Jorgensen v. City of Kansas City
| Citation | 725 S.W.2d 98 |
| Decision Date | 24 February 1987 |
| Docket Number | No. WD,WD |
| Parties | Fern B. JORGENSEN, Respondent, v. CITY OF KANSAS CITY, Missouri and Christopher E. Gussman, Appellants. v. Kit C. ROQUE, Jr., Third Party Defendant Ad Litem, Respondent. 37771. |
| Court | Court of Appeal of Missouri (US) |
Richard N. Ward, City Atty., Jeffrey L. Hess, Asst. City Atty., Kansas City, for Kansas City, Mo.
Marilyn S. Gussman, Kansas City, for Gussman.
G. Spencer Miller, Miller & Dougherty, Kansas City, for Fern Jorgensen.
Richard F. Modin, Kansas City, for Kit C. Roque, Jr., Defendant ad litem for Geo. Jorgensen.
Before SHANGLER, P.J., and MANFORD and BERREY, JJ.
The litigation arises out of a four vehicle collision at the intersection of 39th Street and Broadway in Kansas City, Missouri, on the afternoon of October 17, 1983. Broadway runs north and south, and 39th Street runs east and west. The thoroughfares were governed by speed limits of 35 and 30 miles per hour, respectively. A municipal pumper fire truck, owned by Kansas City and driven by apparatus operator Gussman entered the intersection from the south on Broadway and came into collision with a Cadillac driven by Jorgensen on 39th Street from the east. The collision also involved a Plymouth and an Oldsmobile, both stopped in the southbound lanes of Broadway, north of the intersection. The pumper fire truck was en route in response to an emergency with sirens and red flashing lights in operation. There was some dispute as to the condition of the traffic lights as the fire vehicle entered the intersection as well as whether the Cadillac stopped, slowed or swerved to avoid collision. Jorgensen, then 82 years of age, was extricated from the Cadillac, taken to the hospital for treatment, and died there one week later.
The widow Jorgensen sued for the wrongful death of her husband and joined Kansas City and Gussman as defendants. They asserted the comparative fault of the decedent as a defense. The defendant Kansas City then moved the court under § 537.021.1(2) to appoint a third party defendant ad litem for the deceased Jorgensen to allow prosecution of its claim for damage to the pumper fire truck in the collision. The motion was granted and Kit C. Roque, Esquire was appointed defendant ad litem for the deceased. Thereupon, the City of Kansas City brought its third-party petition for property damage against the defendant ad litem, and the defendant Gussman, as third-party plaintiff brought a petition against the defendant ad litem for damages for personal injury.
The cause of action of widow Jorgensen was submitted against the defendants on the theory that Gussman drove at an excessive speed. The third party claim of each, Kansas City and Gussman, against the defendant ad litem Roque was submitted on the theories that the decedent Jorgensen violated the traffic signal and failed to yield the right-of-way. The verdict director of each claim--the widow Jorgensen, Kansas City and Gussman--instructed that: "Your verdict must be for [plaintiff Jorgensen] [third party plaintiff Kansas City] [third party plaintiff Gussman] and you must assess a percentage of fault to [Kansas City and Gussman] [decedent Jorgensen] if you believe...." [emphasis added] The damages instruction of widow Jorgensen included a direction to return an award of $5,253 for property damage, should the jury find in favor of her claim for wrongful death. The damages instruction of Kansas City directed an award of $6,825 for property damage, should the jury find in favor of that third party plaintiff.
Verdict A was the form submitted to the jury for the return of the Jorgensen verdict; Verdict B for the return of the Kansas City verdict; and Verdict C for the return of the Gussman verdict. The forms were inscribed by the jurors, and returned, and accepted by the court. Each of the verdicts was signed by nine jurors--the same nine jurors. The essential Verdict A form, as submitted with directions and as returned with insertions by the jury, read:
find in favor of:
of Plaintiff Fern Jorgensen.
We, the undersigned jurors, assess the damages of plaintiff Fern
Jorgensen as follows:
For the injuries to and death of George Jorgensen, deceased $_____
( the amount or, if none, write the word, "none").
For property damage $_____ (stating the amount or, if none, write the
word, "none").
NOTE: Complete by writing in the percentage of fault you assess to each of
those named below. IF YOU BELIEVE ANY OF THOSE NAMED BELOW IS NOT AT
FAULT, WRITE IN "ZERO" FOR THE PERCENTAGE. The total of the percentages
you assess must be 100%. (emphasis added)
We, the undersigned jurors, assess the percentages of fault as follows:
George Jorgensen 90% (insertion)
-----
City of Kansas City, Missouri
and Christopher Gussman 10% (insertion)
-----
100%
The signatures of the same nine jurors subscribed the verdict.
The counterpart forms Verdict B and Verdict C were returned fully completed. Verdict B found in favor of the third party plaintiff Kansas City against defendant ad litem Roque and awarded property damages of $6,825, as otherwise directed by instruction. Verdict C found in favor of third party plaintiff Gussman against the defendant ad litem Roque and awarded personal injury damages of $5,000. Verdict B and Verdict C, each, assessed 10% fault to the third party plaintiff--Kansas City and Gussman, respectively--and 90% fault to Jorgensen. Verdict B and Verdict C, each was subscribed by the same nine jurors who had joined in Verdict A.
The verdicts were received by the court without objection and judgment was entered on the verdicts. Jorgensen moved for a new trial on all issues or, in the alternative, for new trial on damages only and assigned as reason--among the others--that the return of Verdict A was inconsistent in that the jury assessed 10% fault to defendants Kansas City and Gussman on the claim submitted by widow Jorgensen, but returned no damages, but instead the jury found in favor of the defendants. The written motion cited Scott v. Davis, 684 S.W.2d 872 (Mo.App.1984)--an opinion of this court--in support. The defendant ad litem moved separately for judgment notwithstanding the verdict, or alternatively, for a new trial. A reason assigned was the verdicts were inconsistent and confused, since the jury found for Kansas City and Gussman on the wrongful death claim, yet assessed percentages at 90% and 10% between Jorgensen and Kansas City and Gussman on the third party plaintiff claims.
The trial court sustained the Jorgensen motion for new trial, denied the defendant ad litem motion for judgment notwithstanding the verdict, but sustained the alternative motion for new trial. The court gave as reason that the verdicts were inconsistent, and cited Scott v. Davis, 684 S.W.2d 872 (Mo.App.1984).
The defendants--third party plaintiffs Kansas City and Gussman--argue on appeal that the court erred in the grant of a new trial to widow Jorgensen because (1) the verdict was received without objection, and (2) in any event was not inconsistent, in that, notwithstanding the assessment of 10% fault to the defendants Kansas City and Gussman, the return of no damages to widow Jorgensen was a determination that whatever the fault of the defendants, the fault assessed was not the proximate cause of the death or property loss.
We respond inversely to this bifurcated point.
It is the characteristic of our scheme of comparative fault that an act or omission "in any measure negligent" constitutes fault and subjects the actor to liability. Any contributory fault of the claimant diminishes, pro tanto, the amount awarded in compensation, but does not bar recovery. Comparative Fault Act § 1(a) & (b) [Appendix A, Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983) ]. The assessment to the defendants Kansas City and Gussman of 10% fault on the Jorgensen claim, therefore, determined that the defendants breached their duty of care to the driver Jorgensen. The plaintiff widow Jorgensen was entitled to a verdict, however, only if the jury found the defendants negligent and that the widow Jorgensen was damaged and that the damages were the proximate result of that fault. [Instruction No. 9] If the evidence allowed the issue, therefore, that the Jorgensen death or property loss was not proximately caused by the fault found against Kansas City and Gussman, there would be no necessary inconsistency in a verdict which allocated fault to the defendants, but returned no damages on the claim of the widow Jorgensen, and rather found for the defendants on the cause of action.
The evidence, however, does not raise a jury issue of proximate cause of damages, so that Verdict A, which assessed some fault to the defendants Kansas City and Gussman, but returned no damages to the plaintiff widow Jorgensen and found in favor of the defendants on the cause of action, was internally inconsistent and ambiguous. The collision crumpled the left front side of the Cadillac, the area occupied by the deceased driver, and was so severely mangled that Jorgensen had to be extricated by other firemen at the scene. There was no dispute that damage was done to the Cadillac from the collision. The court instructed the jury [presumably on the agreement of the litigants] that if the jury found for the widow Jorgensen, then, "on her claim for property...
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