recall the incident during voir dire, and did not abuse its discretion in finding that any unintentional nondisclosure was not prejudicial.

3) Similarly, the court did not err in finding that other jurors did not intentionally fail to disclose that members of their family suffered from mental disorders, as they testified they reasonably understood KFC's question to ask only whether members of their immediate family had ever suffered mental disorders as a proximate result of a choking incident, and they had not. Moreover, any unintentional nondisclosure was not shown to be prejudicial.

4) The trial court did not abuse its discretion in allowing counsel for the. Banks to ask an "insurance question" and one follow-up question during voir dire. The question was phrased appropriately, and its placement in counsel's voir dire examination was not unduly conspicuous. Further, because KFC's Point Relied On fails to preserve several issues that are raised in the argument portion of its brief with respect to this allegation of error, those allegations will not be considered or are considered only for plain error. No plain error occurred.

5) The testimony of an assistant shift manager at the KFC that she told Mr. Banks that KFC would probably pay his medical bills stemming from the choking incident did not constitute inadmissible evidence of a settlement offer, because it was not made as part of an advancement of opposing claims by the parties, and there is no indication that mutual concessions were contemplated by the parties at the time. Moreover, because KFC itself brought up the statement during its cross-examination of the manager, it cannot now argue that admission of the statement was error.

Opinion Author: Judge Laura Denvir Stith

Opinion Vote: AFFIRMED. Lowenstein, P.J, and Newton, J., concur.

Opinion:

Village Enterprises, Inc., d/b/a Kentucky Fried Chicken (hereinafter "KFC"), appeals the denial of its Motion for New Trial in a case arising out of a choking incident at its restaurant in Brookfield, Missouri. Respondents Edward Banks and Florence Banks were customers at the restaurant when Mr. Banks choked on a piece of "trussing cord" that the restaurant had left in his chicken. Mr. Banks sued KFC for personal injuries, including depression and post-traumatic stress disorder he allegedly suffered due to the choking incident. Mrs. Banks sued for loss of consortium. On January 29, 1999, the jury returned a verdict for Mr. & Mrs. Banks. The jury assessed 90% fault to KFC, and awarded $150,000 to Mr. Banks, and $50,000 to Mrs. Banks. The trial court entered judgment in accordance with this verdict, awarding $135,000 to Mr. Banks, and $45,000 to Mrs. Banks.

KFC filed its Motion for New Trial on March 1, 1999, alleging that certain jurors failed to disclose relevant information in response to questions on voir dire, resulting in prejudice. It further alleged error in that the court below should have granted a mistrial due to improperly asked "insurance questions" posed by counsel for the Banks during voir dire. Finally, KFC alleged that the trial court erred in allowing an employee of the KFC in Brookfield to testify, over KFC's objection, that she had told Mr. Banks that the company would probably pay any medical bills he incurred as a result of the choking incident. The trial court denied KFC's motion on May 11, 1999. KFC appeals, arguing that the trial court abused its discretion in failing to grant a new trial for the reasons alleged.

Finding no abuse of discretion in any of the respects alleged, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The evidence at trial, considered in the light most favorable to the verdict, was as follows:

On September 1, 1994, Respondents Edward and Florence Banks were customers at the KFC restaurant in Brookfield, Missouri, owned by Appellant KFC. While eating his meal, Mr. Banks began to choke. He went to Pershing Memorial Hospital, where the doctors determined that he had choked on a piece of "trussing cord" that had been used to bind the chicken he had eaten at KFC that day. That evening, Mr. Banks returned to the KFC and showed the length of cord to Deana Chowning, the assistant shift manager of the restaurant. Ms. Chowning told Mr. Banks that the company would probably pay for any medical bills stemming from the choking incident.

Mr. and Mrs. Banks filed a suit for damages against KFC on September 8, 1997, in the Circuit Court of Linn County, Missouri. They alleged that Mr. Banks choked as a result of KFC's negligence and serving of a defective product, and that this caused him to later develop depression and post-traumatic stress syndrome. Further, Mrs. Banks alleged that the incident caused her a loss of consortium.

At the beginning of voir dire, the court introduced Mr. and Mrs. Banks and asked: "[I]s anyone acquainted with them or had any social, business or professional relationships with them?" Later, counsel for Mr. and Mrs. Banks asked: "[s]o I take it then that there is no one else here who has had a prior relationship of any type even just an acquaintance with Mr. or Mrs. Banks?" No jurors responded that they were acquainted with the Banks.

During voir dire, counsel for the Banks also asked the venire whether they or their immediate family had experienced a choking incident:

[P]art of the evidence in this case will be that Mr. Banks . . . had a choking incident. . . . Now, what I need to know is whether or not any of you or any member of your immediate family have ever had a choking incident . . . which has caused you or your relative to seek medical treatment or this incident was such that a Heimlich maneuver was necessary or performed. Is there anyone who had such an experience or any member of your immediate family that has had such an experience?

Venire person Seek was the only person to answer affirmatively. He stated that his son had suffered a choking incident during which his wife performed the Heimlich maneuver.

Counsel for KFC further asked the panel members whether they had experienced certain types of depression:

Mr. Banks alleges that he suffered severe mental problems or depression, post traumatic stress disorder and even some symptoms of obsessive compulsive disorder as a result of this choking incident . . . what I need to know on behalf of the defendant is whether or not any of you or any member of your immediate family have had a similar problem?

Again, no one responded that they or their immediate family had experienced a similar problem.

Plaintiff's counsel also asked the jurors the "insurance question" toward the end of his voir dire. Prior to trial, the court had ruled that it would permit counsel for Mr. and Mrs. Banks to ask "if any panel member or member of their family is an employee, agent, officer or director of the insurance companies involved which is (sic) American States and Safeco." The court also ruled that, if an affirmative answer to this question were given by any panel member, it would allow one "follow-up" question by counsel, as to whether the panel member's affiliation with either insurance company would affect his or her ability to render an impartial verdict. Accordingly, well into plaintiff's counsel's voir dire examination, he asked:

Does anybody here, you or your family member, [work as] an employee or an agent or an officer or a member of the Board of Directors of American States Insurance Company or Safeco Insurance Company?

Counsel's question clearly and specifically asked only whether the venireperson or a member of his or her family was an employee, officer, agent or member of the Board of the two mentioned insurance companies, and no one identified themselves as falling into any of these categories. Counsel did not ask whether any venirepersons were policyholders of either company. Nonetheless, two venirepersons responded that they were policyholders of American States Insurance Company. Since these two jurors had responded to the insurance question, counsel for the Banks asked them the approved follow-up question: "[w]ould that in...