Copeland v. Mr. B's Pool Centers, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: CRAHAN; CARL R. GAERTNER, P.J., and CRANE
• Citation: Copeland v. Mr. B's Pool Centers, Inc., 850 S.W.2d 380 (Mo. App. 1993)
• Decision Date: 30 March 1993
• Docket Number: No. 61528,61528
• Parties: Gary COPELAND, Plaintiff/Appellant, v. MR. B's POOL CENTERS, INC., and Swim 'N Play, Inc., Defendants/Appellants.

Page 380

850 S.W.2d 380

Gary COPELAND, Plaintiff/Appellant, v. MR. B's POOL CENTERS, INC., and Swim 'N Play, Inc. Defendants/Appellants.

No. 61528.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 30, 1993.

James T. Buckley, Sedalia, for plaintiff.

K. Steven Jones, Lawrence Bovard Grebel, St. Louis, for defendants.

CRAHAN, Judge.

Plaintiff Gary Copeland ("Plaintiff") appeals from a judgment entered on a jury verdict in favor of Defendants, Mr. B's Pool Centers, Inc. ("Mr. B's") and Swim 'N Play, Inc. ("Swim 'N Play"), in a products liability action seeking damages for personal injuries suffered by Plaintiff when he struck his head upon diving into a 3 1/2 foot deep, above-ground swimming pool. Plaintiff alleged that Mr. B's, the retailer of the pool, and Swim 'N Play, the manufacturer, failed to provide adequate warnings regarding the dangers associated with diving into the pool. On appeal, Plaintiff asserts two instances of error in the exclusion of evidence. We affirm the judgment of the trial court.

We view the evidence in the light most favorable to the verdict, considering only evidence that supports the verdict, and disregarding contrary evidence and inferences. Roark Motor Lodge Interval Sales Corp. v. Lindner, 779 S.W.2d 684, 686 (Mo.App.1989). On August 3, 1987, Plaintiff was invited by a friend, Tim Pigg, to swim at the home of his parents-in-law, the Swaffords. The Swafford's pool was a 4-foot tall, 24-foot wide above-ground pool filled with 3 1/2 feet of water. Plaintiff was at least generally familiar with the pool because he had been in the Swafford's backyard on a prior occasion when he stood at the railing of the pool and spoke for a half hour to Mr. Swafford who was standing in the pool.

Shortly after arriving on August 3, 1987, Mr. Pigg and Plaintiff jumped into the pool and walked around and horseplayed in the pool for five minutes. Plaintiff and Mr. Pigg got out of the pool and onto the deck. Mr. Pigg dived back into the pool, surfaced, turned, and watched Plaintiff, who was wearing oversized sunglasses, dive from the deck into the pool. The sunglasses slipped on Plaintiff's face and he reached back to grab them causing him to dive deeper into the pool. Plaintiff hit his head on the bottom of the pool, broke his neck and was immediately rendered quadriplegic.

In his first point, Plaintiff contends that the trial court erred in excluding from evidence a corner cap from the pool bearing the raised instruction "Do Not Dive." At trial, Plaintiff sought to lay a foundation for admitting the corner cap on direct examination of Mrs. Swafford, co-owner of the pool. However, when asked whether the proffered exhibit was in the same or similar condition as it was on the date of the incident, Mrs. Swafford equivocated, observing that it was four years older. When Plaintiff then offered the exhibit, Swim 'N Play's counsel objected and obtained permission to conduct voir dire to clarify Mrs. Swafford's testimony.

In her testimony on voir dire, Mrs. Swafford explained that the corner cap was four years older, was worn and had changed somewhat because of exposure to the weather. Swim 'N Play's counsel also showed Mrs. Swafford a photograph of a corner cap and asked her which exhibit, the photograph or the worn cap itself, better represented the condition of the cap on the date of the incident. Mrs. Swafford testified unequivocally that the photograph was a better representation of the condition of the corner cap on the date in question. After listening to this testimony and examining both exhibits for itself, the trial court sustained the objection to admission of the corner cap.

Plaintiff urges that he laid an adequate foundation for admission of the corner cap because, prior to the voir dire, he was able to elicit testimony from Mrs. Swafford that the cap was in the "same or similar" condition as on the date of the incident. Relying on Storm v. Ford Motor Co., 526 S.W.2d 875 (Mo.App.1975) and Rinker v. Ford Motor Co., 567 S.W.2d 655, 662-63 (Mo.App.1978), Plaintiff maintains that the wear and changes due to exposure noted by Mrs. Swafford merely affected the weight and not the admissibility of the exhibit.

Had the trial court admitted the exhibit, we might very well agree that the changes in the exhibit identified by Mrs. Swafford were not so great as to render the exhibit inadmissible as a matter of law. But in this case, the evidence was excluded. A trial court has considerable discretion in the exclusion of evidence and its action will not be grounds for reversal absent abuse of discretion. Kelly v. Jackson, 798 S.W.2d 699, 704 (Mo. banc 1990). Where evidence is excluded, the issue is not whether the evidence was "admissible," it is whether the trial court abused its discretion in excluding it. An "abuse of discretion" standard, by definition, means that, in many instances, the ruling of the trial court would be upheld regardless of whether the evidence had been admitted or excluded. The appellate court simply defers to the trial court in view of its superior opportunity to evaluate the proffered evidence in the context of the trial.

Neither Storm nor Rinker compel a finding that the trial court abused its discretion in this instance. Storm found an abuse of discretion where the trial court excluded a key item of...