Henson By and Through Lincoln v. Board of Educ. of Washington School Dist.

• Decision Date: 27 June 1997
• Docket Number: No. 70920,70920
• Citation: 948 S.W.2d 202
• Parties: Damian HENSON, a minor By and Through his mother and Next Friend Laura LINCOLN, and Laura Lincoln, individually, Plaintiffs-Respondents, v. BOARD OF EDUCATION OF THE WASHINGTON SCHOOL DISTRICT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 202

948 S.W.2d 202

Damian HENSON, a minor By and Through his mother and Next Friend Laura LINCOLN, and Laura Lincoln individually, Plaintiffs-Respondents, v. BOARD OF EDUCATION OF THE WASHINGTON SCHOOL DISTRICT Defendant-Appellant.

No. 70920.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 27, 1997.

Priscilla F. Gunn, Evans & Dixon, St. Louis, for defendant-appellant.

Paul W. Kopsky, Donald D. Heck, Kopsky & Associates, P.C., Chesterfield, for plaintiffs-respondents.

HOFF, Judge.

The Board of Education of the Washington School District (the District) appeals from a judgment entered on a jury verdict in favor of Damian Henson and Laura Lincoln (both referred to as plaintiffs). We reverse and remand for new trial due to the trial court's errors in admitting three tree stumps plaintiffs' counsel excavated from the District's property and in prohibiting the District from introducing Henson's deposition testimony.

Henson sustained leg injuries when he fell on a hill at the Augusta Elementary School (School) while chasing a ball during recess. By and through his mother and next friend, Laura Lincoln, Henson filed this lawsuit seeking damages for the personal injuries he sustained. Lincoln also pursued a claim, individually, for the medical expenses incurred as a result of the accident. Plaintiffs named the District and Paul Suchland, the principal at the School, as defendants in the lawsuit.

Henson testified that, on November 30, 1990, he slipped on the inclined slope at the top of the hill; hit the ground about four to five feet further down the hill; felt his left knee "hit a stump or a rock maybe. I don't know"; slipped a couple more feet; and "ended up about in the middle" of the hill. Approximately four years after Henson's fall, two attorneys in the law firm that represented plaintiffs went to the hill and excavated three tree stumps from the hillside.

During trial, the trial court granted a motion for directed verdict in favor of Suchland. ¹ With respect to plaintiffs' claims against the District, the jury awarded damages in the amount of $50,000.00 in favor of Henson, awarded damages in the amount of $23,675.00 in favor of Lincoln, and assessed fifteen percent fault to Henson. In accordance with that verdict, the trial court entered judgment against the District, totaling $42,500.00 in favor of Henson and $20,123.75 in favor of Lincoln. The trial court subsequently overruled the District's motions for remittitur and for judgment notwithstanding the verdict or in the alternative for a new trial. This appeal by the District followed.

Plaintiffs move to dismiss points IV and V on appeal for failure to comply with Rule 84.04(d). After careful consideration, that motion is denied.

Questioning of Plaintiff Henson Regarding Dangerous Nature of Hill

In its first point on appeal, the District argues the trial court erred in sustaining plaintiffs' objection to the following question posed by the District's counsel during the cross-examination of Henson: "[o]n the day that you hurt yourself, did you think that the hill was dangerous before you went after the ball?" The District urges Henson's knowledge of the danger of the hill was relevant to the comparative fault defense.

In their second amended petition, plaintiffs alleged the existence of the steep embankment, which was covered by improperly removed tree stumps, crumbling concrete, and loose gravel, near the School's playground constituted a dangerous and unsafe condition. In its answer, the District raised comparative fault, in part, by alleging Henson failed to keep a careful lookout, chased a ball down a hill he knew or should have known was slippery, and failed to comply with the School's rule to stay off the hill.

Prior to trial, the District moved in limine to prevent Theodora Briggs Sweeney, an expert plaintiffs intended to call, from testifying about the dangers of school children playing near or on the hill at the School. The trial court sustained that motion. Plaintiffs then filed a motion for reconsideration asking that Sweeney be allowed to testify regarding the unreasonably dangerous condition created by the severity of the hill's incline and its location close to the School's playground. In denying that motion, the trial court specifically provided (in a minute entry) that "[n]o one may testify as to safety." During examination of Henson, both the District and plaintiffs asked him questions soliciting information that he knew he was not allowed to be on the hill where he fell and that, on the day he fell, the ground was frosty.

The verdict-directing instruction given by the trial court advised the jury to assess a percentage of fault to the District if the jury found the playground "was not reasonably safe" because the hill "was on or adjacent to the playground." Another instruction directed the jury to assess a percentage of fault to Henson if the jury found either he "disregarded a school rule to stay off the hill, or [he] stepped on a hill which he knew or should have known was slippery."

Under the circumstances of this case, we find no error in the trial court sustaining the objection to the question whether Henson thought the hill was dangerous before he went after the ball. The basis of the "dangerousness" of the hill is not clear in the question posed and the trial court had clearly stated that no one was to testify to safety matters. Moreover, to the extent Henson's comparative fault was at issue, Henson's awareness of the prohibition against students being on the hill and the existence of frost conditions was clearly the subject of other questions asked of Henson during trial. Point denied.

Evidence of Absence of Prior Injuries

In its second point, the District argues the trial court erred in preventing the District from introducing evidence of the absence of any prior injuries on the hill. The District asserts such evidence was admissible and relevant to show either there was no unduly dangerous condition or there was no basis for the District to realize any danger.

Evidence of the absence of prior accidents is relevant when it shows "(1) the absence of a defect or condition, (2) the lack of a causal relationship between the injury and the defect or condition charged, (3) the nonexistence of an unduly dangerous condition, or (4) the lack of knowledge of or grounds to realize the danger." Savant v. Lincoln Eng'g, 899 S.W.2d 120, 122 (Mo.App. E.D.1995); see also Carbin v. National Super Mkts., Inc., 823 S.W.2d 93, 94 (Mo.App. E.D.1991). For such evidence to be admissible, the proponent of the evidence must show that "no accidents occurred ... under conditions substantially similar to those faced by plaintiff and that an adequate number of those situations occurred to make the absence of accidents meaningful." Savant, 899 S.W.2d at 122; see also Carbin, 823 S.W.2d at 95. The trial court has discretion to determine whether or not a proper foundation was established for the admission of such evidence. Savant, 899 S.W.2d at 122; Carbin, 823 S.W.2d at 94. We affirm the trial court's determination unless an abuse of discretion is shown. Savant, 899 S.W.2d at 122.

During the District's cross-examination of Henson, the trial court sustained an unexplained objection to the following question: "Had you ever seen anybody hurt themselves on that hill before?" The District's counsel subsequently made an offer of proof that:

I intend to call Ellen Mallinckrodt as a witness. She has been the secretary of the school for twenty-two or twenty-three years, plus she went to grade school at Augusta. I'd say she's in her fifties right now would be my best guess. And I would like to call her to testify she's unaware of any other injuries on the off-limits area of the hill by any student or anyone at any time prior to this injury. I would like to offer that into evidence.

The trial court denied the offer of proof.

We find no abuse of discretion in the trial court's ruling because there was an insufficient foundation for the admission of this evidence. The District did not demonstrate that, prior to Henson's fall, children had faced a frost covered hill and a loose ball or how often such a situation had occurred without injury. The District contends a sufficient foundation existed because Mallinckrodt testified she had worked as the school secretary for twenty-four years and was in a position to become aware of student injuries; she attended the School as a child; and the slope of the hill had not changed since Mallinckrodt attended School until after Henson's injury, when a fence was erected. We disagree. It is not the length of time a condition has existed that is significant to establish a proper foundation for this evidence, but the number of times substantially similar conditions have occurred without accident. In the absence of a demonstration of prior instances when conditions substantially similar to those faced by Henson occurred an adequate number of times to make the absence of accidents meaningful, the trial court properly prevented the District from presenting evidence of no prior injuries on the hill. Point denied.

Photographic Evidence

In its third point, the District contends the trial court erred in overruling the District's objection to two enlarged photographs of Henson's injured leg. Those photographs, the District contends, were irrelevant because they were prejudicial and designed to arouse sympathy for Henson.

"A photograph is admissible if a witness familiar with what it shows testifies that it accurately represents the scene it purports to portray; whether a photograph is sufficiently authenticated is a preliminary question for the trial court." Rust & Martin, Inc. v. Ashby, 671 S.W.2d 4, 8 (Mo.App. S.D.1984). The trial court's admission of a photograph will not be disturbed unless it is an abuse of discretion. Id. Moreover, proof of the nature and extent of a plaintiff's injuries in a...