Smith v. City of Hannibal

297 S.W.3d 926, 2009 Mo. App. LEXIS 1685, 2009 WL 4261193
CourtMissouri Court of Appeals
DecidedNovember 24, 2009
DocketED 92464
StatusPublished
Cited by4 cases

This text of 297 S.W.3d 926 (Smith v. City of Hannibal) 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
Smith v. City of Hannibal, 297 S.W.3d 926, 2009 Mo. App. LEXIS 1685, 2009 WL 4261193 (Mo. Ct. App. 2009).

Opinions

ROY L. RICHTER, Judge.

The Circuit Court of Marion County (“trial court”) entered judgment on a jury verdict in favor of Tina Louise Smith (“Plaintiff’), wherein the jury assessed 70% fault to the City of Hannibal (“City”) and 30% fault to Plaintiff. The City appeals from the trial court’s order granting Plaintiffs motion for a new trial. We affirm.1

I. BACKGROUND

This appeal arises out of Plaintiffs personal injury action against the City.2 Plain[928]*928tiffs petition alleged that she was driving her automobile on the left hand side of Highway 61’s northbound lane in Hannibal when Officer Chad Graham (“Officer Graham”), acting within the course and scope of his employment, negligently caused his vehicle to collide with hers. Plaintiff alleged that she was injured and her vehicle damaged as a result of Officer Graham’s negligence.

The City denied all allegations of negligence and raised the affirmative defense of comparative fault. According to the City, Plaintiffs own negligence contributed to her injuries in that she failed to keep a careful lookout, failed to swerve, failed to sound her horn, failed to stop, and failed to yield to the right of way.

The case was tried to a jury. In • support of its comparative fault theory, the City adduced evidence that Plaintiff had taken her eyes off Officer Graham’s vehicle prior to the point of impact and therefore failed to keep a careful lookout.3 The City submitted a jury instruction (“Instruction Six”) which stated:

In your verdict, you must assess a percentage of fault to Plaintiff, whether or not [the City] was partly at fault, if you believe:
First, Plaintiff failed to keep a careful lookout; and
Second, Plaintiff was thereby negligent; and
Third, such negligence caused or contributed to cause any damage Plaintiff may have sustained.

The jury returned a verdict in Plaintiffs favor and awarded her $15,000 in total damages. Concerning Instruction Six, the jury assessed 70% of fault to the City and 30% of fault to Plaintiff. The trial court accordingly offset Plaintiffs award based on her comparative fault, and entered judgment for Plaintiff for $10,500.

Plaintiff filed a motion for a new trial on October 21, 2008 and advanced several grounds in support thereof. First, Plaintiff asserted that the trial court erred in giving Instruction Six to the jury because there was no substantial evidence to support its submission.4 Plaintiff then asked for a new trial because the verdict was “against the evidence,” “against the greater weight of the credible evidence in this case,” and “against the law under the evidence in this case.”

The trial court held a hearing on Plaintiffs motion for a new trial on December 5, 2008. At the healing, Plaintiffs counsel stated that “the sole allegation of error is that there was not evidentiary support for the comparative fault submission for failure to keep a lookout.” Thus, the arguments at the hearing addressed only that [929]*929issue. At the conclusion of the hearing, the trial judge indicated that the parties “are going to get back to me on some issues.”

The trial court subsequently granted Plaintiffs motion for a new trial on January 9, 2009. In its reasons therefore, the trial court stated:

1. The verdict is against the weight of the evidence.
2. The [City] failed to produce substantial evidence to support the submission of comparative fault in Instruction Number 6 for the alleged failure to keep a careful lookout.

The City appeals.

II. DISCUSSION

We review a trial court’s decision to grant a new trial for an abuse of discretion, and “allow every reasonable inference that favors the trial court’s ruling.” Thurman v. St. Andrews Mgmt. Servs., Inc., 268 S.W.3d 434, 440 (Mo.App. E.D.2008) (quoting Lowdermilk v. Vescovo Bldg. & Realty Co., Inc., 91 S.W.3d 617, 625 (Mo.App. E.D.2002)). An abuse of discretion occurs when the trial court’s ruling is “clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Thurman, 268 S.W.3d at 440. Appellate courts are more liberal in upholding the grant of new trial than the denial of one. Id. at 441.

In its two points on appeal, the City argues that the trial court erred in granting Plaintiffs motion for a new trial. The trial court advanced two separate grounds in support of its order, and the City challenges both. If any ground advanced in support of a new trial is correct, we will affirm the trial court’s order. O’Neal v. Agee, 8 S.W.3d 238, 241 (Mo.App. E.D.1999) (citing Bast v. St. Louis Freightliner, Inc., 676 S.W.2d 42, 43 (Mo.App. E.D.1984)).

In its second point, the City argues that the trial court erred in granting Plaintiffs motion for a new trial on the basis that the verdict was against the weight of the evidence because Plaintiff did not preserve that allegation of error for review. We disagree.

“The [trial] court has nearly unfettered discretion in deciding whether or not to grant a new trial on the ground that the verdict was against the weight of the evidence, ‘[a]nd its ruling upon that ground will not be disturbed, except in case of manifest abuse.’ ” Stehno v. Sprint Spectrum, L.P., 186 S.W.3d 247, 250 (Mo. banc 2006) (quoting Robinson v. Wampler, 389 S.W.2d 757, 760 (Mo.1965)).

Missouri Supreme Court Rule 78.07(a) provides that, in jury-tried cases, “allegations of error must be included in a motion for a new trial in order to be preserved for appellate review.”

According to the City. Plaintiff failed to preserve this issue for review because, at the hearing on her motion for a new trial, Plaintiffs counsel argued as “the sole allegation of error” that there was not eviden-tiary support for Instruction Six. The City claims that only later, in a proposed Order to the court, did Plaintiff argue that the verdict was also against the weight of the evidence. The City analogizes Plaintiffs conduct to instances where a plaintiff advances only one allegation of error in his motion for a new trial and later attempts present a new, additional allegation to the appellate court.

The City’s argument fails to acknowledge, however, that Plaintiff filed a motion for a new trial on October 21, 2008, approximately six weeks before the trial court held a hearing on the motion. Plain[930]

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Smith v. City of Hannibal
297 S.W.3d 926 (Missouri Court of Appeals, 2009)

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Bluebook (online)
297 S.W.3d 926, 2009 Mo. App. LEXIS 1685, 2009 WL 4261193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-city-of-hannibal-moctapp-2009.