Rudin v. Parkway School District

• Decision Date: 19 September 2000
• Citation: Rudin v. Parkway School District, 30 S.W.3d 838 (Mo. App. 2000)
• Parties: (Mo.App. E.D. 2000) . Evelyn Rudin, Plaintiff/Respondent, v. Parkway School District, Defendant/Appellant. Case Number: ED76701 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

30 S.W.3d 838 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Evelyn Rudin, Plaintiff/Respondent, v. Parkway School District, Defendant/Appellant.

Case Number: ED76701

Missouri Court of Appeals Eastern District

Handdown Date: 09/19/2000

Appeal From: Circuit Court of St. Louis County, Hon. Stephen Mitchell

Counsel for Appellant: Martin J. Buckley

Counsel for Respondent: Theodore H. Hoffman

Opinion Summary: The school district appeals from the circuit court judgment awarding damages to Rudin for injuries she sustained in a slip and fall accident on its property, alleging error in the trial court's instruction to the jury on comparative fault when it was not pled by any party.

AFFIRMED.

Division One holds: As an affirmative defense, comparative fault must be raised in the pleadings.An exception, however, exists for an amendment of the pleadings, if the parties expressly or impliedly try the issue by consent.Although neither party pled comparative fault, both parties injected Rudin's comparative fault into the trial.

Opinion Author: Mary Rhodes Russell, Judge

Opinion Vote: AFFIRMED.R. Dowd, Jr. and Teitelman, JJ., concur.

Opinion:

Parkway School District("School District") appeals from the judgment of the St. Louis County Circuit Court awarding damages to Evelyn Rudin("Visitor") for injuries she sustained in a slip and fall accident on School District's property.

School District asserts that the trial court erred in submitting the case to the jury under principles of comparative fault because it was neither pled by any party nor was there evidence to support apportionment of fault.We affirm the judgment in that we find comparative fault was tried by the implied consent of the parties.

Visitor and her husband went to Parkway Central Middle School one evening to watch their grandchild play in the school orchestra.School District set up chairs in the atrium, a large open area with three levels.

Visitor entered the atrium without her husband and began to look for seats.She safely maneuvered to the middle level, but failed to negotiate the second step down to the bottom level of the atrium.Visitor fell and suffered a broken left foot.

She filed suit against School District alleging that School District's premises were not reasonably safe in that there were inadequate warnings of the gradation differences in the atrium area.School District responded and raised the single affirmative defense of statutory sovereign immunity.

At the close of the evidence, the trial court held an instruction conference.Visitor submitted InstructionNo. 7, a verdict director, which included comparative fault language.InstructionNo. 7 stated

In your verdict you must assess a percentage of fault to defendant whether or not plaintiff was partly at fault if you believe:

First, the step referred to in evidence lacked adequate cues and as a result the premises were not reasonably safe, and

Second, defendant knew of this condition and knew that such condition was not reasonably safe, and

Third, defendant knew or had information from which defendant, in the exercise of ordinary care, should have known that persons such as plaintiff would not discover such condition or realize the risk of harm, and

Fourth, defendant failed to use ordinary care to adequately warn of it, and

Fifth, as a direct result of such failure, plaintiff sustained damage.

School District objected to this instruction on the basis that comparative fault was not pled by the parties.After the trial court decided to instruct the jury on comparative fault, School District was forced to submit a comparative fault instruction, No. 9, requesting that the jury assess fault between the parties.InstructionNo. 9 provided

In your verdict you must assess a percentage of fault to plaintiff if you believe:

First, plaintiff knew or by using ordinary care could have known of the step referred to in the evidence;

Second, plaintiff failed to use ordinary care to keep a careful lookout, and

Third, such failure directly caused or directed [sic] contributed to cause any damage plaintiff may have sustained.

School District objected to its own InstructionNo. 9 for the same reasons it objected to No. 7.Visitor also objected to No. 9, questioning the existence of evidence that she was "not keeping a careful lookout."The damages instruction and the verdict form also contained comparative fault language.

The jury returned a verdict for Visitor in the amount of $25,000, assessing 35 percent comparative fault to her, thus reducing School District's liability to $16,250.

School District's motion for new trial was overruled by the trial court.It timely filed its notice of appeal.School District's sole point on appeal is that the trial court erred in instructing the jury on comparative fault.It argues that since neither party pled comparative fault and there was no evidence to support its submission, the jury should not have been instructed on comparative fault.School District further claims it was prejudiced by the comparative fault instructions, in that it had the burden of proof on comparative fault, but had not tried the case on that issue.

The issue of whether the jury was properly instructed is a question of law and is to be determined on the record with little deference given to the trial court's decision.Kuzuf v. Gebhardt, 602 S.W.2d 446, 449(Mo. banc 1980).We review the evidence and inferences in a light most favorable to the submission of the instruction.Egelhoff v. Holt, 875 S.W.2d 543, 548(Mo.1994)(citingVandergriff v. Missouri Pac. R.R., 769 S.W.2d 99, 104(Mo. banc 1989)).We reverse comparative fault instructional errors "only where the errors are of such a nature that there is substantial potential for prejudicial effect."Baldridge v. Lacks, 883 S.W.2d 947, 956(Mo. App.1994).

Missouri law is clear that "comparative fault instructions may be given only where comparative fault has been raised in the pleadings as an affirmative defense."Lester v. Sayles, 850 S.W.2d 858, 868(Mo.1993).There is, however, a notable exception to this principle.Under Rule 55.33(b), if issues, such as comparative fault, are tried by the express or implied consent of the parties, they are treated as if originally raised in the pleadings.Lester, 850 S.W.2d at 868.In order to find an amendment of the pleadings based upon implied consent, the evidence presented must bear solely on the proposed new issue and must not be relevant to another issue already in the case.Coleman v. Mantia, E.D. 76880, slip op. at 3(Mo. App., filed Aug. 29, 2000).

If there is evidence from which a jury could find that plaintiff's conduct was a contributing cause of her damages, parties to a negligence action are entitled to have their case submitted to the jury under comparative fault principles, absent an agreement to the contrary.Peters v. Brenner, 772 S.W.2d 777, 778(Mo. App.1989)(citingEarll v. Consolidated Aluminum Corp., 714 S.W.2d 932, 937(Mo. App.1986))."[W]here there is evidence that the conduct of both parties combined and contributed to cause damage, the fact finder should not be precluded from comparing the respective contributions toward such causation made by each."Earll, 714 S.W.2d at 936.

A comparative fault instruction must be supported by substantial evidence.Egelhoff, 875 S.W.2d at 548(citingVandergriff, 769 S.W.2d at 104).The determinative factor in deciding whether comparative fault is applicable in a particular case depends on the sufficiency of the evidence presented.Earll, 714 S.W.2d at 936.

In reviewing the sufficiency of the evidence of comparative fault, we find four different points in the trial where references to Visitor's comparative fault were made.First, School District, in its opening statement, directed the jury's attention to whether Visitor was paying attention and keeping a careful lookout:

SCHOOL DISTRICT'S COUNSEL: Well, she heads down or starts toward one of the aisle ways, and she comes to the first step, and she sees it.She has no trouble.She steps down, continues on.She's looking for a chair, looking for where she's going to sit, and she just doesn't see the second step and she stumbles.

. . . .

SCHOOL DISTRICT'S COUNSEL: Mrs. Rudin, whether not paying attention, or because of her bifocals, or whatever, simply did not...