Hepler v. Caruthersville Supermarket Co.
| Decision Date | 23 April 2003 |
| Docket Number | No. 24869.,24869. |
| Citation | 102 S.W.3d 564 |
| Parties | Marjorie HEPLER and Carmel Hepler, Plaintiffs-Respondents, v. CARUTHERSVILLE SUPERMARKET COMPANY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Joseph R. Swift, T. Michael Ward, Brown & James, P.C., St. Louis, for defendant-appellant.
W. Edward Reeves, Ward & Reeves, for plaintiffs-respondents.
In this slip-and-fall case, Caruthersville Supermarket Company ("Defendant") appeals from a judgment, following a jury verdict, rendered in favor of Marjorie Hepler ("Plaintiff"). The jury found Defendant one hundred percent at fault for injuries sustained by Plaintiff and awarded her $27,000 in damages. Defendant alleges in its sole point that it was error to submit Plaintiffs verdict directing instruction to the jury. We affirm.
Early on the evening of December 5, 1999, Plaintiff and her husband, Carmel Hepler ("Husband"), drove to Hays Grocery Store in Caruthersville, Missouri to purchase a poinsettia. Defendant is the owner of Hays Grocery Store. The weather was fair, the sun had not yet set, and the store's parking lot was not affected by snow, ice or rain. No grease or oil was on the ground in the area where Husband parked the Heplers' vehicle, at the front of the store several spaces from the front door.
Plaintiff got out of the car on the passenger side and walked around the front of the vehicle to what is referred to by the parties as a "sidewalk" along the front of the building.1 Husband walked toward the front door, approximately two steps ahead of Plaintiff. On the sidewalk between Plaintiff and the front door were between five and eight Christmas trees displayed for sale. The trees completely blocked Plaintiffs path along the sidewalk and protruded slightly over the edge of the sidewalk. Needles from the trees covered the sidewalk and the parking lot just in front of the sidewalk.
In order to avoid the trees, Plaintiff left the sidewalk area and walked approximately three feet into the parking lot in an attempt to walk around the trees. Before she could reach the front door, however, her feet slipped on the pine needles in the parking lot and she fell to the ground, sustaining permanent injuries. Husband did not see the fall, but heard Plaintiff call for help and returned to assist her in standing up. As he helped her into the car to take her to a local hospital, Husband noticed pine needles on Plaintiff's clothes and in her hair.
At trial, Plaintiff's submitted a verdict directing instruction, Instruction No. 5, which read as follows:
In your verdict you must assess a percentage of fault to [Defendant], whether or not [Plaintiff] was partly at fault, if you believe:
First, there were Christmas trees and their needles located on or near the sidewalk of [Defendant's] store and as a result the sidewalk was not reasonably safe, and
Second, [Defendant] knew or by using ordinary care, could have known of this condition, and
Third, [Defendant] failed to use ordinary care to remove the Christmas trees and their needles from their location on or near the sidewalk, or to barricade the area where the Christmas trees and their needles were located, or to warn [Plaintiff] of the Christmas trees and their needles, and
Fourth, as a direct result of such failure, [Plaintiff] sustained damage.
At the instruction conference, Defendant objected to the submission of the verdict director on the basis that (1) the submission of the phrase "Christmas trees and their needles located on or near the sidewalk" in the second paragraph of the instruction gave the jury a "roving commission" and was not supported by the evidence, (2) there was no evidence the Christmas trees caused or contributed to cause Plaintiffs injuries, and (3) there was no evidence that Plaintiff slipped while she was on the sidewalk. The trial court overruled Defendant's objection. Following the verdict and entry of judgment, Defendant renewed its objection to the verdict director in its motion for new trial, which was also overruled.
In its sole point, Defendant claims the trial court erred in denying its motion for new trial because the court committed prejudicial error in submitting Plaintiffs verdict directing instruction in that no substantial evidence supported its submission to the jury. Specifically, Defendant complains that:
A. The instruction hypothesized in the disjunctive that (1) Christmas trees and their needles on Defendant's sidewalk or (2) Christmas trees and their needles located near the sidewalk caused the sidewalk to not [sic] be reasonably safe;
B. The first disjunctive impermissibly gave the jury a roving commission because there is no evidence that Christmas trees and their needles on the sidewalk caused Plaintiffs fall; and
C. The instruction specified that the sidewalk was not reasonably safe; however, the undisputed evidence shows that Plaintiff did not fall on the sidewalk, but instead fell on the adjoining parking lot.
In support of its point, Defendant offers two closely related arguments. First, submitting, at the end of paragraph A, that the sidewalk itself was unsafe, while Plaintiffs case was predicated upon a fall near, but not on, the sidewalk, gave the jury an impermissible roving commission, whereby the jury was "free to find against [Defendant] based on the mere presence of Christmas trees on the sidewalk and not on the condition of the parking lot, the place where [Plaintiff] fell."
Instructional error must be prejudicial to a party to warrant reversal. Vintila v. Drassen, 52 S.W.3d 28, 35 (Mo. App. S.D.2001). The presence or absence of prejudice in the giving of instructions is a question of law and is to be judicially determined. Rule 70.02;2 Baldridge v. Lacks, 883 S.W.2d 947, 956 (Mo.App. E.D. 1994). Reversal is required where an instruction misdirected, misled or confused a jury, or where the merits of the case were affected by the submission of the flawed instruction. Vintila at 35.
There must be substantial evidence supporting an issue before that issue may be presented to a jury by the giving of an instruction; submitting the instruction despite the lack of such evidence constitutes reversible error. Messina v. Prather, 42 S.W.3d 753, 759 (Mo.App. W.D.2001); Swenson v. Elms Timesharing Intervals, Inc., 887 S.W.2d 632, 634 (Mo.App. W.D. 1994).
Prejudicial and reversible error occurs when an instruction is proffered to a jury that gives the jury a roving commission. "A `roving commission' occurs when an instruction assumes a disputed fact or submits an abstract legal question that allows the jury `to roam freely through the evidence and choose any facts which suited its fancy or its perception of logic' to impose liability." Seitz v. Lemay Bank & Trust Co., 959 S.W.2d 458, 463 (Mo. banc 1998) (quoting Davis v. Jefferson Say. & Loan Ass'n, 820 S.W.2d 549, 556 (Mo.App. E.D.1991)). See also Coon v. Dryden, 46 S.W.3d 81, 92-93 (Mo.App. W.D.2001) ().
Defendant's argument that the verdict director gave the jury a roving commission is unpersuasive. Defendant suggests that the disjunctive phrase "on or near the sidewalk" in that paragraph lacked the required evidentiary support for both assignments in that phrase. Defendant is correct in stating that where a verdict directing instruction submits in the disjunctive, the instruction is erroneous unless the evidence is sufficient to support each of the assignments. See Deckard v. O'Reilly Automotive, Inc., 31 S.W.3d 6, 18 (Mo.App. W.D.2000). Given the evidence, however, we fail to discern how this principle benefits Defendant. The testimony of Plaintiff and Husband seems clearly to have established the presence of Christmas trees and their needles, both on the sidewalk and in the portion of the parking lot abutting the sidewalk. Thus, the disjunctive phrase "on or near the sidewalk" was supported by substantial evidence and did not invite the jury to "rove" through the evidence in search of a theory of liability wholly unsupported by the evidence.
Similarly, Defendant's suggestion of error in submitting the phrase "as a result the sidewalk was not reasonably safe" at the end of the second paragraph is unavailing. Defendant argues that this phrase misdirected the jury to find liability based...
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McNeill v. City of Kan. City
...error occurs when an instruction is proffered to a jury that gives the jury a roving commission.” Hepler v. Caruthersville Supermarket Co., 102 S.W.3d 564, 568 (Mo.App. S.D.2003). A “roving commission” is “an abstract instruction ... in such broad language as to permit the jury to find a ve......