Spann ex rel. Spann v. Jackson

84 S.W.3d 478, 2002 Mo. App. LEXIS 1592, 2002 WL 1611066
CourtMissouri Court of Appeals
DecidedJuly 23, 2002
DocketNo. ED 80204
StatusPublished
Cited by5 cases

This text of 84 S.W.3d 478 (Spann ex rel. Spann v. Jackson) 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
Spann ex rel. Spann v. Jackson, 84 S.W.3d 478, 2002 Mo. App. LEXIS 1592, 2002 WL 1611066 (Mo. Ct. App. 2002).

Opinion

PAUL J. SIMON, Judge.

Plaintiff, Andrew Spann, a minor, by his Next Friend and Mother, Ollie Spann, appeals the judgment of the Circuit Court of the City of St. Louis. On appeal, plaintiff contends the trial court erred because: 1) it failed to. set aside the comparative fault finding of the jury that he failed to keep a careful lookout and enter judgment for the full amount of the verdict disregarding any comparative fault on the part of the plaintiff because Paul Jackson, defendant, bore the burden of establishing that, had plaintiff been keeping careful lookout, he could have reacted in time to avoid the accident but Jackson failed to adduce substantial evidence that plaintiff was capable of keeping a look out and, in any event, had the means or ability to avoid the accident if he had kept a careful lookout; 2) it failed to grant the motion for additur filed by plaintiff with respect to the judgment of $1,000 entered on behalf of plaintiffs mother, Ollie Spann, because the undisputed total of her damages was $12,363.84. We affirm as modified.

When reviewing the denial of a motion for judgment notwithstanding the verdict, we examine the evidence in the light most favorable to the result reached by the jury, giving the non-movant the benefit of all reasonable inferences and disregarding evidence and inferences that conflict with the verdict. Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 818 (Mo.banc 2000). A case may not be submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Id. We will reverse the jury’s verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury’s conclusion. Id.

This case arose out of an incident in which Jackson ran over plaintiffs foot with a riding lawnmower, resulting in a traumatic amputation of the distal phalanx of plaintiffs great right toe and a fracture of the remaining bone in the great toe.

In the fight most favorable to the jury’s verdict, at the time of the accident, plaintiff was eight years old. Gary Moore, [480]*480plaintiffs father, took him and his half-brother to defendant’s home so that defendant could watch the children while he went to pick up some inspection papers. After Moore left, defendant began cutting his lawn with a riding lawn mower and subsequently ran over plaintiffs foot causing the aforementioned injury.

In his petition, plaintiff alleged, in count one, that his injuries were directly and proximately caused by defendant’s negligent and careless (1) failure to keep a careful lookout for plaintiff; (2) exercise of custody, control, and/or supervision over plaintiff by failing to keep him within his view and control at all times; (3) exercise of custody, control, and/or supervision over plaintiff by placing himself in a position where he was unable to properly and adequately protect plaintiff from a danger created by his cutting his lawn; and (4) failure to exercise the required vigilance and caution by failing to take reasonable and prudent steps to properly and adequately exercise custody, control, and/or supervision over plaintiff. Plaintiff alleged, in the alternative, in count two, that his injuries were directly and proximately caused by defendant’s negligence or carelessness (1) in maintaining and operating a riding lawn mower while plaintiff was on his property; (2) because defendant knew or had information from which he, in the exercise of ordinary care, should have known that children such as plaintiff would be exposed to the danger of such mower while being operated on the premises of defendant; (3) because defendant knew or by using ordinary care could have known such condition presented an unreasonable risk of harm to children such as plaintiff who were exposed to it; (4) because children such as plaintiff would not appreciate the risk of harm associated with such a situation due to their youth; and (5) because defendant failed to prevent plaintiff from being exposed to such harm. Finally, in count three, plaintiffs mother, Ollie Spann, alleged that she had incurred damages from plaintiffs medical bills and also from the wages she lost while caring for his injury.

Defendant filed an answer denying generally the allegations and asserted the following affirmative defenses in response to the allegations contained in all three of plaintiffs counts: (1) plaintiffs petition should be dismissed for failure to state a cause of action upon which relief can be granted; and (2) plaintiffs recovery, if any, as a matter of law and fact, should be reduced in a percentage amount corresponding to the extent and amount of plaintiffs own contributory and/or comparative fault.

At trial, defendant testified that, although he did not want to, he was watching plaintiff and his half-brother at his house while Moore ran some errands. After Moore left, Jackson prepared to mow his lawn at which time he instructed plaintiff “to stand on the concrete slab of [his] driveway, right in front of the gas light.” Then after rolling up his garden hose, defendant began mowing his lawn. After he made his first pass around his lawn, plaintiff was on the driveway, as instructed — approximately 45 feet from the location of the accident — with his half-brother. As defendant came to the south boundary of his lawn, he made “that quick turn.” He testified that he felt plaintiff tap him on the side and “[he] really didn’t see him because I’m behind — he came up and tapped me, and as I was in the curve, there was nothing I could do.” Then he realized that he had just run over plaintiffs left foot. As a result, he quickly got off the mower, pulled plaintiffs feet from under the mower, carried him into the house, and called for medical help.

Plaintiffs version of the location of the incident differs in that he testified that as [481]*481Jackson drove by plaintiff and his half-brother, who were on the front porch stoop, the mower blew dust into his eyes and he stepped off the bottom step of the front porch whereupon his foot was run over by the mower.

Plaintiffs mother, Ollie Spann, testified that the total medical bills amounted to $12,042.99 and that she lost $320.85 in wages from her two jobs while she was off attending to her son. The case was submitted to the jury with instructions to assess a percentage of fault to plaintiff if they believed he failed to keep a careful lookout, was thereby negligent, and such negligence directly caused or directly contributed to cause any damage plaintiff may have sustained.

The trial court entered a judgment, pursuant to the jury verdict, for plaintiffs. The jury found that plaintiffs total damages were $37,500 and that he was 85% at fault, thereby reducing defendant’s liability to $5,625. The verdict and judgment also found that plaintiffs mother sustained $1,000 in damages.

In his first point, plaintiff argues that the trial court erred because it failed to set aside the comparative fault finding of the jury that plaintiff failed to keep a careful lookout and enter a judgment for the full amount of the verdict disregarding any comparative fault on the part of plaintiff because defendant bore the burden of establishing that, had plaintiff been keeping careful lookout, he could have reacted in time to avoid the accident but defendant failed to adduce substantial evidence that plaintiff was capable of keeping a look out and, in any event, had the means or ability to avoid the accident if he had kept careful lookout.

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Bluebook (online)
84 S.W.3d 478, 2002 Mo. App. LEXIS 1592, 2002 WL 1611066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spann-ex-rel-spann-v-jackson-moctapp-2002.