Hutson v. Bot Investment Co.

• Decision Date: 29 September 1999
• Citation: 3 S.W.3d 878
• Court: Missouri Court of Appeals
• Parties: (Mo.App. S.D. 1999) Dale S. Hutson and Gloria Hutson, Plaintiffs/Respondents, v. BOT Investment Co., Inc., and Wal-Mart Sotres East, Inc., Defendants/Appellants. 22570 & 22594 0

3 S.W.3d 878 (Mo.App. S.D. 1999)

Dale S. Hutson and Gloria Hutson, Plaintiffs/Respondents, v. BOT Investment Co., Inc., and Wal-Mart Sotres East, Inc., Defendants/Appellants.

22570 & 22594

Missouri Court of Appeals Southern District

09/29/99

Appeal From: Circuit Court of Phelps County, Hon. David Gregory Warren

Counsel for Appellant: Stefan J. Glynias, Adrian P. Sulser, Dean L. Stark, Todd L. Beekley, Thomas H. Hearne and Michael T. Pivac

Counsel for Respondent: Lawrence E. Ray and John M. Farris

Opinion Summary: None

Crow, P.J., and Parrish, J., concur.

Kenneth W. Shrum, Judge

This is a premises liability case in which Plaintiff, an invitee, fell on Defendants' property.¹ A jury awarded Plaintiff damages for his injuries but also assessed him with some fault. Defendants appeal.

The issues on appeal are (1) whether the trial court gave a prejudicially erroneous comparative fault instruction, (2) whether it prejudicially erred in rejecting a comparative fault instruction tendered by Defendants, (3) whether Plaintiff failed to make a submissible case against one of the Defendants, and (4) whether the judgment fails to conform to the verdicts. We answer, "No," to the first three questions and, "Yes," to the fourth.

We affirm in part; we reverse and remand in part.FACTS

BOT Investment Company (BOT), a real estate development firm, built a retail store in Salem, Missouri, and then leased it to Wal-Mart Stores East, Inc. (Wal-Mart).² The leased premises included a building, paved parking lot, and an adjacent "grassy area" where, on November 25, 1988, Plaintiff fell.

The day after Thanksgiving, Plaintiff went shopping at Wal-Mart's Salem store with his children (Andrew, age nine, and Andrea, age two). Plaintiff parked his car on Wal-Mart's parking lot near the edge of the lot so that the passenger side of Plaintiff's car was within four or five inches of the curb. Consequently, anyone entering or exiting the vehicle on the passenger side had to step into an adjacent unpaved area. Plaintiff testified that this adjacent unimproved land contained a lot of "grassy areas and . . . weeds" and that there were "different types of debris scattered . . . around that area."

When Plaintiff and his children returned to their car after shopping, Plaintiff placed their purchases in the back seat of the car via the driver's-side rear door. Plaintiff then walked around the car to the curb with Andrea, intending to place Andrea in the car on the passenger's side. As Plaintiff approached the curb, he looked down "to see if there was any obstructions or anything in the way." He then picked up Andrea, glanced "down for a brief second," and stepped over the curb with his right foot. When Plaintiff transferred his weight to his right foot in the grass, something moved under his foot and caused him to fall. Except for his right foot--which was prevented from rotating freely by the curb--Plaintiff's body was partially turned when he fell. As he fell, Plaintiff felt a long rip and tear in his right ankle, and he immediately experienced great pain.

Afterward, as Plaintiff lay on the ground trying to figure out what had happened, he observed "an old . . . 16-ounce Pepsi bottle" nearby. He explained that the bottle appeared to have been imbedded in the ground "a half inch to an inch deep" and hidden under grass where he could not see it. Plaintiff concluded he had "kicked it . . . from underneath the grass" as he "came off of the curb."

At trial, the trial court refused to submit Defendants' Instruction E. It read:

"In your verdict you must assess a percentage of fault to Plaintiff if you believe:

"First, Plaintiff knew or by using ordinary care could have known that there was trash and debris in the area next to the parking lot and as a result this area was not reasonably safe, and

"Second, Plaintiff failed to use ordinary care to keep a careful lookout, and

"Third, such failure directly caused or directly contributed to cause any damage [P]laintiff may have sustained."

(Emphasis added.)

In refusing the instruction, the trial court stated, "I believe it is overly broad in [the first] paragraph." The court told Defendants that if they wanted to submit a comparative fault instruction, they should remove the phrase "trash and debris in the area" and "submit some limited language to the facts contained in this case." Ultimately, over Defendants' objection, the court submitted the following instruction to the jury as Instruction No. 9:

"In your verdict you must assess a percentage of fault to Dale Hutson if you believe:

"First, Plaintiff knew or by using ordinary care could have known that there was a soda bottle in the grass and as a result the land was not reasonably safe, and

"Second, Plaintiff failed to use ordinary care to keep a careful lookout, and

"Third, such failure directly caused or directly contributed to cause any damage Plaintiff . . . may have sustained."

(Emphasis added.)

The jury returned a verdict for Plaintiff, set his damages at $100,000, and assessed him with twenty percent of the fault. The jury found that Plaintiff's wife did not suffer damages as a result of Plaintiff's injury. Defendants appeal from the judgment entered on the verdicts.

DISCUSSION AND DECISION

Point I: Alleged Error Regarding Comparative Fault Instruction

Wal-Mart's first point maintains that the comparative fault instruction submitted by the court prejudicially misdirected the jury as it did not "accurately reflect the nature of the allegedly defective condition of the property and did not reflect the evidence adduced in the case." In developing its point, Wal-Mart points out that Plaintiff testified, without contradiction, that (1) on previous visits to the Salem Wal-Mart, Plaintiff had observed and knew that the grassy area next to the parking lot was frequently littered with trash and debris; and (2) on the day of this accident, Plaintiff had observed trash and debris in this area.³ Wal-Mart argues, therefore, that the trial court should have given an instruction concerning this general condition, i.e., Instruction E, which hypothesized "trash and debris," and that the court erred when it gave Instruction No. 9, which "focused the jury's attention on the particular item of trash that allegedly caused Plaintiff's injury."

Wal-Mart complains that Instruction No. 9 (1) "inherently misled the jury" as it "circumscribed the jury's consideration and assessment of liability and comparative fault;" (2) "unfairly limited the jury's consideration to Plaintiff's unreasonable conduct in traversing an area that he knew to be unkempt and littered;" (3) "lessened [Plaintiff's] evidentiary burden and increased [Wal-Mart's] burden as to notice and knowledge;" (4) "improperly shifted the issue of notice away from Plaintiff's awareness of the hillside as a trash and debris strewn area to whether [Plaintiff] knew that a specific soda bottle lay hidden in the grass;" (5) "precluded an examination of the general reasonableness of Plaintiff's conduct;" and (6) "made it more difficult for a jury to find that Plaintiff acted unreasonably."

BOT's first point is similar to that of Wal-Mart. BOT complains that the "trial court erred in refusing . . . Instruction E . . . and . . . [in submitting] Instruction 9, [because] the instruction submitted by the Court did not allow . . . BOT to place the issue of Plaintiff's notice of the general condition of the property prior to the incident before the jury."

In a premises liability case, whether an invitee exercised ordinary care is to be considered by a fact-finder when allocating fault under Missouri comparative fault principles. Cox v. J. C. Penney Co., Inc., 741 S.W.2d 28, 30 (Mo.banc 1987). See MAI 32.28 [1995 Revision]. Also, an owner or possessor is entitled to have a fact-finder consider evidence of an invitee's knowledge of the general condition of the premises where such knowledge is relevant in deciding whether invitee exercised ordinary care. See Kramer v. Chase Resorts Inc., 777 S.W.2d 647 (Mo.App. 1989); MAI 32.28 [1995 Revision].

It is also well settled that a defendant in a premises liability case, as in any tort case, is entitled to have his or her defenses and theories of the case submitted to the jury by proper instructions. Anderson v. Welty, 334 S.W.2d 132, 139[14] (Mo.App. 1960). Stated another way, a defendant has the right to an affirmative submission of his or her own theory of the facts in evidence that, if true, would preclude or reduce the plaintiff's recovery and absolve the defendant of liability or reduce his or her obligation to the plaintiff. Id. at 139[15].

A proper instruction is one that is "'within the pleadings and evidence and [is] correct in both form and substance.'" Allison v. Sverdrup & Parcel & Assoc., Inc., 738 S.W.2d 440, 454 (Mo.App. 1987) (quoting Orloff v. Fandow, 315 S.W.2d 430, 433 (Mo.App. 1958)). Refusal to give a comparative fault instruction that is supported by the evidence is error. Naes v. Reinhold Dev. Co., 950 S.W.2d 681, 683 (Mo.App. 1997).

Under these standards and the facts of this case, we find that the trial court's refusal to submit Defendants' instruction and its submission of Instruction No. 9 was erroneous. This follows because Instruction E tendered by Defendants was "within the pleadings and evidence and was correct in both form and substance." See Allison, 738 S.W.2d at 454. Consequently, the trial court erred in refusing it and submitting Instruction No. 9. See Naes, 950 S.W.2d at 683.

We are not persuaded, however, that the instructional errors prejudiced Defendants. Reversal for comparative fault instructional errors is warranted only where the errors are of such a nature that there is substantial potential for prejudicial effect. Lear v. Norfolk and Western Ry. Co., 815 S.W.2d 12, 15[4] (Mo.App. 1991). Alleged instructional errors regarding comparative fault issues are not grounds for reversal when the facts show the...