Jones v. Trittler

983 S.W.2d 165, 1999 A.M.C. 1736, 1998 Mo. App. LEXIS 2042, 1998 WL 804662
CourtMissouri Court of Appeals
DecidedNovember 10, 1998
Docket73902
StatusPublished
Cited by7 cases

This text of 983 S.W.2d 165 (Jones v. Trittler) 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
Jones v. Trittler, 983 S.W.2d 165, 1999 A.M.C. 1736, 1998 Mo. App. LEXIS 2042, 1998 WL 804662 (Mo. Ct. App. 1998).

Opinion

PUDLOWSKI, Presiding Judge.

Plaintiff, Brenda Jones (Jones) appeals the trial court’s directed verdict, at the close of her evidence, in her personal injury claim against defendant, Regan Trittler. In her appeal, Jones argues the trial court erred in directing a verdict for Trittler because she made a submissible case of negligence on the element of causation. We reverse and remand.

Rule 78.07 requires that where a directed verdict is granted in a jury-tried case, a motion for new trial must be filed to preserve for appeal any allegation of error. Crane v. Drake, 961 S.W.2d 897, 900 (Mo.App. W.D.1998). The record reveals that Jones did not file a motion for new trial, and therefore, her claim that the trial court erred in directing the verdict was not preserved for appeal. However, Rule 84.13(c) provides that:

Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

We review here for plain error only. If Jones made a submissible case, the trial court’s directed verdict would constitute a plain error affecting substantial rights and a manifest injustice. Crane, 961 S.W.2d at 900.

In reviewing the trial court’s direction of a verdict at the close of plaintiffs evidence, we view the evidence and permissible inferences most favorably to plaintiff, disregard contrary evidence and inferences, and decide whether a submissible case was made. Schumacher v. Barker, 948 S.W.2d 166, 168 (Mo.App. E.D.1997). A directed verdict is a drastic action. Id. Accordingly, we will reverse the trial court’s directed verdict unless the facts and inferences therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to a result. Head v. National Super Markets, Inc., 902 S.W.2d 306, 306 (Mo.App. E.D.1995). The plaintiff may prove essential facts by circumstantial evidence as long as the facts proved and the conclusions to be drawn are of such a nature and are so related to each other that the conclusions may be fairly inferred. Id.

Construed in a light most favorable to Jones, the evidence established that: Trittler owned a motor boat as well as a water craft referred to as a jet ski or “Sea Doo.” Trittler kept a tow rope on his boat exclusively for towing the Sea Doo. The tow rope had a metal J-shaped hook on each end, one for attachment to the boat and the other for attachment to the Sea Doo.

On Saturday July 2, 1994, Jones and Jeff Enderle (Enderle) were passengers in Tritt-ler’s boat on the Lake of the Ozarks. Tritt-ler operated the boat, Enderle was in the passenger seat and Jones sat in back. Tritt-ler towed the Sea Doo behind the boat. They left the dock at Trittler’s home intending to meet friends at a restaurant on another part of the lake. The lake was choppy with two to three foot waves. Trittler observed the Sea Doo as he towed it. There were no complications traveling at lower speeds, but while moving 25 to 30 miles per hour problems were encountered with towing the Sea Doo. The Sea Doo veered between the right and left wakes of Trittler’s boat, rolled onto its side and was dragged through the choppy water. When Trittler reduced *167 the speed of the boat the Sea Doo righted itself in the water.

As Trittler increased the speed to 25 to 30 miles per hour the Sea Doo again rolled onto its side, its line was taut and its nose submerged. The hook and tow line released from the Sea Doo and shot forward into the boat striking Jones on the arm and head. Jones was temporarily blinded, taken to Lake of the Ozarks General Hospital, and transferred by helicopter to the trauma center at University of Missouri-Columbia Hospital. She remained an in-patient for eight days and was treated for a skull fracture and left arm wound. Jones later learned the tow rope detached because the J-hook fastened to the Sea Doo straightened during the towing.

Jones filed suit against Trittler alleging her injuries were the result of Trittler’s negligence. At the close of Jones’s evidence, Trittler moved for directed verdict contending there was no causal connection between his operation of the boat and Jones’s injuries. The trial court sustained Trittler’s motion for directed verdict and entered judgment in his favor. Jones appeals. We reverse and remand.

On appeal, Jones argues the trial court erred in directing a verdict in favor of Trittler because she made a submissible case of negligence on the element of causation. A negligence action requires a causal connection between the conduct of the defendant and the resulting injury to the plaintiff. Simonian v. Gevers Heating & Air Conditioning, Inc., 957 S.W.2d 472, 474 (Mo.App. E.D.1997). The defendant’s conduct must be: (1) the cause in fact; and (2) the proximate, or legal, cause of plaintiffs injury. Id. Cause in fact requires finding the event would not have occurred “but for” the defendant’s conduct. Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852, 860-61 (Mo. banc 1993).

Trittler contends the “but for” test is not met because a jury could not reasonably infer the speed of the boat caused the J-hook to straighten and tow rope to snap forward, and an expert is necessary to examine the hook to construct detailed physical and mathematical calculations about the accident. Trittler relies on Koedding v. Kirkwood Contractors, Inc., 851 S.W.2d 122 (Mo.App. E.D. 1993). In Koedding, the court stated it has the discretion to admit expert testimony where physical and mathematical computations must be made to draw a conclusion on matters not of common knowledge to a juror. Id. at 126. Koedding held that complex determinations of force and injuries resulting therefrom in a diving accident did not fall within the common knowledge of a juror. Id. Trittler argues no juror could reasonably infer the speed of the boat exerted sufficient force to cause the J-hook to straighten, and consequently, without expert testimony there is no evidence that “but for” his speeding the injury would not have occurred.

Jones avers that contrary to Koedding, physical and mathematical computations in this case are unnecessary and the jury could decide, based on the evidence presented, that “but for” Trittler’s speeding there would have been no incident. Jurors are competent to decide issues of everyday experience without resorting to expert testimony. Inman v. Bi-State Development Agency, 849 S.W.2d 681, 683 (Mo.App. E.D. 1993). Jones and Enderle testified Trittler had no difficulty in towing the Sea Doo at a low speed.

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983 S.W.2d 165, 1999 A.M.C. 1736, 1998 Mo. App. LEXIS 2042, 1998 WL 804662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-trittler-moctapp-1998.