Dick v. Children's Mercy Hospital, No. WD # 61616 (MO 5/25/2004), WD # 61616

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHarold L. Lowenstein
Docket NumberNo. WD # 61616,WD # 61616
Decision Date25 May 2004

Appeal from the Circuit Court of Jackson County, Missouri, Honorable Jon R. Gray, Judge.

Thomas P. Cartmell, Esq., Kansas City, MO, for Appellant.

Thomas B. Weaver, Esq., St. Louis, MO, for Appellant.

Brian T. Meyers, Esq., Attorney for Respondents.

Before Howard, P.J., Lowenstein and Smart, JJ.



Children's Mercy Hospital (appellant) appeals from the trial court's grant of a new trial to respondents Janet and Harold Dick after the jury had found in favor of appellant. The respondents sued for injuries suffered by Mrs. Dick, a business invitee, in the appellant's parking lot, under a theory of premises liability. It was unclear whether the new trial motion was granted because the verdict was against the weight of the evidence (discretionary) or because of trial errors (legal grounds).


Janet Dick took her son to appellant for tests in September 1998. While walking in appellant's parking garage, she broke her left foot when she stepped on an unmarked column base, an area of uneven, raised concrete. She later developed reflex sympathetic dystrophy, a complex pain syndrome requiring a series of surgical procedures, and incurred over $1 million in medical expenses. Medical experts said she was permanently disabled.

The respondents filed this premises liability action, claiming Janet Dick was a business invitee and that appellant was negligent in failing to warn her about or protect her from the column base, a dangerous condition of which appellant knew or should have known, while her husband, Harold Dick, sought damages for, among other things, loss of consortium.

At trial, appellant did not deny the significance of Janet Dick's injures, did not deny that she was an invitee, and did not put on any evidence that she was contributorily negligent.1 Appellant's strategy was to convince the jury that it neither knew nor should have known of the dangerousness of the column base. In its opening statement, appellant said, "Now, this case is really about one thing. Did [appellant] know or by using ordinary care could [appellant] have known that it had a dangerous condition on its premises at the time of Janet Dick's fall — excuse me — accident? That's the key issue in this case. . . . I believe the evidence is going to show you that it was reasonable for [appellant] not to believe that [the column base was dangerous]." In line with this strategy, witnesses for appellant testified that in the nearly three years after completion of the garage, and before Dick broke her foot, no one had complained about the column base; that a city inspector, after inspecting the garage, had issued a certificate of occupancy, which said that the garage was in compliance with Kansas City building codes; and that two other inspectors (one an employee of the architecture firm appellant hired to design and oversee construction of the garage, another an employee from the construction firm that built the garage) did not consider the column base dangerous, at least not until they learned of respondents' injuries.

At the close of all the evidence, the trial court submitted a jury instruction appellant proposed, one patterned on M.A.I. 22.03.2 The second element of the instruction read, "[D]efendant Children's Mercy Hospital's employees knew or by using ordinary care could have known of this condition." (emphasis added) The respondents' proposed instruction, which was rejected, did not include this second element. The jury returned a defendant's verdict.

The respondents' new trial motion alleged eight reasons for granting them relief. The reader is advised that ground number one, which respondents claim to be based on the verdict being against the weight of the evidence (a discretionary ground) because the respondents had proven, or the appellant had admitted, all but one of the elements of the verdict director, presents the interesting twist to this appeal. The other seven grounds are clearly based on legal errors to have been committed at trial.

The trial court ruled as follows:

[The Dicks] have advanced eight allegations of trial error that the [c]ourt has considered in the light of the evidence adduced. Upon due consideration, the [c]ourt determines that the [Dicks'] and [CMH's] evidence established that the column base constituted a dangerous condition. By virtue of [CMH's] acceptance of the premises as designed and built, [CMH] has a non-delegable duty to make such conditions safe for its invitees. Accordingly, the [c]ourt finds and concludes that the trial errors committed as alleged in Points No. 1, 2, 3, 4, 6 and 8 of [the Dicks'] motion for new trial were of sufficient magnitude to deny [the Dicks] a fair trial and that a new trial on all issues is warranted and required upon the circumstances.

Appellant then filed this appeal, as authorized by Section 512.020, RSMo. (2000).


The paramount issue in this case is whether the trial court erred in granting respondent a new trial. A new trial can be granted as a remedy for prejudicial errors that occurred during trial, Massman Constr. Co. v. Mo. Highway & Transp. Comm'n, 914 S.W.2d 801, 803 (Mo. banc 1996), or where the verdict was against the weight of the evidence. Braddy v. Union Pac. R.R. Co., 116 S.W.3d 645, 649 (Mo. App. 2003). Rule 78.02. The grant of a new trial based on legal errors is reviewed for an abuse of discretion, Mason v. Wal-Mart Stores, Inc., 91 S.W.3d 738, 741 (Mo. App. 2002), which is not present if reasonable minds could disagree about the propriety of the trial court's ruling. Leo Journagan Constr. Co. v. City Utils. of Springfield, Mo., 116 S.W.3d 711, 722 (Mo. App. 2003). A reviewing court must allow every reasonable inference favoring the trial court's ruling. Lowdermilk v. Vescovo Bldg. & Realty Co., 91 S.W.3d 617, 625 (Mo. App. 2002). The grant of a new trial based on Rule 78.02, that the verdict was against the weight of the evidence, will be reversed only if there has been a manifest abuse of discretion, since the trial court is in a better position to weigh evidence than the appellate courts. Braddy, 116 S.W.3d at 649. The grant of a new trial is more likely to be upheld than the denial. Mason, 91 S.W.3d at 741.

Appellant contends that the trial court did not grant the new trial on the discretionary ground that the judgment was against the weight of the evidence, Rule 78.02, but rather for erroneous legal reasons. Interpretation of the meaning of a trial court's judgment is a question of law. State ex rel. Beaird v. Del Muro, 98 S.W.3d 902, 909 (Mo. App. 2003).

A. Preliminary Matters

Appellant claims that the trial court's order is presumptively erroneous because it failed to give specific reasons for ordering a new trial. If a trial court does not give specific reasons why it granted a new trial, its order is presumed mistaken, and the burden of justifying the order falls on the respondent(s), here the respondent. Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 474 (Mo. App. 2002); Rule 84.05(c); Rule 78.03. Appellant is wrong. The order's reference to points one, two, three, four, six, and eight of the respondents' motion make it specific. See Hiers v. Lemley, 834 S.W.2d 729, 731 (Mo. banc 1992) ("The argument that the trial court's order granting a new trial lacks specificity because it adopts its reasons by referencing a paragraph of the motion for new trial is without merit.") Other specific reasons include the court's conclusion that the respondent had "established that the column base constituted a dangerous condition" and that appellant had "a non-delegable duty to make [the column base] safe for its invitees."

Did the trial court specify discretionary reasons for its order? If not, this court cannot presume the court ordered a new trial for discretionary reasons. Rule 84.05(d). Whether the trial court specified discretionary reasons is a non-issue, for the respondent had not asked this court to presume that the new trial was ordered because of discretionary reasons. Cf. Bishop v. Carper, 81 S.W.3d 616, 619, 623 (Mo. App. 2002) (vacating new trial order because trial court did not give any reasons for granting new trial). Rather, the respondent made extensive interpretive arguments that the trial court, in fact, did order a new trial for discretionary reasons, pointing to some of the points from their motion adopted by the trial court.

B. Did the trial court abuse its discretion by granting a new trial?

When a trial court grants a new trial for specific reasons, its ruling is deemed a rejection of all the other grounds asserted by the movant. Kuzuf v. Gebhardt, 602 S.W.2d 446, 451 (Mo. banc 1980) (citing State ex rel. Sturm v. Allison, 384 S.W.2d 544, 547 (Mo. banc 1964)); Randolph v. USF&G Cas., 626 S.W.2d 418, 422 (Mo. App. 1981); Ernst v. Emerick, 525 S.W.2d 573, 575 (Mo. App. 1975). The respondent does not argue that points five or seven of their motion should have been accepted by trial court, so this opinion is confined to deciding whether the points accepted by the trial court (points one, two, three, four, six, and eight) were valid reasons for granting a new trial.

Trial courts have broad discretion to grant a new trial because the verdict was against the weight of the evidence. McCormack v. Capital Elec. Constr. Co., 35 S.W.3d 410, 413 (Mo. App. 2000) (citing Rule 78.02). However, "[a] trial court has no discretion when ruling on an issue of law in a motion for new trial." Ivy v. Hawk, 878 S.W.2d 442, 445 (Mo. banc 1994).3

Point one reads as follows:

1. The verdict is against the weight of the evidence. To recover on their negligence claim, [the Dicks] had to prove that [CMH] maintained a dangerous condition on its property, that CMH failed to exercise ordinary...

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