Ratcliff v. Sprint Missouri, Inc., WD 64840.

CourtCourt of Appeal of Missouri (US)
Citation261 S.W.3d 534
Docket NumberNo. WD 64840.,WD 64840.
PartiesBob RATCLIFF, Appellant, v. SPRINT MISSOURI, INC. d/b/a Sprint United Telephone, Respondent.
Decision Date01 April 2008
261 S.W.3d 534
Bob RATCLIFF, Appellant,
SPRINT MISSOURI, INC. d/b/a Sprint United Telephone, Respondent.
No. WD 64840.
Missouri Court of Appeals, Western District.
April 1, 2008.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 27, 2008.
Application for Transfer Denied September 30, 2008.

[261 S.W.3d 540]

John W. Roarke, St. Louis, MO, for appellant.

Paul L. Wickens, Kansas City, MO, for respondent.



Bob Ratcliff appeals the judgment in favor of Sprint Missouri, Inc., d/b/a Sprint United Telephone, in his premises liability action. Mr. Ratcliff raises ten points on appeal challenging the jury's verdict, the trial court's refusal to allow him to amend his pleadings, the trial court's admission or exclusion of certain evidence, and the trial court's refusal to grant a protective order.2 The judgment of the trial court is affirmed.

Factual and Procedural Background

This case arose out of an accident that occurred on March 4, 1997, in the Truman Building on the Capitol Complex in Jefferson City. Mr. Ratcliff was working in the building as a communications operator for the Capitol Police. Sprint's service technician, Jerry Bondurant, was installing a new phone line/number in the Capitol Police dispatch office. The Truman Building has a sub-floor in which run phone cables, electrical cables, coaxial cables, and plumbing. The sub-floor is covered by carpet and, under the carpet, sub-floor panels can be removed to reveal the cables. To install the new phone line, Mr. Bondurant had removed a sub-floor panel revealing an opening 24 inches by 24 inches and 5 1/2 inches deep.

In his petition for negligence, Mr. Ratcliff claimed he stepped into the sub-floor opening and injured his left ankle. He alleged that Sprint was negligent in failing to barricade or otherwise prevent him from contact with the open hole and to

261 S.W.3d 541

warn him of the dangerous condition, and in failing to properly train and supervise its employee. He further alleged that as a result of Sprint's negligence, he sustained a left ankle injury, nervousness, pain and anxiety of body and mind, and emotional upset, all of which are permanent, disabling, and progressive. Finally, the petition included a loss of consortium claim by Mr. Ratcliff's wife, which she voluntarily dismissed without prejudice prior to trial.

At trial, Mr. Ratcliff testified that he did not see Mr. Bondurant or the opening in the sub-floor before the accident. He stated that as he walked out of the dispatch office to go on his break, his left foot fell through the hole, which was covered by a piece of carpeting. According to Mr. Ratcliff, Mr. Bondurant was not sitting in the opening when he fell in it, but was across the room. Mr. Ratcliff testified that, as a result of the accident, he suffers "engulfing" physical pain, is unemployable, and is bound to a wheelchair. He also explained that he is no longer able to do the activities that he enjoys such as cooking, playing the piano and organ, outdoor activities, visiting his family, or working on his home.

Sprint defended the suit by claiming that the floor opening was an open and obvious condition, it was properly attended and warned of, and that Mr. Ratcliff failed to use ordinary care to keep a careful lookout. Specifically, Mr. Bondurant testified that he was working 10 to 12 feet away from Mr. Ratcliff's workstation and that there were no obstructions between him and Mr. Ratcliff. When the accident occurred, Mr. Bondurant testified he was splicing wires, while he was sitting on the edge of the floor opening with his feet in the opening. Mr. Ratcliff walked toward Mr. Bondurant and the floor opening and stepped in and out of the opening, brushing up against Mr. Bondurant. Mr. Bondurant's testimony was corroborated by the testimony of two other witnesses, co-workers of Mr. Ratcliff's. Maureen Hill testified that, before the accident, she was easily able to see Mr. Bondurant, who was a "big fellow," sitting in the floor opening as he was working. She also testified that, when she looked right after Mr. Ratcliff stepped in the opening, she saw Mr. Bondurant either standing or sitting by the opening. Glen Carey also testified that, before the accident, he could easily see Mr. Bondurant working in the floor opening. He further stated that, when Mr. Ratcliff stepped into the hole, Mr. Bondurant was working in the hole, either sitting with his feet in it or kneeling next to it.

Sprint also offered evidence that Mr. Ratcliff's condition was caused by a prior accident; specifically, that Mr. Ratcliff suffered a severe grade-three left ankle sprain while camping in southern Missouri six months earlier on August 19, 1996. Finally, Sprint presented evidence that Mr. Ratcliff suffered from factitious disorder, a mental disorder where a person will intentionally produce physical symptoms to assume the sick or invalid role.

The case was submitted to the jury only on Mr. Ratcliff's claim that Sprint negligently failed to attend, barricade, or warn of the floor opening. His claim for negligent training and supervision was withdrawn. After a three-week trial and only two hours of deliberation, the jury returned its verdict finding Sprint 0% and Mr. Ratcliff 100% at fault. Accordingly, the trial court entered judgment in favor of Sprint. This appeal by Mr. Ratcliff followed.

Sufficiency of Evidence Claim Is Meritless

In the first point addressed in this appeal, Mr. Ratcliff contends that the trial court erred in entering judgment against him and in denying his motion for judgment

261 S.W.3d 542

notwithstanding the verdict or for a new trial. He claims that the evidence was insufficient to support the verdict in favor of Sprint. Specifically, he asserts that the evidence substantiated all of the elements of his cause of action but not the affirmative defenses of Sprint; therefore, judgment should have been entered in his favor.

In reviewing a jury verdict in a civil case, the appellate court does not "`determine the credibility of the witnesses, resolve conflicts in testimony, or weigh the evidence.'" Brandt v. Csaki, 937 S.W.2d 268, 273 (Mo.App. W.D.1996) (quoting Powell v. Norman Lines, Inc., 674 S.W.2d 191, 197 (Mo.App. E.D.1984)). "`Weighing evidence remains a trial court function, and an appellate court cannot rule on the weight of the evidence in a jury tried case.'" Williams v. Jacobs, 972 S.W.2d 334, 346 (Mo.App. W.D.1998) (quoting Johnson v. Creative Restaurant Mgmt., 904 S.W.2d 455, 460 (Mo.App. W.D.1995)). It is within the jury's prerogative "to find against the party with the burden of proof, even if that party's evidence is uncontradicted and unimpeached." Brandt, 937 S.W.2d at 273. In this case, Sprint did not have to offer any evidence to support a verdict in its favor. Because Mr. Ratcliff, and not Sprint, had the burden of proof, his sufficiency of the evidence claim is without merit. The point is denied.

Trial Court Did Not Err in Denying Motion to Amend Petition

Next, Mr. Ratcliff claims that the trial court erred in denying his motion to amend his petition, during trial, to include (1) a negligence per se count for violation of the Occupational Safety and Health Act (OSHA) and the American National Standards Institute (ANSI) standards and (2) evidence of aggravation of a pre-existing condition. He contends that such amendment would not have prejudiced Sprint because it had notice of the issues and had actively litigated them for three years in this case.

"Pleadings present, define, and isolate the issues, so that the trial court and all parties have notice of the issues." Norman v. Wright, 100 S.W.3d 783, 786 (Mo. banc 2003). Rule 55.33(b) permits amendment of the pleadings to conform to the evidence. Rombach v. Rombach, 867 S.W.2d 500, 503 (Mo. banc 1993). "[T]he rule gives direction to the trial court both in situations where no objection is made to evidence of unpleaded facts or claims and in situations where objection is made." Id. If no objection is made to the evidence, and the evidence raises an issue that is tried by the implied or express consent of the parties, the issue shall be treated as if it were alleged, and a motion to amend may be made, even after judgment. Id.; Rule 55.33(b). "The only discretion allowed the trial court in such situation is in determining whether the issue was tried by `implied consent' of the parties." Rombach, 867 S.W.2d at 503. "If so, the pleadings `shall' be treated as if the issues had been properly raised." Id.; Rule 55.33(b).

Where an objection is made to evidence of unpleaded facts or claims, however, the trial court has substantial discretion in determining whether to allow the pleadings to be amended. Rombach, 867 S.W.2d at 504. If an objection is made, the trial court may allow the pleadings to be amended and "`shall do so freely when the presentation of the merits of the action will be subserved thereby'" and the objecting party fails to show prejudice. Id. (quoting Rule 55.33(b)).

Mr. Ratcliff first claims that the trial court erred in denying his motion to amend his petition, during trial, to include

261 S.W.3d 543

a negligence per se claim for violation of the OSHA and ANSI standards. Mr. Ratcliff argues that an amendment of his petition would not have prejudiced Sprint because it was on notice of the claim and had actively litigated the issue since the filing of the lawsuit in 2002.

Contrary to Mr. Ratcliff's argument, Sprint did not impliedly or expressly consent to try a negligence per se claim. In fact, it objected to the introduction of OSHA and ANSI standards on the ground that Mr. Ratcliff's petition did not include a count for negligence per se. The trial court sustained the objection, but Mr. Ratcliff's expert was allowed to generally discuss the standards as a guide for determining the standard of care for Mr. Ratcliff's common law...

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