Benoit v. Missouri Highway

• Decision Date: 21 November 2000
• Docket Number: No. 23088 and 23103,23088 and 23103
• Citation: 33 S.W.3d 663
• Parties: (Mo.App. S.D. 2000) Bonnie Benoit, Arnella Lewis, Melanie Hartland, Terrilyn Halford, Kimberly Young, Rebecca Statesel, and Craig Hartland, Individually, and as Next Friend of Travis Hartland and Sarah Hartland, Respondents/Cross-Appellants, v. Missouri Highway and Transportation Commission, Appellant/Respondent, and Shawn Baker, Defendant
• Court: Missouri Court of Appeals

33 S.W.3d 663 (Mo.App. S.D. 2000)

Bonnie Benoit, Arnella Lewis, Melanie Hartland, Terrilyn Halford, Kimberly Young, Rebecca Statesel, and Craig Hartland, Individually, and as Next Friend of Travis Hartland and Sarah Hartland, Respondents/Cross-Appellants, v. Missouri Highway and Transportation Commission, Appellant/Respondent, and Shawn Baker, Defendant.

No. 23088 and 23103

Missouri Court of Appeals Southern District

11/21/2000

Appeal From: Circuit Court of Butler County, Hon. W. Robert Cope, Judge

Counsel for Appellant: Zachart T. Cartwright, John W. Koenig, Jr., Rich Tiemeyer

Counsel for Respondent: Steve Garner, Neil Chanter

Opinion Summary: None

Parrish, P.J., and Shrum, J., concur.

Kerry L. Montgomery, Judge

These appeals arise from a case where two vehicles collided on September 7, 1995, on U.S. Highway 60 two miles east of the Shannon/Carter County line. The plaintiffs are the surviving spouse and children of Abney Benoit and the parents and next friend of Travis Hartland, a minor. The defendants are the Missouri Highway and Transportation Commission (MHTC) and Shawn Baker.

The accident occurred when Baker's eastbound 1991 Ford Ranger pickup collided with the westbound 1986 Dodge Diplomat operated by Abney Benoit. After Baker lost control of his vehicle rounding a curve on wet pavement, his vehicle slid across the centerline into the path of the Benoit vehicle. Baker told the investigating trooper at the scene that he was traveling 55 miles per hour, the speed limit, when he began to slide. His trial testimony mirrored his statement to the trooper. MHTC attributes no fault to Benoit in causing the accident. Benoit died as a result of the accident, and Travis Hartland suffered serious injuries.

After a lengthy trial, the jury returned a verdict of $500,000 for the wrongful death of Benoit and $300,000 for the personal injuries of Hartland. The jury assessed MHTC with 75 percent fault and Baker with 25 percent fault. Judgment was entered on May 4, 1999, in accordance with the jury verdict. Thereafter, MHTC moved to limit each judgment award to $100,000 as provided in section 537.610.2.¹ Plaintiffs also moved to add postjudgment interest to the judgment. The trial court granted the motion of MHTC but denied Plaintiffs' motion.

MHTC and Plaintiffs appeal. Plaintiffs only seek review of the trial court's ruling on the issue of postjudgment interest. We consolidated the appeals.

MHTC's Appeal No. 23088

MHTC's first of four points relied on alleges the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict. MHTC claims that Plaintiffs failed to prove a breach of duty and failed to make a submissible case under section 537.600 because Plaintiffs' proof did not show a dangerous condition of the highway or that the accident directly resulted from such condition.

Our review of the denial of a defendant's request for a directed verdict is limited to a determination of whether plaintiff presented substantial evidence to prove the facts essential to the claim. Emerson Elec. Co. v. Crawford & Co., 963 S.W.2d 268, 272 (Mo.App. 1997). The facts are viewed in the light most favorable to plaintiff. Id. If reasonable minds could differ on the facts, the issue is for the jury to decide, and a directed verdict is improper. Id.

"The standard of review of a trial court's denial of a motion for judgment notwithstanding the verdict is whether the plaintiff made a submissible case." Brown v. Hamilton Ins. Co., 956 S.W.2d 417, 419 (Mo.App. 1997). "To make a submissible case, a plaintiff must present substantial evidence to support each element of [the] claim and we must view the evidence in the light most favorable to the party who obtained the verdict." Id. In deciding whether a submissible case is made, a plaintiff is entitled to all reasonable favorable inferences from the evidence, and we must disregard defendant's evidence except as it may aid the plaintiff's case. Klugesherz v. American Honda Motor Co., 929 S.W.2d 811, 813 (Mo.App. 1996).

Finally, only the jury may judge the credibility of witnesses and the weight and value of their testimony. Fields v. Mitch Crawford's Holiday Motors, 947 S.W.2d 818, 821 (Mo.App. 1997). A jury can believe or disbelieve any part of a witness's testimony. Id.

Under section 537.600.1(2), sovereign immunity is waived for injuries caused by the dangerous condition of a public entity's property. Kanagawa v. State ex rel. Freeman, 685 S.W.2d 831, 834 (Mo. banc 1985). A plaintiff seeking to state a claim under the aforesaid provision must show: "(1) a dangerous condition of the property; (2) that the plaintiff's injuries directly resulted from the dangerous condition; (3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind the plaintiff incurred; and (4) that a public employee negligently created the condition or that the public entity had actual or constructive notice of the dangerous condition." Id. at 835.

A "dangerous condition" refers to defects in the physical condition of a public entity's property. State ex rel. City of Marston v. Mann, 921 S.W.2d 100, 102 (Mo.App. 1996). Plaintiffs submitted on a theory that the road surface in the accident curve failed to provide adequate skid resistance when wet for vehicles traveling through the curve at reasonably anticipated speeds.

MHTC first discusses the duty it owes to travelers on Missouri highways. We agree that MHTC and other public entities have a duty to exercise ordinary care in maintaining public roads in a reasonably safe condition for travelers using the roads in the proper manner and with due care. See Ashlock v. City of Herculaneum, 670 S.W.2d 131, 132 (Mo.App. 1984); Williams v. City of Independence, 931 S.W.2d 894, 896 (Mo.App. 1996). Certainly we agree that a public entity does not have "a duty to protect against all possible injuries, just those that are reasonably foreseeable." Id.

Whether a duty exists is a question of law. Rothwell v. West Central Elec. Coop., 845 S.W.2d 42, 43 (Mo.App. 1992). In determining whether a "duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on the defendant." Id.

MHTC seems to argue that it has no duty to make Highway 60 safe for unsafe drivers like Shawn Baker. This argument is based on MHTC's evidence which contradicts Baker's testimony that he was not exceeding the speed limit of 55 miles per hour. MHTC points to the testimony of William Burris, an eyewitness to the accident, who stated that Baker was "driving fast" and "exceeding the speed limit." Also, MHTC's accident reconstruction expert witness, James Lock, testified that Baker was traveling 73 miles per hour when he entered the curve.

Under our standard of review, we must disregard MHTC's evidence that Baker was speeding. Therefore, we must conclude that MHTC had a duty to safely maintain the roadway curve with proper skid resistance when wet for vehicles traveling at reasonably anticipated speeds. MHTC does not argue that the speed limit of 55 miles an hour is not a reasonably anticipated speed.

MHTC's "dangerous condition" argument varies little from its "no duty" argument. MHTC summarizes its position by stating that "[Plaintiffs] will likely point out that the speed limit on Route 60 was 55 mph and Shawn Baker claimed that he was not exceeding that speed. Thus, if we accept that testimony as true and disregard all of the other evidence, the case was arguably submissible. However, this Court is not required to accept as true that which is entirely unreasonable." MHTC cites no authority for the "entirely unreasonable" exception to our standard of review.

In Foster v. Farmers Ins. Co., Inc., 775 S.W.2d 143 (Mo. banc 1989), the Supreme Court said that "evidence, however improbable, must not be withdrawn from the jury unless it appears to be so clearly and irrefutably impossible that reasonable minds cannot entertain any other conclusion." Id. at 145. Therefore, we must determine if Plaintiffs' evidence in this case is so "irrefutably impossible" that reasonable minds could not reach any other conclusion. We do not attempt to judge whether Plaintiffs' evidence was "entirely unreasonable."

According to MHTC, the laws of physics dictate that if poor pavement friction caused Baker to lose control at 55 miles per hour, then every other driver negotiating the curve at that speed and under the same conditions would also lose control of their vehicle. MHTC points out that between August 20, 1994, and the accident on September 5, 1995, no other accidents occurred on this curve even though 700,000 eastbound vehicles successfully traversed the curve in sometimes worse conditions than just wet pavement.

At first glance, this argument seems plausible. However, the argument fails after a careful reading of Foster. The plaintiff in Foster was the only witness at trial. 775 S.W.2d at 144. She testified that she was walking north on the west shoulder of a street in Blue Springs, Missouri. The street was paved, two lanes wide, with two-way traffic and gravel shoulders five to seven feet wide. Plaintiff could see 200 yards in front of her. The tailgate of a southbound pickup truck struck and injured plaintiff's shoulder as she was walking approximately one foot from the pavement. Plaintiff testified that she did not step onto the pavement, that she did not see the pickup truck move off the pavement, that nothing protruded from the truck, and that when the front of the truck passed her, it was only six inches off her right shoulder.

On appeal, defendant argued that the accident was an impossibility under the facts related by plaintiff. Id. at 145. In answering this contention, the Supreme Court said:

[P]laintiff's evidence indicates that for the accident to have occurred as she...