Firestone v. Crown Center Redevelopment Corp.

• Decision Date: 25 June 1985
• Docket Number: No. 66840,66840
• Parties: Sally FIRESTONE, Plaintiff-Respondent, v. CROWN CENTER REDEVELOPMENT CORPORATION, et al., Defendants-Appellants.
• Court: Missouri Supreme Court

Page 99

693 S.W.2d 99

54 USLW 2056

Sally FIRESTONE, Plaintiff-Respondent, v. CROWN CENTER REDEVELOPMENT CORPORATION, et al., Defendants-Appellants.

No. 66840.

Supreme Court of Missouri,

En Banc.

June 25, 1985.

Rehearing Denied Aug. 7, 1985.

Robert L. Driscoll, John C. Aisenberry, Terence J. Thum, Catherine M. Hauber, Michael E. Waldeck, Thomas B. Alleman, Kansas City, for defendants-appellants.

Lantz Welch, Timothy L. Brake, James Bartimus, Kansas City, for plaintiff-respondent.

HIGGINS, Judge.

Plaintiff obtained a jury verdict of $15,000,000 damages for injuries suffered when suspended balconies in the Hyatt Regency Kansas City Hotel fell on July 17, 1981. The trial court entered an order granting defendants a new trial unless plaintiff filed a remittitur of $2,250,000 "because the verdict is against the weight of the evidence." Plaintiff filed the required remittitur and the court entered judgment for plaintiff for $12,750,000. Defendants appealed and, in addition to asserting trial errors, claimed the damage award as reduced by remittitur was still excessive. They requested reversal and remand for new trial or alternatively that the verdict be reduced by further remittitur to $7,500,000. Plaintiff responded to the alleged trial errors and under Rule 78.10 requested restoration of the $2,250,000 remittitur required of plaintiff by the trial court as a condition to denial of a new trial to defendants. The Court of Appeals, Western District, affirmed the judgment and transferred the case to this Court where it is determined the same as on original appeal.

This Court affirms the jury's verdict in all respects and remands the cause with directions to set aside the order of remittitur, reinstate the verdict and enter judgment for plaintiff for the verdict sum of $15,000,000.

This Court further determines that this case demonstrates that the doctrine of remittitur should be abolished in Missouri.

This Court draws freely from the opinion written by the Honorable Don W. Kennedy for the court of appeals in resolution of the alleged trial errors.

I

Appellants assert that the trial court erred in denying their application for a change of venue. The publicity surrounding the tragic collapse of the Hyatt Regency skyways, causing the deaths of 114 people and severe injuries to scores of others; the pretrial publicity about plaintiff's case; and publicity about the lawsuits of three other Hyatt Regency victims which had been tried in the three months preceding plaintiff's case, had, according to defendants' argument, caused the residents of Jackson County to be prejudiced against defendants so that they could not receive a fair trial there.

The granting of a change of venue in Jackson County, a county of over 75,000 population, is discretionary with the trial court, Rule 51.04, subject to review for abuse of discretion. Neal v. Kansas City Ry., 229 S.W. 215, 216-18 (Mo.1921).

In an evidentiary hearing upon defendant's application, the defendants produced evidence of newspaper and television publicity about the Hyatt Regency disaster and the ensuing litigation over a period beginning with the disaster itself and continuing up to the time of trial. The Kansas City Star and the Kansas City Times, reaching half the households of Jackson County on a daily basis, published over 1,000 articles on the subject. The television coverage was no less intense.

The news media featured stories about the purported causes of the collapse, and the persons responsible. Another favorite topic was possible criminal penalties and disciplinary proceedings against persons participating in the design and construction of the hotel. There were newspaper articles and television pieces reporting on the commencement of investigations by the Jackson County Prosecutor, the U.S. District Attorney, a Jackson County Grand Jury, and the Missouri board licensing architects and engineers. Also reported and highlighted after the commencement of litigation were allegations (from whatever source) of misconduct on the part of defendants and their counsel in the conduct of litigation.

Publicity, even adverse publicity, in itself will not call for a change of venue unless actual prejudice is shown. United States v. Haldeman, 559 F.2d 31, 62-63 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977); ¹ Claxton Poultry Company v. City of Claxton, 155 Ga.App. 308, 271 S.E.2d 227, 232 (1980); Corbetta Construction Company of Illinois v. Lake County Public Building Commission, 64 Ill.App.3d 313, 21 Ill.Dec. 431, 440-41, 381 N.E.2d 758, 767-68 (1978); Bryson v. Stone, 33 Mich.App. 512, 190 N.W.2d 336, 341 (1971); State v. Hogan, 297 Minn. 430, 212 N.W.2d 664, 669 (1973). See generally Nebraska Press Association v. Stuart, 427 U.S. 539, 551-56, 96 S.Ct. 2791, 2799-2801, 49 L.Ed.2d 683 (1976). Publicity may be of such character that actual prejudice must be presumed, but the trial court did not find the publicity in this case to be of that character and this record does not demonstrate an abuse of discretion.

Appellants do not claim that the publicity necessarily caused adverse community reaction, but acknowledge that they must show such prejudice. The disaster occurred July 17, 1981; this trial took place September 13, 1983. The intensity of the publicity had considerably abated several months before trial. If, as appellants argue, the publicity had incited public passion and prejudice against them, the passage of time had done its healing work. The trial judge noted in overruling the change of venue on September 6, 1983: "Generally speaking, in the past nine to twelve months the publicity involved has been substantially reduced and consisted mainly of reporting on the three trials that have been conducted."

To show the public hostility toward themselves, defendants produced the results of a telephone survey of 1,000 randomly selected Jackson County residents. The findings of this survey were conditionally admitted by the trial judge, but were ultimately excluded by him. The exclusion of this survey is said to be erroneous. Appellants say that if the survey had been admitted and been given proper weight, it would have supported their application for change of venue.

The survey consisted of two questions. The first question was: "Have you heard, or read or seen any news coverage about the Hyatt Hotel skywalk collapse?" Ninety-eight percent of the respondents said they had.

The next question was, to those who answered the first question in the affirmative: "Based on what you have heard, read or seen, do you believe that in the current compensatory damage trials, the defendants, such as the contractors, designers, owners, and operators of the Hyatt Hotel, should be punished?" Five hundred thirty-six of the respondents, or 54 percent, answered yes. One hundred thirty-five, or 14 percent, answered no. One hundred one, or 10 percent, refused to comment; and two hundred twelve, or 22 percent, were reported as unable to comment.

One of the requirements for the admissibility of a survey is that it be trustworthy. This does not mean merely that it be honestly conducted, but that it be designed to yield an accurate assessment of the relevant public opinion, belief or attitude under investigation. Pittsburgh Press Club v. United States, 579 F.2d 751, 755-60 (3d Cir.1978) (survey inadmissible because (1) hearsay not falling into exceptions of present sense impression or presently existing state of mind and (2) not proven otherwise trustworthy since "neither objective, scientific nor impartial"); Ways & Means, Inc. v. IVAC Corp., 506 F.Supp. 697, 704 (N.D.Cal.1979), aff'd per curiam, 638 F.2d 143 (9th Cir.) (mem.), cert. denied, 454 U.S. 895, 102 S.Ct. 394, 70 L.Ed.2d 210 (1981); Allen v. Morton, 333 F.Supp. 1088, 1094-95 (D.D.C.1971), rev'd on other grounds, 495 F.2d 65 (D.C.Cir.1973) (opinion survey admitted into evidence but little weight accorded it because of confusion and ambiguity in question); Zippo Manufacturing Company v. Rogers Imports, Inc., 216 F.Supp. 670, 683-84 (S.D.N.Y.1963). See generally Annot., 76 A.L.R.2d 619 (1961).

What is the public opinion, belief or attitude being inquired into upon an application for change of venue? The reason for the change of venue provisions of Rule 51 is that a party is entitled to an impartial jury to hear and decide his case. If there is in the venue from which the jury is to be drawn a pervasive hostility toward a party, or a pervasive prejudgment of the case, it will be difficult or impossible to select an impartial jury. It is assumed that the jury panel members, and ultimately the jury, will reflect the prevailing opinion of the community from which they are drawn. In such a case the party is entitled to a change of venue.

The question becomes whether the survey rejected by the trial court gave a reliable reading of whether there was in Jackson County a pervasive hostility toward defendants or a pervasive prejudgment of Sally Firestone's case. On this question, this Court cannot condemn the trial court's rejection of the survey. The responses to the critical question were not an index to the true sentiments of the community. The fault is in the design of the question. A layman's answer to the critical question (i.e., "[D]o you believe that ... the defendants ... should be punished."), having no more background than the generalized information gained from newspaper and television accounts, will reveal nothing at all about his ability to deal fairly with a specific case upon the basis of specific evidence, guided by the court's instructions and the argument of counsel. In admitting the results of a survey in Zippo Manufacturing Company v. Rogers Imports, Inc., 216 F.Supp. 670 (S.D.N.Y.1963), the court noted: "The developmental phase of the project involved preparation of questions that could be handled properly by an interviewer, correctly understood by respondents [i.e., those...