Collins v. Hertenstein
| Citation | 90 S.W.3d 87 |
| Decision Date | 03 September 2002 |
| Docket Number | No. WD 59575.,No. WD 59563.,No. WD 59562.,WD 59562.,WD 59563.,WD 59575. |
| Parties | Valerie COLLINS, Appellant/Cross-Respondent, v. William HERTENSTEIN, Brian Keeney, and Troy Thomas, Respondents/Cross-Appellants. |
| Court | Court of Appeal of Missouri (US) |
David R. Smith, Kansas City, for Appellant.
Dale Close, Kansas City, for Respondent.
In this wrongful death action, Valerie Collins sued three Kansas City police officers who shot and killed her 13-year-old son, Timothy Wilson, Jr. A jury awarded $500,000 to her in actual damages against officers William Hertenstein, Brian Keeney and Troy Thomas, $100,000 in damages for aggravating circumstances against Hertenstein, and $50,000 each in damages for aggravating circumstances against Keeney and Thomas. The circuit court, however, granted Thomas' motion for judgment notwithstanding the verdict, finding that Thomas did not cause or contribute to cause Wilson's death. Collins appeals, and the officers cross-appeal.
We affirm the circuit court's judgment in part. We reverse that part of the judgment granting Thomas' motion for judgment notwithstanding the verdict and that part awarding damages for aggravating circumstances. We remand for a new trial on the issue of damages for aggravating circumstances only.
The lawsuit grew out of an investigation of a traffic violation on November 9, 1998, by Hertenstein and another Kansas City police officer, Lorenzo Simmons. The officers were working off-duty as security guards when they saw a pickup, driven by Wilson, "fishtail" at high speed. With its tires squealing, the pickup nearly hit parked cars. Hertenstein and Simmons pursued the pickup in their marked police car.
Hertenstein and Simmons radioed the dispatcher that they were chasing the pickup, and two other police vehicles joined the chase. Officers Keeney and Perry Wilkerson were in one car, and officers Thomas and Lee Malek were in the other. At times during the chase, Wilson's pickup nearly hit the officers' cars. The chase ended seven minutes later at 18th Street and Brighton in Kansas City where Wilson drove his pickup into a vacant lot. The pickup's wheels bogged in mud.
Trying to free the truck, Wilson gunned the pickup's engine, but the truck's spinning tires remained bogged. Wilkerson walked to the pickup's passenger side, banged on the window, and tried to open the door. It was locked. Keeney walked to the same door and banged on the window. Wilkerson and Keeney yelled for Wilson to turn off the engine and to raise his hands. Thomas went to the driver's side of the truck, banged on the window with a flashlight, and yelled at Wilson. Malek stood behind the pickup. Simmons remained in his police car. Although Hertenstein testified that he was at the passenger window banging on the window and yelling at Wilson, Keeney testified that only he and Wilkerson were banging on the passenger window and that he did not remember seeing Hertenstein at the window.
Wilson ignored the officers' commands and continued trying to free the pickup from the mud. The pickup's tires gained traction at one point and lurched backward. The truck hit Simmons and Hertenstein's police car. Simmons saw the pickup coming and jumped out of the patrol car before the pickup hit it. The pickup's side view mirror struck Thomas' arm and knocked him to the ground. The pickup's door and passenger mirror hit Wilkerson's shoulder and knocked him back several feet. As the pickup moved back towards Simmons' patrol car, Hertenstein ran to the truck's passenger window. After hitting Simmons' patrol car, the pickup moved forward. Keeney dived from the pickup's path of travel to avoid getting hit by it.
Hertenstein fired his pistol at Wilson five times, and four of the bullets wounded Wilson. Hertenstein testified that he shot Wilson because he saw Wilson reach beneath a coat. He said that he feared that Wilson was reaching for a gun. Hertenstein, however, did not mention this apprehension of a gun when he talked immediately after the shooting to an investigating homicide detective. Hertenstein told the detective that he had shot Wilson because Wilson was driving the pickup toward him.
When Hertenstein fired, three other officers fired their guns. Thomas shot twice, and one of the bullets wounded Wilson. Keeney shot once, wounding Wilson. Malek fired at a rear tire. Twenty-six seconds elapsed between Wilson's driving the pickup into the vacant lot and the officers' shooting Wilson. Keeney testified that he shot Wilson because he could not locate his partner, Wilkerson, when the pickup moved forward and feared that he was underneath the pickup. Thomas said that he shot Wilson because the pickup was coming towards him. Thomas, however, was standing on the driver's side of the truck when he shot, and the pickup was moving to the right, veering away from Thomas.
Wilson died from multiple gunshot wounds. A dog in the truck with Wilson also died from multiple bullet wounds.
One of the bullets from Hertenstein's gun entered the middle of Wilson's chest, went through his sternum, heart, esophagus, aorta, and diaphragm, and fractured the front part of Wilson's spinal vertebra. This wound alone was sufficient to have caused Wilson's death. Another of Hertenstein's bullets passed through Wilson's right forearm, fracturing a bone and tore through muscle before landing on the pickup's seat. Another bullet from Hertenstein's gun passed through the front of Wilson's right thigh and embedded into a muscle, and another passed through Wilson's right thigh and lodged behind Wilson's right knee.
A bullet from Keeney's gun entered the left side of Wilson's chest, fractured a rib, went through the upper portion of his left lung, fractured another rib, and lodged under the skin in his lower neck and upper back region. As the bullet went through the lung, it caused a leak, which allowed air to escape the lung and caused the lung to collapse. This wound alone also could have caused Wilson's death.
The bullet from Thomas' gun passed through Wilson's left arm. A forensic pathologist indicated that this wound alone would not have likely caused Wilson's death.
Collins asserts that the circuit court erred in granting judgment notwithstanding the jury's verdict for Thomas. She contends that she made a submissible case against Thomas under three distinct theories: (1) that his gunshot was a contributing cause of Wilson's death; (2) that he acted in concert with other officers as a contributor to cause Wilson's death; and (3) that his gunshot was a contributed cause of Wilson's conscious pain and suffering.
In reviewing the circuit court's granting of Thomas' motion for judgment notwithstanding the verdict, we must determine whether or not Collins made a submissible case. Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996). We do this by reviewing the evidence in a light most favorable to the plaintiff. Id. "A presumption favoring the reversal of a grant of JNOV exists, unless the evidence and inferences favorable to the plaintiff leave no room for reasonable minds to differ as to the outcome." Sloan v. Bankers Life and Casualty Company, 1 S.W.3d 555, 564 (Mo.App.1999).
"Missouri law recognizes that where persons whose independent negligent acts coalesce to cause a single indivisible injury, each person may be jointly and severally liable for all the harm caused." Brickner v. Normandy Osteopathic Hospital, Inc., 687 S.W.2d 910, 912 (Mo.App. banc 1985) (citing Barlow v. Thornhill, 537 S.W.2d 412, 418 (Mo. banc 1976)). The term "joint tortfeasor" includes a "single, indivisible harm caused by independent, separate, but concurring torts of two or more persons." Id. at 912. "An indivisible injury results when two or more causes combine to produce a single injury incapable of division on any reasonable basis[.]" McDowell v. Kawasaki Motors Corporation USA, 799 S.W.2d 854, 861 (Mo.App. 1990).
Thomas' conduct need not have been the sole cause of Wilson's death — only a contributing cause. Coggins v. Laclede Gas Company, 37 S.W.3d 335, 339 (Mo.App.2000). Collins was not required to establish by absolute certainty a causal connection between Thomas' actions and Wilson's injury. Id. "This connection can be proven by reasonable inferences from proven fact or by circumstantial evidence — direct proof is not required; the jury may infer causation from circumstances." Id.
Collins made a submissible case that Thomas' gunshot was a contributing cause of Wilson's death. Viewed in the light most favorable to Collins, the evidence established that a bullet from Thomas' gun wounded Wilson in the left arm.1 Dr. Sam Gulino, a forensic pathologist, testified that two bullet wounds — one from Hertenstein's gun and the other Keeney's — were individually fatal and together caused Wilson's death. When asked whether or not the combination of the other wounds would have caused or contributed to cause Wilson's death, Gulino said:
A. Most likely not. These were basically flesh wounds. Certainly if he were unable to seek medical attention for a long period of time, then I suppose he could bleed sufficiently from them or eventually get some kind of infection that could lead to his death. However, given the short time period between being shot and his death, [shots fired by Hertenstein and Keeney] were the gunshot wounds which caused his death.
Q. All of the gunshot wounds caused bleeding; is that correct?
A. Yes.
Q. And was it bleeding, in your opinion, which caused his death?
A. Well, the mechanism of death when you have someone with complex gunshot wounds through the chest is complicated. Bleeding is certainly a large portion of it. But,...
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