Montgomery v. Wilson

• Decision Date: 15 February 2011
• Docket Number: No. WD 71398.,WD 71398.
• Citation: 331 S.W.3d 332
• Parties: William P. MONTGOMERY, Jr., Respondent,v.Gordon Ray WILSON, Jr., Gordon R. Wilson, as Trustee of the Gordon R. Wilson and Bessie I. Wilson Trust dated June 6, 1996, Appellants.
• Court: Missouri Court of Appeals

331 S.W.3d 332

William P. MONTGOMERY, Jr., Respondent,

v.Gordon Ray WILSON, Jr., Gordon R. Wilson, as Trustee of the Gordon R. Wilson and Bessie I. Wilson Trust dated June 6, 1996, Appellants.

No. WD 71398.

Missouri Court of Appeals, Western District.

Feb. 15, 2011.

William L. Hall and Eric Roby, Independence, MO, for Appellants.Ed Dougherty and Josue D. Hernandez, Kansas City, MO, for Respondent.Before Division I: MARK D. PFEIFFER, Presiding Judge, and THOMAS H. NEWTON and ALOK AHUJA, Judges.MARK D. PFEIFFER, Presiding Judge.

This is a premises liability case predicated upon a claim of negligence. Appellant–Defendants, Gordon Ray Wilson, Sr. and Gordon Ray Wilson, Jr. (the “Wilsons”), appeal the judgment upon jury verdict entered in favor of Respondent–Plaintiff, William P. Montgomery, Jr. (“Montgomery”), in the Circuit Court of Clay County (“trial court”). The Wilsons raise three points on appeal. They argue that: (1) the trial court erred in denying the Wilsons' motion for directed verdict and motion for judgment notwithstanding the verdict because they claim Montgomery failed to present substantial evidence that an unsafe condition existed that caused his fall; (2) the trial court erred in allowing Montgomery to present evidence of the amount billed for his medical treatment as the value of his medical treatment; and (3) the trial court erred in allowing impeachment cross-examination of the Wilsons' expert witness regarding his opinion and testimony given in a different case. Finding no error, we affirm.

Factual and Procedural Background¹

In the summer of 2004, the Wilsons purchased a residence located at 1001 Sunset, Excelsior Springs, Missouri (the “Property”), for the purpose of rehabilitating it to rent or sell. In March of 2005, Gordon Ray Wilson, Jr. (“Butch Wilson”) hired Montgomery as a contract laborer. Although Montgomery occasionally worked at the Wilsons' other rental properties, he mainly worked on the Property from March 2005 until mid-February 2006.

On the morning of February 16, 2006, Montgomery arrived at the Property to begin work. Montgomery testified that when he arrived, he parked his vehicle on the upper driveway of the Property to unload work materials, and then he walked down to the lower driveway to access the only door to which he had a key. While walking across the lower driveway, Montgomery's feet suddenly slipped out from under him due to a white, slippery substance (“slick spot”), and he fell to the ground. Montgomery testified that he crawled to the side of the driveway and called Butch Wilson to inform him that he had just fallen and injured himself. When Butch Wilson arrived on the Property, he found Montgomery lying on the floor of the residence, which prompted him to immediately call 911 to obtain an ambulance to transport Montgomery to the hospital.

Montgomery was ultimately diagnosed with an injury to his cervical spine, requiring surgical intervention by John Gianino, M.D. (“Dr. Gianino”).

Montgomery filed the present lawsuit against the Wilsons for premises liability, predicated on a theory of negligence. After Montgomery's case in chief, the Wilsons moved for a directed verdict, which was denied. After the close of evidence, the jury returned a verdict assessing 75% fault to the Wilsons and 25% fault to Montgomery and awarding Montgomery $650,000 in damages. Based on the jury's verdict, the trial court entered judgment in favor of Montgomery in the amount of $487,500, which represented the judgment of $650,000 less the comparative fault of 25% apportioned by the jury to Montgomery. The Wilsons filed a motion for judgment notwithstanding the verdict or for a new trial, which was denied.² This timely appeal follows.

Point I

In their first point on appeal, the Wilsons argue that the trial court erred in denying their motion for directed verdict and motion for judgment notwithstanding the verdict because, they allege, Montgomery did not make a submissible case because he failed to present substantial evidence that an unsafe condition on the Property caused him to fall.

Standard of Review

The standard of review for the denial of a judgment notwithstanding the verdict is essentially the same as that for the overruling of a motion for directed verdict. Klotz v. St. Anthony's Med. Ctr., 311 S.W.3d 752, 769 (Mo. banc 2010) (citing Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000)). To survive either a motion for directed verdict or a motion for judgment notwithstanding the verdict, the plaintiff must have made a submissible case. Id. A plaintiff has not made a submissible case unless each and every fact essential to liability is predicated on substantial evidence. Id.; Poloski v. Wal–Mart Stores, Inc., 68 S.W.3d 445, 448 (Mo.App. W.D.2001). “ ‘Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide the case.’ ” Poloski, 68 S.W.3d at 448 (quoting Love v. Hardee's Food Sys., Inc., 16 S.W.3d 739, 742 (Mo.App. E.D.2000)). “A motion for judgment notwithstanding the verdict should be sustained only when all of the evidence and the reasonable inferences to be drawn therefrom are so strong against the plaintiff's case that there is no room for reasonable minds to differ.” Id. “Whether evidence is substantial and whether any inferences drawn are reasonable is a question of law.” Id. at 449 (citing Love, 16 S.W.3d at 742). “We decide questions of law de novo.” Townsend v. E. Chem. Waste Sys., 234 S.W.3d 452, 464 (Mo.App. W.D.2007). In making our determination as to whether the evidence was sufficient to support the jury's verdict, we view the evidence in the light most favorable to the result reached by the jury. Klotz, 311 S.W.3d at 769. We will reverse the jury's verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury's conclusion. Id.

Sufficiency of the Evidence

In order to make a submissible case of premises liability predicated on a theory of negligence, Montgomery was required to present substantial evidence that: (1) a dangerous condition existed on the Wilsons' premises which involved an unreasonable risk of harm; (2) the Wilsons knew or by using ordinary care should have known of the dangerous condition; (3) the Wilsons failed to use ordinary care in removing or warning of the danger; and (4) Montgomery sustained injuries as a result of the dangerous condition. Brown v. Morgan Cnty., 212 S.W.3d 200, 204 (Mo.App. W.D.2007).³ “In many cases ‘a plaintiff may rely on circumstantial evidence’ because he or she ‘will not know exactly what happened or what caused the fall.’ ” Id. (quoting Rycraw v. White Castle Sys., Inc., 28 S.W.3d 495, 499 (Mo.App. E.D.2000)). However, evidence of causation must nonetheless be based on probative facts, not on mere speculation or conjecture. Payne v. City of St. Joseph, 135 S.W.3d 444, 451 (Mo.App. W.D.2004).

The Wilsons contend that Montgomery failed to make a submissible case of negligence because he failed to prove that a dangerous condition existed on the Property the day he fell, and even if there was a dangerous condition on the Property, Montgomery failed to prove that the alleged dangerous condition caused him to fall.⁴ We disagree.

First, regarding the dangerous condition, Wendy Williams, Montgomery's co-worker, testified that: in early January 2006, about a month and a half before the date of Montgomery's injury, she saw the slick spot on the driveway of the Property; she saw the slick spot on repeated occasions thereafter; she specifically saw the slick spot two days before Montgomery's accident; and she saw the slick spot a few days after Montgomery's accident. Ms. Williams testified that the slick spot was still present even after vigorous cleaning. She also testified that the slippery nature of the spot was not apparent until one looked at it in detail. She testified that the condition was composed of “some kind of oily, white, gummy substance” and that it was slick.

Based on this testimony alone, Montgomery established that the dangerously slick spot existed both before and after his fall and that the slick spot was not readily apparent from merely looking at it. While this evidence does not directly establish the slick spot's presence on the day of Montgomery's fall, it provides a reasonable inference that the slick spot was present before, during, and after Montgomery's slip and fall. See Steward v. Goetz, 945 S.W.2d 520, 528 (Mo.App. E.D.1997) (“Facts necessary to sustain a recovery may be proved by circumstantial evidence....”). Accordingly, the trial record reflects that Montgomery has presented substantial evidence that the dangerous slick spot existed on the Property the day he fell.

Next, Montgomery also presented sufficient evidence that he was injured as a result of the slick spot. Montgomery testified that the driveway was not icy on the day he slipped and fell, and that there was nothing else located on that area of the driveway, aside from the slick spot. Montgomery testified that he slipped (i.e. not tripped) and that he remembered the area where he slipped and fell. Moreover, Ms. Williams testified that the slick spot was located at the same place where Montgomery claimed to have slipped and fallen. This evidence, and the reasonable inferences flowing therefrom, is sufficient to establish that the slick spot, more likely than not, was the cause of Montgomery's slip and fall. See Brown, 212 S.W.3d at 205 (“While no one can testify as to what specifically caused Brown's fall, there was sufficient evidence presented to permit an inference that the [dangerous condition] was a contributing cause of her fall.”).

Accordingly, Montgomery presented sufficient evidence to establish that a dangerous condition existed on the Property and that dangerous condition caused him to slip and fall. Point I is denied.

Point II

Before trial, the Wilsons filed...