Bowman v. McDonald's Corp.

• Decision Date: 12 December 1995
• Citation: 916 S.W.2d 270
• Parties: Dwight BOWMAN, Jr., Appellant, v. McDONALD'S CORP., a/k/a Delaware McDonald's, Lewis Webb, Respondents. WD 50659.
• Court: Missouri Court of Appeals

Page 270

916 S.W.2d 270

Dwight BOWMAN, Jr., Appellant, v. McDONALD'S CORP., a/k/a Delaware McDonald's, Lewis Webb, Respondents.

WD 50659.

Missouri Court of Appeals,

Western District.

Dec. 12, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 30, 1996.

Application to Transfer Denied

March 26, 1996.

John E. Rogers, Kansas City, Anthony DeWitt, Overland Park, Kan., for appellant.

Randa Rawlins, Kansas City, for McDonald's Corp.

Spencer J. Brown, Kansas City, for Lewis Webb.

Before FENNER, C.J., P.J., and ULRICH and SMITH, JJ.

FENNER, Chief Judge.

Appellant, Dwight Bowman, Jr., appeals from a defense verdict in favor of respondents, Lewis Webb and the McDonald's Corporation ("McDonald's"), in a negligence action. Appellant contends that the trial court committed error by taking an impermissibly narrow view of Missouri law, erroneously excluding evidence on that basis, and in failing to give certain jury instructions.

This case arises out of events that occurred on August 23, 1991. On that date, appellant and a friend, Jay Faulkner, went to the McDonald's restaurant located at 8304 Hickman Mills Drive in Kansas City, Missouri to eat. The restaurant in question was operated by Webb under a franchise agreement with McDonald's and had been so operated since December 8, 1990. McDonald's is the owner of the real property and building located at the 8304 Hickman Mills Drive address.

After finishing their meal, appellant and his friend remained in the restaurant, attempting to obtain the phone numbers of some girls. Two unknown men also arrived at the restaurant during this time period. Testimony revealed that the two men were seen near appellant's car, which was parked on the McDonald's lot, but never entered the restaurant. As appellant and Faulkner left the restaurant and approached appellant's car, they were confronted by the two unknown men who demanded appellant's car keys. The unknown men then drew weapons, causing appellant and Faulkner to attempt to flee. The armed men fired shots at appellant and Faulkner, striking appellant in the back, ultimately rendering him a paraplegic. After looting appellant's pockets and attempting to chase down Faulkner, the assailants escaped.

Appellant filed suit against Webb and McDonald's as a result of the events of August 23, 1991, alleging liability against both defendants on the basis of Restatement (Second) of Torts §§ 344 ¹ and 324A ², liability against McDonald's based on Restatement (Second) of Agency § 267, and seeking punitive damages. After a jury trial, verdicts were returned in favor of both Webb and McDonald's. This appeal followed.

Appellant has alleged ten points of error on appeal, all of which allege either errors in the exclusion of evidence or refusal of jury instructions on the part of the trial court. With regard to the exclusion of evidence, appellant claims the following errors were committed by the trial court:

(1) the exclusion of evidence of prior crimes at neighboring businesses;

(2) the exclusion of evidence of prior crimes on the 8304 Hickman Mills Drive premises dating back to 1987;

(3) the exclusion from evidence of a "Free Meals for Police Officers" program instituted by the prior franchisee/operator of the 8304 Hickman Mills Drive restaurant and any resulting influence on crime at the business;

(4) the exclusion of testimony from Ronald Havens, an assistant manager at the 8304 Hickman Mills drive restaurant, regarding the presence of prostitutes at the restaurant as it applied to the "family nature" of the restaurant espoused by Webb;

(5) the exclusion of testimony from Havens regarding Webb's alleged statements concerning the hiring of a security guard;

(6) the exclusion of testimony from appellant's security experts, Major John Coleman and Russell Colling, regarding the target of the assailants on the night in question and the potential effectiveness of a security guard on that night;

(7) the exclusion of testimony from Officer Gary Chrisman on the on the issue of the effectiveness of armed security guards as it pertained to the issue of causation; and

(8) cumulative error.

With regard to the trial court's refusal to accept three of appellant's proffered instructions, the alleged errors are as follows:

(1) the trial court erred in refusing instructions defining the term "co-possessor" as it related to the potential liability of McDonald's and in rejecting the verdict-directing instruction as to the liability of McDonald's under Restatement (Second) of Torts § 344.

(2) the trial court erred in refusing the verdict-directing instruction proffered by appellant on the issue of the liability of McDonald's under Restatement (Second) of Torts § 324.

Having reviewed the record before us and the exhaustive arguments of the parties, we affirm the trial court in all regards.

I. EVIDENTIARY ERRORS

Appellant alleges seven points of error committed by the trial judge concerning the exclusion of various evidence. A trial court has broad discretion to admit or exclude evidence at trial. Tennison v. State Farm Mut. Auto. Ins. Co., 834 S.W.2d 846, 848 (Mo.App.1992). A trial court is empowered to determine relevancy, and matters which are irrelevant or which are remote and collateral ought to be excluded from evidence. Radloff v. Penny, 225 S.W.2d 498, 502-03 (Mo.App.1949). A trial court's ruling on evidence ordinarily will not be overturned absent an abuse of discretion. Egelhoff v. Holt, 875 S.W.2d 543, 549-50 (Mo. banc 1994); Richardson v. State Highway and Transportation Comm'n, 863 S.W.2d 876, 881 (Mo. banc 1994). Abuse of judicial discretion occurs when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id.; McClure v. Wingo, 886 S.W.2d 141, 142 (Mo.App.1994). "Said another way, abuse of discretion means an untenable judicial act that defies reason and works an injustice." McClure, id. If reasonable people can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Richardson, 863 S.W.2d at 881; Anglim v. Missouri Pacific Railroad Co., 832 S.W.2d 298, 303 (Mo. banc), cert. denied, 506 U.S. 1041, 113 S.Ct. 831, 121 L.Ed.2d 701 (1992). It is under these principles that we review the errors alleged by appellant.

A. Prior Crimes at Neighboring Businesses

Before we are required to address the merits of an issue on appeal, the appellant must properly place the issue before the court. An issue is not presented for review if it is not presented to the trial court. Stone v. City of Columbia, 885 S.W.2d 744, 747 (Mo.App.1994). An order sustaining a defendant's motion in limine is not subject to review absent a timely offer of proof by the plaintiff due to the interlocutory nature of such a ruling. Turner v. Fuqua Homes, Inc., 742 S.W.2d 603, 613 (Mo.App.1987). Further, all allegations of error must be included in a motion for new trial to be preserved for appellate review. Rule 78.07; Murr v. Boyd, 813 S.W.2d 364, 365 (Mo.App.1991).

Respondents contend that appellant's motion for new trial did not preserve the issue of the exclusion of testimony from Officer Chrisman regarding prior crimes at neighboring businesses as required by Rule 78.07. The language of Rule 78.07 is as follows:

In jury tried cases ... allegations of error to be preserved for appellate review must be included in a motion for a new trial except that questions of jurisdiction over the subject matter, questions as to the sufficiency of the pleadings to state a claim or defense, and questions authorized by Rule 72.01 [motions for directed verdict and judgment notwithstanding the verdict] to be presented in motions for judgment need not be included in a motion for new trial. Where definite objections or requests were made during the trial in accordance with Rule 78.09, including specific objections to instructions, a general statement in the motion of any allegations of error based thereon is sufficient.

Appellant does not contend that he expressly stated the exclusion of prior crimes at neighboring businesses as a point of error in his motion for new trial. Instead, appellant claims that the issue of crimes on neighboring properties was one of the bases on which the trial court ruled Officer Chrisman could not testify, therefore the paragraph in appellant's motion for new trial addressing Chrisman's testimony is sufficient to preserve the issue for appellate review. The paragraph in appellant's motion for new trial states the following:

The Court erred in excluding the testimony of Kansas City, Missouri, police officer Gary Chrisman. [Appellant] made an offer of proof that officer Chrisman has been employed as a part-time security guard since 1985 at the Smokestack Restaurant, an establishment across the street from the Hickman Mill's McDonald's Restaurant. Officer Chrisman's testimony would have established that the Smokestack Restaurant is substantially similar to the [McDonald's] Restaurant, including location, traffic access roads, manner in which customers patronize the restaurants, and cash handling procedures. Officer Chrisman then would have testified that since he began his employment as an armed security guard at the Smokestack Restaurant in 1985, there has not been a single armed robbery of that restaurant. Officer Chrisman's testimony would have established that armed security guards were an effective deterrent to violent criminal activity on this substantially similar business property located across from the Hickman Mills McDonald's Restaurant.

In appellant's exhaustive motion for new trial, there is no mention of any testimony from Officer Chrisman regarding crimes on neighboring properties. There is no "general statement" of error regarding exclusion of evidence of prior crimes at neighboring...