Brizendine v. Bartlett Grain Co.

• Decision Date: 22 December 2015
• Docket Number: WD 78228
• Citation: Brizendine v. Bartlett Grain Co., 477 S.W.3d 710 (Mo. App. 2015)
• Parties: Tiffany K. (Mahaffey) Brizendine, Appellant, v. Bartlett Grain Co., LP, Respondent.
• Court: Missouri Court of Appeals

477 S.W.3d 710

Tiffany K. (Mahaffey) Brizendine, Appellant,

v.Bartlett Grain Co., LP, Respondent.

WD 78228

Missouri Court of Appeals, Western District.

FILED: December 22, 2015

Herbert W. McIntosh, Kansas City, MO for Appellant.

Jo S. Warmund, Kansas City, MO for Respondent.

Before Division Two: Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick and James E. Welsh, Judges

Lisa White Hardwick, Judge

Tiffany Brizendine appeals the circuit court's judgment finding against her and in favor of Bartlett Grain Company ("Bartlett") on her petition for damages after she was injured on Bartlett's property. Brizendine contends the court erred in refusing her withdrawal instruction regarding certain evidence, in allowing Bartlett to argue her negligence based upon that evidence in closing argument, and in allowing Bartlett to cross-examine her about the circumstances surrounding her change of employment after her injury. For reasons explained herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Around 7:00 p.m. on October 29, 2011, there was an explosion at Bartlett's grain elevator in Atchison, Kansas. Brizendine, a canine search and rescue volunteer with the Metro Canine Group, received a text message asking her to report to the scene. In addition to taking her dog, Brizendine took her "go-bag" of gear, which contained, among other things, two flashlights and a hard hat with a headlamp on it.

Brizendine arrived in Atchison around midnight. Susan Wexter, another volunteer with the Metro Canine Group, arrived at the same time as Brizendine. They were met by a police officer, who escorted them into the gated area surrounding the grain elevator. Access to the gated area was limited to law enforcement officers, fire fighters, rescuers, and paramedics. A police officer directed Brizendine to park her vehicle on a largely-graveled parking lot near the grain elevator.

It was very dark in the parking lot when Brizendine and Wexter arrived. Huge, bright, temporary lights run by generators were pointed at the grain elevator, but there was "very little backlighting" from them shining on the parking lot. Lights from the emergency vehicles in the parking lot were not flashing. While headlights from cars that were stopped at the gate entrance provided some light, no lights were on in the parking lot itself. Because it was so dark in the parking lot, Wexter put her headlamp on her hard hat as soon as she got out of her car, and she may have had her flashlight with her as well. Another canine search and rescue volunteer at the scene, Jake Ring, turned on his flashlight immediately upon exiting his car so that he would not be walking around in the dark. Brizendine, who had never been to the scene before that night and was unfamiliar with the terrain, did not put on her headlamp or use her flashlights even though she, too, thought it was "very dark."

Brizendine checked herself and Wexter in at the command post. Afterwards, Brizendine and Wexter decided to "break" their dogs, which means allow the dogs to relieve themselves. Wearing her headlamp, Wexter walked over to a grassy area to break her dog. Brizendine walked with her dog to a different grassy area at the edge of the gravel parking lot, eight to ten feet away from where she had parked. As Brizendine and her dog left the gravel and entered the grassy area, they both stepped off and went down one and one-half to two feet into a ditch. Brizendine heard a pop and a cracking noise and tried to get up two or three times, but she could not put any weight on her right leg. Brizendine later learned that she had sustained a right tibial pilon fracture, which is a fracture that involves the weight-bearing surface of the ankle joint. The injury required her to have multiple surgeries and to undergo physical therapy. She continues to have mobility issues and is limited in her ability to perform certain physical activities.

At the time of her injury, Brizendine was employed as a security specialist for Cerner Corporation. Before her injury, she had applied for an emergency management position at KU Medical Center. Brizendine interviewed for that position from her hospital bed after her injury, but another person was hired for the job. After recuperating, she returned to her job at Cerner, with certain accommodations. In October 2012, Brizendine began working as a security specialist at KU Medical Center, where her husband worked as a police officer.

In April 2013, Brizendine filed a petition for damages against Bartlett in the Circuit Court of Jackson County, the county where she resides. Her petition alleged that Bartlett was negligent for failing to barricade the ditch or warn of its existence. She sought damages for hospitalization, medical care, treatment, and surgery; pain and anguish; lost employment, income, and earning capacity; and future medical treatment. In its answer, Bartlett denied Brizendine's allegations and asserted several affirmative defenses, including Brizendine's comparative fault for failing to keep a careful lookout and for failing to take necessary precautions in the existing conditions in walking from a graveled parking lot toward an area of overgrown vegetation, which referred to her non-use of a headlamp or flashlight. During the jury trial, Bartlett tendered two comparative fault instructions, one for failure to keep a careful lookout and the other for failure to take necessary precautions by using a headlamp. The court refused the separate instruction for failure to use a headlamp, finding that the failure to keep a careful lookout instruction encompassed the failure to use a headlamp or flashlight. Following a trial, the jury found that Brizendine was 100% at fault. The court subsequently entered a judgment against Brizendine and in favor of Bartlett. Brizendine appeals.

STANDARD OF REVIEW

Brizendine's seven points on appeal challenge the circuit court's refusal of her proposed withdrawal instruction and its rulings allowing certain closing argument and cross-examination. We review all of these rulings for an abuse of discretion. Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127, 129–30 (Mo. banc 2007) (withdrawal instruction); Gleason v. Bendix Commercial Vehicle Sys., LLC, 452 S.W.3d 158, 178–79 (Mo.App.2014) (closing argument); Oliver v. Ford Motor Credit Co., 437 S.W.3d 352, 364 (Mo.App.2014) (cross-examination). The circuit court abuses its discretion " ‘when a 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.’ " Swartz, 215 S.W.3d at 130 (citation omitted).

Because the alleged tort occurred in Kansas, Kansas law determines the question of Bartlett's negligence. See Wilson v. Image Flooring, LLC, 400 S.W.3d 386, 397–98 (Mo.App.2013) (citing Kennedy v. Dixon, 439 S.W.2d 173, 185 (Mo. banc 1969) ). Missouri law governs all procedural issues in the case. Clair v. Monsanto Co., 412 S.W.3d 295, 303 (Mo.App.2013).

ANALYSIS

In her first six points, Brizendine argues that the court abused its discretion by refusing to give the jury an instruction withdrawing "[t]he evidence and issue of whether plaintiff used a headlamp or flashlight before falling into the drainage ditch." Brizendine argues that the court further erred by allowing Bartlett to argue that her failure to use a headlamp or flashlight constituted evidence of her negligence.

Brizendine was the first party to raise and to offer evidence at trial on the issue of the use of a headlamp or flashlight. Brizendine's counsel mentioned in his opening statement that, in preparing Brizendine's case against Bartlett, he "had to determine if she had done anything wrong." He told the jury that one of the things he considered in making that determination was the outfit that Brizendine was wearing that night, which he told the jury included a hard hat with a headlamp. He did not mention that the evidence would show that she was not wearing the headlamp when she was injured. Later, during Brizendine's case-in-chief, Wexter and Ring testified on direct and cross-examination that they had either a headlamp (Wexter) or a flashlight (Ring) with them in the parking lot because it was so dark. Brizendine testified on cross-examination that, while she had her headlamp and two flashlights with her on the night of her injury, she never took them out of her gear bag. She explained that, even though it was "very dark" and she was unfamiliar with the terrain of Bartlett's property, she did not believe that she needed the lighting equipment because the gravel parking lot and the grassy area around it constituted the "safe zone" for emergency responders. According to Brizendine, it "didn't occur to [her] that the grass wasn't actually grass, that it was a drop-off." In its closing argument, Bartlett argued that Brizendine was at fault for her injury because, unlike Wexter and Ring, she chose to walk into a very dark and unfamiliar area without using her headlamp or a flashlight.

The circuit court has discretion to submit withdrawal instructions to the jury under the following circumstances:

"Withdrawal instructions may be given when evidence on an issue has been received, but there is inadequate proof for submission of the issue to the jury; when there is evidence presented which might mislead the jury in its consideration of the case as pleaded and submitted; when there is evidence presented directed to an issue that is abandoned; or when there is evidence of such character that might easily raise a false issue."

Haffey v. Generac Portable Prods., L.L.C., 171 S.W.3d 805, 810 (Mo.App.2005) (quoting Stevens v. Craft, 956 S.W.2d 351, 355 (Mo.App.1997) ). In this case, Brizendine argues that evidence of her failure to use her headlamp or flashlight positively misled the jury (1) about her non-existent duties to anticipate and take precautions against a concealed danger on Bartlett's premises; (2) that the...