Harner v. Mercy Hosp. Joplin
| Decision Date | 07 March 2023 |
| Docket Number | SD37266 |
| Parties | STEVEN HARNER, Plaintiff-Respondent, v. MERCY HOSPITAL JOPLIN, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable John LePage
Mercy Hospital Joplin ("Mercy") appeals the trial court's judgment after a jury verdict for Steven Harner ("Harner") on Harner's single claim of negligence alleging Mercy breached its duty to protect him from the criminal acts of a third person on Mercy property.
Mercy presents three points on appeal. In Point I, Mercy asserts the trial court erred in denying Mercy's motion for judgment notwithstanding the verdict ("JNOV") because Harner failed to make a submissible case on his negligence claim under the Known Third Person exception.[1] In Points II and III, Mercy asserts the trial court erred in submitting Instruction 8 the verdict director for Harner's negligence claim because Instruction 8 misstated the law and held Mercy to a higher standard of care than required by law.
Because Harner made a submissible case on his negligence claim under the Known Third Person exception and no instructional error occurred, the judgment is affirmed.
Harner sued Mercy in negligence relating to injuries Harner sustained in December 2015 when he was shot by Kaylea Liska ("Liska") in Mercy's parking lot while visiting his daughter at Mercy's Emergency Department. Mercy moved for summary judgment, arguing it owed no duty to protect Harner from the criminal acts of a third party. The trial court denied summary judgment. The case was tried to a jury over five days beginning July 19, 2021. Mercy moved for directed verdict at the close of Harner's case and at the close of all of the evidence, and the trial court denied both motions. On July 23, 2021, the jury returned a verdict for Harner and awarded damages of $2,000,000, which the trial court reduced to $1,500,000 based on the jury assessing Harner 25% of the fault. On July 27, 2021, the trial court entered Judgment in accord with the jury verdict. Mercy moved for JNOV, and alternatively, a new trial, which the trial court denied after Mercy and Harner submitted briefing and the trial court heard argument. Mercy timely appealed.
In Point I, Mercy asserts the trial court erred in denying Mercy's motion for JNOV because Harner presented "insufficient evidence Mercy knew or had reason to know that [Liska] was violent or posed a danger to [Harner]."
"This Court must determine whether the plaintiff presented a submissible case by offering evidence to support every element necessary for liability." Brock v Dunne, 637 S.W.3d 22, 26 (Mo. banc 2021) (quoting Robinson v. Langenbach, 599 S.W.3d 167, 176 (Mo banc 2020)). "A case is submissible when each element essential to liability is supported by legal and substantial evidence." Id. (quoting Johnson v. Auto Handling Corp., 523 S.W.3d 452, 459-60 (Mo. banc 2017)). "Substantial evidence is evidence that 'has probative force upon the issues, and from which the trier of fact can reasonably decide the case.'" Id. (quoting Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 814 (Mo. banc 2003)). "Whether the plaintiff made a submissible case is a question of law that this Court reviews de novo." Id. (quoting Newsome v Kansas City, Mo. Sch. Dist., 520 S.W.3d 769, 775 (Mo. banc 2017)). "In determining whether a claim is submissible, this Court views the evidence and all reasonable inferences therefrom in the light most favorable to the jury's verdict." Rhoden v. Mo. Delta Med. Ctr., 621 S.W.3d 469, 477 (Mo. banc 2021) (citing Laughlin v. Perry, 604 S.W.3d 621, 625 (Mo. banc 2020)). "Any adverse evidence and inferences are disregarded." Id. (citing Darks v. Jackson Cnty. 601 S.W.3d 247, 259 (Mo.App. 2020)). "Only evidence that tends to support the submission should be considered." Id. (quoting Blanks v. Fluor Corp., 450 S.W.3d 308, 401 (Mo.App. 2014)). "However, the Court will not 'supply missing evidence or give [Harner] the benefit of unreasonable, speculative or forced inferences.'" Brock, 637 S.W.3d at 27 (quoting State v. Lehman, 617 S.W.3d 843, 847 (Mo. banc 2021)).
The evidence with all reasonable inferences in the light most favorable to Harner, as required by our standard of review is as follows: Keith ("Keith") and Elnora ("Elnora") Wooldridge, an elderly husband and wife, entered Mercy Parking Lot H on December 23, 2015 in their white Ford Focus (the "Focus"). They spent about five hours in the Mercy Emergency Department and returned when it was dark to the Focus, which did not lock, to find a woman [Liska] inside. Keith told Liska, "Lady, I think you're in the wrong car." Liska exited the Focus on the driver's side without speaking to Keith and ran around the back of the Focus where she nearly ran into Elnora, who was standing by the passenger side of the Focus. The Wooldridges saw Liska take from the Focus a carrying case containing Elnora's prescription medications. Liska urinated and defecated in the Focus and ate peanut butter crackers that Elnora stored in the Focus due to Elnora's diabetic condition. Liska stayed in the Focus at least 20 minutes. Liska testified she saw bottles of prescription medication in the Focus and took them, intending to sell them.
Keith and Elnora immediately went back inside the Mercy Emergency Department and reported to Mercy employee Dee-Dee Baker ("Baker") at the Mercy Emergency Department front desk:
Mercy completed a Case Report related to the Wooldridge report. The Case Report identifies the incident type as "Theft/Larceny: From a Person[,]" identifies the Focus, lists the location of the incident as Mercy Parking Lot H, and lists what was stolen as prescription medicines. The Case Report states:
Dee-Dee, ER Registrations, called and reported two vehicles have been robbed in the ED parking lot. Officer 14 is making contact with Dee-Dee. Dispatch was asked to review camera footage, I was trying to find video footage of individual around a vehicle in the parking lot, when the call came in of a shooting. Officer 14 has information.
The Case Report has a section titled "Narrative text," which states:
On 12/23/2015 at 2033 hours, I [O]fficer Meier #14 was dispatched to the ER waiting area to speak with a distraught couple. As we made the introductions, they were quick to inform me that they had been the victims of a theft just prior to them calling security. They provided me with their contact information, a description of the vehicle, a brief description of the suspect, and a short synopsis of what they believed transpired. They were headed out to their vehicle at approx. 2030 hours. When they got to the car, Keith opened up the driver's side door and found the suspect (a woman of petite build, approximately 5'2" tall, with longer than shoulder length dark hair[]) laying down over the seats, rummaging through the glove compartment. As soon as the door opened, the female jumped up, grabbed the box of prescription medicine in the back seat, and exited the car at a high rate of speed. Both Keith and Elnora stated that they hardly had time to react and have no idea which way the thief headed. When asked if the suspect had broken in to the vehicle, they stated that the doors did not lock. I wrote down as much as I could get and then headed off to do mobile rounds.
Baker called Mercy employee Jody Berry ("Dispatcher Berry"), who worked in dispatch for Mercy's Security Department ("Mercy Security"). The Wooldridges testified Mercy Security came right away. Keith testified the Mercy Security guard remarked "they had been looking for her" and "they'd been trying to catch her." The Mercy Security guard told Keith and Elnora that Mercy had been "[l]ooking for a person that was getting into the cars." Keith and Mercy Security guard Officer Ryan Meier ("Officer Meier") went to the Focus while Elnora stayed inside the Mercy facility. Officer Meier viewed the interior and exterior of the Focus. Officer Meier testified he did not talk to any potential witnesses in Mercy Parking Lot H and did nothing else to make sure the person who had been in the Wooldridge vehicle was not still on Mercy property.
Mercy Security told the Joplin Police Department about the Wooldridge report. A Joplin police officer was at Mercy to investigate the Wooldridge report at the time of the Harner shooting.
Mercy Security guard Officer Justin Larcombe ("Officer Larcombe") conducted two rounds by vehicle of Mercy Parking Lot H looking for suspicious people breaking into vehicles after being advised of the Wooldridge report. After the last round, he stopped at the Focus to view the Focus and discuss the Wooldridge report with Officer Meier and Keith. Officer Larcombe testified he had been called upon to serve as an escort for Mercy patients or visitors "many times" during his employment as a Mercy guard. Officer Larcombe testified he had been notified by Mercy Security dispatch in the past of vehicle alarms going off in Mercy parking lots and had investigated those reports and had checked on the vehicles on those occasions and likewise had checked on vehicles in the past in Mercy lots when he himself had heard or seen vehicle alarms going off. Officer Meier testified that, although Officer Larcombe had to carry a flashlight as part of his duties, neither Officer Meier nor Officer Larcombe walked Mercy Parking Lot H to look in each vehicle to find someone entering vehicles. Officer Meier agreed there were fewer than 45 vehicles in Mercy Parking Lot H at the time of the Wooldridge report.
Tim Wampler, Mercy's Manager of Security...
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