Titsworth v. Powell

• Decision Date: 15 August 1989
• Docket Number: No. 54735,54735
• Citation: 776 S.W.2d 416
• Parties: Lois TITSWORTH, Plaintiff-Appellant, v. Larry and Willimenue POWELL, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 416

776 S.W.2d 416

Lois TITSWORTH, Plaintiff-Appellant, v. Larry and Willimenue POWELL, Defendants-Respondents.

No. 54735.

Missouri Court of Appeals,

Eastern District,

Division Three.

Aug. 15, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Sept. 13, 1989.

Hullverson, Hullverson & Frank, James E. Hullverson, Jr., St. Louis, for plaintiff-appellant.

Thomas C. De Voto, Wuestling, James & De Voto, St. Louis, for defendants-respondents.

SIMON, Chief Judge.

Appellant, Lois Titsworth, appeals a jury verdict in favor of respondents, Larry and Willimenue Powell. Appellant, a tenant, sought recovery for injuries sustained in her fall on commonway basement steps in an apartment building owned by the Powells.

Appellant contends that the trial court erred in: (1) overruling appellant's objection that the respondent made an improper and erroneous final argument because the argument was an unfair comment on evidence which respondents caused the court to exclude in a series of objections from the deposition of appellant's expert architect; (2) overruling appellant's objection that the respondents, in their closing argument, materially and prejudicially changed the criteria submitted in the verdict directing instruction; (3) refusing appellant's tendered instruction A, because instruction A properly submitted the ultimate fact constituting wrongdoing, as opposed to evidentiary detail in the court's submitted Instruction No. 8; (4) submitting respondents' comparative fault Instruction No. 10 because it was not supported by a legal duty incumbent upon appellant, it was a vague roving commission, it was unsupported by the evidence, and it was unsupported by any fact or construction of logic; and (5) excluding evidence of the Land Reutilization Authority (LRA) contract which was relevant to show that the respondents were obliged to conform to BOCA code standards in order to further show that the steps were unreasonably dangerous. We affirm.

The record on appeal reveals the following evidence viewed in the light most favorable to the verdict, considering only that evidence which supports the verdict, and disregarding contrary evidence and inferences. Lane v. Cape Mutual Insurance Company, 674 S.W.2d 644, 645 (Mo.App.1984).

The involved steps are in the basement of a four family flat at 4321 Shreve in the City of St. Louis, Missouri. The respondents owned the building. They purchased it from the LRA in June of 1983. In connection with the purchase of the building, respondents executed an LRA contract which contained a code compliance requirement. However, the trial court excluded the contract from evidence, sustaining the respondents' objection on grounds that the contract was not pled, and was therefore outside the scope of the pleadings. The trial court also denied the appellant leave to amend her pleading because she failed to introduce evidence that she was a third party beneficiary of the LRA contract.

Appellant had pleaded common law negligence based on allegations of the steps' geometric defects, along with the claim that the steps violated the BOCA code, a national building code, which has been adopted by the City of St. Louis. The code stipulates maximum allowable steepness with regard to steps, but the code generally does not apply to structures such as the respondents' building which was built before the code was adopted. Hence, the court disallowed evidence of the code for the purpose of showing code violations. However, the court allowed the introduction of the code as some evidence of what is a standard of safety.

The basement steps are concrete. For a person descending the steps, there is a bare wall to the left and open space to the right. There is no handrail on either side of the steps. There are seven steps altogether, but only the top three steps are involved, since the fall occurred between the second and third steps. Evidence at trial showed that the steps were not uniform, were uneven, unlevel and had variation within each step. Appellant contended at trial that this defective condition of the steps was unreasonably dangerous, and that the steepness of the steps caused her to lose her balance, fall and sustain a fractured dislocation of her right ankle. Appellant admitted, however, that she had never complained to the respondents about any excessive steepness of the steps or the lack of a handrail.

Appellant's expert witness, an architect, Ms. Heidi Fichtenbaum, testified about her examination of the steps, and her assessment of their safety or danger. Fichtenbaum was unavailable at the trial; therefore, her deposition was read in lieu of live testimony. The court excluded several portions of Fichtenbaum's testimony pursuant to respondents' objection. According to respondents, the condition of the steps was a subject matter of which ordinary jurors were well aware; thus, the expert's conclusions would invade the province of the jury. Nevertheless, the court allowed portions of Fichtenbaum's testimony describing a "universal formula," which is an architectural standard of dimensions, recommended for comfortable stairway travel. However, her opinion that respondents' steps were unreasonably dangerous was stricken from the record.

Appellant was a 35 year old teacher, wife and mother. She was 5'4"' and weighed approximately 190 pounds the day she fell. Appellant testified that she normally used the steps about twice weekly, and that she had never had any difficulty using the steps prior to this particular incident.

The fall occurred on July 3, 1984, as appellant was descending the steps using both hands to carry a basket of laundry. Appellant testified that as she went down the steps she was able to see the steps, and there were no debris or oil spots on them, nor were they cracked. Appellant testified that she stepped normally, the way she routinely went up and down the steps, striding through them, not stopping and going. As she was descending the steps, between steps two and three, she alleges that she lost her balance. Appellant admitted that she does not recall actually seeing her foot come down on the step tread of the second step, nor does she recall feeling anything unusual about the way that her foot came down on the second step. According to her testimony, her right foot landed on the tread of the third step. She landed on the outside of her foot, turning the foot in and under her, and she immediately collapsed on the third step. As a result of the fall appellant sustained a fractured dislocation of the right ankle. This was reduced in an operation at Jewish Hospital.

Following her fall, appellant developed various health problems including an ailment in both feet known as tarsal tunnel syndrome, back pain, increased hypertension, and a weight gain of 70 pounds. Appellant attributes all of these complications to her fall and subsequent inactivity. Dr. Tyrus Winters, appellant's family physician, opined that appellant's ankle fracture and subsequent inactivity were the direct cause of her weight gain, which in turn, aggravated her hypertension. He stated that exercise must be incorporated as one of the features of any successful diet. Dr. Winters admitted, however, that the primary method of controlling weight is diet, that appellant has not watched her diet, and that if she had controlled her diet, despite inactivity, he would have expected to see some weight loss. Dr. Susella Samudralla, appellant's physical rehabilitation physician, stated in her deposition that appellant's back problems are probably due to multiple causes, including her fall, inactivity, obesity, impaired posture and impaired gait. The cause of appellant's medical problems was contested at trial, with appellant claiming that it was due to her inactivity induced by her injuries from the fall, and respondents contending that appellant's ailments were the result of her failure to control her diet.

Appellant's first point on appeal is that respondents' final argument was improper and erroneous in two respects: First, appellant objects to respondents' remark, "If you think about what Miss Fichtenbaum told you, she is telling you that this black staircase is the safest and most reasonable steps that can be built." Appellant contends that the court erred in overruling her objection to this remark because it improperly distorted and mischaracterized Fichtenbaum's testimony.

The black staircase exhibit was a drawing of stairs conforming to the BOCA code, with each step measuring exactly eight inches in height. Fichtenbaum testified that the code represented a maximum allowable steepness of eight inches and, "according to the universal formula, even that would create a fairly steep stair and we would prefer in professional practice to maintain a seven inch ... height...."

It is clear from this portion of Fichtenbaum's testimony that the black staircase drawing did not represent the ideal or safest step that can be built. Therefore, limited to this particular portion of Fichtenbaum's testimony, the inference that the drawing represented the safest step is erroneous. Yet, in closing argument, counsel is afforded wide latitude to suggest inferences from evidence and the trial court similarly has broad discretion to determine if a particular line of argument is proper. Norfolk and Western Railway Company v. Greening, 458 S.W.2d 268, 273[7-9] (Mo.1970). The trial court is in the best position to appraise the consequence of argument, and the appellate court may intervene only if it concludes that the trial court has abused that discretion. Carter v. Liberty Equipment Co., Inc., 611 S.W.2d 311, 315[5, 6] (Mo.App.1980).

Moreover, while respondents' inference appears erroneous with respect to that particular portion of Fichtenbaum's testimony, the same inference may be reasonable in light of a different portion of her testimony. Counsel may draw conclusions from the evidence on his own system of...