Berthelsen v. URS Corporation, No. WD 66837 (Mo. App. 11/20/2007)

Decision Date20 November 2007
Docket NumberNo. WD 66837.,WD 66837.
PartiesAnna Berthelsen, Respondent v. URS Corporation, Appellant.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of Jackson County, Hon. Sandra C. Midkiff.

Thomas B. Weaver, for Appellant.

Grant L. Davis, for Respondent.

Before Newton, P.J., and Hardwick, J.



URS Corporation appeals the circuit court's judgment finding it liable in the amount of $25 million for injuries to Anna Berthelsen resulting from a collision of a truck driven by one of its employees with a vehicle in which Berthelsen was riding. URS complains that Berthelsen did not present evidence that supported the jury's award for future damages. We affirm the circuit court's judgment.

On June 19, 2002, URS' employee, Robert Bolin, was driving one of URS' trucks in the scope of his employment when the truck collided with a van driven by Eric Berthelsen. A passenger in the van and Eric Berthelsen's daughter, Anna, sustained severe head trauma and significant brain injury. Her injuries included left-sided hemiparesis in which the left side of her body was weakened and rendered abnormal by injury to her brain's right side.

Anna Berthelsen sued URS, alleging that it was vicariously liable for Bolin's negligent driving. URS conceded that it was liable for Bolin's negligence that had caused his truck to collide with the Berthelsen van. The case went to trial only on the issue of damages. At the close of the evidence, URS made a motion for directed verdict, contending that Berthelsen did not present any evidence of future damages. The circuit court overruled the motion and submitted the case to the jury, which returned a verdict for $25 million in compensatory damages. On December 14, 2005, the circuit court entered judgment for Berthelsen in the amount of $25 million. On January 12, 2006, URS filed a motion for new trial, or, in the alternative, a motion for remittitur. The circuit court denied the motion, and URS appealed.

In its first point on appeal, URS asserts that the circuit court erred in overruling its motion for a directed verdict at the close of all the evidence, which sought a directed verdict on the ground that Berthelsen did not make a submissible case. URS contends that Berthelsen did not present evidence establishing that she would suffer future damages, such as needing future surgeries or developing diseases as depression or Alzheimer's or Parkinson's diseases.

As a preliminary matter, we must determine whether or not URS sufficiently preserved its point on appeal. To preserve the issue of whether or not a plaintiff has made a submissible case for appeal, a defendant must file a motion for directed verdict at the close of all the evidence and raise the issue in an appropriate after-trial motion. Pope v. Pope, 179 S.W.3d 442, 451 (Mo. App. 2005) (citation omitted).

The parties agree that URS made a motion for a directed verdict at the close of all the evidence. Berthelsen, however, argues that URS did not claim this as error in any after-trial motions. Although URS did not specifically use the term "directed verdict," it did claim that the circuit court erred in submitting the issue of future damages to the jury because there was no evidence supporting the fact that they were reasonably certain to occur. This is the same argument it made in its motion for directed verdict. The rule's purpose is to provide the circuit court with an opportunity to correct its errors without the expense and hardship of an appeal. Brouk v. Brueggeate, 849 S.W.2d 699, 702 (Mo. App. 1993). URS' motion for new trial was sufficiently clear to put the circuit court on notice of its argument. URS preserved its claim for our review.

Unless the plaintiff makes a submissible case, the circuit court cannot allow the case to go to the jury. Hertz Corporation v. Raks Hospitality, Inc., 196 S.W.3d 536, 549 (Mo. App. 2006). To make a submissible case, the plaintiff must present substantial evidence from which a reasonable juror can find each element of his or her claim. Id. In determining whether the plaintiff has made a submissible case, we view the evidence in a light most favorable to the plaintiff. Id. A court cannot supply missing evidence and give the plaintiff the "benefit of speculative, unreasonable, or forced inferences." Id. A submissible case "cannot be based on conjecture, guesswork, or speculation beyond inferences reasonably to be drawn from the evidence." Id. Whether the evidence in the record supporting a claim is substantial and the inferences to be drawn therefrom are reasonable are questions of law. Duncan v. American Commercial Barge Line, LLC, 166 S.W.3d 78, 82 (Mo. App. 2004). We decide questions of law de novo. Commerce Bank, N.A. v. Blasdel, 141 S.W.3d 434, 442 (Mo. App. 2004).

Berthelsen alleged that, under the doctrine of respondeat superior, URS was vicariously liable for the negligent acts of its employee, Bolin. "[R]espondeat superior imposes vicarious liability on employers for the negligent acts or omissions of employees or agents as long as the acts or omissions are committed within the scope of the employment or agency." Cabellero v. Stafford, 202 S.W.3d 683, 694 (Mo. App. 2006) (citation omitted). As the underlying act of negligence, Berthelsen alleged that (1) Bolin had a duty to operate URS' vehicle in a safe and reasonable manner, (2) he breached this duty when he collided with the van in which she was riding, and (3) this act resulted in injuries to her. See Thompson v. Brown and Williamson Tobacco Corporation, 207 S.W.3d 76, 98 (Mo. App. 2006). Before trial, URS conceded that it was liable for Bolin's negligence under the doctrine of respondeat superior and that Bolin had a duty to operate URS' vehicle in a safe and reasonable manner, which he breached when his truck collided with the Berthelsen van. The only issue at trial was the nature and extent of Berthelsen's damages.

On appeal, URS concedes that Berthelsen had submitted sufficient evidence for the circuit court to submit the issue of present damages to the jury. Its complaint is that Berthelsen did not present sufficient evidence to establish that she is reasonably certain to suffer future damages as a result of her injuries.

A plaintiff is entitled to recover for future damages as long as he or she can prove that the damages are reasonably certain to occur. Swartz v. Gale Webb Transportation Corporation, 215 S.W3d 127, 130 (Mo. banc 2007). "The degree of probability of such damages must be greater than a mere likelihood; it must be reasonably certain to ensue. . . . Consequences which are contingent, speculative, or merely possible may not be considered." McKersie v. Barnes Hospital, 912 S.W.2d 562, 566 (Mo. App. 1995) (citation omitted). Usually, future damages are a matter of medical opinion that require expert medical testimony. Id.

Berthelesen presented sufficient evidence to support the circuit court's submitting the issue of future damages to the jury. Physicians diagnosed Berthelesen as suffering left-sided hemiparesis. Peter Patrick, a neuropsychologist at the University of Virginia School of Medicine, testified that injuries to her brain would worsen as she aged. He said that, by the time she becomes a teenager, she will have trouble understanding and processing information and that she probably would not be able to interact socially. Ann Modricin, chief physician of rehabilitation at Children's Mercy Hospital, agreed that Berthelsen's brain injuries would worsen as she aged. The evidence also established that Berthelsen would most likely not be able to attend college; therefore, she would lose approximately $1.5 million in wages and fringe benefits. The evidence also established that Berthelsen would need care nearly on a daily basis. As a result, Gary Yarkony, a neurologist, developed a life care plan to provide support for Berthelsen for the rest of her life, which economist Bernard Pettingill opined would cost $8 million. The circuit court did not err in overruling the motion for directed verdict.

In making its claim, URS relies on Modricin's and Yarkony's testimony that, although Berthelsen is at a higher risk of developing certain medical conditions such as depression and Alzheimer's and Parkinson's diseases, they could not say that Berthelsen will definitely develop these conditions. URS claims that, because Berthelsen's own experts could not opine with reasonably certainty that she will develop any of these conditions, she did not present sufficient evidence on future damages. Merely because Berthelsen did not present evidence on one particular type of future damages—i.e., future surgeries or future diseases—does not mean, however, that the circuit court erred in submitting the issue of future damages to the jury. The evidence, as summarized supra, was sufficient to submit the issue to the jury.

Moreover, URS misunderstands the relevance of Modricin's and Yarkony's testimony. This is because expert testimony that a person is more likely to develop a future disease does not go to the issue of future damages but to the issue of present damages. Swartz, 215 S.W.3d at 130-31. The Swartz court further instructed:

[W]hen an expert testifies to a reasonable degree of certainty that the defendant's conduct placed the plaintiff at an increased risk of suffering possible future consequences, Missouri courts have long held that such testimony is admissible to aid the jury in assessing the extent and value of the plaintiff's present injuries, even if those future consequences are not reasonably certain to occur. Id. at 131 (emphasis added). URS' claim regarding Modricin's and Yarkony's testimony is irrelevant to the issue of whether or not Berthelsen made a submissible case on the issue of future damages.

In its second point, URS asserts that the circuit court erred in not prohibiting Berthelsen's counsel from arguing that "the jury could award plaint...

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