Secrist v. Treadstone, LLC, WD 73250.

• Citation: 356 S.W.3d 276
• Decision Date: 01 November 2011
• Docket Number: No. WD 73250.,WD 73250.
• Parties: Danny SECRIST and Erin Secrist, Appellants, v. TREADSTONE, LLC, and John H. Johntz, III, Respondents.
• Court: Court of Appeal of Missouri (US)

356 S.W.3d 276

Danny SECRIST and Erin Secrist, Appellants,

v.TREADSTONE, LLC, and John H. Johntz, III, Respondents.

No. WD 73250.

Missouri Court of Appeals, Western District.

Nov. 1, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 20, 2011.

Application for Transfer

Denied Jan. 31, 2012.

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

Keith W. Ferguson, St. Joseph, MO, for respondents.

Before Division Three: KAREN KING MITCHELL, Presiding Judge, JAMES M. SMART, JR., Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.

Danny Secrist and Erin Secrist appeal the Judgment of the Circuit Court of Buchanan County in their favor for $31,500 and $600 respectively in damages on their claims against Treadstone, L.L.C., and in favor of John Johntz on their claims against him. We affirm in part, reverse in part, and remand.

Factual Background¹

This appeal arises out of an accident on November 3, 2008 in a building (“the United Building”) owned by respondent Treadstone L.L.C. (“Treadstone”), which was itself half owned by respondent John Johntz (“Johntz”). Danny Secrist (“Secrist”) was employed by Helsel Construction which had contracted through The Framing Firm to perform renovation work on the United Building. The United Building had an elevator, designed and installed in the 1920s. The outer door to the elevator was wooden with small glass panes. Immediately behind those doors was a metal gate that slides across the opening of the elevator to allow access. The elevator was designed to operate with an operator stationed inside the car, but the doors could be opened from the outside if one had a key, or apparently any of a number of small metal objects, that would bypass the safety mechanism. No elevator operator was employed. Secrist and others working on the renovation were given permission to use the elevator and instructed how to do so.

On November 3, 2008, Secrist gathered his materials he was going to take away from the worksite on the second floor and placed them in front of the elevator. The elevator operated in a way that a person was not able to call the elevator to the desired floor but instead had to go and retrieve the elevator on the floor where it was located. Secrist walked down to the first floor, where he believed the elevator was located, and found the outer door and gate to the elevator were closed. Secrist grabbed a bent wire that had been left there specifically for the purpose of opening the elevator door, stuck the wire in the key hole to jimmy the lock, opened the doors and gate, and stepped into the elevator shaft. Unbeknownst to Secrist, the elevator was not on the first floor and he fell down the shaft, landing in the basement below. As a result of the fall, Secrist sustained severe injuries.

Secrist filed suit on the theory of general negligence against Treadstone (Count I), L & H Renovations (Count II) ² and Johntz (Count III). Secrist filed suit on the theory of premises liability against Treadstone (Count IV) and L & H (Count V). Finally, Secrist's wife, Erin Secrist (“Mrs. Secrist”), filed suit against Treadstone, Johntz, and L & H for loss of consortium. (Count VI). Counts I, III, IV and VI (the counts against Treadstone and Johntz) were tried to a jury, which returned a verdict in favor of Secrist against Treadstone on Counts I and IV, and in favor of Mrs. Secrist against Treadstone on Count VI. On Counts III and VI, claims against Johntz, the jury returned a verdict in Johntz's favor finding him zero percent liable for Secrist's injuries.³ In finding against Treadstone in Counts I, IV and VI, the jury found Treadstone was twenty percent at fault and Secrist was at eighty percent fault. The Circuit Court reduced the jury's award of damages accordingly, which resulted in an award in favor of Secrist for $31,500 and in favor of Mrs. Secrist for $600.⁴ Secrist and Mrs. Secrist (collectively “Appellants”) appeal. Further factual details will be provided in the analysis section below as necessary.

In their sole point on appeal, Appellants argue the trial court erred in admitting Secrist's positive drug test result for marijuana reflecting a THC level of 50 ng/ml for the purposes of comparative fault and impeachment because Treadstone and Johntz failed to lay the foundation required by law for the admission of marijuana consumption and impairment evidence by not introducing evidence from which a jury could reasonably infer that Secrist had a sufficient level of marijuana in his system to be impaired at the time of the accident.

Standard of Review

The Appellants claim that the evidence of his THC level was inadmissible on this record, as a matter of law, because Treadstone failed to lay the foundation for its admission. Appellants argue that the proper standard of review of their point on appeal is de novo because they are arguing that, as a matter of law, the trial court could not allow the introduction of evidence concerning Secrist's THC levels without laying a proper foundation. In support of their argument, the Appellants cite two cases, Scott v. Blue Springs Ford Sales, Inc. and State ex rel. Missouri Highway and Transp. Comm'n v. Roth. See 215 S.W.3d 145, 173 (Mo.App.2007); 687 S.W.2d 662, 666 (Mo.App.1985). In Scott, this court stated that review of whether the foundation for an expert witness under section 490.065 ⁵ was properly laid is subject to de novo review. Appellants also cite as support our statement in Roth that we review de novo whether expert witnesses have based their opinions on facts that have no probative value whatsoever. Neither scenario is comparable to the situation before us. Appellant does not challenge the witnesses' qualifications to testify as to the medical records, which showed THC in Secrist's system following this accident; they challenge whether the fact Secrist had THC in his system, without more, is relevant to either of the issues of comparative fault or impeachment.

Appellants argue that the foundation for the marijuana evidence was not properly laid by Treadstone making it inadmissible as being incompetent. “[Incompetent] is constantly used loosely as equivalent to ‘inadmissible’ on any ground. This use should be avoided.” Black's Law Dictionary (9th ed.2009) (quoting John H. Wigmore, A Students' Textbook of the Law of Evidence 36 (1935)). The mere use of the word “incompetent” does not change our standard of review when the essential question is whether the evidence was sufficiently relevant to be admissible.

“The trial court is accorded considerable discretion in ruling on the admissibility of evidence, particularly where a subjective determination of relevancy must be made.” Rock v. McHenry, 115 S.W.3d 419 (Mo.App. W.D.2003) (citing Woodiel v. Barclay Enters., Inc., 858 S.W.2d 247, 252 (Mo.App. S.D.1993)).

The admission or exclusion of evidence rests in the sound discretion of the trial court, and the court's decision will be reversed only if it constitutes an abuse of discretion. Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991). “The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful deliberate consideration.” Id. We review for prejudice, not mere error, and will reverse only if the error was so prejudicial that the defendant was deprived of a fair trial. Elliott v. State, 215 S.W.3d 88, 93 (Mo. banc 2007).

Peters v. ContiGroup, 292 S.W.3d 380, 392 (Mo.App. W.D.2009). “Trial court error is not prejudicial unless there is a reasonable probability that the trial court's error affected the outcome of the trial.” Elliott, 215 S.W.3d at 93.

Analysis

Before we begin, there is disagreement between the parties as to what is properly before this Court. According to Appellants, the evidence of Secrist's THC blood levels was admitted for both the issue of comparative fault and as impeachment evidence. According to Treadstone, the “Appellants misconstrue the trial court's ruling. The evidence of marijuana was never admitted by the court as being relevant to [Secrist's] fault, but instead to his credibility.” A look at the trial transcript refutes Treadstone's position. Although at certain stages of the trial the trial court indicated that the evidence regarding Secrist's THC levels might only be admissible for impeachment, it is clear the court changed its position and explicitly allowed the evidence to come in for both impeachment purposes and for comparative fault. Appellant's counsel specifically asked, “But just so we're clear, you are going to allow him [defense counsel] to argue it [the THC evidence] as to fault?” The court responded, “I am.” The transcript is perplexing in that the trial court did offer multiple times to consider a limiting instruction for the use of the THC evidence, which was never offered by Appellants, but we do not understand what type of limiting instruction the court could have contemplated when it explicitly ruled that the evidence could be considered with respect to comparative fault as well as impeachment. Regardless, Appellants are correct that the trial court allowed this evidence in for both comparative fault purposes and for impeachment, and that Treadstone used the evidence to argue in closing that Secrist was partially at fault based on this evidence.

Comparative Fault

We will first address the admission of the evidence for the purposes of comparative fault. “To be admissible, evidence must be logically and legally relevant.” Claus v. Intrigue Hotels, LLC, 328 S.W.3d 777, 786 (Mo.App. W.D.2010) (quoting Eckerd v. Country Mut. Ins. Co., 289 S.W.3d 738, 743 (Mo.App. E.D.2009)).

Evidence is logically relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, or if it...