Farrow v. Potts

880 S.W.2d 347, 1994 Mo. App. LEXIS 1205, 1994 WL 380432
CourtMissouri Court of Appeals
DecidedJuly 22, 1994
DocketNo. 18895
StatusPublished

This text of 880 S.W.2d 347 (Farrow v. Potts) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Farrow v. Potts, 880 S.W.2d 347, 1994 Mo. App. LEXIS 1205, 1994 WL 380432 (Mo. Ct. App. 1994).

Opinion

FLANIGAN, Presiding Judge.

Plaintiffs, the surviving parents of Lisa Farrow, deceased, brought this wrongful death action against defendant Jennifer Potts. Lisa died as a direct result of a collision which occurred on May 24, 1992, on U.S. Highway 17 near Mountain View. The collision involved an Oldsmobile driven by Lisa and a vehicle driven by Charles Hartman, a nonparty. The petition alleged that the collision and death were caused by the negligence of defendant in the operation of a Chevrolet in several particulars, including “defendant was chasing Lisa Farrow and the Farrow vehicle.”

The collision occurred on Highway 17 at a point .6 of a mile south of County Road 338. Plaintiffs’ evidence included a written statement by defendant that she drove the Chevrolet, in which Valerie Cooper was a passenger, south on Highway 17 and was following the Oldsmobile. The statement said that defendant turned around at County Road 333 and went back to Mountain View. Plaintiffs also introduced another statement given by defendant to the effect that she quit following Lisa and turned around at a point some distance north of County Road 333.

Plaintiffs’ evidence showed that, prior to the date of the accident, bad blood existed between Valerie Cooper and Lisa. Jennifer Terrell testified that two or three weeks before the collision she heard Valerie say that she would like to “mess up Lisa’s pretty little face” with a broken bottle.

The case was tried to a jury. Instruction 7 was the verdict-directing instruction which the court gave on behalf of plaintiffs. Instruction 8, given on behalf of defendant, submitted the issue of comparative fault on the part of Lisa. The jury returned a verdict assessing percentages of fault as follows: Jennifer C. Potts — 0 percent; Lisa Farrow— 100 percent. The trial court entered judgment on the verdict in favor of defendant. Plaintiffs appeal.

Plaintiffs’ first point is that the trial court erred in giving Instruction 7, and refusing to give Instruction 7A as submitted by plaintiffs, in that Instruction 7 erroneously included the words “at or near the time of her accident,” because there was no evidence that defendant was chasing Lisa “at the time” of her accident, and Instruction 7 was an improper statement of the law of proximate cause as the jury did not have to find that defendant was chasing Lisa Farrow “at or near the time of her accident” in order to find for plaintiffs and assess fault to defendant.

The phrase “at or near the time of her accident,” contained in Instruction 7, will be referred to as “the challenged phrase.” Defense counsel was also not happy with the use of the challenged phrase. Defense counsel tendered, and the trial court refused, Instruction 7B which used the language, “at the time of her accident,” in lieu of the challenged phrase.

Plaintiffs’ first point has not been preserved for appellate review. “If a point relates to the giving, refusal or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief.” Rule 84.04(e).1 With exceptions not applicable here, Rule 84.13(a) reads, in pertinent part: “[Ajllegations of error not briefed or not properly briefed shall not be considered in any civil appeal.” Neither Instruction 7 nor Instruction 7A is set forth in full in the argument portion of plaintiffs’ brief. This court, in its discretion, has reviewed plaintiffs’ first point for possible “plain error” as that term is used in Rule 84.13(c).2

[349]*349Instruction 7, given by the trial court, reads:

“Instruction 7

In your verdict you must assess a percentage of fault to defendant if you believe:

First, defendant was chasing Lisa Farrow at or near the time of her accident, and
Second, defendant was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause the death of Lisa Farrow.”3

Instruction 7A, tendered by plaintiffs and rejected by the trial court, was the same as Instruction 7, except that Instruction 7A did not have the challenged phrase in paragraph First.

Plaintiffs’ evidence included the following:

The accident occurred on Highway 17, 1.7 miles south of Route WW, which is just south of Mountain View. The accident occurred .6 of a mile south of County Road 33B. South of Highway WW there is a section of Highway 17 which runs for a little over a mile and is called VanBibber Flats. Just south of VanBibber Flats there is a big dip in the roadway, and then a southbound vehicle crests a hill and the highway is flat again.

Lisa’s Oldsmobile left “scuff marks” on the highway which started in the southbound lane and crossed over into the northbound lane. The scuff marks measured 169 feet, 9 inches. Eighty-eight feet south of the south end of the scuff marks, Trooper Hillhouse, of the Highway Patrol, found Lisa lying at the edge of the roadway. Her Oldsmobile was upside down in the roadway, 24 feet south of where Lisa was lying.

On June 3, Defendant told the trooper that she and Valerie had turned around in the area of VanAllmen’s Trailer Park, which is north of County Road 333.

At 5:40 p.m. on May 24, Diane Haynes, who was in her yard in Mountain View, saw two ears “zoom by” at a pretty fast clip. The car in the back had some ladies in it and they were hollering at the ear ahead of it. They were heading south toward Highway 17.

In the “late afternoon” of May 24, Karen Brooks saw defendant chasing Lisa in Mountain View. Both vehicles were traveling at an excessive rate of speed, heading toward Highway 17 south. The witness saw “finger gesturing. [Defendant] was flipping Lisa off.”

In the “late afternoon” of May 24, Russell Brooks and Kenny Brooks were stopped at the junction of WW and Highway 17. Russell Brooks saw Lisa drive by, then he saw defendant and Valerie Cooper chasing Lisa, within 100 feet. They were going over the speed limit. Kenny Brooks said the vehicles were 50 to 75 feet apart and going between 50 and 60 miles an hour, maybe faster.

Immediately prior to the accident, Lori Bales was driving a vehicle south on Highway 17 in front of Lisa’s southbound vehicle. When the Bales vehicle got over the dip she met the northbound pickup truck driven by Charles Hartman. Bales glanced in her rearview mirror and saw Lisa’s car pop over the hill, half of it on the wrong side of the road. Lisa’s vehicle sideswiped Hartman’s truck. Lisa was driving considerably too fast — faster than 55. Bales did not see a vehicle following Lisa, “I couldn’t because there was that dip there.” Defendant came to the scene 15 or 20 minutes after the accident.

Charles Hartman testified that he was traveling north on Highway 17 and saw Lisa’s southbound automobile come out of the dip. As it came out of the dip, it veered to its left into Hartman’s lane. Hartman went over to the right side as far as he could, and the two vehicles sideswiped. He did not see any vehicles following or chasing Lisa.

[350]*350At 6:03 p.m. Connie Stephenson, ambulance driver, received a call to come to the scene.

Private investigator Hubert Holman interviewed defendant twice. On June 9 defendant stated that she and Valerie turned around at VanAllmen’s Trailer Park. On June 10 defendant stated that she turned around at County Road 333.

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Bluebook (online)
880 S.W.2d 347, 1994 Mo. App. LEXIS 1205, 1994 WL 380432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farrow-v-potts-moctapp-1994.