Stevens v. Kliethermes

• Decision Date: 18 June 1991
• Docket Number: No. WD,WD
• Parties: Ardys Rose STEVENS and R.E. Stevens, Appellants, v. Darrell J. KLIETHERMES, One Way Pizza, Inc. and Domino's Pizza, Inc., Respondents. 43323.
• Court: Missouri Court of Appeals

Page 447

811 S.W.2d 447

Ardys Rose STEVENS and R.E. Stevens, Appellants, v. Darrell J. KLIETHERMES, One Way Pizza, Inc. and Domino's

Pizza, Inc., Respondents.

No. WD 43323.

Missouri Court of Appeals,

Western District.

June 18, 1991.

Erwin L. Milne, Beverly J. Figg, Stockard, Andereck, Hauck, Sharp and Evans, Jefferson City, for Ardys Rose Stevens and R.E. Stevens.

Michael A. Dallmeyer, J. Michael Ponder, Hendren and Andrae, Jefferson City, for Kliethermes and One Way Pizza, Inc.

James W. Gallaher, Carson & Coil, Jefferson City, for Domino's Pizza, Inc.

Before TURNAGE, P.J., and LOWENSTEIN and BRECKENRIDGE, JJ.

TURNAGE, Presiding Judge.

Ardys Stevens and her husband filed suit against Darrell Kliethermes and his employer, One Way Pizza, and Domino's Pizza ¹ for injuries sustained by Ardys in a collision between a truck driven by Kliethermes and her car. The jury returned a verdict in the amount of $60,000 in favor of Ardys and assessed fault against Ardys of 83%, and 17% against Kliethermes. ² Judgment was entered against One Way and Kliethermes for $10,200. Ardys contends there was no substantial evidence to support the giving of the comparative fault instruction against her and complains of the apportionment of fault. Reversed and remanded.

Ardys was driving northbound on Highway 54 in Jefferson City about 5:15 p.m. on November 10, 1986. It was dark and raining. Ardys testified that there was no traffic immediately ahead of her but there was heavy traffic going southbound. The highway had two lanes for northbound traffic and two lanes for southbound traffic separated by a median. The median had a curb of about six inches in height and the space between the highways was about four feet.

Ardys testified that headlights of an approaching car, later identified as the Kliethermes truck, appeared to be coming across the median and did cross the median and shoot across the highway. She was traveling in her right lane when Kliethermes shot across the highway. She testified that he was coming at her in her right lane and she changed to the left lane. She said he then headed for the left lane and she was going to change back to the right lane when he struck her. Kliethermes testified the damage to Ardys' car was in the front and on the passenger side.

Ardys stated that she was traveling 35 to 40 miles per hour when the headlights came across the median into her lane of traffic. She changed lanes to the left lane, applied her brakes, moved her seat back by the electronic control, and slowed to about 20 to 30 miles per hour at the time of impact. After striking Ardys' car the truck driven by Kliethermes went across the right lane and right shoulder and struck a highway sign. The truck came to rest upside down in a ditch. Ardys stated it was a matter of seconds from the time Kliethermes started across the median until the impact. Both the car and truck were damaged beyond repair.

Kliethermes testified that he was driving his father's pick-up which was in fair mechanical condition but did have worn tires and two tires had broken belts. He said he was traveling southbound at a speed between 45 and 55 miles per hour to deliver a pizza for One Way when he attempted to pass a car and the rear end of his truck began fish-tailing and he lost control. The truck crossed the median with Kliethermes unable to control its movement. He said the truck may have skidded around before he struck Ardys. He failed to say what portion of the northbound lanes his truck occupied prior to the impact. Kliethermes said the truck came to rest against a highway sign on the east side of the highway after the collision. He had no idea as to the length of time from the time he crossed the median until the impact.

Richard Martin was driving two to three car lengths behind Ardys when he saw a truck swerve in the southbound lanes, hit the curb and become airborne. The truck thereafter struck Ardys' car. Martin was traveling in his right lane and he stated Ardys was in the left lane at the time of the impact. He stated he did not see Ardys change lanes. He said the truck flipped across the highway after the impact and came to rest against a highway sign. Martin said the entire accident "happened so fast, it was just one, two, three."

There was no evidence of the distance from Kliethermes' truck to Ardys' car at the time he became airborne and crossed over into the northbound lanes. No witness was asked about any distances.

Ardys contends there was no evidence to support the instruction submitting her fault to the jury. In reviewing this claim this court must view the evidence in the light most favorable to submission of the instruction. Kim v. Conway & Forty, Inc., 772 S.W.2d 723, 727[3, 4] (Mo.App.1989). The court submitted comparative fault on the part of Ardys by Instruction No. 12 which read as follows:

INSTRUCTION NO. 12

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

First, plaintiff knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have swerved to the right shoulder, or remain in the right hand lane, but plaintiff failed to do so, and

Second, plaintiff Ardys Stevens was thereby negligent, and

Third, such negligence of plaintiff Ardys Stevens directly caused or directly contributed to cause any damage plaintiff may have sustained.

MAI 37.02, 17.04 modified

Offered by Defendant Darrell Kliethermes and Defendant One Way Pizza, Inc.

This instruction submitted negligence on the part of Ardys in the disjunctive, that is she could have swerved to the right shoulder or remained in the right lane. A verdict directing instruction which submits two or more assignments of negligence in the disjunctive must be supported by evidence as to each assignment. Bushong v. Marathon Elec. Mfg. Corp., 719 S.W.2d 828, 831[1, 2] (Mo.App.1986). Kliethermes contends the evidence shows Ardys had time to get out of the right lane because she in fact did change from the right lane to the left. However, the question is not whether Ardys had time to change lanes but under the instruction the question is whether there is evidence to support a finding that Ardys was negligent in failing to remain in the right lane.

The only evidence as to the location of the truck as it traveled down the northbound lanes came from Ardys. She said the truck was coming at her in her right lane and she left that lane to get out of the way. She thereafter saw the truck coming toward her in the left lane and she was struck. Kliethermes did not state which of the northbound lanes he occupied but stated he may have skidded around prior to the impact. Thus, the only evidence is that the truck was in the northbound right lane and Ardys changed lanes in an attempt to avoid the collision. She testified that only a few seconds elapsed from the time the truck started across the median until the impact. There was no evidence of the speed of the truck as it traveled in the northbound lane. That evidence does not support an instruction that Ardys directly caused or contributed to cause the accident by remaining in the right lane. The fact that the impact occurred in the left lane does not support a submission that Ardys could have stayed in the right lane in the face of her testimony that the truck was coming at her in the right lane and she changed lanes to avoid the truck. It would require pure speculation for the jury to conclude under all the evidence that Ardys could have stayed in the right lane and thereby avoided the accident.

In the face of the evidence that Kliethermes was approaching Ardys in the right lane and that she changed to the left in an attempt to avoid him, the instruction submitting contributory fault on the part of Ardys for moving out of the right lane was not supported by the evidence. ³ It is error to give an instruction when there is no evidence to support it. Titsworth v. Powell, 776 S.W.2d 416, 423 (Mo.App.1989). There can be no question about the prejudicial effect of this instruction because it allowed the jury to assess a percentage of fault against Ardys.

It is not necessary to explore whether there is evidence to support the submission that Ardys could have swerved to the shoulder because there was no evidence to support the submission discussed.

It is impossible to determine from this record if sufficient evidence is available to support the giving of a comparative fault instruction as against Ardys. In that situation a remand will be ordered. Moss v. National Super Markets, Inc., 781 S.W.2d 784, 786 (Mo. banc 1989).

Although Ardys does not contend that a verdict of $60,000 for her injuries is insufficient, she does contend that the amount she would receive with apportionment of 83% of fault against her would be inadequate. She therefore complains about the percentages of fault found by the jury. Under comparative fault the jury is given the responsibility of assessing the relative fault of the parties. ⁴ Kramer v. Chase Resorts, Inc., 777 S.W.2d 647, 651[1-3] (Mo.App.1989). This court cannot weigh the evidence to determine whether the jury properly assessed the percentages of fault. ⁵ However, because of the error in giving Instruction No. 12, the judgment must be reversed, and as noted the cause will be remanded.

Because Ardys does not complain about the $60,000 in damages found by the jury there is no error in the verdict as to the amount of damages. In that posture of the case, the remand will be for a retrial on the issue of comparative fault only. Brooks v. Bi-State Development Agency, 787 S.W.2d 713, 715 (Mo. banc 1990) (no need to retry issue as to which no claim of error is made).

The judgment on Ardys' claim awarding her the sum of $10,200 is reversed and the court is directed to hold the jury verdict assessing damages in the amount...