Crawford ex rel. v. Shop `N Save Warehouse

• Decision Date: 29 October 2002
• Docket Number: No. ED 80031.,ED 80031.
• Citation: 91 S.W.3d 646
• Parties: Steven CRAWFORD, a Minor by and Through His Next Friend, Violet CRAWFORD, and Violet Crawford and Terry Crawford, Respondents, v. SHOP `N SAVE WAREHOUSE FOODS, INC., Appellant.
• Court: Missouri Court of Appeals

Page 646

91 S.W.3d 646

Steven CRAWFORD, a Minor by and Through His Next Friend, Violet CRAWFORD, and Violet Crawford and Terry Crawford, Respondents, v. SHOP `N SAVE WAREHOUSE FOODS, INC., Appellant.

No. ED 80031.

Missouri Court of Appeals, Eastern District, Division One.

October 29, 2002.

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John E. Bell, Clayton, MO, for respondent.

Susan M. Herold, Sam P. Rynearson, Patricia Frank, David A. Feltz, St. Louis, MO, for appellant.

GEORGE W. DRAPER III, Judge.

Steven Crawford (hereinafter, "Crawford") and Violet and Terry Crawford (hereinafter, "Crawford's parents") brought suit against Shop `N Save Warehouse Foods, Inc. (hereinafter, "Store") for injuries Crawford sustained while riding in Store's shopping cart. The trial court entered judgment pursuant to the verdict in favor of Crawford and his parents. The trial court later granted Store's motion for remittitur. Store appeals the judgment entered upon the jury verdict; Crawford and his parents cross-appeal the grant of remittitur. We affirm in part and reverse in part.

On October 29, 1993, Cecelia Crawford (hereinafter, "Sister") took her two and a half year old brother, Crawford, to Store. Crawford was placed in Store's shopping cart according to the instructions. When Sister pushed the shopping cart, she noticed that the wheels "flopped around" in different directions as the cart moved. As Sister and Crawford exited Store, Sister had to push the shopping cart down a sloping area to get to the parking lot.

At the base of the sloped area was a drainage grate. When Sister pushed the shopping cart across the grate, the shopping cart suddenly stopped. Sister's momentum carried her forward causing her to hit the stationary shopping cart. The shopping cart with Crawford in it began to tip over. Sister managed to keep the shopping cart from completely overturning. However, Crawford began screaming.

Immediately thereafter, Crawford was taken to St. Luke's Urgent Care Center where he was diagnosed as having a fractured femur. Crawford was transferred to Children's Hospital, admitted, placed in "skin traction," and put on intravenous morphine. Crawford spent five days in the hospital. During that time, he underwent a closed reduction under general anesthesia and was placed in a spica, or body cast.

Crawford remained in the body cast for three months. He was unable to walk or complete his potty training. Crawford's mother had to carefully change his diapers at least five times a day, which required her to remove and replace an elaborate arrangement of waterproof taping designed to keep anything from leaking out of the diapers and into the cast. Crawford's mother had to carry Crawford or move him in a wheelchair, and had to transport him with her to her place of employment.

Once Crawford's body cast was removed, his mother had to teach him to walk again and transport him to physical therapy for three to four more months. By July 20, 1994, Crawford had a leg-length discrepancy which his orthopedic surgeon stated must be followed closely until he reached the age of sixteen. Crawford gradually complained of less pain over the next six years.

Crawford's parents filed suit against Store individually and as next friend of Crawford. On May 11, 2001, judgment was entered pursuant to the jury verdict awarding Crawford $100,000 and his parents $25,000. Store filed various post-trial motions, including a motion for remittitur. The trial court denied all post-trial motions except for Store's motion for remittitur. The trial court then entered judgment reducing damages to Crawford's parents to the sum of $7,907.10. Store appeals the judgment of liability; Crawford's parents cross-appeal trial court's grant of remittitur.

In its first point on appeal, Store argues the trial court erred in failing to grant Crawford's motion for directed verdict and/or motion for judgment notwithstanding the verdict (hereinafter, "JNOV") because there was no evidence introduced which would establish that a shopping cart wheel caught in the grate during this accident, or that a caught wheel was the direct or proximate cause of damage to Crawford. In sum, Store argues that the evidence did not establish a submissible jury case for negligence against it.¹

Our review of the denial of a motion for directed verdict and a motion for JNOV is essentially the same. Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). "In determining whether the evidence was sufficient to support the jury's verdict, the evidence is viewed in the light most favorable to the result reached by the jury, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and inferences that conflict with that verdict." Id. A directed verdict or JNOV is appropriate if the plaintiff fails to make a submissible case. Boyer v. Sinclair & Rush, Inc., 67 S.W.3d 627, 632 (Mo.App. E.D.2002). This Court will reverse the jury's verdict for insufficient evidence only when there is a complete absence of probative fact to support its decision. Burns Nat. Lock Installation Co., Inc. v. American Family Mut. Ins. Co., 61 S.W.3d 262, 271 (Mo.App. E.D.2001).

Sister testified she placed Crawford in Store's shopping cart according to the instructions. She further stated that the wheels on the shopping cart tended to "flop around" while she pushed it. As Sister pushed the shopping cart over the grate while exiting Store on the way to the parking lot, the shopping cart abruptly stopped, tipped over, and Crawford was injured. From this testimony, giving the benefit of all reasonable inferences and disregarding evidence and inferences that conflict with the verdict, we find a submissible case was made. See Burns v. Schnuck Markets, Inc., 719 S.W.2d 499 (Mo.App. E.D.1986)(submissible case made based on testimony of a wobbly shopping cart wheel and the shopping cart stopping abruptly). Point denied.

In its next two points on appeal, Store argues that the trial court erred in giving two instructions. Store contends in its second point that trial court erred in submitting Crawford's verdict director to the jury over its objection because the instruction: (1) hypothesized that Store maintained a grate "capable of catching the wheel of a shopping cart," when there was no evidence that the cart's wheel caught in one of the grate slots during this accident or that a caught wheel caused the cart to tip; (2) granted the jury a roving commission in that it failed to confine the jury to consider that the wheel actually caught in the grate; and (3) failed to hypothesize an essential element of Crawford's case, that the accident was a direct result of a failure to remove, barricade, or warn of the grate. Store's third point alleges the trial court erred in allowing Crawford's damages instruction to be submitted to the jury because the instruction improperly submitted future damages to the jury where there was no evidence of future damages. Both of these arguments fail.

Rule 84 governs procedures in all appellate courts. Further, Rule 84.04(e) specifies that "[i]f a point relates to the giving, refusal or modification of an instruction, such instruction shall be set forth in full in the argument portion of the brief." Neither of the challenged instructions are set forth in any of the briefs as required by the rule. Failure to set forth the tendered instructions in the argument portion of the briefs results in the failure to preserve the second and third points for appellate review. Desai Corp. v. Colony Ins. Co., 30 S.W.3d 223, 225 (Mo.App. W.D.2000); Hughes v. Palermo, 911 S.W.2d 673, 674 (Mo.App. E.D.1995)(emphasis added).

We review Store's points, ex gratia, and find no error, plain or otherwise. See Rule 84.13(c). In reviewing Store's second point, we find Crawford made a submissible case of negligence against Store. Crawford did not have to present direct evidence that the shopping cart wheel stuck in the grate, but rather, could submit circumstantial evidence to support his claim. Coggins v. Laclede Gas Co., 37 S.W.3d 335, 339 (Mo.App. E.D.2000). Thus, in circumstantial evidences causes, causation is a jury question. Id. Store's third point claims there was no evidence of future damages. However, there was ample evidence from both parties' medical experts verifying Crawford's necessary future medical treatment. Both allegations of error are denied.

In Store's final point on appeal, it claims that the trial court erred in denying its motion for new trial because numerous cumulative errors were made during the trial which incited prejudice against Store, including: (1) the trial court abused its discretion in allowing the testimony of Fabian Sickles (hereinafter, "Photographer") and the admission of the photographs of his experiments with a shopping cart at the accident scene since there was no evidence offered to the effect that the accident occurred in the manner suggested by his testimony, and the resulting photographs entered into evidence were therefore, irrelevant and immaterial to this case and highly prejudicial to Store; (2) the trial court abused its discretion in its evidentiary rulings in admitting evidence that Crawford experienced pain on an intermittent basis from 1994 to 2000 because there was no medical testimony that any pain sustained from 1994 to 2000 was causally related to his accident and that evidence was highly prejudicial to Store; and (3) the trial court abused its discretion in overruling Store's objections to Crawford's voir dire questioning in which Crawford's counsel was allowed to ask the members of the jury if they could return a plaintiff's verdict if a sum of $150,000 to $200,000 was requested and the evidence showed that Crawford sustained a serious injury, which sought to commit the jury to a verdict in voir dire. We address each of these alleged errors in turn.

Store first claims the trial court abused its...