Jackson By Jackson v. Ray Kruse Const. Co., Inc.
| Decision Date | 15 April 1986 |
| Docket Number | No. 67385,67385 |
| Citation | 708 S.W.2d 664 |
| Parties | Kimberly Ann JACKSON, a minor, By her mother and next friend, Nita A. JACKSON, Plaintiff-Appellant, v. RAY KRUSE CONSTRUCTION COMPANY, INC., et al., Defendants-Respondents. |
| Court | Missouri Supreme Court |
Mark I. Bronson, St. Louis, for plaintiff-appellant.
John J. Horgan, St. Louis, for defendants-respondents.
The plaintiff, Kimberly Ann Jackson, sued on account of injuries sustained in a collision with a bicycle on October 2, 1978, on the parking lot adjoining the apartment building in which she and her parents lived. She was four years old at the time. The defendants were the owner and the operator of the apartment building. The petition charged that the defendants had failed to make the parking lot reasonably safe. She recovered a verdict of $850,000, which is not challenged before us. The trial court set the verdict aside and entered judgment for defendants. The court also sustained an alternative motion for new trial, finding error in the verdict directing instruction. The Court of Appeals affirmed. We granted transfer and, taking the case as on original appeal, now reverse and direct the entry of judgment on the verdict. We of course are obliged to accept the facts which most strongly support the verdict.
The apartment complex consists of two buildings of 30 units each. A driveway with a 12 to 17 percent grade adjoins the complex on the west. A person going down the hill in a southerly direction passes successively the first building, a parking lot, and the second building (in which the plaintiff and her family lived), before reaching the lower parking lot where the accident took place. As many as 40 cars might be parked in the lower lot. The corner of the second building obscures the view of the lower parking lot from the driveway. To the east of the apartment complex is a trailer park, also owned by the defendants.
The accident occurred between 5 and 6 P.M. The plaintiff's father, Michael Jackson, was the only eyewitness. He was working on his car in the lower parking lot when the plaintiff's mother sent her to tell him that dinner was ready. His attention was attracted by a shout of "watch out" and he saw a formation of three bicycles, with one ahead of the others. The plaintiff "froze" and the leading bicycle struck her. Although Jackson's testimony is not entirely clear and consistent, he stated that the point of impact was 55 feet east of the southwest corner of the building, and that the plaintiff ended up 75 feet from the southwest corner. 1 He could not estimate the speed of the bicycle because he saw it only momentarily.
The plaintiff adduced as an expert witness Boulter Kelsey, a consulting mechanical engineer. He testified over objection that, in his opinion, the bicycle which struck the plaintiff was traveling at least 24 feet per second, or 16.4 miles per hour, at the time of the collision. He reached this conclusion on the basis of a "straight drag calculation" on the assumption that plaintiff's body had traveled 20 feet, and said that neither the weight of her body nor that of the cyclist or the cycle was material. 2
Kelsey testified that, in his opinion, a safety bump should have been installed diagonally across the driveway as it reached the entrance to the lower parking lot. The bump should be designed to prevent a bicycle from crossing at a speed greater than 10 miles per hour. At a higher speed the cycle would "become airborne" and could not turn in the air. If a bicycle were slowed to 3 or 4 miles per hour it could accelerate to approximately 11 miles per hour in the 55 foot distance to the point of the accident. Kelsey said that safety bumps were standard safety devices for use in parking lots for the purpose of slowing the speed of automobiles and other vehicles. 3
There was ample evidence that boys were wont to drive their bicycles at substantial speed down the hill and into the lower parking lot, and that several complaints had been made to the resident manager before the accident. The boy whose cycle injured plaintiff lived with his family in the trailer park to the east. A path had been worn between the trailer park and the lower parking lot.
Ray Kruse, a representative of the defendants, testified that he was not aware of any complaints about bicycles in the parking lot until after the plaintiff was injured. He was aware of the use of speed bumps but asserted that they existed for the purpose of controlling automobile traffic. (The jury of course did not have to accept this conclusion, and could have accepted Kelsey's testimony that a bump was appropriate to control bicycle speed.) Kruse expressed doubt that a building permit would be issued for a speed bump but had made no effort to find out. He had no other suggestion for dealing with speeding bicycles unless a guard were posted to warn cyclists off the parking lot. The defendants had another piece of property, of a very different nature, which had a speed bump at the time they acquired it.
The problem before us of course is whether the plaintiff should be allowed to go to the jury on the evidence presented. We are indebted to Judge Welliver for his research into scholarly writings about tort law. Our courts have followed the traditional analysis of negligence cases into the elements of duty, breach of duty and causation. Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881 (Mo. banc 1983); Hoover's Dairy, Inc. v. Mid-America Dairymen, 700 S.W.2d 426 (Mo. banc 1985). A landlord owes a duty to its tenants, strongly emphasized in recent cases, to make common portions of the leased premises reasonably safe. 4 This includes the duty to take notice of known dangers and to institute needed corrective measures. The duty extends to driveways and parking lots where there are problems about the speed of vehicles. See Clifton v. Brown, 253 Ark. 148, 484 S.W.2d 884 (1972), suggesting a speed bump as at least one possible precaution.
We of course must take the case as the parties present it. The plaintiff elected to go to the jury solely on the claim that the defendants were negligent in not installing a speed bump. She supported her claim with the testimony of an adequately-qualified expert, who expressed the opinion that a speed bump was indicated as a means of protection against speeding bicycles. He was not cross-examined as to other possibilities, and the defendants made no additional suggestions of safety measures, either through their principals or by expert testimony. The defendants also disclaimed knowledge of any problem with speeding bicycles. With the state of the record as it is, the jury could find that the defendants had notice of a condition which required the installation of a speed bump and were negligent for failing to provide it. It would be contrary to the course of the law for us to substitute our judgment for that of the jury as to whether the only safety precaution suggested was necessary, in the exercise of due care.
The defendants argue vigorously, however, that the plaintiff has not established the element of causation. The accident was precipitated, of course, by the bicycle rider, who no doubt could be faulted for excessive speed and inattention. There may, however, by more than one proximate cause of an accident. Green v. Kahn, supra. As Judge Welliver's opinion demonstrates, the subject of causation has been the subject of much discussion among legal scholars, often because of bizarre hypotheticals such as the one in which two persons fire at a third at the same time, with each inflicting a wound which would have been fatal without regard to the other shot. Another favorite has a person furnishing to another a car with brakes he knows to be defective, with the driver making no effort to apply the brakes. A recent article summarizing the views of the several distinguished commentators is that of Professor Richard W. Wright. 73 Cal.L.Rev. 1737 (Dec.1985) "Causation in Tort Law."
This case would be characterized by Professor Wright as one of "doubtful" causation, akin to a case involving a public swimming pool in which a child drowns while the lifeguard is absent. It is extremely difficult to prove that the drowning would not have occurred if the lifeguard had been present, but it would certainly be reasonable for a jury to conclude that the presence of a lifeguard would make the chances of rescue "more likely than not." Professor Wright argues that no more should be required and his view has substantial support. 5 There are obvious difficulties in this case in setting up a counterfactual situation which definitively projects the sequence of events under the assumption that a safety bump had been in place. Striving for certainty is a tour de force. The jury must deal in terms of probabilities.
The defendants point to gaps in the proof, such as the absence of evidence of the speed of the bicycle proceeding down the hill, of the condition of the brakes and steering mechanism, and of the attentiveness of the rider. They also argue that there is no substantial evidence that the bicycle was traveling at a speed of 16.4 miles per hour at the time of the collision. Then, as a backup, they argue that, based on Kelsey's own testimony, the bicycle could have crossed the bump at the rated speed of 10 miles per hour, and, for all that the evidence shows, could have accelerated to 16.4 miles per hour at the point of collision.
The defendants, however, would unreasonably circumscribe the jury's authority to draw inferences from the evidence. The figure of 16.4 miles per hour is based on expert opinion. The defendants did not challenge the expert's qualifications, nor did they present any contrary testimony. The jury could have accepted the 16.4 mile per hour figure. We lack the means for disagreeing with the expert. The jury also could have found that the bicycle, aided by...
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