Bowan v. Express Medical Transporters

• Decision Date: 23 March 2004
• Docket Number: No. ED 82944.,No. ED 82950.,ED 82950.,ED 82944.
• Citation: 135 S.W.3d 452
• Parties: Donna BOWAN, By and Through Her Next Friend, Audrey BOWAN, Respondent/Cross-Appellant, v. EXPRESS MEDICAL TRANSPORTERS, INC. and Amy Jo Demery, Appellants/Cross-Respondents.
• Court: Missouri Court of Appeals

135 S.W.3d 452

Donna BOWAN, By and Through Her Next Friend, Audrey BOWAN, Respondent/Cross-Appellant, v. EXPRESS MEDICAL TRANSPORTERS, INC. and Amy Jo Demery, Appellants/Cross-Respondents.

No. ED 82950.

No. ED 82944.

Missouri Court of Appeals, Eastern District, Division One.

March 23, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 13, 2004.

Peter J. Dunne, Susan L. Thurmer, St. Louis, MO, for appellant.

James P. Leonard, Michael D. Stokes, St. Louis, MO, for respondent.

Larry Smith, Clayton, MO, for Amy Jo Demery.

MARY R. RUSSELL, Judge.

Express Medical Transporters, Inc. ("EMT") appeals from the judgment entered on a jury verdict in favor of Donna Bowan ("Passenger") on her negligence action against EMT.¹ It raises three points on appeal. EMT first asserts that the trial court erred in denying its motion for judgment notwithstanding the verdict and motion for new trial in that Passenger failed to prove that it had a common law duty to "make certain" she wore a seat belt while riding in its van. It further argues that if it did have a duty to "make certain" she was seat belted, the duty was satisfied after Passenger admitted she was aware she was not seat belted and chose not to wear a seat belt. EMT's second allegation of error concerns the trial court's overruling its objections to the testimony of Passenger's non-expert witness, who was allowed to testify regarding the alleged custom and practice in the transportation industry relating to the transport of handicapped passengers. EMT's final point argues that the trial court erred in giving the jury Instruction 6, Passenger's verdict director, and its corresponding verdict form, in that they presented an incorrect statement of the law as to the existence of a duty to "make certain" Passenger was seat belted.

Passenger cross-appeals, arguing that the trial court erred in granting EMT's post-trial motion to amend the judgment pursuant to section 537.065 RSMo 2000² because the trial court improperly reduced the judgment by the amount of a pretrial settlement rather than: (1) entering a judgment in accordance with the verdict; (2) adding prejudgment interest pursuant to section 408.040(2); and (3) thereafter granting EMT a partial satisfaction for the amount of the pretrial settlement.

We affirm as to EMT's appeal, but we reverse as to Passenger's cross-appeal and remand for calculation of prejudgment interest.

Passenger was born in 1960, and was a healthy, normal child until she developed encephalitis, a swelling of the brain, when she was 8 years old. As result, she developed physical disabilities, including the limited use of her left arm, no use of her left hand, and a limp. She also developed short-term memory problems. Passenger had an IQ of 74, and was described as having the mental abilities of a 12-year old. She did not live independently until 1993, first with a roommate, and then by herself, in an apartment. She was able to care for her personal hygiene and cooking needs, but received assistance for grocery shopping and managing her finances. She received assisted transportation from her residence to her job at Lafayette Industries, a sheltered workshop—a work environment for physically and mentally handicapped adults.

Passenger was transported to her job by EMT, a non-emergency transportation company, who contracted with the Missouri Department of Mental Health to provide transportation for employees of the sheltered workshop. EMT's duties included picking up Passenger and other employees from their homes and taking them to work. The driver for Passenger's route was Larry Briggs ("Driver").

Driver was transporting Passenger and others home from work when the 14-passenger EMT van he was driving was involved in a motor vehicle accident at the intersection of Olive and Ladue Streets in St. Louis. At the time of this accident, Passenger was seated in the row of seats immediately behind Driver.³ She was not seat belted and was thrown into the area between Driver's seat and the front passenger seat. As a result of this accident, her spinal column was severed and she became a paraplegic, requiring her to move to a nursing home.

Passenger brought a negligence action against EMT⁴ and the driver of the other motor vehicle involved in the accident. After a three-day trial, the jury found EMT and the other driver jointly and severally liable in the amount of $3.5 million. EMT was assessed 30 percent fault for violation of a traffic signal and 20 percent fault for failing to "make certain" that Passenger was wearing her seat belt. Passenger was assessed 20 percent fault for failing to wear her seat belt, and the other driver was assessed 30 percent fault for failure to keep a careful lookout or failure to yield the right-of-way. After accounting for the fault assessed to her, the court entered a judgment in Passenger's favor for $2.8 million, plus costs. EMT filed motions for judgment notwithstanding the verdict and for new trial, which were denied. EMT also filed a motion to amend the judgment pursuant to section 537.065, and Passenger filed a motion to amend the judgment pursuant to section 408.040(2). After post-trial motions were heard, the trial court entered an order amending the judgment to the amount of $1.84 million. EMT's appeal and Passenger's cross-appeal followed.

Was There a Duty to Make Certain Passenger Was Seat Belted?

EMT's first point argues that the trial court erred in denying its motions for judgment notwithstanding the verdict and for new trial because Passenger failed to prove that it had a common law duty to "make certain" she wore a seat belt while riding as a passenger in EMT's van. It argues that even if it did have a duty to "make certain" she was seat belted, that duty was satisfied because she admitted that she was aware she was not seat belted and chose not to wear her seat belt.

Our standard of review for an order denying a motion for new trial is abuse of discretion, which we will find only where the trial court's ruling was so arbitrary and unreasonable that it shocks our senses of justice and indicates a lack of careful consideration. State v. Ginn, 31 S.W.3d 454, 457 (Mo.App.2000). For example, the denial of a new trial would be an abuse of discretion where it was based on findings not substantially supported by the record. Id.

The standard of review for reviewing a trial court's denial of a motion for judgment notwithstanding the verdict is whether the plaintiff made a submissible case. Coggins v. Laclede Gas Co., 37 S.W.3d 335, 338 (Mo.App.2000). A case is not submissible unless each and every fact essential for liability is predicated upon legal and substantial evidence. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). To determine whether Passenger made a submissible case, we consider the evidence, and all reasonable inferences therefrom, in the light most favorable to the plaintiff, and we disregard all evidence contrary to plaintiff's claim. Stalcup v. Orthotic & Prosthetic Lab, Inc., 989 S.W.2d 654, 657 (Mo.App.1999) (citing Cline v. Friedman & Assocs., Inc., 882 S.W.2d 754, 758 (Mo.App.1994)).

To make a claim based on negligence, a plaintiff must establish that: (1) the defendant had a duty to protect her from injury; (2) the defendant failed to perform that duty; and (3) the defendant's failure proximately caused injury to the plaintiff. Sill v. Burlington N. R.R., 87 S.W.3d 386, 391 (Mo.App.2002) (citing Lopez v. Three Rivers Elec. Coop., Inc., 26 S.W.3d 151, 155 (Mo. banc 2000)).

In a negligence action, we will find the evidence was sufficient to present a submissible case if it can be fairly inferred that the defendant was negligent. Stalcup, 989 S.W.2d at 657. Where the jury is only able to determine negligence via conjecture and surmise, we will find that plaintiff failed to make a submissible case.

Id. (citing Mills v. Redington, 736 S.W.2d 522, 524 (Mo.App.1987)).

Passenger alleged two distinct counts of negligence against EMT: (1) negligence in the operation of the motor vehicle and (2) negligence in the loading of her into the van. She argues that at trial she elicited sufficient evidence supporting both of these counts, thereby making them submissible to a jury.

EMT argues it cannot be negligent for failure to "make certain" that Passenger was seat belted because it had no duty to do so. It asserts that no statutory or common law duty to seat belt adult passengers exists, and so it could not be negligent for failing to ensure that she was seat belted. It points out that Missouri law only creates a statutory duty for drivers to seat belt passengers in their vehicles who are between the ages of four and 16.⁵ It argues that this statutory duty cannot be extended to create a common law duty for it to ensure that its handicapped adult passengers are seat belted.

The only element of negligence that is determined as a matter of law is the duty element. Sill, 87 S.W.3d at 391 (citing Deuschle v. Jobe, 30 S.W.3d 215, 218 (Mo.App.2000)). A duty to exercise care can be imposed by a controlling statute or ordinance, assumed by contract, or imposed by common law under the circumstances of a given case. Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo.1976).

When considering if a duty exists in a particular case, we look at several policy factors, including the following: (1) whether society finds the interest is worthy of protection; (2) the foreseeability of harm and degree of certainty that the protected person suffered injury; (3) the moral blame society places on the conduct; (4) the prevention of future harm; (5) the costs and the ability to spread the risk of loss; and (6) the economic burden on the actor and community. Strickland v. Taco Bell Corp., 849 S.W.2d 127, 132 (Mo.App. 1993) (citing Hoover's Dairy, Inc. v. Mid-Am. Dairymen, 700 S.W.2d 426, 432 (Mo. banc 1985)). When considering if a duty is owed, we look for a relationship between the...