Linton v. Missouri Highway and Transp. Com'n, 71807

• Court: Court of Appeal of Missouri (US)
• Citation: 980 S.W.2d 4
• Docket Number: No. 71807,71807
• Parties: Doris LINTON, Robert Hertlein, Carolyn Hertlein, Heather Case, Michelle Case, and Patrick Case, Plaintiffs-Respondents, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Defendant-Appellant.
• Decision Date: 18 August 1998

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980 S.W.2d 4 Doris LINTON, Robert Hertlein, Carolyn Hertlein, Heather
Case, Michelle Case, and Patrick Case,
Plaintiffs-Respondents,
v.
MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Defendant-Appellant. No. 71807. Missouri Court of Appeals,
Eastern District,
Division One. Aug. 18, 1998.
Motion for Rehearing and/or Transfer to
Supreme Court Denied Oct. 26, 1998.
Application for Transfer Denied
Dec. 22, 1998.

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Zachary T. Cartwright, Jefferson City, for defendant-appellant.

Gray & Ritter, P.C., John G. Simon, Timothy L. Hill, St. Louis, Gary Growe, Clayton, for plaintiffs-respondents.

PUDLOWSKI, Judge.

This cause was transferred to the Supreme Court upon appellant's application to transfer. This matter was re-transferred to this court for reconsideration in light of State v. Dierker, 961 S.W.2d 58 (Mo. banc 1998). We re-issue our opinion and dissent and address the opinion herewith in light of Dierker.

Missouri Highway and Transportation Commission (MHTC) appeals the jury verdict in favor of plaintiffs, the survivors of Sandra Hertlein, Ted Linton and Bobbie Case (Respondents) for wrongful death arising from a highway accident. MHTC claims the trial court erred by overruling its motions for directed verdict and judgment notwithstanding the verdict, asserting insufficient evidence to support a jury verdict for Respondents. Additionally, MHTC asserts the trial court erred in instructing the jury

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with modified MAI instructions, disallowing MHTC's converse instruction, and refusing to instruct the jury with an instruction submitted by MHTC. We affirm.

On October 8, 1989, at approximately 3 a.m., Sandra Hertlein, Ted Linton, and Bobbie Case left a bar in Laclede's Landing. For purposes of appeal, both parties acknowledge that Sandra Hertlein was driving. Their vehicle headed west on I-70 and left the highway at the Union Boulevard exit, which exits from the left side of the highway near reversible lanes which run between the normal lanes of traffic. At the end of the ramp, the vehicle ran three flashing red traffic signals, nearly collided with an ambulance, and finally crashed into the concrete railing on the far side of the overpass. All three occupants were killed in the accident. After the accident, all three were found to have heightened blood alcohol levels. Sandra Hertlein's blood alcohol content was .188 percent, and Ted Linton's was .064 percent. Bobbie Case's blood alcohol content was also high, but was never relevant because she was not an alleged driver. Survivors of the victims filed wrongful death suits alleging concurrent acts of negligence against MHTC for negligent design and warning on the exit and negligent driving of the defendants. Respondents settled the suit between themselves, and trial was held against MHTC. The jury found for the Respondents, awarding damages of $500,000 to Linton, $250,000 to Hertlein, and $1,500,000 to Case. MHTC was 20% at fault, and Respondents 80% at fault. MHTC appeals.

In review of trial court rulings on motions for directed verdict and judgment notwithstanding the verdict, we review the evidence in the light most favorable to the verdict. Seward v. Terminal R.R. Ass'n, 854 S.W.2d 426, 428 (Mo. banc 1993). The prevailing party is entitled to the benefit of all reasonable inferences favorable to the verdict, while any unfavorable inferences are disregarded. Garrett v. Overland Garage & Parts, Inc., 882 S.W.2d 188, 190 (Mo.App. E.D.1994); Hellmann v. Droege's Super Market, Inc., 943 S.W.2d 655, 657 (Mo.App. E.D.1997). "In determining whether the evidence was sufficient to support a jury instruction, the evidence is viewed in the light most favorable to the offering party, and we give the offering party the benefit of all reasonable inferences" (citations omitted). Id.

Section 537.600 RSMo (1994) waives governmental immunity for conditions of property when the property is in a dangerous condition due to a negligent or wrongful omission, a reasonably foreseeable injury directly results, and the public entity had actual or constructive knowledge of the problem and could have corrected it. It further establishes an absolute waiver of immunity in the instances specified and abolishes any distinction between governmental and proprietary acts as a test of governmental liability. Fox v. City of St. Louis, 823 S.W.2d 22, 24 (Mo.App. E.D.1991). A dangerous condition may exist due to the negligent, defective, or dangerous design of public roads and highways. Donahue v. City of St. Louis, 758 S.W.2d 50, 52 (Mo. banc 1988); Cole v. Missouri Highway and Transportation Commission, 770 S.W.2d 296, 298 (Mo.App. W.D.1989).

First, MHTC contends the highway was not a dangerous condition. The Missouri Supreme Court case Donahue v. City of St. Louis applied the statute to facts similar to the instant case. 758 S.W.2d at 52. In Donahue, the Court held the Section 537.600 waiver of sovereign immunity for negligent, defective, or dangerous road design included liability for a fallen stop sign. Donahue, 758 S.W.2d at 52. Following the Donahue logic, in Fox this Court reversed summary judgment in favor of the government where the government had failed to reinstall a stop sign. 823 S.W.2d at 23. The plaintiff had broad-sided another car because she did not stop at an intersection. Id. In Nagy v. Missouri Highway and Transportation Commission, 829 S.W.2d 648, 650 (Mo.App. E.D.1992) this Court imposed statutory liability where the plaintiff's injuries were caused by inadequate signing. The stop signal was moved back several feet the previous day without proper signing to notify motorists of the change, and the plaintiff was injured when he drove across newly opened lanes of traffic. Id. at 649. In Cole v. Missouri Highway and Transp. Comm'n, 770 S.W.2d

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296, 298 (Mo.App. W.D.1989) the court held the plaintiff properly plead a dangerous condition in property by alleging failure to warn of a sudden and obscured curve in the road. Likewise, Wilkes v. Missouri Highway and Transportation Commission, 762 S.W.2d 27, 28 (Mo. banc 1988), held the plaintiff properly plead a dangerous condition because a bridge lacked signing to warn of dangerously icy conditions on a bridge. Cole and Wilkes are particularly relevant in that they concern dangerous conditions that were not the result of recent negligence (i.e. failure to replace a stop sign), but general failure to post adequate signing.

In the instant case, there was sufficient evidence to find a dangerous condition under Donahue and its progeny. Respondents' expert testified the signs and directions placed on the highway were inadequate because they did not follow the directives of the Manual on Uniform Traffic Control Devices. While the signs at the Union intersection complied with the 1971 edition of the Manual which controlled when the ramp was built in 1976, they had not been updated to comply with the guidelines set out in the 1988 edition. The expert further testified that signing changes are generally made as soon as possible because they are relatively inexpensive.

In its opening argument, MHTC made a strategic decision to concede changes made to the ramp shortly after the accident. The subsequent remedial measures included rumble strips, alternating flashing lights attached to truss posts at the exit ramp, an advisory speed sign, and a system attenuator, or a device to absorb the impact of cars crashing into walls.

Testimony also centered on the relative dangerousness of left hand exits as opposed to right hand exits. Appellant's expert witness testified that left exits are dangerous because they are unexpected and confusing to motorists traveling on the highway. A police officer testified that it was easy to "get into trouble" if he was "daydreaming or talking on the radio." He concluded that there was "no margin for error." MHTC's expert conceded that it was highly unusual to have a left exit combined with a reversible lane between normal traffic lanes. Diagrams and photographs entered into evidence show the reversible lanes are very close to the exit ramp, which could cause drivers to mistakenly believe they were entering the reversible lanes rather than exiting. Inadequate signing for a left exit is much like the signing for the dangerous curve in Cole in that the street itself constituted a dangerous condition without proper signing. On these facts, the trial court did not abuse its discretion in overruling MHTC's motion for directed verdict.

MHTC seeks to distinguish Donahue by arguing that the case concerned negligent maintenance versus, as here, negligent design. MHTC also argues that a showing that some other design would have been more effective does not constitute a submissible case, citing Hedayati v. Helton, 860 S.W.2d 795 (Mo.App. W.D.1993). Hedayati dismissed a similar claim based on inadequate signing because there was not a design defect in the road itself. Id. at 796. However, increased safety from an alternate design was precisely the basis for the holdings in the Wilkes and Cole cases, supra. In those cases, as here, the trial court held that the roads in question would have been safer with better signing and warnings, because the roads constituted dangerous conditions. See Wilkes, 762 S.W.2d at 27; Cole, 770 S.W.2d at 298.

MHTC argues that the dangerous condition, as a matter of law, did not "directly cause" the accident. Rather, MHTC argues, the negligence of the driver in driving while intoxicated was a supervening cause. Evidence of alcohol consumption was entered at trial. See, Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 108 (Mo. banc 1996). However, even where the driver is negligent, Respondents are not foreclosed from recovery. Id.; Cole, 770 S.W.2d at 299. Rather, fault is apportioned between responsible parties. Id. Where the plaintiff is alleged to have been negligent because of drinking, then the defendant is entitled to a converse instruction. Rodriguez,...