Harris v. Jungerman
| Decision Date | 07 August 2018 |
| Docket Number | WD 81106 |
| Parties | Jeffery HARRIS, Respondent, v. David G. JUNGERMAN, Appellant. |
| Court | Missouri Court of Appeals |
Thomas G. Pickert, Kansas City, for Respondent.
Ryan C. Fowler, Kansas City, Co-counsel for Respondent.
Michael W. Blanton, Co-counsel for Respondent.
Jonathan Sternberg, Kansas City, for Appellant.
Before Division Three: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge and Alok Ahuja, Judge
David Jungerman appeals the judgment of the trial court awarding Jeffery Harris $750,000 in compensatory damages and $5 million in punitive damages on Harris’s claim against him for battery. The judgment is affirmed.
This appeal arises out of a shooting in the early morning hours of September 25, 2012, at a building owned by Jungerman located at 131 South Belmont Avenue in Kansas City. The building was a 20,000-square-foot vacant warehouse with a loading dock. A chain-link fence surrounded the building and dock.
Harris was living on the streets in the Northeast part of Kansas City at the time. That night, the weather was overcast and looking like rain, so Harris was looking for shelter and a place to sleep. He rode his bicycle to the back of the building, which he assumed was abandoned. He saw that the fence was "kind of tilted" and loose, and he rolled his bike over it through a hole, which he did not make. He walked up onto the dock and found a man, who he later learned was Robert Wallace, standing on the dock.
Wallace, who had also been riding his bike in the area, had heard a loud, banging noise coming from the building, which he had also assumed was abandoned. He walked up onto the dock to investigate but by then the banging had stopped. Wallace saw the overhead door from the building to the dock was halfway open. Thinking that that was unusual, he yelled into the building "who’s in there" or "hello."
By then, Harris walked up onto the dock and asked Wallace if he could sleep under a trailer beside the dock. As the two men were talking, they heard gunshots. Harris was shot in the back of the right leg, fell to the ground, and tried to crawl away. Wallace started running away from the dock and was shot in the buttocks. On the ground, Harris saw that his leg was bleeding badly, cut a rope off a pouch he was carrying, and tied his leg off to stop the bleeding. Just then, Jungerman struck Harris in the head with an AK-47 rifle. Jungerman said, Harris responded, "F* * * you, you just shot my leg off," and Jungerman "took off running." Harris testified that he never moved toward or threatened Jungerman and didn't even know Jungerman was there before Jungerman shot him. Wallace also testified that neither he nor Harris attacked Jungerman but instead that the shooting was unprovoked and "came out of nowhere."
Harris was found on the ground next to the dock and transported to the hospital. Because of the extent of nerve and vascular injury
, surgeons amputated Harris’s right leg below the knee. Afterward, he experienced further complications from the injury
including four additional surgeries over the next three months for blood collection and infection in the wound and extended hospitalizations.
Harris’s medical expenses totaled $226,000, and an orthopedic surgeon testifying as his expert opined that those expenses were reasonable and necessary. A certified nurse life care planner estimated Harris’s future medical costs to be $772,425, which the expert also found reasonable.
Police arrived at the scene and found blood spatter and bone fragments just outside the dock door and a pool of blood on the ground east of the loading dock. Five shell casings were found in the same area in the corner of a large room of the building near the open door. No blood or bone fragments were found in the building.
Harris filed a petition for damages against Jungerman and two corporations of which he alleged Jungerman was the owner or sole shareholder. His petition raised claims of negligence, battery, and assault against the three defendants. It also included a separate count for punitive damages.
In his answer, Jungerman asserted, as affirmative defenses, that the petition failed to state a claim for which relief can be granted and that he "was justified in using deadly force against Plaintiff and that such justification is an absolute defense to Plaintiff’s claims." He also claimed that Count IV asserted an independent cause of action for punitive damages and, therefore, failed to state a claim for which relief can be granted.
Harris eventually voluntarily dismissed one of Jungerman’s corporations as a party. No summons was ever issued for the second corporation, and no attorney entered an appearance for it. Harris also voluntarily dismissed his negligence claim.
Jungerman requested a bifurcated trial on the issue of punitive damages under section 510.263,2 which the trial court granted. Jungerman dismissed his attorneys and continued pro se. He eventually hired another attorney to enter a limited appearance to assist him as co-counsel while remaining pro se. That arrangement continued through trial.
At trial, Jungerman testified that he got a call from his alarm company around 2:20 a.m. that the silent, motion detection alarm at the building had been activated. He took a flashlight, a loaded AK-47, and a loaded .38 Smith & Wesson pistol and drove to the building. He said that Harris and Wallace were both inside the building and that he intentionally shot at them because they were charging at him and he was defending himself. Leo Wynne, who had worked for Jungerman for more than 30 years, testified that he found blood drops, bone fragments, and dried blood inside the building by the door to the dock the next day. Jungerman did not report any of these findings to police.
During the first phase of the trial, Harris only submitted the battery claim to the jury, abandoning the assault claim. The jury found in favor of Harris, assessed compensatory damages at $750,000, and found that Jungerman was liable for punitive damages. During the second phase of the trial, the jury awarded Harris $5 million in punitive damages. The trial court accepted the verdicts and entered judgment accordingly. This appeal by Jungerman followed.
Jungerman raises two points on appeal regarding punitive damages. In his first point, Jungerman asserts that the trial court erred in awarding punitive damages because Harris’s petition did not plead any claim for punitive damages as to battery. He argues that his only claim for punitive damages was alleged in a separate count after his claim for assault, which was abandoned at trial, and the only actions alleged to warrant punitive damages in the separate count went to negligence, a count Harris dismissed before trial.
A claim that the petition fails to state a claim upon which relief can be granted is solely a test of the adequacy of the plaintiff’s petition. City of Greenwood v. Martin Marietta Materials, Inc. , 299 S.W.3d 606, 626-27 (Mo. App. W.D. 2009). The petition is reviewed in an almost academic manner, assuming all of plaintiff’s averments are true and liberally granting to plaintiff all reasonable inferences therefrom. Id.
A claim for punitive damages is not an independent cause of action; rather it is incidental to the underlying cause of action. Amesquita v. Gilster-Mary Lee Corp. , 408 S.W.3d 293, 305 (Mo. App. E.D. 2013). Rule 55.19 provides, Punitive damages must be pleaded and proven. Rock Port Mkt., Inc. v. Affiliated Foods Midwest Coop., Inc. , 532 S.W.3d 180, 187 (Mo. App. W.D. 2017). In the case of an intentional tort, conduct that is outrageous because of the defendant’s evil motive or reckless indifference to the rights of others warrants punitive damages. Burnett v. Griffith , 769 S.W.2d 780, 787 (Mo. banc 1989). Evil motive may be inferred when the defendant recklessly disregards the interests and rights of the plaintiff. Id. ; J.M. Neil & Assocs., Inc. v. Alexander Robert William, Inc. , 362 S.W.3d 21, 24 (Mo. App. W.D. 2012).
Under Count II for battery, Harris’s petition alleged that Jungerman "intentionally, harmfully and offensively contacted Plaintiff shooting him in the leg and then striking him in the face with the barrel of his assault rifle." In Count IV for punitive damages, the petition incorporated by reference all of the preceding allegations of the petition including those allegations under the battery claim. It then alleged:
Defendant Jungerman’s actions manifest reckless indifference to the rights of Plaintiff. Defendant Jungerman knew or should have had information from [sic] which he in the exercise of ordinary care, should have known that the alleged negligent conduct created a high degree of probability of injury and thereby showed complete [sic] indifference or conscious disregard for Plaintiff’s safety.
While the second sentence of the punitive damages allegation related to the negligence claim, the first sentence was applicable to the intentional tort claims. Liberally granting Harris all favorable inferences from his pleading, the petition sufficiently asserted that the wrongful acts alleged in the battery claim were done with a reckless indifference to the rights of Harris. The petition gave Jungerman fair notice of the nature of the demand for punitive damages and the grounds upon which it rested. Harris’s petition sufficiently alleged a cause of action for punitive damages for battery. The point is denied.
In Jungerman’s fourth point on...
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