Gibson v. the City of St. Louis

Citation349 S.W.3d 460
Decision Date20 September 2011
Docket NumberNo. ED 95949.,ED 95949.
PartiesCharmin GIBSON, Plaintiff/Respondent,v.The CITY OF ST. LOUIS, City of St. Louis Water Department, and City of St. Louis Street Department, Defendants/Appellants.
CourtCourt of Appeal of Missouri (US)


Michael A. Garvin, Craig K. Higgins, Patricia Hageman, City Counselor, St. Louis, MO, for appellants.Jamie L. Boock, Amanda L. Bosky, Rossiter & Boock, LLC, St. Louis, MO, for respondent.KATHIANNE KNAUP CRANE, Presiding Judge.

The defendant city appeals from that part of a personal injury judgment against it denying its motion pursuant to section 537.060 RSMo (2000) 1 to reduce the judgment by the amount of plaintiff's settlement of a medical malpractice lawsuit that had sought damages from the negligent treatment of one of plaintiff's injuries from the accident. We affirm.


Plaintiff, Charmin Gibson, was injured in a single vehicle accident on December 24, 2007, in the City of St. Louis, when her vehicle allegedly struck ice that had formed on the roadway due to a broken water main or fire hydrant owned by the City of St. Louis. Plaintiff suffered multiple injuries as a result of the accident, including a comminuted fracture of her right femur, which required surgical repair and a permanent rod; a fracture of her right tibial plateau; a fracture of her C7 facet joints, which required that she wear a rigid neck brace for six weeks; multiple lacerations and abrasions to her face, which required sutures; and a laceration to her earlobe, which also required sutures. She was treated at Barnes–Jewish Hospital for her injuries.

Plaintiff filed a lawsuit against the City of St. Louis, City of St. Louis Water Department, and City of St. Louis Street Department (hereinafter, collectively, the City) to recover damages for the injuries she suffered in the automobile accident. The City filed an answer and alleged affirmative defenses.

While her lawsuit against the City was pending, plaintiff filed a lawsuit against Barnes–Jewish Hospital and Washington University (hereinafter, collectively, “the medical malpractice defendants) to recover damages arising out of the negligent rotation of her right femur, which had been fractured in the automobile accident. Plaintiff subsequently settled this lawsuit for $80,000.00. The settlement released the medical malpractice defendants and all other persons and entities from liability related to injuries and damages claimed in the medical malpractice lawsuit, but it expressly reserved plaintiff's right to pursue her remaining damages against the City for her original injuries:

Releasor reserves the right to pursue further claims against the City of Louis, City of St. Louis Water Department and/or City of St. Louis Street Department as is more fully set out in [the lawsuit against the City] but Releasor agrees and understands that she is not and will not seek as damages in [the lawsuit against the City] those injuries and damages which Releasor has claimed in [the medical malpractice lawsuit]. Releasor specifically releases, acquits and forever discharges the Releasees, Released Parties, and all other persons and entities from any and all liability related to the injuries and damages claimed in [the medical malpractice lawsuit].

On the first day of trial in plaintiff's lawsuit against the City, the City filed a “Motion to Apply Set-off” pursuant to section 537.060.2 It alleged that it was entitled to a “set-off” of $80,000.00, the amount of plaintiff's settlement with the medical malpractice defendants, because the City was potentially liable for the aggravation of the original injury.

During trial, the subject of medical malpractice evidence arose on two occasions. The first occasion involved the exclusion of evidence. During the video deposition of Timothy M. Farley, M.D., the assistant city counselor asked Dr. Farley which specific problems had caused plaintiff to see him, and Dr. Farley responded that plaintiff's foot “had rotated out.” Plaintiff's counsel objected, stating that he had not covered that topic on direct and that he had limited his evidence of future problems to general problems with femur fractures. The assistant city counselor then rephrased his questions to avoid testimony on rotation. At trial, before the video deposition was played to the jury, plaintiff objected to Dr. Farley's answer about the foot being rotated, and the trial court sustained the objection.

The second occasion occurred during plaintiff's direct examination when her attorney asked her if she currently had any problems with respect to aches or pain in her right leg. The assistant city counselor asked to approach the bench, where the following discussion took place:

MR. HIGGINS [Assistant City Counselor]: It was my understanding that we were doing good up until we were going to start talking about present complications, and I was fine with it up until she started talking about physical therapy thing. But I think now when we get into problems talking about pain and aching, that definitely is crossing the line as to what our understanding is how it affects the issues of the medical mal case that we're keeping out. Because obviously—

THE COURT: She can talk about the pain that she has but nothing more.

MR. BOOCK [Plaintiffs Attorney]: That's right. That's why I said any pain. That's all she's going to say.

MR. HIGGINS: I didn't know where it was going.

THE COURT: That's where it ended, with the doctor's deposition—

MR. BOOCK: Yeah.

THE COURT:—with the pain.

MR. BOOCK: Correct.

THE COURT: But nothing about future treatment.


(The proceedings returned to open court.)

Q (By Mr. Boock:) We were talking about current problems in terms of achiness or pain that you may have with regard to your right leg. Do you have some of that today?

A. I have pain in my right let off and on. I usually just have it when it's really cold or when it's going to rain, my leg just feels kind of sore from my hip into the middle of my thigh.

At trial, plaintiff did not testify further about any current or permanent problems with her right leg. Plaintiff did not introduce any evidence about the negligent treatment of her fractured femur, her claim against or settlement with the medical malpractice defendants, or any pain, suffering, or physical problems caused by the medical malpractice. The assistant city counselor did not make any other objection during trial that evidence relating to the malpractice claim was being introduced.

The jury returned a verdict in plaintiff's favor, awarding her $106,000.00 in damages and apportioning the City's fault at 60%. The trial court entered judgment against the City in the net amount of $63,600.00. After trial, the trial court held a hearing on the section 537.060 motion, at which time the parties also filed legal memoranda. The trial court subsequently entered an order denying the motion. The City appeals.


For its sole point on appeal, the City contends that the trial court erred in denying its section 557.060 motion because multiple tortfeasors were liable for the same injury, and plaintiff's injuries were indivisible and stemmed from a single transaction of facts. We disagree.

Standard of Review

Both parties have briefed the issues on appeal pursuant to the standard of review set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We note that the Western District also has used this standard of review in an appeal from a determination under section 537.060. See Stevenson v. Aquila Foreign Qualifications Corp., 326 S.W.3d 920, 924 (Mo.App.2010). Ordinarily, this is the standard of review for court-tried cases, which this was not. On the other hand, this district has held that the standard of review in these cases is abuse of discretion. See CADCO, Inc. v. Fleetwood Enters., Inc., 220 S.W.3d 426, 440 (Mo.App.2007). Given this situation, the standard of review requires clarification.

We start by considering the procedure that leads to a ruling under section 537.060. A reduction under section 537.060 is an affirmative defense that must be pleaded and proved.3 Norman v. Wright, 100 S.W.3d 783, 785 (Mo. banc 2003) (overruling Julien v. St. Louis Univ., 10 S.W.3d 150, 152 (Mo.App.1999), to the extent inconsistent); Rule 55.01. When the issues relating to prior settlement payments are undisputed, the proper procedure is as follows:

[T]he parties should make a record out of the hearing of the jury regarding undisputed prior settlement payments made either as an advancement by the defendant or as a partial settlement payment by a joint tort-feasor. The trial judge, as a matter of law, then will take any prior payments into consideration and will credit them on the damages assessed by the jury's verdict as required by law.MAI 1.06 Committee Comment [1983 New]. However, if there is a disputed issue about whether there was a settlement payment, about whether a certain payment was attributable to a settlement, or about the amount of a settlement payment, “this issue is submitted to the jury by modifying the damage instruction as required by MAI 7.02 and using Form of Verdict MAI 36.19.” Id.

In this case, no factual disputes were submitted to the jury, and the trial court ruled as a matter of law. See, e.g., Norman, 100 S.W.3d at 784–85. Therefore, our review in this case is de novo. Kivland v. Columbia Orthopaedic Grp., LLP, 331 S.W.3d 299, 311 (Mo. banc 2011).


The statutory basis for the City's claim is section 537.060, which provides:

When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tortfeasors for the damage unless the terms of the agreement so provide; however such agreement shall reduce the claim by the stipulated amount of the agreement, or in the...

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