Peterson v. Progressive Contractors, Inc.

• Decision Date: 21 May 2013
• Docket Number: No. WD 74550.,WD 74550.
• Parties: Janet Winslow PETERSON and Linda Winslow Lambright, Appellants, v. PROGRESSIVE CONTRACTORS, INC., et al., Respondents.
• Court: Missouri Court of Appeals

399 S.W.3d 850

Janet Winslow PETERSON and Linda Winslow Lambright, Appellants,
v.
PROGRESSIVE CONTRACTORS, INC., et al., Respondents.

No. WD 74550.

Missouri Court of Appeals,
Western District.

May 21, 2013.

[399 S.W.3d 853]

Edwin H. Smith, St. Joseph, MO, for appellants.

T. Michael Ward and Teresa M. Young, St. Louis, MO, for respondents.

Before Division Three: JOSEPH M. ELLIS, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.

[399 S.W.3d 854]

CYNTHIA L. MARTIN, Judge.

Janet Winslow Peterson (“Janet”) ¹ and Linda Winslow Lambright (“Linda”) (collectively “Appellants”) appeal from the entry of judgment following a jury trial in favor of Progressive Contractors, Inc. (“PCI”) and Highway Technologies, Inc. (“HTI”) (collectively “Respondents”) on their claims for personal injuries and for wrongful death. Appellants claim the trial court erroneously overruled an objection to closing arguments made by PCI and HTI that each implemented traffic control and safety measures in a highway construction work zone in the manner directed by the Missouri Highways and Transportation Commission (“MHTC”). Appellants claim the closing arguments misled the jury by suggesting the Respondents owed no duty to Appellants beyond the duty to perform their contracts. Appellants also claim the trial court erroneously excluded hearsay testimony about a statement made by PCI's job foreman because the statement was an admission against PCI's interest.

Finding no error, we affirm.

Factual and Procedural History

On September 23, 2007, Tiffany Peterson (“Tiffany”) was driving a car that was involved in a one-car accident. The accident occurred at approximately 9:00 p.m. on eastbound U.S. Highway 36 on a bridge over the Missouri River in between Elwood, Kansas and St. Joseph, Missouri. The expansion joints on the bridge were in the process of being replaced. No one was working on the bridge at the time of the accident. Various traffic control devices were in place to warn drivers about the construction zone and to divert traffic from the right lane of travel.

Notwithstanding the traffic control devices, Tiffany believed she could permissibly access an exit from U.S. Highway 36 to I–229 Highway. Tiffany drove between traffic channelizers into the right lane of travel toward the exit ramp. Before reaching the ramp, Tiffany's car dropped into a large uncovered hole on the bridge where an expansion joint had been removed.

There were two passengers in the car at the time of the accident. Tiffany's mother, Janet, was seated in the back seat behind Tiffany. Janet's mother (Tiffany's grandmother), Virginia Winslow (“Virginia”), was seated in the front passenger seat. All three women sustained injuries. Virginia is alleged to have suffered from her injuries for several months, resulting in her death on February 24, 2008.

Janet and her sister, Linda, filed suit for Janet's personal injuries and for the wrongful death of their mother, Virginia. They sued MHTC, PCI, and HTI. MHTC owned the highway were the accident occurred. PCI was the general contractor under contract with MHTC to replace the expansion joints on the bridge. HTI was a subcontractor under contract with PCI to provide traffic control services. The petition asserted that the defendants failed to exercise ordinary care to ensure that the work zone through which Tiffany traveled was in a reasonably safe condition for motorized traffic.

Prior to trial, Janet and Linda settled with MHTC pursuant to a section 537.065 agreement.² Janet's claims for her personal

[399 S.W.3d 855]

injuries, and Janet and Linda's claims for the wrongful death of their mother, proceeded to trial against PCI and HTI.

Appellants' evidence emphasized that MHTC's original traffic control plan was “safe” and “reasonable,” and that neither PCI nor HTI performed their work in accordance with this plan. Instead, PCI secured MHTC's approval to modify the traffic pattern. Instead of traffic moving back and forth from the left and right lanes as each expansion joint on the bridge was separately replaced, the modified pattern required traffic to stay in the left lane across the bridge while all four expansion joints were replaced. This approved modification required MHTC to generate a modified traffic control plan. Appellants argued that Respondents should not have sought permission to modify the traffic control plan, and that in any event, they failed to perform their work in accordance with the modified traffic control plan.³

Respondents' evidence emphasized that it played no role in designing either the original or modified traffic control plan and that MHTC's design engineers were responsible for that work. Respondents' experts opined that the modification of the traffic pattern on the bridge to require traffic to stay in the left lane while all expansion joints were replaced, instead of moving back and forth between lanes as each expansion joint was replaced, resulted in a safer work zone. Respondents' evidence also indicated that Respondents' work was performed in accordance with the modified traffic control plan.

Appellants sought to introduce the testimony of Roger Lambright (“Roger”), Janet's brother-in law, about a conversation he had with an individual at the accident scene the day after the accident. The individual purportedly told Roger that he wanted to talk to police because he was tired of people driving through “his concrete.” The trial court sustained PCI's hearsay objection to the testimony.

At the close of the evidence, four verdict directors were submitted to the jury addressing Janet's claims for personal injuries against PCI and HTI, and addressing Janet and Linda's claims for wrongful death against PCI and HTI. The verdict directors each required the jury to find:

[E]ither:

defendant [PCI or HTI] failed to barricade or cover the hole it cut in the highway to prevent motorists exiting onto I–229 from driving into it,

or

defendant [PCI or HTI] failed to provide signs, signals, lights, pavement markings, channelizers, and/or other traffic control devices sufficient to direct motorists exiting onto I–229 around the hole it cut in the highway

Each verdict director then instructed the jury that it must determine:

[Whether] defendant [PCI or HTI], in any one or more of the respects submitted ... was thereby negligent, and

[Whether] such negligence directly caused or directly contributed to cause [damage to Janet or the death of Virginia] ⁴

[399 S.W.3d 856]

Negligence was defined in the jury instructions as the failure to use the degree of care that an ordinarily careful person would use under the same or similar circumstances.

During PCI's closing, PCI made several arguments suggesting that MHTC's engineers designed and approved both the original and the modified traffic control plan, that PCI had no authority but to follow MHTC's traffic control plan, that PCI performed its work in accordance with the modified traffic control plan, and that in doing so it acted as an ordinary, reasonable, and prudent person. During a break in the argument, Appellants generally objected that PCI was misstating the law by arguing that its only duty was to perform its contract. The trial court overruled the objection and found that PCI was permitted to argue that it acted as an ordinary, reasonable, prudent man by choosing to follow the modified traffic control plan. Appellants did not object during HTI's closing argument.

The case was submitted to the jury. Approximately one hour later, the jury returned its verdict in favor of the Respondents. The trial court entered judgment accordingly. Appellant's post trial motions were denied.

Appellants filed this timely appeal.

Analysis

Appellants raise two points on appeal. First, they claim that the trial court erred in overruling their objection and permitting Respondents to argue during closing “that the only duty of care they owed [Appellants] in ensuring the reasonable safety of the [construction work zone] was to follow the directives of MHTC in implementing traffic control and safety measures.” [Appellants' Brief, p. 16]. Second, Appellants claim that the trial court erred in sustaining Respondents' hearsay objection which excluded Roger's testimony about a PCI foreman's statement that “he was tired of people driving through his concrete” because the statement was an admission against a party opponent.

Point One

Appellants complain that the trial court erroneously overruled their objection to Respondents' closing arguments relating to Respondents' performance of their work in accordance with MHTC's modified traffic control plan. Appellants contend that the arguments misstated the duty owed by the Respondents as instructed in the verdict directors because a road contractor owes third persons the non-delegable duty to exercise reasonable care for their safety, a duty whose origin is in the common law and not limited or defined by contract.

Standard of Review

A trial court's rulings on objections made to remarks by counsel during closing arguments are reviewed for abuse of discretion. Peters v. ContiGroup, 292 S.W.3d 380, 390 (Mo.App. W.D.2009). The trial court is afforded wide latitude in closing argument regarding the arguing of facts and inferences drawn from the evidence. Warren Davis Props. v. United Fire & Casualty Co., 111 S.W.3d 515, 527 (Mo.App. S.D.2003). “[T]he permissible field of argument is broad, and so long as counsel does not go beyond the evidence and the issues drawn by the instructions, or urge prejudicial matters or a claim or defense which the evidence and issues drawn by the instructions do not justify, he is permitted wide latitude in his comments.” Heshion Motors, Inc. v. W. Int'l Hotels, 600 S.W.2d 526, 534 (Mo.App. W.D.1980). However, “[m]isstatements of law

[399 S.W.3d 857]

are impermissible during closing argument and a trial court has the duty, not discretion, to restrain and purge such arguments.” Bradley v. Waste Mgmt. of Mo., Inc., ...