Smotherman v. Cass Reg'l Med. Ctr.

• Decision Date: 10 November 2015
• Docket Number: WD78111
• Parties: KRISTINE SMOTHERMAN, Appellant, v. CASS REGIONAL MEDICAL CENTER, Respondent.
• Court: Missouri Court of Appeals

KRISTINE SMOTHERMAN, Appellant, v. CASS REGIONAL MEDICAL CENTER, Respondent.

WD78111

MISSOURI COURT OF APPEALS WESTERN DISTRICT

November 10, 2015

Appeal from the Circuit Court of Cass County, Missouri

The Honorable William B. Collins, Judge

Before Division Three: Joseph M. Ellis, Presiding Judge, and Karen King Mitchell and Gary D. Witt, Judges

Kristine Smotherman appeals a verdict in favor of Defendant, Cass Regional Medical Center. Smotherman alleged that she slipped and fell while on the Medical Center's property and was injured due to the Medical Center's negligence.¹ Smotherman argues that the trial court should have granted a new trial due to juror misconduct. We reverse and remand.

Facts

Smotherman was at the Medical Center for a follow-up visit with her doctor six weeks after having knee surgery. Following her appointment, Smotherman approached a nurses' station and asked where the closest restroom was. One of the nurses escorted Smotherman to the nearest restroom, which they discovered was dark because the Medical Center was operating at the time on emergency generators that did not supply power to every room. The nurse then led Smotherman to another, smaller, restroom that was lit.

Smotherman testified that, as she was about to stand up after using the toilet, the lights went out. She then testified that, as she was getting up, her "feet just went completely out from underneath" her. She testified that it was "just - like [she] was on rollerskates." Smotherman slipped and fell, hitting her head, back, and arm. A nurse found Smotherman on the floor and took her to the emergency room. Smotherman testified that, while in the emergency room, she heard a nurse or doctor state that "she slipped and fell in the hall bathroom on soap." On cross-examination, Smotherman admitted that she did not look to see what she had slipped on, and did not recall seeing anything on the restroom floor or any stains, other than blood, on her clothing. Smotherman received injuries from the accident and experienced severe complications due to an infection caused by a type of bacteria that entered Smotherman's arm through a cut she received in the fall.

Smotherman's theory at trial was that the soap dispenser next to the sink in the small restroom had been leaking soap, as evidenced by a strip of rust on the heating element directly below the dispenser and the sink. Smotherman argued that, because a person entering the restroom had to pass very close to the sink due to the location of the door, soap on the floorcould have made its way onto Smotherman's shoes as she entered the restroom or found its way to the floor by the toilet, causing the floor to be slick.

In its closing argument, the Medical Center focused on Smotherman's credibility, noting her evolving story and multiple criminal convictions, as well as the lack of direct evidence of soap on the floor. The Medical Center argued that the rust on the heating element was more likely from people dripping water when they reached for the soap dispenser with wet hands, and discussed:

the improbability that a person with sneakers that she had on, Nike tennis shoes, I believe, with rubber soles, both of them were such that both her feet slipped out from under her as she tried to stand up. Her feet slid out, she hit her back, she came up and hit her head, then she hit a register and then she ended up in a sitting position. That doesn't make much sense either.

The Medial Center argued that it was more likely that Smotherman simply fell, due to problems with her knee: "We know she has had falls, we know she had a bad knee that she just had surgery on, we know she's had that problem since she was 12 she said. We know she has had several falls before this, a couple that caused her to fall and hit her eye."

The Medical Center also noted that, during a visit with a doctor roughly a week after the fall, Smotherman told the treating physician that "she stumbled and maybe slipped on some water or something on the floor and fell." The following day, however, while visiting a second physician, Smotherman reported "that she slipped on some soap on the floor." The Medical Center argued to the jury:

Before this lawsuit happened, [Smotherman] went to see a doctor, and the doctor states, this is Dr. Hafer, Exhibit 108, you see that the patient states she stumbled, maybe slipped on something, some water or something on the floor and fell. The next day, the exhibits they talked about, Dr. Queenan states, [w]ell, the patient states she slipped on some soap on the floor. What is her evidence of soap on the floor?

At the close of evidence, the court instructed the jury that, to find the Medical Center liable, it must find that "there was soap on the bathroom floor, and as a result [the Medical Center's] bathroom was not reasonably safe." The court also gave the jury MAI 2.01(8), which prohibits juror communication or research. The jury returned with a verdict assessing zero percent fault against the Medical Center, with eleven jurors joining the verdict.

Following trial, two jurors agreed to speak with Smotherman's counsel about the trial. When asked what led to their verdict, the first juror indicated that she "didn't feel like you could prove more likely than not that there was soap on the floor in the bathroom." The second juror noted that the rust on the heating element "could have happened at any time, that hospital had been there since 1963." The second juror then offered that he had "checked the weather forecast for th[e] day [of the accident] and the forecast was for eight to ten inches of snow."

Smotherman moved for a new trial, alleging juror misconduct, based on the juror's gathering of extraneous information. Nine jurors, eight of whom signed the verdict, testified at the post-trial hearing on Smotherman's motion. Five of the jurors, including the juror who had not signed the verdict, testified that they did not remember hearing anyone mention the weather during deliberations. The others testified that they recalled a juror mention that the forecast had been for snow on the date in question, and that the comment was made once with no further discussion. The Medical Center offered affidavits of the remaining three jurors, who all testified that they did not hear the comment. All of the jurors testified that the weather, and extraneous evidence based on the weather, did not have any effect on their determination.

Following the hearing, the trial court determined that a juror had engaged in misconduct by looking up the weather forecast for the day of the accident and relaying the information to the jury. The court afforded no weight to the offending juror's testimony that the extraneousevidence was not a factor in his decision. The trial court found credible the other jurors' testimony that they had either not heard, or paid no attention to, the extraneous evidence. The court overruled the motion for new trial, holding that "[e]ven if the court were to disregard the offending juror's vote, the verdict would still be supported by ten qualified jurors, who diligently executed their civil duty." Smotherman timely appealed.

Standard of Review

"A motion for new trial, based on a juror's acquisition of extraneous evidence, is left to the sound discretion of the trial court." Travis v. Stone, 66 S.W.3d 1, 3 (Mo. banc 2002). "The appellate court may reverse the lower court's denial of a new trial if it appears that the trial court abused its discretion in ruling on the issue of extraneous evidence or the issue of prejudice." Id. "However, once it is established that a juror has gathered evidence extraneous to the trial, prejudice will ordinarily be presumed, and the burden is on the respondent in such a case to overcome the presumption of prejudice." Id. "'Where the trial court has refused to grant a new trial on account of alleged misconduct, the revi[ew by] the appellate court will be exercised more freely than where a new trial has been granted.'" McBride v. Farley, 154 S.W.3d 404, 411 (Mo. App. S.D. 2004) (quoting Fitzpatrick v. St. Louis-San Francisco Ry. Co., 327 S.W.2d 801, 808 (Mo. 1959)).

Analysis

Generally, "Missouri recognizes the Mansfield Rule;² i.e., jurors may not impeach their verdict, violate secrets of the jury room, tell of partiality or misconduct that occurred there, or speak to motives that induced or operated to produce the verdict." Matlock v. St. John's Clinic,Inc., 368 S.W.3d 269, 271 (Mo. App. S.D. 2012). But the "Missouri Supreme Court has recognized two exceptions—jurors can testify about: 1. Ethnic or religious bias or prejudice expressed during deliberations[; or] 2. That a juror independently gathered evidence outside the courtroom." Id. The second exception applies here.

"[O]nce it is established that a juror has gathered evidence extraneous to the trial, prejudice will ordinarily be presumed, and the burden is on the respondent in such a case to overcome the presumption of prejudice." Travis, 66 S.W.3d at 3. "In determining whether prejudice resulted from alleged juror misconduct due to a juror's obtaining extraneous evidence, an important factor is the materiality of the evidence." State v. Stephens, 88 S.W.3d 876, 883 (Mo. App. W.D. 2002). "Immaterial evidence is not prejudicial." Id. "To be 'material,' evidence must '[h]av[e] some logical connection with the consequential facts.'" Id. at 883-84 (quoting BLACK'S LAW DICTIONARY 991 (7th ed. 1999)).

The Medical Center argues that several factors show that either the extrinsic evidence was immaterial, or the presumption of prejudice is rebutted. The Medical Center argues that: (1) the potential for snowfall outside of the building had no relevance to what it claims was the central issue to the case—i.e., whether there was soap on the floor of the interior bathroom; (2) all of the jurors that testified³ indicated that either they did not hear the extraneous evidence or it was mentioned once, but it had no effect on their...