Walton v. City of Seneca, SD 32205.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtDON E. BURRELL
Citation420 S.W.3d 640
PartiesSusan H. WALTON, Plaintiff–Appellant, v. CITY OF SENECA, Defendant–Respondent.
Docket NumberNo. SD 32205.,SD 32205.
Decision Date24 December 2013


Patrick Martucci, Joplin, MO, for Appellant.

William J. Lasley, Carthage, MO, for Respondent.


Susan H. Walton (Plaintiff) appeals the judgment entered in accordance with a jury verdict in favor of City of Seneca (City) on Plaintiffs personal injury suit for damages she alleged she suffered when she stepped into a City “water meter hole” that was located in a restaurant parking lot. Plaintiff claimed the “hole,” a water meter vault, was City's property and that it constituted a dangerous condition, thereby qualifying as a statutory exception to the general rule that all money damages claims against municipalities are barred by sovereign immunity.

In two points, Plaintiff alleges the trial court erred by giving the jury an affirmative converse instruction (“the affirmative converse instruction”) that misstated the law. Her first point asserts the affirmative converse instruction erroneously defined ‘property’ as “property over which [City] had ‘exclusive control, possession, authority and the ability to oversee, monitor and to exclude unauthorized persons' “because under the sovereign immunity waiver statute[,] [section] 53[7].600.1(2)[,] ‘property’ belongs to a public entity if the public entity ‘actually owned’ or ‘exercised possession and control rising to the level of an ownership interest’ over the property [.] 1 Point II claims the converse instruction “did not submit an issue that, even if true, would defeat [Plaintiff's] claim since Plaintiff's verdict directors identified the dangerous condition as a ‘water meter hole’ and the converse instruction referred to a ‘water meter lid[.] Plaintiff acknowledges that we may only review her second claim for plain error as the claim “was not raised at the instruction conference.”

Because we agree that the affirmative converse instruction misdirected the jury and there is a substantial indication that it resulted in prejudice to Plaintiff, we must reverse the judgment and remand the case for a new trial. 2

Applicable Principles of Review and Governing Law

“Whether a jury is properly instructed is a matter of law subject to de novo review.” Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 90 (Mo. banc 2010).

Use of the Missouri Approved Instructions is mandatory in any case where the instructions are applicable. Rule 70.02(b). But Rule 70.02 acknowledges that the MAI do not cover every individual case and, accordingly, allows for modification of the approved instructions or use of non-approved instructions. SeeRule 70.02(b). Where an MAI must be modified or a non-MAI must be used to fairly submit the issues in a particular case, the modifications or the instruction “shall be simple, brief, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.” Id.; see also Lindquist v. Scott Radiological Group, Inc., 168 S.W.3d 635, 652 (Mo.App. E.D.2005). The test for a non-MAI instruction is whether it follows the applicable substantive law and can be readily understood by the jury.

Doe v. McFarlane, 207 S.W.3d 52, 74–75 (Mo.App. E.D.2006).

Sovereign immunity for [i]njuries caused by the condition of a public entity's property” is “expressly waived” in section 537.600.1(2) when four conditions are established: 1) “the property was in dangerous condition at the time of the injury”; 2) “the injury directly resulted from the dangerous condition”; 3) “the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred”; and 4) “either a negligent ... act ... of an employee of the public entity ... created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” See also State ex rel. Div. of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 615 (Mo. banc 2002). Before reaching these elements, however, a plaintiff must first establish that “at the time of the alleged injury, the public entity actually owned the property or had exclusive possession and control over the property which rose to the level of an ownership interest.” Spielvogel v. City of Kansas City, 302 S.W.3d 108, 112 (Mo.App. W.D.2009).

‘When reviewing claimed instructional error, we view the evidence most favorably to the instruction, disregard contrary evidence, and reverse where the party challenging the instruction shows that the instruction misdirected, misled, or confused the jury,’ and there is a substantial indication of prejudice.” Twin Chimneys Homeowners Ass'n v. J.E. Jones Constr. Co., 168 S.W.3d 488, 498 (Mo.App. E.D.2005) (quoting Moore ex rel. Moore v. Bi–State Dev. Agency, 87 S.W.3d 279, 293 (Mo.App. E.D.2002)). “Instructional errors are reversed only if the error resulted in prejudice that materially affects the merits of the action.” Klotz v. St. Anthony's Med. Ctr., 311 S.W.3d 752, 766 (Mo. banc 2010). In contrast to that standard, when “determin[ing] if a submissible case was made by [a] plaintiff, this Court ‘must view the evidence and inferences therefrom in a light most favorable to the plaintiff[ ] and disregard all contrary evidence.’ Hiers v. Lemley, 834 S.W.2d 729, 732 (Mo. banc 1992) (quoting Community Title Co. v. Roosevelt Fed. Sav. & Loan Ass'n, 796 S.W.2d 369, 371 (Mo. banc 1990)). We will be viewing the evidence through each of these contrasting lenses as we address the respective arguments asserted by Plaintiff and City.

Facts and Procedural Background 3

We begin with a summary of the evidence most favorable to the submission of the affirmative converse instruction. See Twin Chimneys, 168 S.W.3d at 498. On the evening of January 29, 2009, Plaintiff suffered a [l]ateral tibial plateau fracture”—a break at the lower portion of the knee—while walking from her vehicle to “Barney's Kitchen,” a restaurant in Seneca (“the restaurant”). No one witnessed Plaintiff's fall, but her husband was with her, and as he was locking the doors to their vehicle, he heard his wife “scream.” He went “around the front of the vehicle, and there she was on the ground.”

The following day, the then-Director of Public Works, Doyle Shields, 4 and Clarence Brodie, then the Superintendent of Public Works, “went down to [the restaurant] and [they] looked the meter over[.] Mr. Brodie agreed that the water meter vault “was in an unusual location, next to a sidewalk where vehicles park and the public walks[.]

After talking with the restaurant owner, Mike Bailey, City “put one of them [sic] parking block things ... in front of the meter.” Mr. Shields could not have put a parking block there before Plaintiff fell because City did not “own that property.” Mr. Bailey also “agree[d] that a restaurant owner ought to be responsible for inspections around the walkways[.] Mr. Bailey said that sometime after the accident, he put an orange sawhorse over the meter lid and he did not ask City's permission to put it there because, as the lessee of the property, he thought he had the right to do it.

Mr. Brodie testified that after the event in question, the water meter lid was “changed out” at the request of his department, but his understanding was that the actual request had come from the restaurant owner. City's records indicated that the restaurant's meter was last read before the accident on January 8 or 9 and that there was no “re-reading” of that meter in January.

Plaintiff submitted alternative verdict directors, Instruction No. 7 and Instruction No. 8. Instruction No. 7 read:

Your verdict must be for [P]laintiff if you believe:

First, the water meter hole in the parking lot at [the restaurant] did not have a heavy duty lid, and as a result the water meter hole was not reasonably safe, and

Second, [City] knew or by using ordinary care could have known of this condition in time to remedy, barricade or warn of such condition, and

Third, [City] failed to use ordinary care to remedy, barricade or warn of such condition, and

Fourth, such failure directly caused or directly contributed to cause damage to [P]laintiff.

[U]nless you believe [Plaintiff] is not entitled to recover by reason of [the affirmative converse instruction].

(Italicized text represents handwritten text.)

Instruction No. 8 stated:

Your verdict must be for [P]laintiff if you believe:

First, the water meter hole was not properly covered, and as a result the water meter hole was not reasonably safe, and

Second, such condition was created by an employee of [City] within the course and scope of employment, and

Third, the employee was thereby negligent, and

Fourth, such negligence directly caused or directly contributed to cause damage to [P]laintiff.

[U]nless you believe [Plaintiff] is not entitled to recover by reason of [the affirmative converse instruction].

(Italicized text represents handwritten text.)

The following record was made on the affirmative converse instruction.

[The Trial Court]: Okay. Then [the affirmative converse instruction], that was submitted by [City]. And we took out the last three words after “unauthorized persons,” after being submitted to the jury that [City] had asked “at all times,” and we crossed that out.[ 5]

[Counsel for Plaintiff]: Yeah. Your Honor—

[The Trial Court]: Do you want to argue that, or what?

[Counsel for Plaintiff]: Yeah. [Plaintiff] does object to the giving of [the affirmative converse instruction] at all as incorporated by reference with our trial brief on the same issue.[ 6] The concession of “at all times” was to try and make it less misleading or offensive, but we still preserve our objection to it being...

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