Bostic by Bostic v. Bill Dillard Shows, Inc.
| Decision Date | 25 February 1992 |
| Docket Number | No. WD,WD |
| Citation | 828 S.W.2d 922 |
| Parties | Alethea BOSTIC, by next Friend, Susan BOSTIC, Plaintiff-Respondent, v. BILL DILLARD SHOWS, INC., Defendant-Appellant, v. LMC, INC. and Industrial Molding Corporation, Third Party Defendants-Respondents. 43605. |
| Court | Missouri Court of Appeals |
Gary A. Schaffersman, Kansas City, for defendant-appellant.
Walter R. Simpson, Kansas City, for plaintiff-respondent.
Roger Geary, Kansas City, for third party defendants-respondents.
Thomas O. Baker, Kansas City, for W.F. Larson, Inc.
Before LOWENSTEIN, C.J., and SHANGLER and TURNAGE, JJ.
The then thirteen year old plaintiff, by her next friend, her mother, sued the appellant Bill Dillard Shows, Inc. in negligence for injuries she suffered on a ride run by Dillard as part of a traveling amusement park. Bostic lost a front tooth and part of another when the "Super Loop" ride came to a sudden stop and her mouth hit a metal rod which extended from the side of the seat upward through a padded lap bar and on up to the ceiling. These bars are eight to ten inches from the passenger's face.
The Super Loop itself is an upright sixty-two foot ride with railroad-like tracks on the outer side of an inertia inner ring. There are solid plastic wheels on the ring and there are wheels on the cars which are connected to the ring. The ride is activated by an operator who starts rocking the cars at the bottom of the circle until enough momentum is built up to cause the cars to make complete revolutions in the circle. The passenger cars run in a continuous circle attached to the inner circumference of the Loop. The passengers sit on a bench type of seat with a padded bar over their laps.
Bostic was injured when approximately ten of the five inch diameter plastic wheels holding the inertia ring broke, the ring came into contact with the steel circle and her car came to a sudden stop. Her special medical damages were just under $1000 for temporary crowns and then permanent implants to replace her teeth. Bostic missed several days of school, had discomfort and worried about her smile. Periodic dental work will need to be done on the implants. A jury brought in an award of $20,000 actual damages and $200,000 for punitive damages.
The negligence submission was for Dillard's failure "to pad a metal bar positioned near plaintiff's head, or [failure] to replace the wheels ... before they became damaged." The punitive submission was predicated on Dillard's conduct showing a "complete indifference to or conscious disregard for the safety of others." (MAI 10.02).
If the circle the ride passed on was a clock face, the car came to a stop in the 9:00 position. Several witnesses, who were office workers near the site, watching the daylong set up and testing of the ride saw the cars stop in the 9:00, 12:00 and 3:00 positions for extended periods of time with men working on the loop.
Dillard's evidence was that the wheels had a limited lifetime and required constant visual inspection and replacement. The rolling wheels made a different and perceptible sound when they began to chip or crack. Dillard claimed no problems in the setup or in the first day's operation of the ride. Wheels did break off, but there were literally hundreds on the ride and the Super Loop had never malfunctioned with passengers on board. Dillard alleged the wheels from the ring that were broken had just been replaced, brand-new, the day of the accident. Dillard's safety coordinator felt the upright bars should have been padded but knew of no instance where the ride had come to a sudden stop. There was no expert testimony as to the cause of this accident. There was no mechanism whereby the operator could have brought the ride to a sudden stop. The ride had been set up, all wheels inspected and some replaced The third party defendants, the manufacturers of the ride and of the wheels, settled with Bostic for a total of $11,000. On appeal Dillard contests the dismissal from the suit of respondent Industrial Molding Corporation (wheels) who settled with Bostic for $10,000, and of LMC, Inc. (ride) who settled for $1,000.
the very day of the accident. The ride ran from about 5:00 p.m. until the accident, which occurred between 9:00 and 10:00 p.m.
Dillard's points on appeal include: insufficient evidence for a submission on punitive damages as well as the underlying issue of negligence; instructional errors relating to both submissions; trial court error in applying § 537.060, RSMo.1986 to the Bostic settlements with the other defendants; the inordinate amount of punitive damages; and, plain error in plaintiff's closing argument. Due to the disposition of the appeal not all the issues will be reached.
Dillard argues its motion for a directed verdict at the close of the evidence should have been sustained because Dillard had no knowledge of defects in the wheels that broke, or of safety problems with an unpadded bar.
A defendant's motion for a directed verdict at the close of all the evidence is only sustainable when the plaintiff has failed to make a submissible case. Norris v. Jones, 687 S.W.2d 280, 281 (Mo.App.1985). In review of the trial court's ruling on a defendant's motion for directed verdict, the Court of Appeals views the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff, disregarding all evidence and inferences to the contrary. Id. The test to determine when a directed verdict is appropriate is whether reasonable men could differ on the correct disposition of the case. Love v. Deere & Company, 720 S.W.2d 786, 789 (Mo.App.1986).
Angotti v. Celotex Corporation, 812 S.W.2d 742, 746 (Mo.App.1991).
Keeping true to the standard of review and the evidence to be considered, there was no evidence of Dillard's failure to inspect or replace the wheels. There had never been an incident like this one where the wheels shattered and part of the ride mechanism hit the main structure causing the cars to come to an immediate stop. Even if not believed, this ride had been in use since 1979 and after extensive usage never malfunctioned to the extent the passenger cars came to a sudden stop--wheels had chipped or broken in mid-ride, but they were replaced without incident. The witness testimony of seeing the Super Loop ride come to a sudden stop during the day of the accident does not give rise to an inference favorable to the punitive submission, nor for that matter the negligence submission discussed infra.
In sum, the plaintiff's favorable evidence for a punitive submission was that certain wheels became damaged, the ride came to a stop, and she was injured by contact with the exposed metal bars. Her evidence was that Dillard knew the unpadded upright bars could be a safety threat, but did nothing. The issue then becomes whether this evidence and the reasonable inferences from the evidence was sufficient to support a submission for conduct showing a complete indifference to or conscious disregard for the safety of others. Menaugh v. Resler Optometry, Inc., 799 S.W.2d 71, 73 (Mo. banc 1990); MAI 10.02, "This is so if the defendant knew or had reason to know there was a high degree of probability that the action would result in injury," Stojkovic v. Weller, 802 S.W.2d 152, 155 (Mo. banc 1991), quoting from Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 436 (Mo. banc 1985). Hoover's Dairy, and later cases such as May v. AOG Holding Corp., 810 S.W.2d 655, 660-61 (Mo.App.1991), make positive statements that our Missouri law on punitive damages requires knowledge or scienter (or the defendant should have known) of the probability and resulting injury. In fact, "actual knowledge of the dangerous condition is generally required." Hoover's Dairy at 437. "Scienter in some degree is essential A punitive award is not appropriate in every negligence case--facts in addition to the negligence submission must be established for such a recovery. Menaugh v. Resler Optometry, Inc., 799 S.W.2d at 74. "The uniform tenor of the recent cases is that punitive damages are to be the exception rather than the rule," but despite differences in phraseology, the submission and recovery is "all depend on willful wrongdoing, or recklessness which is the legal equivalent of willfulness." Menaugh, at 75.
to the award of punitive damages in a negligence case." May at 661.
Dillard directs the court to examine Sledge v. Town & Country Tire Centers, 654 S.W.2d 176 (Mo.App.1983). The plaintiff sought damages for injuries based on the defendant Town and Country's failure to properly lubricate the rear axle bearings of the car in which the plaintiff was riding. The improper lubrication caused excessive heating which caused the axle to break causing the car to leave the highway. Id. at 178. The plaintiff recovered actual and punitive damages. The punitive award was overturned on the conclusion of insufficiency of the evidence, the court writing at page 182:
But the only evidence in the record is that the mechanic believed from his experience and from his visual inspection of the axle and bearings that the method being utilized was the correct one. His actual or constructive knowledge that injury could occur if he was negligent was an element of defendant's duty. It does not supply the knowing violation of that duty necessary to support punitive damages. The mechanic utilized a method he believed to be correct; he was negligent in so doing but he did not knowingly act improperly nor was he indifferent to or in conscious disregard of plaintiff's safety. (footnote omitted)
This court concludes that there was insufficient evidence to support the submission for a punitive award. That portion of the judgment for $200,000 is reversed.
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