Walter Douglas v. St. Louis Cold Drawn, Inc.

Citations: 439 S.W.3d 775; 2014 WL 2925291; 2014 Mo. App. LEXIS 728Docket: ED100039

Court: Missouri Court of Appeals; June 30, 2014; Missouri; State Appellate Court

Original Court Document: View Document

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Walter Douglas appeals the Circuit Court's judgment favoring St. Louis Cold Drawn, Inc. in a negligence case. Douglas, an independent contractor truck driver, alleges the trial court erred by allowing an improper affirmative converse instruction to the jury. The incident occurred on August 31, 2010, when Douglas was loading steel bundles with a Defendant employee, Mark Kelle, operating an overhead crane. A wire broke, causing the spreader bar to fall, but Douglas initially claimed he was “fine” and did not seek medical attention until later when he experienced pain in his neck and shoulder.

Douglas filed a negligence claim against the Defendant, asserting that the crane’s failure led to the spreader bar striking him. He described the incident during the trial, indicating he was hit on the shoulder by the falling bar and sustained severe injuries. Witnesses from the Defendant’s side confirmed the wire broke but stated Douglas showed no signs of injury immediately after the incident and did not report being struck. The defense presented testimony from a dispatcher who recounted that Douglas said something nearly hit him, but he did not claim to have been hit. The jury trial lasted five days, and the court ultimately affirmed the judgment in favor of the Defendant.

Defendant's expert, Dr. Richard Rende, testified that Plaintiff claimed a metal I-beam from a crane fell and struck his shoulder. However, Dr. Rende expressed skepticism about the relationship between this incident and Plaintiff's subsequent neck herniation requiring surgery, attributing his neck issues instead to degenerative spondylosis and diabetes. 

During the trial, Plaintiff proposed a verdict director (Instruction No. 8) based on MAI No. 22.03, asserting that the crane on Defendant's premises was unsafe, and that Defendant failed to maintain it properly, leading to Plaintiff's damages. In contrast, Defendant submitted an affirmative converse instruction (Instruction No. 9), stating that the jury should rule for Defendant if they believed the crane did not strike Plaintiff. Plaintiff's counsel objected, arguing that the instruction was not a proper MAI instruction, lacked evidentiary support, and confused the issue of causation. The trial court overruled the objection, allowing both instructions to be presented to the jury, which subsequently ruled in favor of Defendant.

On appeal, Plaintiff contends that the trial court erred in allowing Instruction No. 9, claiming it was unsupported by evidence, confused the causation issue, and introduced new arguments not backed by evidence. Plaintiff asserts that Defendant did not provide independent evidence to support the affirmative converse instruction, which misled the jury into believing they could only find for Plaintiff if the crane had made direct contact.

Defendant contends that Plaintiff failed to preserve objections to Instruction No. 9 for appeal. Even if the claim regarding the affirmative converse instruction's evidentiary support was preserved, Defendant argues that the trial court acted appropriately in submitting Instruction No. 9, citing independent evidence and lack of prejudice. Instruction No. 9, identified as an affirmative converse instruction, requires independent evidence and presents a hypothetical that negates the possibility of finding the defendant negligent as a matter of law. While such instructions are generally disfavored, they may be appropriate when a verdict director either assumes the truth of or omits a disputed ultimate issue. 

Defendant also claims that Plaintiff’s appeal point violates Rule 84.04(d), limiting its reviewability. However, the court may still consider the point if its intended issue is identifiable. The court finds that it can discern the basis for the claimed error and will consider it on its merits. Although the MAI approves affirmative converse instructions, their use is risky as they can resemble prohibited sole cause instructions and potentially mislead the jury.

Concerning the specificity of Plaintiff's objections to Instruction No. 9, Rule 70.03 requires distinct objections before the jury deliberates. To preserve an instructional error claim, objections must be clearly stated during trial and reasserted in a motion for new trial. Additionally, an appeal point must align with the trial objection; changing the objection on appeal is not permitted. The only objection made by Plaintiff, which was reiterated in the motion for new trial and included in the appeal, was that there was no evidence indicating that the spreader bar or overhead crane did not come into contact with him.

Movant's claim asserts that Defendant failed to provide evidence supporting the affirmative converse instruction, which stated that the overhead crane did not hit Plaintiff. Any errors alleged by Plaintiff on appeal that were not included in his objections to the trial court are not preserved for appeal, as established in Goralnik. Although appellate courts may review unpreserved errors for plain error, such reviews are rare in civil cases and are declined here. When evaluating evidence for the affirmative converse instruction, all evidence is assessed in the light most favorable to Defendant, along with any reasonable inferences, while disregarding contrary evidence. Defendant presented cross-examination testimony from employees indicating that Plaintiff did not claim to have been hit or appeared injured post-incident. Additionally, evidence showed Plaintiff remarked that the crane "almost hit him" and subsequently secured loads and traveled 100 miles. Expert testimony from Dr. Rende suggested Plaintiff's injury was likely not caused by a minor impact. Given this evaluation of the evidence favoring Defendant, the court concludes that sufficient evidence supports the affirmative converse instruction, affirming the trial court's judgment. Judges Patricia L. Cohen, Lisa S. Van Amburg, and Philip M. Hess concur.