Derrick v. Norton

• Decision Date: 13 October 1998
• Docket Number: No. 73075,73075
• Citation: 983 S.W.2d 529
• Parties: Margaret DERRICK, Appellant, v. Douglas C. NORTON, d/b/a Norton Fine Arts Studio, Respondent.
• Court: Missouri Court of Appeals

Page 529

983 S.W.2d 529

Margaret DERRICK, Appellant, v. Douglas C. NORTON, d/b/a Norton Fine Arts Studio, Respondent.

No. 73075.

Missouri Court of Appeals,

Eastern District,

Division One.

Oct. 13, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 28, 1998.

Application for Transfer Denied Feb. 23, 1999.

Janet F. Catalona, Madeline Long-Bennington, Clayton, for appellant.

George F. Kosta, W.O. Hoefle, St. Louis, for respondent.

AHRENS, Judge.

Plaintiff Margaret Derrick appeals from a directed verdict granted by the trial court for defendant Douglas C. Norton of Norton Fine Arts Studio (Norton). Derrick sought recovery for injuries sustained when a mirror installed by defendant on a closet door in her home fell on her. We reverse and remand.

Norton, who had been hired by Derrick to hang pictures in her apartment, installed the full-length mirror in a dressing room on June 23, 1993. All details with respect to the installation, including the decision to hang the mirror on the inside surface of a two-panel louvered door, were decided by Norton. The mirror, held in place by four plastic clips, remained in place until December 4, 1995. On that date, after Derrick opened the closet door, the mirror fell, striking Derrick on the side of her head and causing her to fall. Derrick, who was eighty-four on the day of her injury, sustained multiple pelvic fractures and bruises. She was hospitalized from December 6 to December 27, 1995 and then transferred to an extended care facility before returning home where she received nursing care. Her medical expenses exceeded $69,000. Derrick's recovery was gradual, and by the time of trial she was able to ambulate with a walker. She was not able to drive again, however, and continued to suffer pain and loss of routine life activities.

At trial, Derrick offered the testimony of Rudoph Beuc, Jr., a certified architect and building official, to prove that Norton's negligence in installing the mirror on June 23, 1993 caused it to fall on December 4, 1995. Beuc testified that the mirror was not properly installed and that, if he had written specifications for its installation, he would have required the mirror to be installed against a solid backing instead of a moving, louvered door and to be anchored by at least ten clips. When asked at trial what caused the mirror to fall, Beuc replied, "Technically I don't know why the mirror fell because I was not there. I know that it was." His answer was interrupted by opposing counsel who objected that Beuc's testimony was not admissible because Beuc had admitted that he had no opinion regarding causation. Although Derrick attempted to salvage Beuc's testimony with hypothetical questions, the trial court repeatedly sustained counsel's objections. Derrick made the following offer of proof, paraphrased by the court:

[I]f he [Beuc] were asked the question barring any kind of outside influence, that in his professional opinion the reason for the fall was improper installation, would you [opposing counsel] stipulate that he would say that if he were asked so that if some Appellate Court thinks that what I rule is wrong, that they at least have before him what they thought his testimony would be.

At the conclusion of plaintiff's evidence, the trial court granted Norton's oral motion for a directed verdict. Derrick's motion to set aside the verdict and for a new trial was denied, and this appeal followed.

In reviewing a directed verdict in favor of the defendant, this court views the evidence and permissible inferences most favorably to the plaintiff, disregards contrary evidence and inferences, and determines whether plaintiff made a submissible case. Friese v. Mallon, 940 S.W.2d 37, 40 (Mo.App.1997). If it may be fairly inferred that defendant was negligent, the evidence was sufficient for submission of the case to the jury. Cline v. William H. Friedman & Assocs., Inc., 882 S.W.2d 754, 758 (Mo.App.1994). If the jury can only determine the question of negligence by resorting to conjecture and surmise, the evidence is insufficient. Id.

Derrick argues three points on appeal: (1) that the trial court abused its discretion in excluding Beuc's testimony regarding causation; (2) that the trial court erred because circumstantial evidence of negligence adduced at trial was sufficient to make a submissible case; and (3) the plaintiff made a submissible case under the doctrine of res ipsa loquitur. We address these three points in turn.

Derrick first argues that the trial court erred when it excluded Beuc's testimony concerning his opinion as to why the mirror fell. "An expert witness may base a competent opinion upon matters within his personal knowledge or observation, upon competent evidence in the case or upon both." Wiley v. Pittsburg and Midway Coal Min. Co., 729 S.W.2d 228, 232 (Mo.App.1987). The admission or exclusion of expert opinion testimony is within the sound discretion of the trial court. Liszewski v. Union Electric Co., 941 S.W.2d 748, 751 (Mo.App.1997). We will not reverse the trial court's evidentiary ruling unless there is a substantial or glaring injustice. Id.

Beuc's testimony on causation was interrupted by opposing counsel before Beuc could render his opinion. The following exchange took place at trial:

Q: "If there hadn't been any earthquake or some foreign object causing the mirror to fall, do you have an opinion as to the cause of the fall of the mirror?"

A: "Technically I don't know why the mirror fell because I was not there. I know that it was."

Opposing counsel: "Your Honor, let me object to any further editorialization as the witness has said he does not know why in answer to a question as to whether he has an opinion."

Court: "Sustained."

The trial court abused its discretion when it excluded Beuc's opinion as to why the mirror fell. Beuc's admission that he was not certain as to why the mirror fell because he was not present when it fell merely indicates that his opinion would be based on his own observations of the door after the injury and facts in evidence rather than personal observation of the mirror's fall. As the court observed in Lineberry v. Shull, 695 S.W.2d 132, 136 (Mo.App.1985), use of words such as "think" or "guess" by an expert do not render an opinion inadmissible if the expert intends to express an opinion or judgment. See also Johnson v. Creative Restaurant Management, 904 S.W.2d 455, 459 (Mo.App.1995) (use of the word "suggests" was merely a semantic distraction and did not render expert testimony inadmissible). Although Beuc used the words "I don't know why," it is clear from the rest of his statement that he was merely noting that he had not personally observed the occurrence and was not denying that he had any opinion at all. The trial court therefore abused its discretion and allowed a substantial injustice when it prevented Beuc from testifying on the issue of causation.

In her second point on appeal, Derrick argues that the trial court erred because circumstantial evidence of negligence adduced at trial was sufficient to make a submissible case. "To make a prima facie showing of causation, plaintiff must show the defendant's negligent conduct more probably than not was the cause of the injury." Morrison v. St. Luke's Health Corp. 929 S.W.2d 898, 901 (Mo.App.1996). "The defendant's negligence need not be the sole cause of the plaintiff's injury, but simply a...