Hale v. Burlington N. & Santa Fe Ry. Co.

Decision Date03 December 2021
Docket NumberNo. SD 36912,SD 36912
Parties Amber HALE, f/k/a Amber Koester, Appellant, v. BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, Respondent.
CourtMissouri Court of Appeals

Appellant's attorneys: Peggy A. Whipple and Douglas L. Healy, Springfield.

Respondent's attorneys: Scott R. Ast, Michele F. Sutton, Kansas City, S. Camilla Reifers, Jeffrey W. Laney, Randy P. Scheer, and S. Jacob Sappington, Springfield.


This appeal, the third in this case, see Hale v. Burlington N. & Santa Fe Rwy. Co. , 524 S.W.3d 603 (Mo. App. 2017) ; Hale v. Wait , 364 S.W.3d 720 (Mo. App. 2012), arises from a collision ("the collision") between a motor vehicle driven by Amber Hale and a train operated by BNSF Railway Company ("BNSF"). Hale filed suit against BNSF that resulted in a jury verdict followed by a trial court judgment on all counts in favor of BNSF. Hale presents ten points on appeal, each of which fails either to present a cognizable basis upon which to reverse the trial court's judgment or to demonstrate reversible error. Because the trial court's judgment is presumed correct and Hale fails her burden to demonstrate otherwise, we affirm.1

Factual and Procedural Background

The collision between Hale's vehicle and the train occurred at Crossing #667633J ("the South Iron Mountain Road Crossing") in Webster County, Missouri, on March 23, 2008, between 8:30 p.m. and 9:00 p.m. The train's engineer was Steve Wait and its conductor was Lance Frost. Both were BNSF employees. The train was traveling 47 miles per hour ("mph") at the moment of the collision.

After the collision, Hale filed suit against BNSF. Her fifth amended petition sought compensatory and punitive damages against BNSF under negligence and negligence per se causes of action. Hale's specific allegations of negligence were as follows:

a. Wait and/or Frost failed to keep a careful lookout and see Plaintiff Hale in sufficient time to prevent the collision and Defendant BNSF failed to require their keeping of such careful lookout;
b. Wait and/or Frost failed to adhere to the speed restrictions applicable to that track and crossing on March 23, 2008 and Defendant BNSF failed to require their adherence to the applicable speed restrictions;
c. Wait, Frost and/or Defendant BNSF failed to provide and/or sound a timely, proper and/or adequate warning; further, the condition of the crossing and crossing area as alleged above was unusually dangerous, hazardous, extra-hazardous, unsafe or defective and Wait, Frost and/or Defendant BNSF failed to provide and/or sound a timely, proper and adequate warning;
d. Defendant BNSF failed to provide and/or properly maintain all required warning devices, including the lights and/or bells and an automatic gate, at the South Iron Mountain Crossing, in violation of law including but not limited to 23 CFR 646.214(b) and Revised Statutes of Missouri § 389.610.2 and § 389.614 ;
e. Defendant BNSF failed to abide by federal law requiring that the active grade crossing warning systems operate on the fail-safe principle.

A jury trial on Hale's petition commenced on February 4, 2020, that ended in a mistrial ("the February 4 trial"). A second jury trial on Hale's petition commenced on August 24 and continued through to verdict on September 4, 2020, ("the August 24 trial"). The jury in that trial heard evidence and was instructed, in pertinent part, about two scenarios that, if believed, required a percentage of fault for the collision to be assessed to BNSF. BNSF fault under verdict-directing Instruction No. 9 required (1) that the track on approach to the South Iron Mountain Road Crossing was a Class 3 track, and (2) that BNSF's crew operated the train in excess of 40-mph, and (3) that as a direct result of such conduct Hale sustained damage. BNSF fault under verdict-directing Instruction No. 10 required (1) that either the train crew failed to keep a careful lookout, failed to sound the horn, or failed to warn by timely activation of lights and bells; (2) that BNSF in any one or more of these respects was negligent; and (3) that as a result of such negligence, Hale sustained damage.

After its deliberations, the jury returned its verdict assessing no fault to BNSF. The trial court then entered judgment in accordance with the jury's verdict and denied Hale's motion for a new trial.

Hale timely appeals, raising ten points containing numerous Rule 84.04 briefing deficiencies significantly impacting our ability to discern Hale's claims and whether they were properly preserved in the trial court for appellate review. Our evaluations of those deficiencies and their impact upon appellate review throughout this opinion are made within the context of a sprawling record consisting of more than 4,200 pages of transcript, more than 9,100 pages of documents in the legal file, and more than 2,400 pages of exhibits, thereby comprising a record on appeal in excess of 15,700 pages plus several non-paginated audio, video and computer data exhibits that cannot be included in that page count.

Applicable Principles of Preservation and Briefing of Claims

"The appellate court is a court of review." Henson v. Henson , 195 S.W.3d 479, 484 (Mo. App. 2006). As a general matter, this Court's review is guided by four policy interests: "(1) we presume the challenged judgment is correct; (2) we presume the trial court knows and applies the law; (3) we will affirm the outcome on any basis supported by the record; and (4) it is appellant's burden to dislodge us from the presumption that the outcome below was correct." Bramer v. Abston , 553 S.W.3d 872, 879 (Mo. App. 2018). "To satisfy this burden, and overcome the judicial preference for ‘finality of judgments,’ an appellant must comply with the rules of appellate procedure." Id.

Compliance with the rules of appellate procedure is mandatory and necessary "to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made." Myrick v. Eastern Broadcasting, Inc. , 970 S.W.2d 885, 886 (Mo. App. 1998). "It is not our function as an appellate court to serve as advocate for any party on appeal." Henson , 195 S.W.3d at 484. "[S]uch an undertaking is inappropriate not only because it requires considerable time and judicial resources, but because it forces this Court to don the cap of advocacy while forsaking our traditional appellate role." Id.

Here, the following procedural requirements command our primary focus:

Apart from questions of jurisdiction of the trial court over the subject matter, allegations of error not briefed or not properly briefed shall not be considered in any civil appeal and allegations of error not presented to or expressly decided by the trial court shall not be considered in any civil appeal from a jury tried case.

Rule 84.13(a) (emphasis added).

The importance of these two requirements—the proper preservation of allegations of error in the trial court, followed by the proper briefing of those alleged errors on appeal—are discussed separately and in greater detail below.2

Relevant Trial Court Preservation Requirements
Generally, the requirement that an issue be preserved is based on ideas of efficiency and fair play. A party should make any objection to the trial process at the earliest opportunity to allow the other party to correct the problem without undue expense or prejudice. Having been informed of the objection, the opposing party can choose to eliminate the complaint or may stand his or her ground and risk reversal on appeal. Likewise, if a party fails to make an objection when the concern can be corrected at the earliest and easiest opportunity, he or she will not be heard to complain later when the cost of correction may be far more onerous.

Sanders v. Ahmed , 364 S.W.3d 195, 207 (Mo. banc 2012).

These general preservation principles give rise to timing and specificity requirements for trial objections. See, e.g. , Hancock v. Shook , 100 S.W.3d 786, 802 (Mo. banc 2003) (holding that a pretrial motion in limine is interlocutory, subject to change during the course of a trial, and, by itself, preserves nothing for appeal); Chamberlain v. Director of Revenue , 342 S.W.3d 334, 339 (Mo. App. 2011) (holding that to preserve a challenge to the exclusion of evidence, a definite and specific offer of proof showing the admissibility of the evidence must be made at trial); Matter of Estate of Dean , 967 S.W.2d 219, 222 (Mo. App. 1998) (holding that to preserve a challenge to the admission of evidence, an objection must be made when the evidence is offered); State v. Harden , 750 S.W.2d 666, 668 n.1 (Mo. App. 1988) (holding that a mistrial is a nullity and that any motions filed during those proceedings have no bearing on the subsequent proceedings); Rule 70.03 (stating that "[n]o party may assign as error the giving or failure to give instructions unless that party objects thereto on the record during the instructions conference, stating distinctly the matter objected to and the grounds for the objection").

"An appellant's failure to preserve an issue at the trial court waives the issue, and it is not reviewable on appeal." Kerr v. Missouri Veterans Commission , 537 S.W.3d 865, 880 (Mo. App. 2017) (internal quotation marks omitted). "Appellate courts are merely courts of review for trial errors, and there can be no review of a matter which has not been presented to or expressly decided by the trial court." Barkley v. McKeever Enters., Inc. , 456 S.W.3d 829, 839 (Mo. banc 2015). In the same vein, "[i]n order to properly raise an issue on appeal, the allegations of error must be based upon the theory voiced in the objection at trial and a defendant cannot expand or change on appeal the objection as made." Meadowfresh Solutions USA, LLC v. Maple Grove Farms, LLC , 586 S.W.3d 329, 344 (Mo. App. 2019) (internal quotation marks omitted).

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