Bergsieker v. Schnuck Markets, Inc.

• Decision Date: 09 February 1993
• Docket Number: No. 61628,61628
• Parties: Alvin BERGSIEKER, Appellant, v. SCHNUCK MARKETS, INC., and A.W. Schnur Construction Company, Respondent.
• Court: Missouri Court of Appeals

Page 156

849 S.W.2d 156

Alvin BERGSIEKER, Appellant, v. SCHNUCK MARKETS, INC., and A.W. Schnur Construction Company Respondent.

No. 61628.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 9, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 10, 1993.

Application to Transfer Denied April 20, 1993.

Marc P. Weinberg, St. Louis, for appellant.

Charles E. Reis, IV, Steven Asher, Bryan M. Groh, David T. Butsch, St. Louis, for respondent.

CRAHAN, Judge.

This is an appeal filed by Plaintiff, Alvin Bergsieker, personal representative of the estate of Velma Bergsieker, deceased, ("Plaintiff") alleging error in the trial court's denial of his timely motion for new trial in an action for personal injuries originally brought by Plaintiff's wife, Velma Bergsieker ("Velma"). Velma died of unrelated causes prior to trial. Velma alleged that she suffered a broken hip in a fall at a grocery store parking lot. After a lengthy trial, the jury found no fault on the part of any party. Accordingly, judgment was entered in favor of the defendants, Schnuck Markets, Inc. ("Schnuck") and A.W. Schnur Construction Company ("Schnur") (collectively "Defendants"). We affirm.

In his appeal, Plaintiff asserts seven points of error. ¹ Only one point merits extended discussion. In that point Plaintiff asserts that the trial court erred in instructing the jury that it could not consider Velma's deposition against defendant Schnur. Velma's deposition was taken when Schnuck was the only party defendant, approximately four months before the petition was amended to add Schnur as a party defendant (along with several others who were later voluntarily dismissed from the case). Plaintiff's remaining points, to the extent they were properly preserved, will be discussed briefly.

The incident giving rise to the suit occurred on November 17, 1988. Velma was then 69 years old and was suffering from numerous maladies including diabetes, breast carcinoma which had metastasized to her bones, and cataracts. She had previous surgery to her back, a history of weakness in her left knee and problems ambulating which prompted surgery on her left knee approximately two years prior to the incident. In 1987, Velma experienced a fainting episode that caused her to fall. In the spring and summer of 1988, Velma had cancer in her left femur, necessitating radiation treatment. She experienced swelling and stiffness in her left leg. The ligaments and tendons in that leg were affected by the radiation therapy. These preexisting problems with her left leg affected Velma's balance and gait and caused her to have difficulty walking, necessitating the use of a metal walker or the assistance of her husband's arm. Prior to the incident Velma had not been out shopping for months and had a nursing service attending her at home.

On the date of the incident, Velma decided to accompany her husband on a shopping trip to their local Schnucks grocery store, where they had shopped several times in the past. The weather was clear and dry. Plaintiff drove their four-door sedan and Velma occupied the passenger seat. Velma's walker was in the rear seating area behind her.

At the time of the incident, the Schnucks grocery store was undergoing renovations which necessitated certain temporary changes in the parking area of the store. Schnur was the general contractor for the renovations, which were being performed according to plans provided to Schnur by Schnuck. In accordance with the plans, Schnur barricaded the main driveway in front of the store which had been used for access to rows of angled parking spaces. As a temporary replacement, Schnur's subcontractor Flyer Striping painted over some of the existing spaces, including the former designated handicapped spaces, with black paint. It then outlined a new, temporary driveway with yellow paint. Flyer Striping also painted new, temporary "islands" of closely-spaced diagonal lines to indicate "no parking" areas and five new twelve foot wide handicapped spaces. These were designated by painting the well-known international symbol inside the space. ² This work occurred on September 6, 1988.

Later, at the request of Schnuck, Schnur had Flyer Striping come back and paint handicapped symbols on two additional spaces in each row, for a total of fifteen handicapped spaces. However, the existing nine foot width of these spaces was not changed because there were already a sufficient number of required handicapped spaces and the arrangement was considered temporary. This work was accomplished on September 13, 1988.

According to Plaintiff and Velma, who were the only witnesses to the incident, upon their arrival at the Schnucks grocery, Plaintiff proceeded to park in one of the temporary handicapped spaces, which was adjacent to one of the temporary islands. After parking, Plaintiff exited the driver's side of the car and proceeded around the back of the car to retrieve Velma's metal walker from the back seat. In the meantime, Velma opened her door, swung her legs around and stood up facing the rear of the car. Velma and Plaintiff testified that as Velma started to take a step with her left foot, her foot came in contact with a concrete curb, causing her to fall on her left side. Velma cried out to Plaintiff that she thought she had broken her hip.

Instead of seeking aid or assistance from anyone at Schnucks, Plaintiff assisted Velma back into the car and took her home. Once back at home, the Bergsiekers called Velma's doctor, who instructed them to proceed to the emergency room at St. Luke's Hospital. They did so and, after x-rays were taken, Velma was diagnosed as having a minimally displaced left femoral neck fracture (i.e., a broken hip). Velma was hospitalized at St. Luke's hospital where she underwent surgery to correct the fracture and extensive physical, recreational and occupational therapy prior to her discharge on December 10, 1988.

While Velma was in the hospital, the Bergsiekers contacted their family attorney who had his associate, Mr. Weinberg, contact them to investigate the incident. Mr. Weinberg met Plaintiff on the parking lot a week after the incident and took pictures of the lot and of the parking space where the fall allegedly took place. Later, Mr. Weinberg met Plaintiff at the lot a second time and Plaintiff took measurements of the space in which he claimed to have parked. Neither the Bergsiekers nor their attorneys notified Schnuck of the incident prior to the taking of these photographs and measurements.

The photographs taken by Mr. Weinberg, which were admitted into evidence, depict a yellow movable concrete curbing, several feet in length, lying largely within one of the temporary painted islands and protruding slightly over the line outlining the adjacent parking space. The size and shape of the concrete curbing is indistinguishable from those frequently encountered at the head or front of parking spaces at many establishments. However, the individual responsible for parking areas maintained by Schnuck testified without contradiction that Schnuck did not employ these devices on its parking lots because they cause maintenance problems and interfere with sweeping operations.

Neither the origin nor the disposition of the particular concrete curbing alleged to have caused Velma's fall was ever established by the evidence. The painter from Flyer Striping who performed the striping work described above testified that the concrete curbing depicted in Mr. Weinberg's photographs was not and could not have been present in the location shown in the photographs as of September 6, 1988 when he performed the work. This is because it would have been physically impossible for him to have painted the diagonal striping for the temporary island upon which the curbing was located if the curbing was present. Kevin Schiller, a courtesy clerk who retrieved carts and assisted customers with bags gave somewhat contradictory testimony to the effect that the curbing had been in the location shown in the photograph since the store opened, it was not there when the temporary island was a regular parking space prior to construction, and he could not remember seeing the curbing in that location during construction.

Exclusion Of Velma's Testimony As To Schnur

In his first point of error, Plaintiff maintains that the trial court erred in granting Schnur's motion in limine precluding Plaintiff's use of Velma's deposition against it. ³ Plaintiff acknowledges the general rule that a deposition taken prior to the joinder of a party to a case is inadmissible against that party because there has been no opportunity to cross-examine the deponent. First National Bank of St. Petersburg v. Switzer, 277 S.W.2d 689, 691-92 (Mo.App.1955). Nevertheless, Plaintiff urges that Velma's deposition was admissible against Schnur in this instance because: (1) Schnur would not have been prejudiced; (2) there was a unity and identity of interests between Schnur and Schnuck; and (3) Schnur waived its right to cross-examine by failing to object to the use of the deposition in a timely manner. We disagree.

The chronology of events concerning the taking and offering of Velma's deposition is instructive. Velma filed this action on February 10, 1989 naming only Schnuck as a defendant. Schnuck was served on February 23, 1989. On March 7, 1989, prior to the filing of Schnuck's answer and before any formal discovery, Velma sought and received an order from the trial court granting leave to take her deposition to preserve her testimony. Her videotaped deposition was taken later that same day. ⁴ Later, after extensive discovery, Velma's counsel concluded that other individuals or entities might be responsible for the condition of the parking lot. On July 6, 1989, Velma amended her petition to add several additional defendants. All but Schnuck and Schnur were subsequently dismissed prior to trial. Schnuck and Schnur filed their...