Carlson v. K-Mart Corp., K-MART

• Decision Date: 03 November 1998
• Docket Number: No. 80647,K-MART,80647
• Citation: 979 S.W.2d 145
• Parties: Georgia J. CARLSON, Appellant, v.CORPORATION, Respondent.
• Court: Missouri Supreme Court

Page 145

979 S.W.2d 145

Georgia J. CARLSON, Appellant, v. K-MART CORPORATION, Respondent.

No. 80647.

Supreme Court of Missouri,

En Banc.

Nov. 3, 1998.

Rehearing Denied Dec. 1, 1998.

Michael W. Manners, Independence, for Appellant.

Michael W. Shunk, Barry W. McCormick, Scott C. Long, Overland Park, KS, for Respondent.

WHITE, Judge.

Georgia Carlson sued K-Mart Corporation for injuries sustained while shopping at a K-Mart store. Several months later, Ms. Carlson was involved in an automobile accident that, K-Mart argues, actually caused her injuries. The jury was given a verdict directing instruction that held K-Mart liable if it negligently caused or contributed to cause Ms. Carlson's injuries, and the jury found in Ms. Carlson's favor. The trial court, however, refused Ms. Carlson's request to modify the damage instruction to award damages for injuries caused or contributed to by K-Mart's negligence, and Ms. Carlson appealed. Because we find that, under the circumstances of this case, the damages instruction should have been consistent with the verdict directing instruction, we reverse and remand for a new trial on the issue of damages.

On June 8, 1992, Georgia Carlson was shopping at the K-Mart store in Independence, Missouri. When she bent down to examine some merchandise on a lower shelf, boxes containing crockpots fell on her from an upper shelf, striking her on the face and head and causing her to fall to the floor. Later that day, Ms. Carlson went to a hospital seeking treatment for injuries to her back, neck, head and mouth. In the weeks after the accident, Ms. Carlson's back pain became more severe, causing her to seek further medical treatment. In October 1992, Ms. Carlson underwent an MRI, which showed a protruding disk in her lumbar spine. At that time, Ms. Carlson was complaining of pain in her lower back and right hip and numbness in her right thigh, symptoms that are consistent with radiculopathy. These symptoms may be caused by pressure on the nerve root exiting from the spine, pressure that may be caused by a disk protrusion such as that shown on Ms. Carlson's MRI. This MRI also showed degenerative disk disease, which can be a normal part of the aging process and is often asymptomatic in those with the condition. No evidence was presented that Ms. Carlson had shown any symptoms of the disease prior to the K-Mart incident.

On December 12, 1992, Ms. Carlson was involved in an automobile accident. As she was driving her car at approximately twenty miles per hour, a drunk driver, who was being chased by a police officer, crashed into the rear of her vehicle at high speed, possibly as much as eighty to one hundred miles per hour. At that time, Ms. Carlson was taken to the hospital, telling the ambulance driver that her back hurt somewhat more than it had previously; she was released after a fifty minute examination. Five days later, Ms. Carlson saw an orthopedic surgeon, complaining that her neck pain had increased markedly since the automobile accident. In June of 1993, after Ms. Carlson's radicular symptoms became more severe, she saw a neurosurgeon, who diagnosed her protruding disk, based upon the October MRI. After conservative attempts to treat this problem failed, and after a December 1993 CT scan confirmed the protruding disk, Ms. Carlson underwent back surgery in March 1994. This surgery also failed to alleviate her symptoms, and Ms. Carlson continues to experience painful and disabling symptoms that will require ongoing treatment.

At trial, the primary dispute was what part each of these three factors, possible pre-existing degenerative disk disease, the K-Mart incident, and the automobile accident, played in Ms. Carlson's present back injury. Several of the medical experts who testified at trial said that it was impossible to determine what role each of the accidents had played in creating Ms. Carlson's condition. One of Ms. Carlson's experts testified that the K-Mart incident was solely responsible for her injuries, and that the automobile crash had a negligible effect on her condition. There was also conflicting medical evidence on the question of to what degree degenerative disk disease was responsible for some part of Ms. Carlson's condition. No expert testified that it was possible to segregate the injury or exacerbation caused by the automobile accident from the injury caused by the K-Mart incident. After trial, the jury found K-Mart negligent and awarded Ms. Carlson $100,000. Ms. Carlson appeals from that verdict on the grounds that the jury was improperly instructed on the calculation of damages.

The trial court gave the following verdict directing instruction:

INSTRUCTION NO. 6

Your verdict must be for Plaintiff if you believe:

First, there were boxes stored on the overhead shelf of the Kitchen Corner and as a result the aisles in the Kitchen Corner were not reasonably safe, and

Second, Defendant knew or by using ordinary care could have known of this condition, and

Third, Defendant failed to use ordinary care to remove it, barricade it, or warn of it, and

Fourth, such failure directly caused or directly contributed to cause damage to the plaintiff.

The phrase "ordinary care" as used in this instruction means that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.

The "directly caused or directly contributed to cause" language is drawn from MAI 19.01, which allows the plaintiff to modify the verdict director in cases where there are multiple causes of damage, and an instruction limiting liability to injuries that are a "direct result" of defendant's negligence might be misleading. As the commentary to the instruction points out, this modification is intended to properly instruct the jury as to the law where there are multiple causes of injury The general rule is that if a defendant is negligent and his negligence combines with that of another, or with any other independent, intervening cause, he is liable, although his negligence was not the sole negligence or the sole proximate cause, and although his negligence, without such other independent, intervening cause, would not have produced the injury. ¹

Ms. Carlson's theory of the case was that the K-Mart incident was entirely responsible for the injuries she sustained to her back, or, in the alternative, that the K-Mart incident and the automobile accident combined to cause injury to her...