Cole v. Warren County R-III School District

• Decision Date: 06 June 2000
• Docket Number: R-III
• Citation: 23 S.W.3d 756
• Parties: (Mo.App. E.D. 2000) . Jamie Cole, by and through her Mother and Next Friend, Carla Cole, and Carla Cole, Individually, Respondents, v. Warren CountySchool District and John Bass, Appellants. Case Number: ED76180 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

23 S.W.3d 756 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Jamie Cole, by and through her Mother and Next Friend, Carla Cole, and Carla Cole, Individually, Respondents, v. Warren County R-III School District and John Bass, Appellants.

Case Number: ED76180

Missouri Court of Appeals Eastern District

Handdown Date: 06/06/2000

Appeal From: Circuit Court of Warren County, Hon. Edward D. Hodge

Counsel for Appellant: Kathi L. Chestnut and Jill K. Luft

Counsel for Respondent: James F. Koester, Kenneth D. Koester and William P. Hogan

Opinion Summary: Warren County R-III School District and John Bass appeal from a judgment entered upon the jury verdict in a personal injury action filed by Jamie Cole, by and through her Mother and Next Friend, Carla Cole, and Carla Cole, individually. The School District and John Bass admitted liability, and in a trial for damages, the jury found Jamie Cole's damages for her personal injuries were $150,000 and Carla Cole's damages for injury to her child were $75,000.

AFFIRMED.

Division Two holds: Evidence of the Coles' financial condition and statements regarding attorney's fees do not rise to the level of manifest abuse of discretion. Further, the verdict is not against the weight of the evidence. The statutory cap applicable to the State is not applicable to an employee of the State. Inconsistent verdict amounts for the State and its employee, John Bass, do not violate the principles of respondeat superior.

Opinion Author: Robert G. Dowd, Jr., Judge

Opinion Vote: AFFIRMED. Crane, P.J., and Sullivan, J., concur.

Opinion:

Warren County R-III School District (the School District) and John Bass appeal from a judgment entered upon the jury verdict in a personal injury action filed by Jamie Cole, by and through her Mother and Next Friend, Carla Cole, and Carla Cole, individually. The School District and John Bass admitted liability, and in a trial for damages, the jury found Jamie Cole's damages for her personal injuries were $150,000 and Carla Cole's damages for injury to her child were $75,000. The School District and John Bass allege the trial court erred in (1) denying their motion for mistrial when evidence of the Coles' financial condition was improperly injected, (2) denying their motion for mistrial when statements regarding attorney's fees were made during closing arguments, (3) allowing a verdict that is against the weight of the evidence, and (4) failing to reduce the total judgment to the statutory maximum for John Bass. We affirm.

The Coles brought an action for damages against the School District and John Bass for personal injuries. Liability was not in dispute, only the Coles' damages.¹ The evidence showed that a school bus driven by John Bass left the road and rolled over several times before coming to a stop. Jamie Cole, age 13 at the time of the accident, was in the bus and was thrown to the floor, into the emergency door, then to the roof and the window before she blacked out. Jamie had multiple injuries and received stitches in her lip, legs, head, gums, arms, and elbow. She was missing two teeth, and a bone protruding from her gums had to be clipped and stitched. She later reported low back pain and still has pain and disability with her back.

In order to replace Jamie's teeth with false teeth, it was necessary that her other teeth be straightened. After her teeth are aligned, Jamie will need a bone graft from her hip to replace the bone that was removed after the accident. Then a titanium plate will be inserted to hold the replacement teeth. Finally, pegs will be inserted into the plate and false teeth will be made and then attached. The false teeth will need to be replaced every twelve to twenty years. The whole procedure is expected to take about three years.

At trial, there was evidence on the issue of damages. The jury found in favor of Jamie Cole and assessed her damages for her personal injuries at $150,000. The jury also found for Carla Cole and assessed her damages for injury to her child at $75,000. A motion for new trial and a motion to reduce the jury verdict were made. The trial court denied the motion for new trial. The trial court reduced the judgment against the School District to $100,000 pursuant to Section 537.610, RSMo 1994, but denied John Bass's motion to reduce. This appeal follows.

In their first point, the School District and John Bass argue the trial court erred in denying their motion for mistrial when evidence of the Coles' financial condition was improperly injected at trial. A mistrial is a drastic remedy, and the decision to grant one for misconduct or the introduction of prejudicial evidence is largely within the discretion of the trial court. Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 169 (Mo. App. W.D. 1997). The trial court is better able to determine the prejudicial effect of the improper evidence and to determine whether any resulting prejudice can be ameliorated by less drastic means than declaration of a mistrial. Id. at 169-70. We will reverse only when there has been a manifest abuse of discretion. Id. at 170. To establish manifest abuse, there must be a grievous error where prejudice cannot otherwise be removed. Id.

Evidence of, or comments upon, plaintiff's poverty is generally condemned. Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99, 105 (Mo. 1985). Evidence touching upon a party's financial condition may be relevant to the issues, however, in which case they are allowed. Id.

Here, the trial court granted a motion in limine to exclude the Coles' financial condition. However, the following exchanges took place during trial:

[Coles' counsel]: Has Jamie had the bone graft surgery yet?

[Carla Cole]: No.

[Coles' counsel]: And why not?

[Carla Cole]: Don't have the money.

The court instructed the jury to disregard the testimony, but denied the motion for mistrial.

[Coles' counsel]: And I'm not sure I covered this yesterday, that's why I'm going to ask: Do you intend to have the surgery, the mouth surgery done for Jamie?

[Carla Cole]: Yes, I do.

[Coles' counsel]: Has it been scheduled?

[Carla Cole]: No, it hasn't.

[Coles' counsel]: And why hasn't it been scheduled?

[Carla Cole]: It has to be paid in advance.

Again there was a motion for mistrial and a motion to strike the statement. Again, the trial court directed the jury to disregard Carla Cole's answer.

The Coles argue in their brief that the testimony was relevant to show why Jamie had not yet had the surgery. The School District and John Bass point out that there was only a one- month gap between the removal of Jamie's braces and the trial. They also point out that the relevance of the Coles' financial condition was never explained to the trial court. We find that although the Coles' attorney explained, "That (testimony) wasn't the way I meant to elicit it," the elicitation of this information was in direct conflict with the trial court's ruling on the motion in limine, and we admonish trial counsel for eliciting such information. We find, however, that the denial of the mistrial does not rise to the level of manifest abuse of discretion. In each instance, the trial court instructed the jury to disregard the statement. We must presume that the jury follows the instructions given to them by the court. Stalcup v. Orthotic & Prosthetic Lab, Inc., 989 S.W.2d 654, 659 (Mo. App. E.D. 1999). Point denied.

In their second point, the School District and John Bass argue the trial court erred in denying their motion for mistrial when statements regarding attorney's fees were made during closing arguments. During closing arguments, Coles' counsel stated:

Your responsibility is to give an adequate verdict, to provide one hundred percent compensation--not just fifty percent, a whole and complete verdict, complete and fair justice--not partial justice. We are not asking for your sympathy because she just wants what she is entitled to, and this compensation is exactly that. That's your job--full, fair and complete compensation.

When you go back to the jury room, use your common sense. There's things we can't ask for: we can't ask for attorney's fees because that's---

The trial court sustained the objection to this statement and denied a motion for mistrial. Again, we admonish Coles' counsel for making such statements during closing arguments. We again note, however, that mistrial is an extraordinary remedy, and we find that the failure to grant a mistrial here does not rise to the level of manifest abuse of discretion. Point denied.

In their third point, the School District and John Bass argue the trial court erred in allowing a verdict that is against the weight of the evidence and was the result of the cumulative effect of statements of the Coles' financial condition, statements about attorney's fees and a reference to gross negligence. There is no precise formula for determining whether a verdict is excessive; each case must be considered on its own facts. Firestone, 693 S.W.2d at 108. The ultimate test is what fairly and reasonably compensates plaintiff for the injuries sustained. Id.

Jamie was just 13 years old at the time of the accident, and the injuries she sustained will remain with her the rest of her life. She had numerous injuries all over her body. She now has many scars on her body. She is still not through with medical procedures and major...