Brown v. Van Noy, WD
| Decision Date | 24 May 1994 |
| Docket Number | No. WD,WD |
| Citation | 879 S.W.2d 667 |
| Parties | Myron BROWN, Respondent, v. Raymond C. VAN NOY, Defendant, Martin City Pub, Inc., Appellant. 47222. |
| Court | Missouri Court of Appeals |
Leonard Rose, Richard J. Haskins, Rose, Brouillette & Shapiro, P.C., Kansas City, for appellant.
H. George Lafferty, Jr., Teasdale Before ULRICH, P.J., and BRECKENRIDGE and SPINDEN, JJ.
& Lafferty, Kansas City, for respondent.
Martin City Pub, Inc. (Martin City Pub), appeals the judgment entered, following jury verdict, against the Martin City Pub and in favor of Myron Brown and the order overruling Martin City Pub's Motion for Judgment Notwithstanding the Verdict (j.n.o.v.) or in the alternative for a new trial, on Mr. Brown's negligence claim. The jury determined that Martin City Pub was 75% at fault and that Mr. Brown was 25% at fault. The jury found $267,500 in total damages. Accordingly, the court's judgment awarded Mr. Brown actual damages of $200,625.
The judgment is reversed and the case is remanded for a new trial.
On the night of July 26, 1990, Myron Brown entered Martin City Pub. While at the tavern, Mr. Brown consumed, at a minimum, two glasses of rum and Coke. He may have also consumed some beer. Mr. Brown observed two women playing billiards. He made a bet with one of the women on the outcome of the pool game. The bet was for ten dollars. Mr. Brown placed a twenty dollar bill on the pool table, and the woman placed a ten dollar bill next to it. Mr. Brown lost the bet. He testified that he picked up the ten dollar bill and left the twenty dollar bill for the woman. Witnesses saw him pick up what they believed was the ten dollar bill and leave the area of the pool table. A few minutes later the woman began to yell that Mr. Brown had "ripped her off." Mr. Brown and the two women argued for several minutes across the room. The women then left and returned a few minutes later with two men, Mike Becker and Tommy Doyle. The men told Mr. Brown to give one of the Nineteen days later, Mr. Brown first sought medical attention. Mr. Brown explained the delay by saying he did not have medical insurance and he hoped he would improve without medical attention. He said he was generally disoriented and remained in bed under his mother's care. His mother continually encouraged Mr. Brown to consult a physician. When he realized that he was not recovering and had suffered serious injury, he relented and allowed himself to be taken to a physician. The examining physician sent him to Research Hospital for x-rays and then referred him to a surgeon.
women ten dollars. In response Mr. Brown swore and said, "I paid that girl, I ain't paying her again." One of the men shoved Mr. Brown several times. As Mr. Brown turned, Mike Becker hit him once in the face. Mr. Brown collapsed unconscious on the tavern floor. Mr. Brown was unconscious for a period of 15 to 30 minutes. While Mr. Brown was unconscious either Mr. Becker or Mr. Doyle reached into Mr. Brown's pocket, took out a single bill, and gave it to the two women. Mr. Becker, Mr. Doyle and the two women then left the pub. The bartender did not call the police, an ambulance or a physician. The bartender did supply ice and towels to pub patrons who were trying to rouse Mr. Brown. After 15 to 30 minutes an acquaintance and two other Pub patrons "more or less carried" Mr. Brown to his car and laid him in the car in a dazed state. The acquaintance testified that he viewed Mr. Brown two or three times before the pub closed and each time told the bartender that Mr. Brown was still in the car and not moving. The pub closed at approximately 1:30 a.m. Around 6:30 a.m., Mr. Brown drove himself home in his car
Mr. Brown's eye socket, cheek bone and nose had been fractured. He had also suffered nerve damage and a ruptured disc in his neck. A twelve-hour surgery was required to repair the damage to Mr. Brown's face. Mr. Brown also required separate surgery for the ruptured cervical disc. Mr. Brown continues to suffer pain, weakness, headaches, and vision impairment.
Mike Becker grew up in the Martin City area and was well known to the "owner" of the Martin City Pub, Raymond C. Van Noy. Mr. Becker is about six feet tall and weighs over 185 pounds. He was a Golden Gloves boxer. Mr. Brown is about five feet nine inches tall and weighs less than 145 pounds.
Mr. Van Noy acknowledged that he knew before July 26, 1990, that Mike Becker had been in fights. Mr. Van Noy said, "Mike Becker is one tough kid and just seems to attract fights." Martin City Pub barred patrons who fought or were unruly, but on no occasion, even after the attack on Mr. Brown, had Mr. Becker ever been barred from the Martin City Pub. Mr. Van Noy was not present at the tavern when Mr. Becker struck Mr. Brown.
Shortly after the assault, a witness gave a statement that he had seen Mr. Becker in several fights at the Martin City Pub before the assault on Mr. Brown. 1 The witness stated that one of the fights involved Mr. Van Noy's son.
Mr. Brown filed a motion to dismiss this appeal claiming that the appeal failed to comply with Missouri Rules 72.01, 78.03 and 78.07 and thereby failed to preserve any issues for appeal. Martin City Pub, in its oral motion for directed verdict, both at the close of plaintiff's presentation of evidence and again at the close of all evidence, specifically contended that insufficient evidence was presented to support Mr. Brown's negligence claim. Rule 72.01 allows a party to move for j.n.o.v. if the party had moved for a directed verdict at the close of all the evidence. The motion for judgment n.o.v. can request that the court enter judgment in accordance with the motion for directed verdict. Rule 72.01(b). Martin City Pub's motion for judgment n.o.v. was sufficient to preserve for appeal the issue of whether sufficient evidence was presented to support the jury's verdict.
Contentions not raised in the motion for a new trial cannot be considered on appeal. Rule 78.07; Bussell v. Leat, 781 S.W.2d 97, 100 (Mo.App.1989). Martin City Pub, in its alternate motion for a new trial, did not offer any grounds for error, neither did it "incorporate by reference" the accompanying suggestions in support part of the motion for a new trial. The motion stated: "In support of both motions, Defendant refers the Court to the Suggestions in Support of Defendant's Motion for Judgment Notwithstanding the Verdict Or, In The Alternative, For A New Trial, filed concurrently herewith."
The motion specifically referred to the accompanying suggestions in support and the suggestions in support specifically outlined the alleged errors. The better expression of intent is to "incorporate by reference" a second document when the second document is essential to the motion. In this case however, where the objections at trial were specific and the motions for j.n.o.v. or a new trial evinced the intent to include the allegations of error included in the accompanying suggestions in support, Mr. Brown's motion to dismiss this appeal is denied.
Although this case must be reversed and remanded because the verdict director was prejudicially deficient, the other issues raised will recur on retrial and are, therefore, addressed. As its first point on appeal, Martin City Pub alleges that the trial court erred in overruling its motion for a directed verdict because insufficient evidence was adduced to prove Martin City Pub owed a duty to protect Mr. Brown from injury by Mr. Becker. Martin City Pub avers that insufficient evidence was presented that Mr. Becker was an individual with vicious tendencies who was likely to inflict unprovoked injury upon others. Martin City Pub also contends that Mr. Brown presented insufficient evidence that Martin City Pub knew Mr. Becker was an individual with vicious tendencies who was likely to inflict unprovoked injury upon others.
Appellate courts do not weigh the evidence, determine the credibility of witnesses, or resolve facts; appellate courts determine, on appeal, whether the record reflects sufficient evidence to support the verdict. Southwestern Bell Yellow Pages v. Robbins, 865 S.W.2d 361, 365 (Mo.App.1993). In determining whether the trial court should have directed a verdict or granted a judgment notwithstanding the verdict, this court must view the evidence in the light most favorable to Mr. Brown, giving him benefit of all reasonable inferences and ignoring Martin City Pub's contrary evidence except to the extent it aids Mr. Brown's case. Id. Withdrawing a case from the jury is a drastic measure which should not be taken unless reasonable minds, exercising fair and impartial judgment, would not differ on the issues. Id. A jury's verdict must not be set aside unless there is a complete absence of probative facts to support the jury's verdict. Id. at 366.
As a general rule, a party has no duty to protect another from a deliberate criminal attack by a third person. Faheen v. City Parking Corp., 734 S.W.2d 270, 272 (Mo.App.1987). The law recognizes exceptions to this general rule. These exceptions include, inter alia, obligations arising from "special relationships" or "special facts and circumstances." Id. Special relationships exist when one entrusts himself to the protection of another and relies upon that person to provide a place of safety. Id. This case does not pose a special relationships situation. The special facts exception requires some relationship which encourages the plaintiff to come upon defendant's premises, plus additional facts. Id. A tavern owner and tavern patron have that minimum relationship. To establish duty requires additional elements. This duty may arise "when a person, known to be violent, is present on the premises or an individual is present who...
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