Rouse v. Cuvelier

• Citation: 363 S.W.3d 406
• Decision Date: 20 March 2012
• Docket Number: No. WD 73653.,WD 73653.
• Parties: John ROUSE, Appellant, v. Keith CUVELIER, et al., Respondents.
• Court: Court of Appeal of Missouri (US)

363 S.W.3d 406

John ROUSE, Appellant,

v.Keith CUVELIER, et al., Respondents.

No. WD 73653.

Missouri Court of Appeals, Western District.

March 20, 2012.

Gary M. Steinman and Andrew F. VanNess, Gladstone, MO, for appellant.

Matthew M. Krohn, Trenton, MO, for respondents.

Before Division Two: GARY D. WITT, Presiding Judge, JOSEPH M. ELLIS, Judge and MARK D. PFEIFFER, Judge.

GARY D. WITT, Judge.

John Rouse (“Rouse”) filed suit against Keith Cuvelier (“Cuvelier”) and Super Gro of Iowa, Inc. (“Super Gro”) based on a vehicular collision that occurred between them. Upon the conclusion of the trial, the jury found Rouse 100% at fault and a verdict was entered in favor Cuvelier. For the reasons explained herein, we affirm.

Factual Background¹

On August 16, 2007, Cuvelier was traveling northbound in his F–350 Ford pickup truck on Highway 65. At that time, Cuvelier was on his way home, hauling a load of organic fertilizer on a fourteen foot trailer for his company, Super Gro.

At approximately 4:00 pm, Cuvelier came upon Rouse, who was also traveling northbound in a John Deere tractor equipped with a front end loader with a two-prong hay fork ² attached to the front. The speed limit of the highway at this juncture was sixty miles per hour, and Rouse was traveling significantly slower than the posted speed limit.

After following Rouse's tractor for approximately one mile, the vehicles entered a portion of the highway where passing was allowed (“Passing zone”). Cuvelier activated his left turn signal and pulled out into the northbound lane of traffic to pass the other three slow moving vehicles in front of him. Cuvelier passed the first two vehicles, and as he passed Rouse's tractor, Rouse initiated a left turn.

Rouse did not see Cuvelier approaching. Cuvelier realized that Rouse was turning left toward him and Cuvelier attempted to avoid the accident by swerving to the left. The hay fork struck the passenger side mirror of Cuvelier's truck and scraped down the side of the truck. Subsequently, Cuvelier's trailer came into contact with Rouse's front tractor tire, causing the tractor to turn over onto its side.

Because of this accident, Rouse suffered injuries to his “neck, back, shoulder and arms.” Specifically, Rouse tore a muscle in his shoulder, experiences numbness in his foot, and still has pain and/or “trouble” with his knee, hip, and arms.

On April 9, 2009, Rouse filed suit against Cuvelier and Super Gro in the Circuit Court of Mercer County.³ From December 1, 2010 to December 3, 2010, this matter was tried before a jury. At the conclusion of trial, the jury found Rouse 100% at fault and a verdict was entered in favor of Cuvelier.

Rouse now appeals.

Further pertinent facts are outlined in the analysis section as necessary.

Analysis

Rouse brings six Points on appeal, some of which this Court addresses out of turn for ease of analysis.

In Point One, Rouse argues that the “trial court erred in submitting a comparative fault instruction to the jury because ... there was not substantial evidence presented by respondents to submit appellant's comparative fault for appellant's alleged failure to keep a careful lookout which warrants a new trial being granted.” We disagree.

The Missouri Supreme Court recently outlined the following applicable principles in Owens v. ContiGroup Co., Inc. :

Whether a jury was properly instructed is a question of law this Court reviews de novo. Bach v. Winfield–Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo. banc 2008). This Court reviews the record in the light most favorable to submission of the instruction. Id. Any issue submitted to the jury in an instruction must be supported by substantial evidence “from which the jury could reasonably find such issue.” Kauzlarich v. Atchison, Topeka, & Santa Fe Ry. Co., 910 S.W.2d 254, 258 (Mo. banc 1995). “Substantial evidence is evidence which, if true, is probative of the issues and from which the jury can decide the case.” Powderly v. S. County Anesthesia Assocs. Ltd., 245 S.W.3d 267, 276 (Mo.App.2008). If the instruction is not supported by substantial evidence, there is instructional error, which warrants reversal “only if the error resulted in prejudice that materially affects the merits of the action.” Bach, 257 S.W.3d at 608. 344 S.W.3d 717, 723–24 (Mo. banc 2011) (quoting Hayes v. Price, 313 S.W.3d 645, 650 (Mo. banc 2010)).

At the conclusion of the evidence, over Rouse's objection, the trial court submitted the following comparative fault instruction, instruction # 9, to the jury:

In your verdict you must assess a percentage of fault to Plaintiff, whether or not Defendant Cuvelier was partly at fault, if you believe:

First, Plaintiff failed to keep a careful lookout, and

Second, Plaintiff was thereby negligent, and

Third, as a direct result of such negligence, Plaintiff sustained damage.

It is undisputed that the trial court submitted this comparative fault instruction based on Cuvelier's theory that Rouse failed “to keep a careful lookout” prior to the collision. The Missouri Supreme Court has provided the following guidance as it pertains to such comparative fault instructions:

In this case, the trial court submitted to the jury a “failure to keep a careful lookout” comparative fault instruction. The essence of the “failure to keep a careful lookout” claim is a failure to see and a failure to act.

Alleged negligent failure to keep a careful lookout is not to be submitted to the jury unless there is substantial evidence from which the jury could find that, in the exercise of the highest degree of care, the allegedly negligent party, had he kept a careful lookout, could have seen the other vehicle in time thereafter to have taken effective precautionary action.

The inquiry is two-fold: if the driver was keeping a careful lookout, could the driver have seen the danger; and, if the driver could have seen the danger, did the driver have the ability to take some precautionary measure such as veering, utilizing a horn, or slowing speed to prevent the accident? The evidence must support a finding that a driver had the means and ability to have avoided a collision. Means and ability include sufficient time and distance considering the movement and speed of the vehicles.

Price, 313 S.W.3d at 650 (internal citations and quotation marks omitted).

Based on the above law, Rouse has failed to demonstrate that the trial court erred in submitting the above comparative fault instruction because there was substantial evidence to support the submission. “The party seeking a ‘failure to keep a lookout’ instruction has the burden of showing that the other party could have reacted in time to avoid the accident had he or she been keeping a careful lookout.” Smith v. City of Hannibal, 297 S.W.3d 926, 928, n. 3 (Mo.App. E.D.2009). Rouse argues that Cuvelier did not meet this burden, but when reviewing “the record in the light most favorable to submission of the instruction,” we disagree. Owens, 344 S.W.3d at 723.

Here the parties were traveling northbound on U.S. Highway 65. At that time, Rouse was driving between twenty to twenty-five miles per hour in a sixty mile per hour zone. Rouse was aware that there was at least one vehicle behind him. Prior to turning, Rouse slowed down his tractor “to about 7 to 5 miles an hour.” Despite the fact that he was traveling at such a slow speed on a highway, there was sufficient evidence from which the jury could conclude that Rouse did not use the “means” available to him to avoid “the danger” of colliding with Cuvelier's passing car. Hayes, 313 S.W.3d at 650. Specifically, while Rouse claimed at trial that he looked into his rear-view mirror prior to turning, Rouse was impeached with his deposition testimony that he “never checked [his] rearview mirror” prior to turning. Rouse also testified at trial that he did not “turn around to [his] left and look” because “[h]ell, no, I've got a mirror.”

Based on these facts, there was substantial evidence from which the jury could have reasonably apportioned some fault to Rouse, in that Rouse could “have seen the danger” of Cuvelier's oncoming car by simply looking over his left shoulder to see behind him prior to or during his turn, thereby allowing Rouse to avoid the collision altogether by refraining from turning while Cuvelier passed in his vehicle in the other lane of traffic. Hayes, 313 S.W.3d at 650.

In arguing that the trial court erred, Rouse argues that the facts of Hayes are analogous to the instant case. We disagree. In Hayes, an automobile and a motorcycle were traveling on the same road in the opposite direction of one another. 313 S.W.3d at 649. When the automobile turned left, it crossed into the motorcycle's lane of traffic and collided into the motorcycle. Id. What distinguishes Rouse is that the motorcycle “had the right-of-way, however, because he was proceeding straight through the intersection on the green light, whereas [the automobile] was turning left,” and thus the motorcycle “was justified in assuming that [the automobile] would yield to oncoming traffic.” Id. at 649–50. Based on these facts, the Missouri Supreme Court concluded that the automobile driver

failed to present substantial evidence to support the submission of [the motorcyclist's] comparative fault because there was no evidence that a reasonable driver could or should have seen any indication of a danger at a time that would allow him to have the means and ability to use an evasive action to avoid the collision.

Id. at 652. Accordingly, the Court held that “[t]he portion of the trial court's judgment accessing 20 percent of the fault to [the motorcyclist] is reversed.” Id.

Here, Hayes is distinct from the instant matter because the trial court did not err in concluding that a jury issue existed as to whether Rouse was “exercising the highest degree of care” when he failed to look behind him prior to turning when he had reduced his speed to five miles per hour on a highway,...