Savage v. Dittrich

• Decision Date: 05 November 2019
• Docket Number: No. ED 107521,ED 107521
• Citation: 589 S.W.3d 628
• Parties: Douglas SAVAGE, et al., Respondents, v. Peter DITTRICH, Appellant.
• Court: Missouri Court of Appeals

589 S.W.3d 628

Douglas SAVAGE, et al., Respondents,

v.Peter DITTRICH, Appellant.

No. ED 107521

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: November 5, 2019

FOR APPELLANT, Matthew J. Devoti, 124 Gay Avenue, St. Louis, MO 63105.

For Respondent, Nathan D. Leming, Lisa A. Larkin, Brandy K. Simpson, 100 N. Broadway, 21^st Floor, St. Louis, MO 63102.

ROY L. RICHTER, Judge

Peter Dittrich ("Appellant") appeals from the order and judgment of the Circuit Court of Jefferson County, granting Douglas Savage ("Savage") and Waste Management’s ("WM") (collectively, "Respondents") motion for summary judgment on Appellant’s counterclaim for personal injury. Savage originally brought this action, claiming he suffered personal injury resulting from a car accident between him and Appellant. Appellant filed a counterclaim for personal injury arising from the same accident, subsequently joining WM. Savage ultimately resolved his personal injury suit against Appellant, leaving only Appellant’s counterclaim to be resolved. Respondents filed a motion for summary judgment, which the circuit court granted on December 11, 2018, after concluding Appellant would be unable to prove the element of proximate causation as a matter of law. We reverse and remand.

I. Background

The facts underlying this case date back to February 4, 2015, when Appellant and Savage were involved in a motor vehicle accident. At the time of the accident, Savage was employed by WM, and was driving his WM refuse truck eastbound on Missouri Highway 30 ("Highway 30"). Appellant was driving his Jeep Liberty, also eastbound on Highway 30, taking his grandson to pre-school. Both drivers were in the right lane. While both parties headed eastbound on Highway 30, they went from a no-passing zone to a passing zone. After entering this passing zone Appellant moved to pass Savage via the left lane. As Appellant was passing Savage, Savage turned left onto Medley Drive and collided with Appellant’s vehicle.

In May 2016, Savage initiated this case by filing a petition for personal injury that he allegedly suffered as a result of this accident. In April 2017, Appellant filed his counterclaim for personal injury against Savage, joining WM as a defendant. In his counterclaim, Appellant alleged that as a result of the accident, his "head, neck, left shoulder, low back, and left knee and all of the bones, joints, muscles, tendons ... nerves, [and] vessels thereof were caused to be severely bruised ... lacerated, sprained ... herniated ... and rendered swollen and inflamed." Appellant also alleged that as a result of these injuries he was forced to "undergo certain reasonable and necessary hospital and medical care and treatment...." Further, Appellant alleged the accident was caused by Savage’s "negligence and carelessness," because:

(a) Savage operated his motor vehicle at a rate of speed that was ... excessive and dangerous under the circumstances;

(b) Savage failed ... to keep ... a constant ... lookout ahead and laterally so as to see ... other vehicles at and near the aforesaid location;

(c) Savage failed ... to stop his motor vehicle ... change the course thereof, swerve the same aside, or sound a warning of his approach ... when, in the exercise of the highest degree of care, he could and should have done so and thus ... have avoided the [collision] and [Appellant’s resulting injuries];

(d) Savage ... negligently and carelessly [caused] his motor vehicle to overtake, strike, and collide against the passenger side of [Appellant’s vehicle]; and

(e) Savage ... [failed] to signal his intent to make a left turn across [Highway 30] and onto a private driveway.

As damages, Appellant requested a judgment "in such sum as may be fair and reasonable in the premises, but in excess of [$25,000], together with prejudgment interest and costs in this behalf expended."

On January 3, 2018, Respondents filed a joint motion for leave to file amended answers, which the court granted. Those answers contained multiple affirmative defenses, but two are most pertinent to this appeal. First, Respondents alleged that Appellant was not entitled to recover "due to his ... comparative fault," or that "any recovery should be reduced in proportion to [Appellant’s] own relative degree of fault." Second, Respondents alleged Appellant was negligent per se for improperly passing and changing lanes, in violation of Section 304.016.4(2) RSMo ; for improperly passing a vehicle, in violation of Jefferson County Traffic Code Regulation Section 315.080(B)(3); and for improperly driving on the left side of the road, in violation of Jefferson County Traffic Code Regulation Section 315.080(E)(2).

On August 13, 2018, Respondents filed a motion for summary judgment. In the memorandum in support of summary judgment, Respondents asserted that Appellant could not prove an act or omission by Savage proximately caused his alleged injuries because "any alleged negligence ... was not a proximate cause of [Appellant’s] injuries. Rather, [Appellant’s] intervening negligent act in directly violating the traffic law and regulations ... was the intervening and superseding cause of [Appellant’s] injuries," and that broke the "causal connection between ... any ... alleged negligence on the part of Savage." Respondents filed a statement of uncontroverted material facts in support of their motion, pointing principally to the facts that the collision occurred near the intersection with Medley drive, that the collision occurred after Appellant entered the left lane and attempted to pass Savage, and that Appellant operated his vehicle in the left lane within 100 feet of the intersection of Highway 30 and Medley Drive.

Appellant filed his response to Respondents' motion for summary judgment on September 9, 2018. In this response, Appellant argued first that Respondents' motion failed to properly and sufficiently set forth uncontroverted facts to allow the trial court to conclude his "violation of traffic laws and regulations" was the direct, proximate, and immediate cause of the accident. Next, Appellant asserted that there were multiple negligent acts or omissions by Savage that caused or contributed to this accident, and his resulting injuries, including "[violating] a Missouri statute, Jefferson County traffic regulations, and his employer’s safety rules" by failing to activate his left turn signal at least 100 feet before turning onto Medley Drive. Third, Appellant argued that where there is evidence that the conduct of both parties contributed to cause damage, as he alleged in this case, the fact finder should be allowed to compare each party’s respective fault. Finally, Appellant argued Section 304.016.4(2) does not apply to this case because his view was not obstructed.

On December 11, 2018, the trial court granted Respondents' motion for summary judgment, finding Appellant could not prove the element of proximate cause as a matter of law.

This appeal follows.

II. Discussion

Appellant raises one point on appeal, alleging the trial court erred in granting Respondents' motion for summary judgment. Appellant argues Savage’s conduct set in motion the chain of circumstances leading to his injuries, in that Savage’s failure to keep a careful lookout and properly signal his intent to turn left contributed to the collision between his refuse truck and Appellant’s Jeep Liberty.

A. Standard of Review

The propriety of summary judgment is purely an issue of law, and as such our review is essentially de novo. Altidor v. Broadfield, 576 S.W.3d 272, 278 (Mo. App. E.D. 2019). The standards we employ to determine if summary judgment was proper are no different than those employed by the trial court: moving parties must show there is no genuine dispute of material fact, and based on those facts they are entitled to judgment as a matter of law. Id.; Mo. Sup. Ct. R. 74.04(c). When considering appeals from summary judgments, this Court reviews the record in the light most favorable to the party against whom judgment was entered, and we accord the non-moving party the benefit of all reasonable inferences from the record. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

B. Analysis

In a negligence action, the plaintiff must demonstrate (1) the defendant had a duty to protect the plaintiff from injury; (2) the defendant breached that duty; and (3) the defendant’s breach was the cause-in-fact and proximate cause of the plaintiff’s injury. Spencer v. Am. Airlines, Inc., 553 S.W.3d 861, 866 (Mo. App. E.D. 2018). Actionable negligence requires a "causal connection" between the defendant’s conduct and the plaintiff’s injury. Hargis v. Lankford, 372 S.W.3d 82, 87 (Mo. App. S.D. 2012). It is not enough that an injury merely follows negligence, as the plaintiff must show the negligence is the proximate cause of the injury. Id.

Regarding proximate cause, the plaintiff must show the negligence charged was the "efficient cause that set in motion the chain of events leading up to the injury." Higgenbotham v. Pit Stop Bar and Grill, LLC, 548 S.W.3d 323, 331 (Mo. App. E.D. 2018). The defendant’s negligence is the proximate cause of an injury "if, after its occurrence, it appears to be the reasonable and probable consequence of the defendant’s act or omission," or if that cause produces "a particular consequence without the intervention of an independent or superseding cause." Id.; see also Lankford, 372 S.W.3d at 87. Further, an efficient intervening cause is a "new and independent force which so interrupts the chain of events that it becomes the responsible, direct, proximate, and immediate cause of the injury," but it may not consist of a mere act of concurring or contributing negligence. Lankford, 372 S.W.3d at 87.

Savage’s Actions Contributed to the Accident

Appellant first argues the trial court erred in granting summary judgment against him because there is a genuine issue of material fact as to whether Savage’s...