Goudeaux v. Bd. of Police Comm'rs of Kan. City

• Decision Date: 10 September 2013
• Docket Number: No. WD 75770.,WD 75770.
• Citation: 409 S.W.3d 508
• Parties: Lavinia GOUDEAUX, Respondent, v. BOARD OF POLICE COMMISSIONERS OF KANSAS CITY, Missouri and Damon Hawley, Appellants.
• Court: Missouri Court of Appeals

409 S.W.3d 508

Lavinia GOUDEAUX, Respondent,

v.BOARD OF POLICE COMMISSIONERS OF KANSAS CITY, Missouri and Damon Hawley, Appellants.

No. WD 75770.

Missouri Court of Appeals, Western District.

Sept. 10, 2013.

Thomas R. Davis, Kansas City, MO, for respondent.

P. Benjamin Cox, Kansas City, MO, for appellants.

Before Division Three: LISA WHITE HARDWICK, Presiding Judge, MARK D. PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

Kansas City Police Officer Damon Hawley (“Officer Hawley”) and the Board of Police Commissioners of Kansas City, Missouri (the “Board”) (collectively, the “Appellants”) appeal from a personal injury judgment in favor of Lavinia Goudeaux (“Goudeaux”) following a jury trial. Appellants argue that the trial court erred in denying their motion for remittitur, judgment notwithstanding the verdict, or new trial because (1) the jury should have been instructed on negligence instead of negligence per se; and in the alternative, (2) the jury's $618,000 verdict exceeded the amount of damages requested by Goudeaux during closing argument. We affirm.

Factual and Procedural History ¹

On July 5, 2004,² Officer Hawley was traveling northbound in a police vehicle on Lydia Avenue near its intersection with 97th Terrace (“Intersection”). At the Intersection, Lydia Avenue has one northbound and one southbound lane. Officer Hawley was driving behind Goudeaux, and was pursuing a vehicle in front of Goudeaux. Officer Hawley had not activated his siren or overhead lights. Officer Hawley did have his “flashers” on. Officer Hawley drove in the left (southbound) lane to get around Goudeaux at the moment Goudeaux attempted to turn left onto 97th Terrace, causing a collision in the Intersection. Goudeaux suffered injuries to her neck, back, and left shoulder. Goudeaux received medical treatment over a period of four years, including multiple surgeries, physical therapy, and chiropractic care. Goudeaux incurred medical expenses of approximately $206,000.

Goudeaux filed suit against Officer Hawley, the Board, and the City of Kansas City (the “City”).³ In a first amended petition, Goudeaux alleged negligence and negligence per se against Officer Hawley. Goudeaux also alleged that the Board was liable pursuant to the doctrine of respondeat superior. ⁴ Appellants' answer asserted eleven affirmative defenses including comparative fault.

Goudeaux's case was tried to a jury. Goudeaux argued that Officer Hawley violated section 304.016.4 ⁵ which prohibits driving in the left lane of travel within 100 feet of an intersection. The case was submitted to the jury on the theory of negligence per se, over Appellants' objection. The jury was also instructed at Appellants' request on the affirmative defense of comparative fault. The jury returned a verdict assessing the percentage of fault at 50% to Goudeaux and 50% to Appellants, and finding the total amount of Goudeaux's damages disregarding any fault on the part of Goudeaux to be $618,000. The trial court entered judgment in favor of Goudeaux and against Appellants in the amount of $309,000, reflecting a reduction of the jury's damage award by the fault assessed to Goudeaux.

Appellants filed their “motion for remittitur, or in the alternative, for judgment notwithstanding the verdict (“JNOV”) or a new trial.” They argued that (1) the evidence did not support the damages awarded by the jury, and only supported a total award of $309,000; and (2) negligence per se should not have been submitted because there was a dispute about whether Goudeaux had pulled over to the side of the road and stopped, and if she did, section 304.016.4 would not apply because section 304.016.1 required both vehicles to be traveling in the same direction. The trial court denied the post-trial motion.

Appellants timely filed this appeal.

Point I

In their first point on appeal, Appellants argue that the trial court erred in denying their post-trial motion because the trial court should have submitted the case on a theory of negligence, and in submitting the case on theory of negligence per se, assumed that Officer Hawley's actions were negligent when that issue was in dispute. We disagree.

Standard of Review

“[W]hen a circuit court overrules a motion for ... remittitur or, in the alternative, a motion for new trial, the proper appellate standard dictates that evidence will be considered in the light most favorable to the verdict.” Badahman v. Catering St. Louis, 395 S.W.3d 29, 39 (Mo. banc 2013). Here, the import of Appellants' claim relates to whether the jury was properly instructed. Specifically, Appellants contend that the jury should have been instructed on negligence and not on negligence per se. “Whether a jury was instructed properly is a question of law this Court reviews de novo. Review is conducted in the light most favorable to the record and, if the instruction is supported by any theory, its submission is proper.” Hervey v. Mo. Dept. of Corrections, 379 S.W.3d 156, 159 (Mo. banc 2012).

Analysis

Goudeaux's case was submitted to the jury on a theory of negligence per se. Goudeaux claimed that Officer Hawley violated section 304.016.4 when he drove in the left lane of travel within 100 feet of the Intersection.

Section 304.016.4 provides:

4. No vehicle shall at any time be driven to the left side of the roadway under the following conditions:

(1) When approaching the crest of a grade or upon a curve of the highway where the driver's view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction;

(2) When the view is obstructed upon approaching within one hundred feet of any bridge, viaduct, tunnel or when approaching within one hundred feet of or at any intersection or railroad grade crossing.

(Emphasis added.)

“Negligence per se arises when the legislature pronounces in a statute what the conduct of a reasonable person must be and the court adopts the statutory standard of care to define the standard of conduct of a reasonable person.” Dibrill v. Normandy Assoc. Inc., 383 S.W.3d 77, 84 (Mo.App. E.D.2012). “When a case based on negligence per se is submitted to the jury, the standard of care is omitted because the statutory violation itself constitutes a breach of the standard of care.” Burns v. Frontier II Props. Ltd. P'ship, 106 S.W.3d 1, 4 (Mo.App. E.D.2003). In short, “[n]egligence per se is in effect a presumption that one who has violated a safety statute has violated his legal duty to use due care.” 57A AM. JUR.2d Negligence section 727 (1989). Thus, when a claim is submitted to a jury on the theory of negligence per se, the verdict director submits the predicate acts or omissions necessary to demonstrate a violation of the statute, and whether the plaintiff was injured as a result. Vintila v. Drassen, 52 S.W.3d 28, 37 (Mo.App. S.D.2001). However, the jury is not asked to determine whether those acts or omissions constituted negligence. Id.

Here, the negligence per se verdict director submitted to the jury ⁶ required the jury to find as follows:

In your verdict, you must assess a percentage of fault to the defendants Board of Police Commissioners of Kansas City, Missouri and Damon Hawley whether or not plaintiff was partly at fault if you believe:

First, Damon Hawley drove on the left side of the roadway within 100 feet of or while traveling through the intersection of Lydia Avenue and 97th Terrace, and

Second, as a direct result of such conduct, plaintiff sustained damage.

In assessing any such percentage of fault against Board of Police Commissioners of Kansas City, Missouri and Damon Hawley, you must consider them both as one party and assess only the fault of Damon Hawley as the fault of both.

The verdict director thus comported with the law in that it required the jury to determine that (i) Officer Hawley drove in the left lane of travel; (ii) within 100 feet of the Intersection; and (iii) that Goudeaux was damaged as a result.

Appellants do not contest that the evidence permitted the jury to draw the reasonable inference that Officer Hawley drove in the left lane of travel, and that he did so within 100 feet of the Intersection. Appellants nonetheless generally contend in their point relied on that negligence per se should not have been submitted to the jury because whether Officer Hawley's conduct constituted negligence was a matter in dispute.

As a preliminary observation, there is a logical breakdown in Appellants' point relied on that is plain. The argument fails to account for the fact that by its nature, the theory of negligence per se treats the conduct required or prohibited by a safety statute as the standard of care such that proof of a violation is presumptively negligent. See Burns, 106 S.W.3d at 3. Though a trial court, “in deciding whether a negligence per se instruction is proper, ... [must] make a threshold determination as to the sufficiency of the plaintiff's proof that a violation has occurred,” here there is no dispute that there was sufficient evidence from which the jury could find that Officer Hawley drove in the left lane within 100 feet of the Intersection. King v. Morgan, 873 S.W.2d 272, 276 (Mo.App. W.D.1994). Thus, the trial court did not commit error in instructing the jury on negligence per se based on the general claim that Officer Hawley's negligence was in dispute.

In the argument portion of their Brief, Appellants lend specificity to the general assertion expressed in their point relied on. They urge that even though the jury could have found Officer Hawley in technical violation of section 304.016.4, it was nonetheless improper to submit on the theory of negligence per se: (1) because section 304.016.4 would have been rendered inapplicable had the jury accepted Officer Hawley's testimony that Goudeaux pulled over and stopped because section 304.016.1 ⁷ required both vehicles to be traveling in the same direction at the time of the accident; (2)...