Wilson v. Kaufmann

• Court: Missouri Court of Appeals
• Writing for the Court: STEPHAN; PUDLOWSKI, P.J., and CRIST
• Citation: Wilson v. Kaufmann, 847 S.W.2d 840 (Mo. App. 1992)
• Decision Date: 22 December 1992
• Docket Number: No. 60363,60363
• Parties: Michael WILSON, Respondent, v. William KAUFMANN, Appellant.

Page 840

847 S.W.2d 840

Michael WILSON, Respondent, v. William KAUFMANN, Appellant.

No. 60363.

Missouri Court of Appeals,

Eastern District,

Division Three.

Dec. 22, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Jan. 28, 1993.

Application to Transfer Denied March 23, 1993.

Paul E. Kovacs, Gary P. Paul, Lucy T. Herbers, Clayton, for appellant.

Gary A. Growe, Clayton, for respondent.

STEPHAN, Judge.

William Kaufmann ("Kaufmann") appeals from the judgment of the trial court entered pursuant to a jury verdict of $150,000.00 in damages to plaintiff-respondent Michael Wilson ("Wilson"). The jury assessed 35% fault against Wilson and 65% fault against Kaufmann. Wilson was injured when the motorcycle he was driving hit an earthen mound erected by Kaufmann off Shangri-La Estates Drive in a subdivision containing a trailer court and apartment complex in Jefferson County, Missouri. We affirm.

On October 8, 1986, Wilson, who was then eighteen years old and a student at Meramec Community College, had a basketball scrimmage after school. After the game, Chris Roth, a college friend, asked to borrow Wilson's car in exchange for the use of Chris's motorcycle. Wilson agreed. Later that evening, Wilson rode the motorcycle to another friend's apartment in the Shangri-La Estates Apartments in Jefferson County for a party. Shortly after arriving around 9:30 or 10:00 p.m., Wilson decided to spend the night at his friend's place. His friend had no telephone in the apartment, so Wilson left the party to call his mother to let her know his plans.

Sometime after leaving the party, Wilson had an accident while driving the motorcycle. No one witnessed it. Around 1:15 a.m., police officer Robert Scott received a telephone call reporting that an accident had occurred. Within ten minutes, he arrived and found Wilson lying unconscious atop an earthen mound located just beyond the point where Shangri-La Estates Drive came to a dead end. Wilson was taken by helicopter to a hospital.

Wilson remembered very little concerning the accident. He recalled only leaving the party, putting on his helmet and backing the motorcycle out. He had a vague memory about hitting something. After that, his first recollection was awakening at the hospital.

Officer Scott could not determine how long Wilson had been lying on the mound before Scott arrived. Although Officer Scott could not recall the motorcycle's location or condition, he testified that a page of his police report was missing and that it had contained some information about the motorcycle. He did not remember whether he had observed skid marks. He did not perform any smell test to determine if Wilson had been drinking alcohol. Wilson, however, had acknowledged at trial that he had drunk one beer while at his friend's party. According to Wilson's mother, the weather had been clear with temperatures in the seventies during the day and cooler in the evening.

The location of the accident was near the dead end of Shangri-La Estates Drive in Shangri-La Estates, a subdivision containing a trailer court and apartment complex owned by Kaufmann. Access to the Shangri-La Estates trailer court subdivision was via the T-intersection of Shangri-La Estates Drive with Highway 141 or from the adjoining apartment parking area. Shangri-La Estates Drive ("Drive"), a concrete road, runs through the trailer court and, about one hundred feet past the nearest intersection comes to a dead end at the edge of Kaufmann's private property. The Drive is about fifty feet wide at the dead end.

In 1970 Kaufmann had erected an earthen mound consisting of earth, rock, tree parts and debris on his property off the Drive facing its dead end. He had constructed the mound to block access of all-terrain vehicles and persons attempting to enter onto his private field extending beyond the end of the Drive. It was upon the top of this mound that Wilson was found the night of his motorcycle accident.

No lights, barricades, dead-end signs or warning reflector signs of any kind marked the end of the Drive the night of Wilson's accident. The closest light to the end of the Drive was a street light on the Drive, about one block away. Kaufmann had erected steel dead-end signs and other warning signs in the past, prior to the accident, but these had been vandalized or stolen and were not in place the night of the accident. However, by the time of the trial in summer 1990, Kaufmann testified without objection that he had installed black and yellow reflectors on both sides of the earthen mound and dead-end signs near the mound. No street lights had been added. Kaufmann admitted ownership of the Shangri-La Development and of the streets in Shangri-La Estates. Kaufmann, or people under his direction, also performed all the maintenance to the roads, including the Drive.

Kaufmann raises five points on appeal. He challenges the verdict directing instruction, the sufficiency of the evidence, certain comments during closing argument, the admission of certain photographs, and a reference to insurance during voir dire. We address each in turn.

Kaufmann first claims error in the giving of instruction seven, plaintiff's verdict director. Kaufmann had included the instruction in his legal file. The instruction given stated the following:

In your verdict you must assess a percentage of fault to defendant William Kaufman [sic] whether or not plaintiff was partly at fault if you believe:

First, defendant maintained an earthen mound at the end of Shangri-La Drive at night without sufficient and adequate lights thereon to warn motorcyclists of its existence and as a result, Shangri-La Drive was not reasonably safe for motorcyclists, and

Second, defendant knew of this condition and knew that such condition was not reasonably safe, and

Third, defendant failed to use ordinary care to remove it or warn of it, and

Fourth, such failure either directly caused or directly contributed to cause damage to plaintiff Michael Wilson.

At the bottom of the court's copy appears the notation "MAI 22.07 Modified," the citation "Morris v. Israel Brothers, 510 S.W.2d 437 (Mo.1974)" and "MAI 19.01."

Kaufmann contends this instruction was flawed in four respects. In his first subpoint, defendant argues the instruction was internally inconsistent because it cited two different and incompatible theories of recovery; one, under MAI 22.07 for maintaining a dangerous condition on one's own, private premises and two, under Morris v. Israel Brothers, 510 S.W.2d 437, based on MAI 22.04 for maintaining a dangerous condition on a public roadway. The gist of defendant's position is that the instruction confuses the nature of the duty owed to plaintiff and whether defendant's obligation arises as simply a private landowner or as a landowner of property abutting public roadways. He states that the confusion is compounded by plaintiff's first amended petition which alleges that Shangri-La Drive was a public road.

Plaintiff's first amended petition did allege that Shangri-La Drive is a public street in Jefferson County and that William Kaufmann is the developer and owner of Shangri-La Drive. The petition also alleged that both Jefferson County and Kaufmann had a duty to maintain the street in a reasonably safe condition. At the time the first amended petition was filed plaintiff had named Jefferson County as a defendant, in addition to Kaufmann. However, Jefferson County filed a motion for summary judgment accompanied by affidavit denying any duty on its part to maintain or repair Shangri-La Drive because Jefferson County did not and never had constructed, owned, maintained or repaired Shangri-La Drive. Plaintiff later voluntarily dismissed Jefferson County leaving Kaufmann as the only defendant. Plaintiff never amended his pleadings.

Plaintiff's petition was inartfully drafted, in light of the evidence and instructions presented to the jury. Nevertheless, defendant's motion for new trial did not raise the ground that plaintiff's evidence failed to conform to the pleadings or that the instruction failed to conform to the pleading.

Furthermore, the evidence at trial clearly reveals no confusion concerning whether the road was public or privately owned. At trial, Kaufmann admitted that he owned the mobile park development and its streets, including Shangri-La Drive, as well as the wooded field beyond Shangri-La Drive. There was no issue of ownership of the Drive, despite evidence that the Drive was used by persons not actually residing within the subdivision. Thus, the evidence supported an instruction based on MAI 22.07, on the liability of a landowner arising from injuries occurring on his property, not on public property.

Plaintiff modified the first paragraph of MAI 22.07 in accordance with language approved in Morris v. Israel Brothers, 510 S.W.2d 437. Defendant has seized upon plaintiff's modification citing Morris to inject the private/public road issue because Morris involved MAI 22.04, on the liability of another for creation of a dangerous condition on a public road. Plaintiff's reliance upon Morris was limited. Plaintiff utilized language approved in Morris only to encompass the theory that defendant constructed and knowingly maintained an obstruction (the earthen mound) at the end of his Drive and failed to provide adequate lighting at such location. Plaintiff's use of Morris to modify MAI 22.07 did not convert his theory from one of premises liability under MAI 22.07 to one of an abutting landowner's liability for a dangerous condition on public roadways or sidewalks under MAI 22.04. We find no error in the instruction based upon defendant's first subpoint.

Appellant's second subpoint argues alternatively that, if the instruction was a submission under MAI 22.07 for premises liability, the instruction was erroneous because it assumed that the Drive was a private road although evidence established the Drive was a public road; therefore,...