Wilkerson v. Williams

• Decision Date: 31 August 2004
• Docket Number: No. 25762.,25762.
• Parties: Terry W. WILKERSON, Sr. and Rose Wilkerson, Plaintiffs-Appellants, v. Melvin F. WILLIAMS, Defendant-Respondent.
• Court: Missouri Court of Appeals

141 S.W.3d 530

Terry W. WILKERSON, Sr. and Rose Wilkerson, Plaintiffs-Appellants, v. Melvin F. WILLIAMS, Defendant-Respondent.

No. 25762.

Missouri Court of Appeals, Southern District, Division Two.

August 31, 2004.

Appeal from the Circuit Court, Webster County, John W. Sims, J Steven Privette, Kelly Michael Bosserman, Willow Springs, for appellants.

Paul F. Sherman, Springfield, for respondent.

JEFFREY W. BATES, Judge.

Terry Wilkerson, Sr. and Rose Wilkerson (referred to collectively as "the Wilkersons" and individually as "Terry" and "Rose") sued Melvin Williams ("Williams") to recover damages for Terry's personal injuries and Rose's loss of consortium after Terry was injured in an automobile collision involving Williams. At the close of all the evidence, the trial court granted a partial directed verdict against the Wilkersons on their theory that Williams was negligent for failing to keep a careful lookout. The jury returned a verdict apportioning no fault to Williams and finding Terry 100% at fault. The trial court entered judgment pursuant to the verdict, and this appeal followed.

The Wilkersons ask us to reverse the judgment, arguing that the trial court's decision to grant the partial directed verdict prevented them from submitting careful lookout as one of the specifications of negligence included in their verdict-directing instruction. We conclude that, even if the trial court erred in this respect, the error was harmless because the Wilkersons failed to make a submissible case on causation. The judgment must be modified, however, to correct a clerical error concerning the name of the actual party-defendant in the case. See Rule 84.14.¹ The judgment, as modified, is affirmed.

I. Standard of Review

When ruling upon the propriety of a trial court's action in sustaining a motion for directed verdict, we consider the evidence and all permissible inferences therefrom in a light most favorable to the plaintiff and disregard all contrary evidence and inferences to determine whether plaintiff made a submissible case. Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698, 700 (Mo.1969); Friend v. Holman, 888 S.W.2d 369, 371 (Mo.App.1994). Our summary of the evidence presented at trial which is set forth below, has been prepared in accordance with these principles.

II. Statement of Facts and Procedural History

This lawsuit arose out of an automobile collision that occurred on February 10, 1999, in Mansfield, Missouri. At approximately 7:40 a.m., Williams was driving his pickup truck on Business 60. At this location, the road had two lanes and was 24-feet wide. The speed limit on the road was 40 miles per hour. Williams was traveling west at a speed of 20-25 miles per hour. The weather was cloudy, but the concrete pavement was dry. Williams had topped a hill some distance back and was on a slight downhill grade. He was being followed by two other motorists, who also were heading west on Business 60. The first pickup truck behind Williams was driven by Alan Morris ("Morris"). His wife and child were passengers in the truck. Morris' vehicle was approximately five to seven car lengths behind Williams' truck. The second pickup truck behind Williams was driven by Terry. He was hauling a 250-pound four-wheel all terrain vehicle in the bed of his truck. Terry was traveling 30 to 35 miles per hour, and his vehicle was four to five car lengths behind Morris' truck.

Williams slowed down and then stopped suddenly to avoid hitting an animal on the road. Morris applied his brakes hard and brought his truck to a complete stop about one to two feet behind Williams' vehicle. Morris looked in his rearview mirror and realized his vehicle was going to be hit by Terry's truck. Morris told his wife to hang onto something because he was too close to Williams' truck to move right or left.

When Terry saw Morris' brake lights activate, Terry applied his brakes and swerved to the right, but he was unable to avoid colliding with Morris' truck. The left front of Terry's truck struck the right rear of Morris' truck. His vehicle was propelled forward by the impact and struck Williams' truck.

After the collision, a Mansfield police officer investigated the incident. The vehicles driven by Williams and Morris left no skid marks on the road. The vehicle driven by Terry left 42 feet of skid marks on the left side and 37 feet of skid marks on the right side. All of these skid marks were in the right-hand lane in which Terry had been driving.

On June 20, 2000, the Wilkersons filed their lawsuit against Williams in the Circuit Court of Wright County, Missouri. The petition alleged that Williams negligently operated his vehicle by failing to keep a careful lookout and by suddenly and unexpectedly stopping his vehicle in the road without giving an adequate and timely warning. Williams' answer asserted Terry's comparative fault as an affirmative defense. Thereafter, a motion for a change of venue was sustained, and the case was transferred to Webster County, Missouri.

Williams died on May 25, 2001. On July 6, 2001, his attorneys filed a suggestion of death with the trial court. On August 24, 2001, the trial court entered an order appointing Donna Hannah, the Webster County Public Administrator, as a defendant ad litem (hereinafter, "DAL") for Williams and substituting her as the party-defendant in the lawsuit.

The case was tried on July 15-16, 2003. At the close of all the evidence, the DAL filed a motion for directed verdict pursuant to Rule 72.01. The motion alleged, inter alia, that: (1) the Wilkersons failed to offer evidence tending to prove negligence by Williams which proximately caused their alleged injuries and damages; (2) as a matter of law, the evidence showed that plaintiffs' damages were caused by Terry's negligence; and (3) the Wilkersons failed to make a submissible case against Williams for failing to keep a careful lookout and for stopping without giving an adequate warning.²

The trial court sustained the motion in part by directing a verdict against the Wilkersons on their careful lookout theory of recovery. The basis for the trial court's ruling was that Williams was under no legal duty to keep a careful lookout for vehicles following behind him on the road before slowing or stopping. Because of that ruling, the Wilkersons' verdict-directing instruction hypothesized only one act of negligence by Williams: that he "suddenly stopped his automobile on the highway without first giving an adequate and timely waning [sic] of his intention to stop...." The DAL's verdict-directing instruction submitted Terry's comparative fault by hypothesizing that he failed to keep a careful lookout and that his truck came into collision with the rear of Morris' truck. The jury returned a verdict assessing 0% fault to Williams and 100% fault to Terry. The trial court entered a judgment against the Wilkersons pursuant to the verdict, and they appealed.

III. Discussion and Decision

In the Wilkersons' single point relied on, they challenge the trial court's decision that Williams had no legal duty under Missouri law to keep a careful lookout for following traffic before slowing or stopping. Because the trial court granted a partial directed verdict on this ground, the Wilkersons argue they were improperly precluded from submitting Williams' failure to keep a careful lookout as one of the specifications of negligence in their verdict-directing instruction. We find it unnecessary to reach the issue of whether such a legal duty exists to decide this appeal.

In order for a plaintiff to make a submissible case, each and every element essential to establish a defendant's liability must be supported by substantial evidence. Mathis v. Jones Store Co., 952 S.W.2d 360, 366 (Mo.App.1997). If one or more of the elements of a cause of action are not supported by substantial evidence, a directed verdict is proper. Crane v. Drake, 961 S.W.2d 897, 900 (Mo.App.1998). To prove the claim of negligence against Williams, the Wilkersons had to establish the existence of a duty, breach of that duty and damages proximately caused by that breach. Mirth v. Regional Bldg. Inspection Co., 93 S.W.3d 787, 790 (Mo.App. 2002); Parra v. Building Erection Services, 982 S.W.2d 278, 282 (Mo.App.1998). The DAL argues the Wilkersons failed to make a submissible case on causation. We agree. See Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240 (1955); King v. Ellis, 359 S.W.2d 685 (Mo.1962); Butcher v. Main, 371 S.W.2d 203 (Mo.1963).

In Branstetter, the plaintiff was riding in a Chrysler driven by Kunzler. Beghtol was driving an Austin and was directly behind the Chrysler in a line of traffic. Branstetter, 274 S.W.2d at 241. A Dodge slowed down in front of Kunzler. He applied his brakes and brought the Chrysler to a stop without hitting the Dodge. When Beghtol saw the brake lights on the Chrysler illuminate, he applied the brakes and brought his Austin to a complete stop about two inches behind the Chrysler. Id. at 243-44. Thus, both Kunzler and Beghtol were able to stop without hitting the vehicles in front of them. After Beghtol had been stopped about two seconds, his car was hit from behind by a Nash driven by Gerdeman. The Austin was knocked forward and struck the Chrysler, resulting in the plaintiff's injuries. Id. at 244. We note that, in the case at bar, Williams occupies the same position as Kunzler, and Terry occupies the same position as Gerdeman.

All three drivers were sued by plaintiff. She settled with Gerdeman before trial. Plaintiff alleged that Kunzler and Beghtol were negligent for suddenly stopping their vehicles without warning operators to the rear of their intention to slow or stop. Id. at 242. The trial court sustained Beghtol's motion for directed verdict at the close of all the evidence. Kunzler's similar motion was overruled, and the jury returned a verdict in his favor. The trial court sustained plaintiff's motion for new trial. Kunzler...