United Missouri Bank v. City of Grandview

• Decision Date: 06 December 2005
• Docket Number: No. WD 63955.,WD 63955.
• Citation: 179 S.W.3d 362
• Court: Missouri Supreme Court
• Parties: UNITED MISSOURI BANK, N.A. Conservator of the Estate of Dennis Gallagher, Appellant, v. CITY OF GRANDVIEW, MO., et al., Defendant, J & D Enterprises, Respondent.

Page 362

179 S.W.3d 362

UNITED MISSOURI BANK, N.A. Conservator of the Estate of Dennis Gallagher, Appellant, v. CITY OF GRANDVIEW, MO., et al., Defendant J & D Enterprises, Respondent.

No. WD 63955.

Missouri Court of Appeals, Western District.

December 6, 2005.

COPYRIGHT MATERIAL OMITTED

Ronald M. Sokol, Springfield, William G. Cownie, Co-Counsel, Lee's Summit, for Appellant.

Dana M. Harris, Kansas City, for Respondent.

Before: SMITH, C.J., LOWENSTEIN and ELLIS, JJ.

HAROLD L. LOWENSTEIN, Judge.

This appeal stems from a jury trial in which a shopping center owner was sued for negligent placement of a driveway exit where the appellant's ward was injured by an exiting motorist. This is the second appeal of this cause of action. The first appeal followed the grant of the respondent's motion for summary judgment. See this court's opinion in United Missouri Bank, N.A. v. City of Grandview, 105 S.W.3d 890 (Mo.App.2003).

As a preliminary matter, the respondent, J & D Enterprises (J & D), encourages this court to deny each of the appellant's points on appeal due to the appellant's sporadic use of transcript citations for many factual references. Despite deficiencies in the appellant's brief, this court will examine the points raised on appeal. State v. Westcott, 121 S.W.3d 543, 545 n. 2 (Mo.App.2003).

I. FACTS

The record viewed in light most favorable to the verdict and judgment reveals that on October 9, 1996, at approximately 5:28 p.m., in Grandview, Missouri, Dennis Gallagher was severely injured when Walter Klammer made a left turn from the Farm Shopping Center's (Farm Center) central exit into and across Blue Ridge Boulevard. Gallagher's motorcycle, which was traveling eastbound on Blue Ridge Boulevard, struck Klammer's car. The Farm Center is owned by J & D Enterprises. Gallagher, who was seventeen years old at the time of the accident, sustained, among other things, brain stem injuries, a broken leg, and permanent crossing of the eyes. He currently suffers from a seizure disorder and moves only with the assistance of a walker or wheelchair. Gallagher's grandparents currently care for him. The appellant, United Missouri Bank, N.A. (Appellant), acting as conservator of Gallagher's estate, originally brought suit against the City of Grandview (City) and J & D. Appellant settled with Klammer.

Appellant sued J & D in negligence, alleging that Gallagher's injuries resulted from the dangerous condition existing at the central entrance/exit (central exit)¹ located on J & D's property due to inadequate sight distance, in that drivers heading eastbound toward the central exit had no notice of an upcoming dangerous "intersection" and that J & D had actual and constructive notice of this dangerous condition. During the discovery phase of litigation, the trial court granted J & D's and the City's separate summary judgment motions, holding that the uncontroverted facts established that Klammer's actions were responsible for the accident and that no evidence established that the trees or fence contributed to Klammer's decision to enter the intersection. Appellant appealed to this court, which reversed the trial court and held that J & D failed to make a prima facie case for summary judgment on the issue of causation.

The City settled with Appellant before trial. This suit against J & D proceeded to trial in February of 2004. After a five-day trial, a unanimous jury found for the shopping center owner, J & D. Appellant raises five points of error. Additional facts relating to the points on appeal will follow the appropriate point.

II. ANALYSIS

A. LAY WITNESS TESTIMONY

Appellant first appeals the trial court's exclusion of the testimony of lay witnesses, all of whom worked in or shopped at the Farm Center, regarding their cautious use or lack of use of the central exit to make a left turn onto Blue Ridge Boulevard. Appellant's first point relied on states:

The trial court erred by ruling inadmissible as "lay opinion" the testimony of an employee, tenants and a patron of the Farm Shopping Center that they feared using the [central] exit from The Farm [Center] due to sight restrictions caused by the curve of Blue Ridge Boulevard and due to the speed of oncoming traffic, because (1) the testimony was admissible as "verbal shorthand" as evidence that ordinary people who were familiar with the [central] exit perceived a danger due to the stated factors and took precautions to avoid the danger, which is proper evidence of constructive notice of the danger that some form of injury was foreseeable in advance of the accident at issue, and (2) the evidence was admissible or curatively admissible as rebuttal of the testimony of the owner of The Farm [Center] that there is good sight distance from the [central] exit and that he had no notice of danger concerning the [central] exit and his whole staff used that exit "a lot."

However, without reference in the point relied on, Appellant seems to contend in the legal argument portion of its brief, that under Gates v. Sells Rest Home, Inc., 57 S.W.3d 391 (Mo.App.2001), the lay opinion testimony is admissible because such testimony is rationally based on the perceptions of the witnesses and is helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. But this theory of admissibility was not set out in Appellant's point relied on. "[A]n argument not set out in the point relied on but merely referred to in the argument portion of the brief does not comply with the requirements of Rule 84.04(d) and the point is considered abandoned in this [c]ourt." Brizendine v. Conrad, 71 S.W.3d 587, 593 (Mo. banc 2002). This court will proceed to Appellant's arguments that are set forth in its point relied on.

In the point, Appellant argues that the trial court abused its discretion when it excluded the lay witness testimony as "verbal shorthand" evidence that ordinary people who were familiar with this exit perceived a danger, which in turn, provides constructive notice to J & D. Appellant then argues, in the alternative, that the trial court abused its discretion when it did not admit such testimony to cure the testimony of William Dietrich, a partner of J & D, who stated that he made "well over a thousand" left turns from the central exit without any concern about the available sight distance.

At trial, Appellant sought to introduce the testimony of three lay witnesses: Susan Hollon, Natress Kelly, and Betty Tevis (hereinafter "lay witnesses"). Ms. Hollon not only was a tenant and employee of the Farm Center, but also was an eyewitness to the accident. Ms. Kelly worked for a business located at the Farm Center. Ms. Tevis was a patron of the Farm Center. To first demonstrate that the intersection is dangerous, and alternatively, to show that J & D had notice of a dangerous condition, Appellant wanted to elicit from each of these witnesses that she used the central exit only cautiously or did not use the central exit at all to make left turns on Blue Ridge Boulevard. The trial court ruled that such testimony constituted impermissible lay witness testimony.

Appellant called Dietrich as an adverse witness. While Appellant did not inquire as to Dietrich's use of the central exit, he was asked about his knowledge of other accidents. On cross examination, J & D's attorney asked without objection being made by Appellant, "[D]o you have judgment of how many times you had occasion to make left turns out of that [central] exit during the [eleven] years that you were there?" Dietrich answered, "I'd say it would be well over a thousand." J & D's counsel next asked, "Did you ever have any problems," to which Dietrich answered that he did not. J & D's counsel asked, "Did you personally ever have any concern about the available sight distance that you had when you were preparing to make any of those left-hand turns?" Dietrich replied that he did not.

Appellant later put the three lay witnesses on the stand. It began by asking Ms. Kelly whether she used the central exit. Ms. Kelly answered by stating, "I did go out the [central exit], but not if I didn't have to." J & D then objected to Appellant's question, claiming that it was a violation of the trial court's in limine order. The court sustained J & D's objection stating that "I didn't want [the lay witnesses] coming in and saying, ["]I don't use that intersection,["] because ... implicit in that statement [is] that there is something about the intersection that is a problem." Appellant then offered to prove all three of the lay witness' testimonies. Ms. Kelly testified as to her observations when exiting from the central exit. She stated that she saw a white picket fence and a tree.

Ms. Tevis next took the stand for an offer of proof. She testified that she saw a curve and fast-moving traffic when she looked to the left while at the central exit. Ms. Hollon testified as part of the offer of proof that she saw a curve, a fence, and part of the road. When Appellant asked her if she tried to turn left from the central exit, she answered no. J & D objected. Ms. Hollon was allowed to explain that she did not use the central exit because her business was on the east side of the Farm Center and, therefore, she had little occasion to use the central exit. Finally, Appellant offered to prove that each of the lay witnesses would testify that they would not use the central exit due to the fear caused by the curvature of Blue Ridge Boulevard and the speed of cars from its oncoming traffic.

Following the offers of proof, these three witnesses testified before the jury as to what each saw when she looked to the left while waiting to leave the Farm Center from the central exit. Ms. Kelly stated she could see a white picket fence, a tree, and oncoming traffic when she looked left from the central exit. When asked if she was familiar with the conditions to the left of the central exit, Ms. Tevis stated that "I tried to...