McLaughlin v. Hahn

• Decision Date: 29 August 2006
• Docket Number: No. WD 65640.,WD 65640.
• Parties: Jeannine McLAUGHLIN, Respondent, v. Mack HAHN and Joyce Hahn, Appellants.
• Court: Missouri Court of Appeals

199 S.W.3d 211

Jeannine McLAUGHLIN, Respondent, v. Mack HAHN and Joyce Hahn, Appellants.

No. WD 65640.

Missouri Court of Appeals, Western District.

August 29, 2006.

COPYRIGHT MATERIAL OMITTED

Michael E. McCausland, Brian M. Bartalos, Co-Counsel, Kansas City, MO, for appellants.

Mary E. Bigge, Independence, MO, F. Russell Peterson, Co-Counsel, Overland Park, KS, for respondent.

Before: LOWENSTEIN, P.J., BRECKENRIDGE, J., and RUSSELL, SP.J.

HAROLD L. LOWENSTEIN, Judge.

Mack and Joyce Hahn ("Defendants") appeal the judgment entered in a personal injury suit brought by a customer at their garage sale. The jury assessed Defendants 46% fault for the damages sustained by a Jeannine McLaughlin ("Plaintiff") when she tripped over a rolled carpet in Defendants' driveway. This court finds that the trial court erred in preparing and submitting a converse instruction to the jury. The case is reversed and remanded.

FACTS

Plaintiff and her daughter were customers at a garage sale held at Defendants' home in August 1999. A partially unrolled carpet was lying on the left side of the driveway, on the "slanted portion" of the drive, leaving about eight feet of unobstructed space on the right side of the drive. Customers had to walk past the carpet to reach the main area of the sale, and then to leave.

Upon arriving at the sale, Plaintiff noted the carpet, cautioning her daughter to be careful and walk around the carpet. When Plaintiff's daughter was ready to pay for her items, Plaintiff noticed a large "time-out doll" near the cash box.¹ Plaintiff purchased the doll, and Defendants' daughter-in-law, not a party to the lawsuit, laid the doll across Plaintiff's arms. Plaintiff shifted the doll to her hip but repositioned the doll to be carried across her arms when one of the doll's boots fell off.

With her arms full and unable to see her feet, Plaintiff proceeded down the driveway toward her car. She testified that she remembered the carpet and tried to avoid it by sidestepping to her left until she saw the center seam of the driveway. She then walked forward, caught her toe in the carpet and fell, injuring her shoulders. She required hospitalization.

Plaintiff brought suit against Defendants for extensive personal injuries sustained from her fall. Plaintiff's negligence claim was predicated on premises liability to business invitees. The trial was held from May 2 to May 5, 2005.

At trial Plaintiff and Defendants each proposed verdict directors. Defendants also proposed a converse instruction based upon their proposed verdict director. The trial court rejected Defendants' proposed verdict director and converse instruction and accepted Plaintiff's verdict director instruction. The court then prepared and gave to the jury sua sponte a converse instruction.² Defendants objected to Plaintiff's non-MAI verdict director and the trial court's converse instruction.

The jury assessed fault against the Plaintiff of 54% and against the Defendants of 46%. Total damages were assessed at $146,000. The trial court entered judgment on the jury verdict, ordering Defendants to pay their percentage of the damages, $67,160, as well as their portion of the costs of the action. Defendants filed a Motion for Judgment Notwithstanding the Verdict as well as a Motion for a New Trial, both of which were denied. Defendants timely appealed.

DISCUSSION

Defendants first assert the trial court erred in allowing Plaintiff's claim to go to the jury as Plaintiff failed to make a submissible case. "To establish an owner's premises liability under plaintiffs' theory of negligence, an injured invitee must show: (1) a dangerous condition existed on defendant's premises which involved an unreasonable risk; (2) the defendant knew or by using ordinary care should have known of the condition; (3) the defendant failed to use ordinary care in removing or warning of the danger; and (4) the plaintiff sustained injuries as a result of such condition." Steward v. Baywood Villages Condominium Ass'n, 134 S.W.3d 679, 682 (Mo.App.2004); MAI 22.03.

At trial, evidence was presented that the carpet was lying on the "slanted" portion of the driveway without any kind of barricade. Customers to the garage sale were required to walk around the carpet on their way to and from the sale. Customers with their arms full of purchases would have to avoid the carpet to return to their vehicles. From this information, the jury could infer that Defendants were aware of the hazard.

In addition to failing to barricade the rug, Defendants did not warn Plaintiff of the hazard. Plaintiff testified that although she knew of the carpet and took steps to avoid the hazard, she nevertheless tripped and was injured. The record indicates that the jury was presented with substantial evidence from which they could determine Defendant's liability. The trial court did not err in submitting the case to the jury.

Additionally, Defendants point to several claims of instructional error. This opinion addresses only the claim of instructional error, specifically the adequacy of the court-submitted converse instruction. As defendants' claim of error with regard to the converse instruction proves dispositive, this court will not address their remaining claims of error.

Whether a jury is properly instructed is a matter of law subject to de novo review by this court. Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 20 (Mo.App. 2005). The party challenging the instruction must show that the instruction misled misdirected, or confused the jury, and that prejudice resulted from the error. Jone v. Coleman Corp., 183 S.W.3d 600, 605 (Mo. App.2005). A trial court's instructional error is reversible if the error substantially prejudiced a party. Wiskur v. Johnson, 156 S.W.3d 477, 480 (Mo.App.2005).

"A defendant is entitled to a converse of plaintiff's verdict directing instruction." Gilleylen v. Surety Foods, Inc., 963 S.W.2d 15, 17 (Mo.App.1998). Two types of converse instructions, provided under the Missouri Approved Instructions, are relevant here: an affirmative converse and a true converse. Drury v. Mo. Pac. R.R. Co., 905 S.W.2d 138, 146 (Mo.App.1995).³

The true converse instruction is the method by which the defendant emphasizes one or more of the elements of the plaintiff's case for which the plaintiff has the burden of proof. Sall v. Ellfeldt, 662 S.W.2d 517, 523 (Mo.App.1983). No independent evidence is required to support a true converse instruction. Palcher v. J.C. Nichols Co., 783 S.W.2d 166, 170 (Mo.App.1990). Rather, true converse rests "upon the contention of the adversary that the plaintiff has failed to prove some element of the case." Id. (citing Sall v. Ellfeldt, 662 S.W.2d 517, 523 (Mo. App.1983)).

Requirements for a true converse are found in the General Comment to MAI 33.01. A true converse begins, "You must find for defendant UNLESS you believe" and the remainder is taken from the language of the verdict director. Hiers v. Lemley, 834 S.W.2d 729, 734 (Mo.1992). The verdict director is "[t]he form book for the language of the converse instruction." (General Comment to MAI 33.01 [1980 Revision] Converse Instructions).

The true converse must submit the proposition of the verdict director in substantially the same language. Sall, 662 S.W.2d at 523. Use of the same language in both the verdict director and the converse instruction serves two purposes. First, use of substantially the same language avoids the danger posed by distorting the legitimate burden of proof into a misdirected verdict. Id. (citing Snyder v. Chicago, Rock Island & Pac. R.R. Co., 521 S.W.2d 161, 164 (Mo.App.1973)). Second, use of the same language "serves to emphasize the necessity for the jury to believe certain propositions upon which the plaintiff must sustain the burden of proof before a recovery is awarded." Powers v. Ellfeldt, 768 S.W.2d 142, 145 (Mo.App. 1989).

In this case, Defendant proffered both a verdict director and a converse instruction at the instruction conference. The court rejected both the proposed verdict director and the converse instruction that was based on their proposed verdict director. The court, sua sponte, then drafted and submitted a converse instruction, Instruction 8.

Instruction 8 begins with the phrase: "In your verdict you must not assess a percentage of fault to defendants UNLESS you believe." Thus, Instruction 8 is a true converse instruction under MAI 33.01. To comply with the General Comments to MAI 33.01, Instruction 8 should have then incorporated the four elements of the verdict director using substantially the same language.

The two instructions, the verdict director and converse instruction, laid side-by-side demonstrate that this true converse instruction fails to use substantially the same language as the verdict director.

                                 Instruction 7                                         Instruction 8
                                Verdict Director                                    Converse Instruction
                In your verdict you must assess a percentage      In your verdict you must not assess a percentage
                of fault to defendants whether or not             of fault to defendants UNLESS you
                plaintiff was partly at fault if you believe:     believe
                1) Plaintiff knew about the partially unrolled    1) There was a partially unrolled carpet on
                   carpet on the defendants' premises, and           driveway of defendants' premises, and
                2) Despite plaintiff's knowledge the defendants   2) There was a risk of a customer tripping
                   should have anticipated that a risk               over the carpet even if the customer was
                   of a customer tripping over the carpet            exercising ordinary care, and
                   existed even if the customer was exercising
                   ordinary care, and
                3) Defendants failed to use ordinary care to      3) Defendants failed to use ordinary care to
                   remove the carpet, barricade it or warn           remove the carpet, barricade it or warn
                   of it,

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