Lopez v. Three Rivers Elec. Co-Op., Inc.

• Decision Date: 22 October 2002
• Docket Number: No. ED 80228.,ED 80228.
• Citation: 92 S.W.3d 165
• Parties: Elizabeth LOPEZ, and Penny Jones (n/k/a Penny Lindsey), Respondents, v. THREE RIVERS ELECTRIC COOPERATIVE, INC., Appellant.
• Court: Missouri Court of Appeals

92 S.W.3d 165

Elizabeth LOPEZ, and Penny Jones (n/k/a Penny Lindsey), Respondents, v.THREE RIVERS ELECTRIC COOPERATIVE, INC., Appellant.

No. ED 80228.

Missouri Court of Appeals, Eastern District, Division Two.

October 22, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 18, 2002.

Application for Transfer Denied January 28, 2003.

COPYRIGHT MATERIAL OMITTED

James J. Virtel, Ann E. Buckley, Armstrong Teasdale LLP, Thomas C. Walsh, Bryan Cave, St. Louis, MO, David P. Madden, Fisher, Patterson, Sayler & Smith, LLC, Overland Park, KS, for Appellant.

Grant L. Davis, Thomas C. Jones, Davis, Bethune & Jones, P.C., Kansas City, MO, Morry S. Cole, Gray, Ritter & Graham, P.C., St. Louis, MO, for Respondents.

PAUL J. SIMON, Presiding Judge.

Three Rivers Electric Cooperative, Inc.(Three Rivers) appeals the judgment entered upon a jury verdict in favor of plaintiffs, Elizabeth Lopez(Lopez) and Penny Jones n/k/a Penny Lindsey(Jones), in the wrongful death actions based on the deaths of their husbands, George Lopez and Kenney Jones(collectively decedents), respectively.The jury found that Three Rivers was 100% at fault for the deaths and returned a verdict for Lopez in the amount of $11 million and for Jones in the amount of $10 million.Neither decedent was found culpable of comparative fault.

On appeal, Three Rivers contends that the trial court erred in: (1) denying its motion to strike venireperson Constance Toretta for cause because she admitted she would be influenced by sympathy for plaintiffs and that it would be somewhat of a struggle for her to set emotion aside and be fair to Three Rivers in that she nevertheless was seated as a member of the jury panel, became the foreperson of the jury, and voted in favor of plaintiffs thereby denying Three Rivers a trial by a fair and impartial jury; (2) sustaining plaintiffs' objection to Three Rivers' exhibit 213-A, the collateral report on the accident prepared by the army, because the report was probative in that it contained findings that went to the heart of the case and was admissible under Section 490.220 RSMo 2001(all further references herein shall be to RSMo 2001 unless otherwise indicated); (3) denying Three Rivers' motion for new trial because there was a complete absence of probative facts to support the jury's finding that Three Rivers was 100% at fault for the wire-strike accident in that the undisputed evidence showed that decedents were guilty of careless and reckless conduct in flying the helicopter at an altitude of less than 100 feet down an unfamiliar river in violation of army regulations, their own mission briefing statement, and common notions of safety; (4) sustaining plaintiffs' objections to evidence offered by Three Rivers relating to the helicopter crew's activities the afternoon before the crash and concerning the fear of eyewitnesses on the ground immediately before the crash as such evidence was relevant and probative in that it would have supported Three Rivers' contention that the crew violated minimum altitude requirements, engaged in a frolic unrelated to its military mission, and created such hazard that persons on the ground feared for their safety; and (5) refusing to grant remittitur of the jury's verdicts or a new trial because the verdicts are grossly excessive and shock the conscience in that the sums awarded exceed fair and reasonable compensation for plaintiffs' loss and reflect either a serious mistake by or the bias and prejudice of the jury.We affirm.

On appeal in a jury-tried case, we review the evidence and reasonable inferences therefrom in a light most favorable to the jury's verdict, disregarding evidence to the contrary.Dubinsky v. U.S. Elevator Corp.,22 S.W.3d 747, 749(Mo.App. E.D.2000).

For a detailed description of relevant facts, seeLopez v. Three Rivers Elec. Coop., Inc.,26 S.W.3d 151(Mo. banc 2000) and Nanninga v. Three Rivers Elec. Coop.,236 F.3d 902(8th Cir.2000).All other pertinent facts shall be addressed in our disposition of the points on appeal.

In its first point on appeal, Three Rivers contends that the trial court erred in denying its motion to strike venireperson Constance Toretta for cause, because she admitted she would be influenced by sympathy for plaintiffs.Three Rivers argues it was denied a fair and impartial jury trial, because she was seated as a member of the jury panel, became its foreperson, and voted in favor of plaintiffs.Plaintiffs argue that mere sympathy for one party does not disqualify a juror as long as the juror can be fair to both sides, Three Rivers has shown no bias in Ms. Toretta's voir dire responses, and the trial court did not err in failing to sustain Three Rivers' motion to strike her for cause, because the trial court determined that she would be fair.

During voir dire, James Virtel, counsel for Three Rivers, asked the venire persons if any of them would have sympathy for plaintiffs that could not be set aside when weighing the facts and therefore could not treat both parties in the same manner.Ms. Toretta responded, and the following occurred:

MS. TORETTA: I would tend to, I think, give more credence to the emotional side of it.I've lost a family member.It hasn't been the head of the family.It was a child.To know the impact on the family, the tragedy that surrounds that family, how it alters their lives is real close to me.I can see, if the head of the family is taken away, how devastating that would be.

MR. VIRTEL: Do you think that you could not set that emotion aside in this case and listen to the facts objectively?

MS. TORETTA: I would try.

MR. VIRTEL: You would try.But you think it would be a struggle?

MS. TORETTA: Somewhat.

MR. VIRTEL: I'm going to ask you to think about it, because you brought it up, because you feel that way.I don't want to put words in your mouth.Do you feel that in view of that that you could not treat my client fairly?Even though you might want to, you just couldn't?

MS. TORETTA: I think I would be fair.

Further into the examination, Mr. Virtel asked the venire persons if, without knowing any other facts, they would find for plaintiffs solely on the fact that in 1975 a fixed-wing airplane collided with the wires with which decedents' helicopter collided.Ms. Toretta responded, and the following occurred:

MS. TORETTA: That would send up a red flag.

MR. VIRTEL: Aside from that, you'd be willing to listen to the facts before you made a decision?

MS. TORETTA: Yes.

Three Rivers moved to strike Ms. Toretta for cause.Before the trial court ruled on the motion, the following exchange between the trial court and counsel occurred: MR. VIRTEL: She testified, in response to my questions, that because of the family and because of the children involved and because of her work as a music psychologist that she didn't think she could be fair.She couldn't treat us in the same way that she — I can see by the Judge's reaction.

THE COURT: I wrote down would be fair to defendant.

MR. DAVIS [counsel for plaintiff Lopez]: That's exactly.

MR. VIRTEL: That is not what she told me.That was not what I wrote down.Obviously, Judge, if you didn't get that, then I'm swimming uphill.

THE COURT: I remember your questioning.I wrote down — the last thing I wrote down was would be fair to defendant.

MR. COLE [counsel for plaintiff Jones]: I think I would be fair is how I have it written down.That was in response to Mr. Virtel's questioning.

Thereafter, the trial court denied Three Rivers' motion to strike Ms. Toretta for cause.

"Our standards for reviewing rulings on challenges for cause are well established.The trial court is given broad discretion to determine whether prospective jurors are qualified, and rulings on that issue will not be disturbed on appeal unless [they constitute] a clear abuse of discretion and a real probability of injury to the complaining party."Ray v. Gream,860 S.W.2d 325, 331(Mo.banc 1993).The trial court is in a better position to determine the qualifications of prospective jurors, and doubts as to the trial court's findings will be resolved in its favor.Id.The critical question in reviewing the exercise of discretion is whether the challenged venire persons indicated unequivocally their ability to evaluate the evidence fairly and impartially.Id. at 331-332.

Where a venire person appears uncertain about his or her ability to be fair and impartial, the trial court has a duty to make an independent inquiry.State v. Thomas,70 S.W.3d 496, 508(Mo.App. E.D.2002).When an answer to a question suggests the possibility of bias and, upon further questioning, the venire person gives unequivocal assurances of impartiality, the bare possibility of bias will not disqualify the venire person or deprive the trial court of discretion to seat the venire person.Id.

We initially note that Three Rivers' motion to strike for cause was based upon Ms. Toretta's responses that because of the family, the children involved, and her work as a music psychologist she didn't think she could be fair.The motion to strike makes no reference to Ms. Toretta's response that the 1975 plane collision with the wires "would send up a red flag," although Three Rivers uses that statement to support their argument on appeal.

Although Ms. Toretta initially indicated that she would "tend to ... give more credence to the emotional side" of the cause of action, she later stated "I think I would be fair."The fact that she used imprecise language such as "I think I would be fair" does not necessarily make that response equivocal.In Ray, our Supreme Court found that expressions such as "I think I could" or "I would hope I could" are merely the vernacular to express affirmative responses.860 S.W.2d at 332.Similarly, the expression "I think I would be fair" is merely the vernacular to express an affirmative response.Though it was couched in terms of "I think," it was not equivocal in...