Howard v. Lundry

• Decision Date: 27 November 1979
• Docket Number: No. 11007,11007
• Citation: 591 S.W.2d 193
• Parties: Troy Chad HOWARD, a minor, by Troy Howard and Marketta Howard, his wife, next friends; and Troy Howard and Marketta Howard, his wife, individually, Plaintiffs-Respondents, v. Leroy LUNDRY, d/b/a Lundry's Custom Kitchens and Interior Home Center, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 193

591 S.W.2d 193

Troy Chad HOWARD, a minor, by Troy Howard and Marketta

Howard, his wife, next friends; and Troy Howard and Marketta Howard, his wife, individually, Plaintiffs-Respondents, v. Leroy LUNDRY, d/b/a Lundry's Custom Kitchens and Interior

Home Center, Defendant-Appellant.

No. 11007.

Missouri Court of Appeals, Southern District, Division Three.

Nov. 27, 1979.

Motion for Rehearing or to Transfer to Supreme Court Denied

Dec. 19, 1979.

Application to Transfer Denied Jan. 15, 1980.

Harold B. Treasure, J. Michael Mowrer, Dalton & Treasure, Kennett, for plaintiffs-respondents.

J. Lee Purcell, Glenn E. Easley, Hyde, Purcell, Wilhoit, Edmundson & Merrell, Poplar Bluff, for defendant-appellant.

GREENE, Judge.

This case is a civil action for damages in which the jury's verdict, and the trial court's judgment, were in favor of plaintiff Troy Chad Howard on Count I of the petition in the sum of $50,000, and in favor of plaintiffs Troy Howard and Marketta Howard on Count II of the petition in the sum of $5,000. Defendant appeals. We affirm the judgment of the trial court.

Plaintiff Troy Chad Howard (Chad) is the minor child of Troy and Marketta Howard. Mr. Howard is a home builder in Kennett, Missouri. On March 14, 1977, he went to Lundry's Custom Kitchens in Poplar Bluff, Missouri, to buy some cabinet tops and to talk to Leroy Lundry, the owner of the cabinet shop, about purchasing some custom-made cabinets. Chad, who was 28 months old at the time, accompanied his father. The store contained a showroom Troy was talking to Lundry about buying some materials. Chad, who was an active child, had been walking and running around in the store. He was given a soft drink and a candy bar by Mrs. Lundry, who worked in the store. Chad went to the oven and tried to pull it open. The oven fell out, striking Chad on the left side of the head. Lundry and Troy rushed to the child. The oven was on top of Chad. Lundry removed the oven and Troy picked up his son. Chad had a "bad gash" on the left side of his head, part of his hair was pulled out, and he was bleeding from the right ear. His father took him to the emergency room at the Lucy Lee Hospital in Poplar Bluff, where he was given emergency treatment by Dr. Suvan, who was on call at the time. Chad vomited while in the emergency room. He was then taken by ambulance, at the instruction of Dr. Suvan, to the Children's Hospital in Memphis, Tennessee. Chad had a seizure while on the way to Memphis, vomited again, and his blood pressure went up. He was admitted to the hospital in Memphis and stayed there for 2 days. Chad did not sleep well in the hospital and would "grab" his head.

where built-in kitchen equipment was displayed. One of the items on display was a Chambers double oven. The oven weighed 175-180 pounds. It was mounted on steel runners and inserted into a wooden cabinet. The oven was not secured in the cabinet. There were holes in the interior of the oven for the express purpose of inserting wood screws through the oven into the cabinet to secure the oven in place, but Lundry had not used them, nor had he secured the oven in place by any other means. There was testimony at the trial that industry-wide practice and custom required that items, such as the oven, be secured in the display cabinet. This practice was for safety reasons.

When Chad was discharged from the hospital, his parents took him home and placed him under the care of their family doctor, Charles Cash. Dr. Cash had delivered Chad. Chad had been seen in Memphis by Dr. James and Dr. Cordell and was examined in Popular Bluff by Dr. Graham a few weeks before trial, at the request of defendant's attorney.

After the accident, Chad began wetting the bed at night, stuttered a lot, and had difficulty standing. When Mrs. Howard ran the vacuum cleaner, Chad would hold his ears and cry. He was nervous, and complained about his ears and legs. Dr. James diagnosed Chad's primary injury as a basal skull fracture, which is a fracture of the bone at the base of the skull. X-rays showed soft tissue swelling in the area. He also said the bleeding from the right ear was caused by the trauma from the blow on the head of Chad. Dr. James referred the child back to his local physician, Dr. Cash, so that the progress of the child could be followed.

Dr. Cash testified that, after the accident, the child was nervous, irritable and frightened, and that his reflexes were exaggerated. He saw Chad 4 or 5 times. He saw Chad the day before trial, which was February 22, 1978, over 11 months after the accident. The child still had hyperactive tendon reflexes and ankle jerks at that time. In answer to a hypothetical question, he related the bed wetting, stuttering, nervousness, hyperactive reflexes and leg pains to the skull fracture. Chad's medical expenses totaled $762. In addition, Chad's parents made 5 trips to Memphis and incurred expenses of approximately $150, which trips were occasioned by Chad's injuries and treatment.

Defendant raises 5 points of error on appeal, which are that the trial court erred in 1) overruling defendant's motions for directed verdict filed at the close of plaintiff's evidence and at the close of all of the evidence for the reason that plaintiffs did not make a submissible case under the law, 2) giving erroneous verdict directing instructions, 3) admitting opinion evidence from Dr. Cash, 4) failing to grant defendant a new trial on the issue of damages for the reason that the verdicts were grossly excessive, and 5) overruling defendant's motion for remittitur.

DID PLAINTIFFS MAKE A SUBMISSIBLE CASE UNDER THE LAW?

Defendant alleges, in his first point, that plaintiffs failed to make a submissible case at trial and that the trial court erred in overruling defendant's motion for directed verdict at the close of all the evidence. When determining whether or not a plaintiff has made a submissible case, the plaintiff's evidence is presumed to be true, any of defendant's evidence to the contrary is disregarded, and the plaintiff is given the benefit of all reasonable and favorable inferences drawn from the evidence. Larrea v. Ozark Water Ski Thrill Show, Inc., 562 S.W.2d 790, 792 (Mo.App.1978).

The general duty owed a business invitee by a property owner is the exercise of reasonable and ordinary care in making his premises safe. Albers v. Gehlert, 409 S.W.2d 682, 684 (Mo.1966). A storekeeper is not an absolute insurer of the safety of his business invitees. The true ground of his liability is his superior knowledge of the dangerous condition and his failure to give a warning of the risk. Bartling v. Firestone Tire & Rubber Co., 275 S.W.2d 618, 622 (Mo.App.1955). Thus, the standard of care, in Missouri, is that "A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm." Harbourn v. Katz Drug Company, 318 S.W.2d 226, 228-229 (Mo.1958).

Conceding that Chad was a business invitee, defendant seeks to have this court apply the above standard to the evidence presented by plaintiffs. Defendant ignores, however, the fact that Chad was only 28 months old at the time of the accident. Where children are concerned, the exercise of ordinary care requires the exercise of more vigilance and caution than might be sufficient with respect to an adult. Conduct which might reach the standard of ordinary care with respect to an adult might, in the case of a child, amount to negligence or even gross negligence. Thus, ordinary care is a relative term, and the known characteristics of children must be taken into consideration in determining whether or not sufficient care for the safety of children has been exercised in a particular case. Bronson v. Kansas City, 323 S.W.2d 526, 531 (Mo.App.1959).

Looking at the evidence, in the light most favorable to plaintiffs, the jury could have found that the holes placed in the back of the oven by the manufacturer were to provide a means for securing the oven to the cabinet; that defendant was aware of the existence and the purpose of those holes, but chose not to fasten the oven to the cabinet; that the industry-wide practice was to fasten the oven in place; that the practice followed by defendant, although possibly adequate for the protection of adults, was not adequate for the protection of children; that the presence of patrons' children in defendant's store was foreseeable; that there was no way for the plaintiffs to know that the oven was not securely fastened; and that the failure of defendant to either secure the oven or to provide plaintiffs with sufficient warning of the potential danger in opening the oven was negligence. The evidence introduced by plaintiffs on the issue of liability was sufficient to make a submissible case for the jury. It was not, therefore, error for the trial court to refuse to direct a verdict in favor of defendant.

THE INSTRUCTION ISSUE

Defendant, in his second point, alleges that the trial court erred in giving Instructions No. 2 and 4 on the grounds that those instructions submitted evidentiary facts to the jury and gave the jury a "roving commission" to speculate about the safety of Instructions No. 2 and 4 are identical with respect to their challenged paragraphs, which read, "Your verdict must be for the plaintiff(s) . . . if you believe: First, there was an unfastened oven in a display cabinet in the show room (sic) in defendant's store and as a result the show room (si...