Carroll v. Kelsey

• Decision Date: 14 August 2007
• Docket Number: No. WD 66616.,WD 66616.
• Citation: 234 S.W.3d 559
• Parties: Richard G. and Jerri A. CARROLL, The Surviving and Natural Parents of Jarrod M. Carroll, Appellants, v. David K. KELSEY, Respondent.
• Court: Missouri Court of Appeals

234 S.W.3d 559

Richard G. and Jerri A. CARROLL, The Surviving and Natural Parents of Jarrod M. Carroll, Appellants, v. David K. KELSEY, Respondent.

No. WD 66616.

Missouri Court of Appeals, Western District.

August 14, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 25, 2007.

Application for Transfer Denied October 30, 2007.

Randy W. James, Lauren P. Allen, Lee's Summit, MO, Mark E. Parrish, Kansas City, MO, for appellants.

Michael E. McCausland, Brian M. Bartalos, Kansas City, MO, for respondent.

Before BRECKENRIDGE, P.J., LOWENSTEIN and HOLLIGER, JJ.

HAROLD L. LOWENSTEIN, Judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

Richard and Jerri Carroll appeal the judgment entered on a verdict in favor of the defendant, David Kelsey, in a wrongful death suit after their son, Jarrod, was killed after he was hit by a pickup truck driven by defendant, David Kelsey. Jarrod, then fifteen years old, was riding his bicycle southbound against traffic along the curb of the northbound lane of Todd George Road in Lee's Summit. With northbound traffic approaching, Jarrod crossed over two lanes to follow the curb in the southbound lane. Kelsey, southbound, approached Jarrod from behind as the boy traveled along the southbound fog line. Rather than follow the bicycle, Kelsey pulled over to pass just as Jarrod began to swing back across the southbound lane. Kelsey slammed on the brakes but hit the left side of Jarrod's bicycle at the end of the skid. Jarrod struck his head and later died of his injuries. Kelsey was the only witness to the accident.

In their wrongful death suit, the Carrolls claimed that Kelsey was negligent in failing to pass Jarrod at a safe distance, thereby striking the Jarrod's bicycle from behind. Kelsey claimed Jarrod made a sharp left turn into the path of the truck just as Kelsey began to pass and the truck struck the left side of Jarrod's bike. The jury returned a verdict finding Jarrod 100% at fault for the accident.

II. DISCUSSION

The Carrolls raise four points on appeal. In their first point, the Carrolls claim that the contributory negligence instruction was not supported by sufficient evidence in the record and was additionally defective for failure to include specific clarifying language. In their second point, they contend the trial court erred in admitting the opinion testimony of the investigating officer. The Carrolls then challenge the trial court's refusal to sanction Kelsey for spoliation of evidence in their third point. In their fourth point, they argue that the trial court erred in excluding evidence of Kelsey's pending divorce.

A. INSTRUCTIONAL ERROR

In their first point on appeal, the Carrolls challenge the submission of the contributory negligence instruction to the jury. They argue that the instruction was not supported by sufficient evidence in the record and that the issue of whether or not Jarrod intended to turn left was, at best, a controverted fact subject to inclusion of language mandated by Welch v. Hyatt, 578 S.W.2d 905 (Mo. banc 1979) (hereinafter "the Welch language").

Instructional error is a matter of law reviewed de novo by this court. Martens v. White, 195 S.W.3d 548, 557 (Mo. App.2006). An instruction is in error where the appellant can show that the instruction misdirected, misled, or confused the jury. Id. However, mere error is not sufficient for reversal; the appellant must also show prejudice resulting from the error. Williams v. Fin. Plaza, Inc., 23 S.W.3d 656, 658 (Mo.App.2000).

1. FAILURE TO MODIFY MAI 17.06

The respondent questions whether any error associated with the failure to include the Welch language is preserved for appellate review in that the Carrolls failed to make a substantive, specific objection to the instruction and failed to offer an alternate instruction offering including the language they now claim was omitted in error. To preserve a claim of instructional error, a specific objection must be made stating "distinctly the matter objected to and the grounds of the objection." Rule 70.03. The same objection must also be raised in the motion for a new trial. Id. "The rationale behind making objections is to avert error and allow the trial court to make an intelligent ruling." Gamble v. Bost, 901 S.W.2d 182, 188 (Mo.App.1995).

Instruction number 6, patterned on MAI 17.06, directed:

In your verdict you must assess a percentage of fault to decedent Jarrod Carroll if you believe:

First, either

decedent Jarrod Carroll failed to keep a careful lookout, or

decedent Jarrod Carroll failed to signal an intention to turn, and

Second, decedent Jarrod Carroll, in any one or more of the respects submitted in paragraph First, was thereby negligent, and

Third, such negligence of decedent Jarrod Carroll directly caused or directly contributed to cause the death of decedent.

The term "negligent" or "negligence" as used in this instruction means the failure to use that degree of care that a very careful boy of the same age, capacity and experience would use under the same or similar circumstances.

At conference, counsel for the Carrolls objected to this instruction stating: "The only objection I have to the submission is that the — I don't believe there is any evidence with regard to any duty on the part of Jarrod Carroll to signal an intention to turn." However, upon the court's inquiry, the Carrolls did not offer an alternate proposed instruction.

In the motion for a new trial, the Carrolls again raised the question of sufficient evidence to support the instruction. However, they also argued that the issue of whether or not Jarrod intended to turn left was a controverted fact and was, therefore, subject modification per Welch v. Hyatt, 578 S.W.2d 905, 915 (Mo. banc 1979). In Welch, the Supreme Court stated, "when a turn is controverted and disputed fact, MAI 17.06 should require a finding that (1) there was a turn and (2) that there was a failure an intention to turn." Id.

The Carrolls claim that the additional grounds for error raised in the motion only provide a specific basis for the general objection made at trial. They properly cite Porta-Fab Corp. v. Young Sales Corp., 943 S.W.2d 686 (Mo.App.1997), for the proposition that a general objection to an instruction at trial may be later specified in a motion for a new trial. Id. at 691. However, in Porta-Fab, the theory of the objection at trial, that the verdict director was based upon the wrong MAI, was the same as the theory put forth in the motion for a new trial and later upon appeal. Id. That is not the case here.

At trial, the Carrolls only challenged the evidentiary basis for the instruction. In the motion for a new trial and upon appeal, the Carrolls additionally challenged the language of the instruction for failure to include the Welch language. However, "a point on appeal must be based upon the theory voiced in the objection at trial and [an appellant] cannot expand or change on appeal the objection as made." Zakibe v. Ahrens & McCarron, Inc., 28 S.W.3d 373, 387 (Mo.App.2000). That an instruction is not supported by evidence in the record is a claim of error distinct from a claim that an instruction is deficit for failure to include clarifying language.

In arguing that the instruction was defective for failure to include the Welch language, the Carrolls put forth a theory other than that raised at trial. Because error associated with the failure to include the Welch language was not raised at trial, it is not properly preserved for appellate review. Therefore, this court will limits its review of the Carrolls' claim of instructional error to whether the disputed instruction was supported by sufficient evidence in the record.

2. SUFFICIENT EVIDENCE SUPPORTING THE CONTRIBUTORY NEGLIGENCE INSTRUCTION

A jury instruction must be supported by substantial evidence in the record. Griffin v. Kansas City S. Ry. Co., 965 S.W.2d 458, 462 (Mo.App.1998). If the instruction is submitted in the disjunctive, "all submissions must be supported by substantial evidence." Messina v. Prather, 42 S.W.3d 753, 759 (Mo.App.2001). "Substantial evidence is competent evidence from which a trier of fact can reasonably decide the case." Mathis v. Jones Store Co., 952 S.W.2d 360, 366 (Mo.App. 1997). This court must view the evidence in the light most favorable to the proponent of the proposed instruction, giving the proponent the benefit of all reasonable inferences and disregarding evidence to the contrary. King v. Unidynamics Corp., 943 S.W.2d 262, 267 (Mo.App.1997).

Kelsey was the only witness to the accident. He testified that he was progressing southbound on Todd George Road when he saw Jarrod, also southbound. Jarrod was on the west side of the road, traveling against northbound traffic. When Kelsey first saw Jarrod, two northbound cars were approaching. Still travelling southbound, Jarrod crossed the road from the west side of the road, against traffic, to the east side, to begin traveling with the traffic flow. Kelsey, about a block away, assumed Jarrod changed sides to avoid oncoming traffic but he did not know if he was just crossing the road or if he planned to turn west at the next intersection.

Jarrod continued southbound on Todd George Road through the intersection. Kelsey, still traveling at twenty-five to thirty miles per hour, began to move left to go around Jarrod. Jarrod was riding on the right hand fog line; Kelsey did not slow down to follow Jarrod. The southbound lane of Todd George Road began to narrow at that point, the northbound lane was about four feet wider than the southbound as Kelsey approached. Kelsey testified that as he began to move left to go around Jarrod, Jarrod moved farther right. Kelsey thought that move indicated Jarrod was aware of the approaching truck. Kelsey stated that he planned to move left of the centerline and give Jarrod room as he passed. However, as Kelsey began to pass, Jarrod turned in front of him, characterized as a ...