by W. Dudley McCarter

During the 1993 V.P. Fair in St. Louis, Mr. Hatch decided to bungee jump. He arrived at 10:30 a.m., signed the release, and was lifted in a bungee cage 170 feet above the ground. His jump was being taped by a local television station. The "jump master" told him that the bungee cord was attached and that he was ready to jump. Unfortunately, the other end of the bungee cord had not been attached and he plunged 170 feet to the partially deflated airbag on the ground. As a result of the serious injuries he sustained, the jury awarded him $5,000,000 against both the V.P. Fair Foundation and North Star Entertainment, the bungee jump operator. The evidence at trial established that North Stars employees violated nearly every safety guideline adopted by the bungee jumping association. The trial court granted the Motion for Judgment Notwithstanding the Verdict filed by V.P. Fair. On appeal, the court in Hatch v. V.P. Fair Foundation, Inc., No. E.D. 73279 and E.D. 73280, reversed the trial courts judgment NOV, reinstated the verdict against V.P. Fair and affirmed the judgment against North Star.

First, the court determined that as landowner of the fairgrounds for purposes of tort liability, the V.P. Fair could be held vicariously liable for the negligence of an independent contractor under the inherently dangerous activity exception. Whether an activity is inherently dangerous, while initially a question of law, is ultimately a question of fact for the jury. A landowner who hires an independent contractor to perform an inherently dangerous activity has a non-delegable duty to take special precautions to prevent injury from the activity. The landowner remains liable for the torts of the contractor, simply for commissioning the activity. The liability attaches without any need for showing that the employer is in any respect negligent; it is purely vicarious. The essence of inherent danger is the need for special precaution. Bungee jumping involves some peculiar risk of physical harm. The trial court erred in determining that bungee jumping was not inherently dangerous and in granting judgment notwithstanding the verdict for the V.P. Fair. (The trial court had properly instructed the jury under MAI 16.08. In considering whether bungee jumping was inherently dangerous, the jury simply could have found that unless adequate precautions were taken, bungee jumping necessarily presented a substantial risk of harm.)

The court also rejected North Stars contention that the trial court erred in submitting Hatch's recklessness claim to the jury. Missouri recognizes a cause of action for recklessness. Recklessness is an aggravated form of negligence that differs in quality, rather than in degree, from ordinary lack of care. It is applied to conduct which is negligent, rather than intentional, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended. The release signed by Hatch did not preclude him from recovering on his recklessness claim. One may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.

Finally, the court rejected the defendants' contention that the trial court abused its discretion in refusing to enter a remittitur of the jury's verdict. There is no precise formula for determining whether a verdict is excessive and each case must be considered on its own facts with the ultimate test being what fairly and reasonably compensates plaintiff for the injuries sustained. The trial court was in the best position to evaluate the evidence regarding the plaintiff's injuries and damages; the verdict was not so grossly excessive as to shock the conscience.

Dismissal Without Prejudice May Be a Trap for the Unwary

When a prior suit is involuntarily dismissed by the court, without prejudice, on the defendants motion for failure to state a claim, can the plaintiff file a new suit on the same cause of action? No, according to Bachman v. Bachman, No. E.D. 74591 (Mo.App. E.D. 1999).

Plaintiff filed a malicious prosecution, abuse of process, invasion of privacy and civil conspiracy action against the defendants. Defendants filed motions to dismiss for failure to state a claim upon which relief could be granted. The trial court sustained those motions and granted plaintiff 30 days to file an amended petition. Plaintiff filed an amended petition and defendants again filed motions to dismiss. The trial court again sustained the defendants motions and dismissed the suit "without prejudice." Plaintiff did not appeal, but several months later filed a new case with a petition that was nearly identical to the amended petition dismissed in the prior action. Defendants again filed motions to dismiss, contending that the second suit was barred by res judicata. The trial court agreed, sustained defendants motions to dismiss in the second suit, and the Court of Appeals affirmed.

The dismissal of a petition for failure to state a claim, without prejudice, does not preclude a plaintiff from reasserting the claim on new factual allegations. A dismissal without prejudice for failure to state a claim does, however, prevent a plaintiff from refiling an action in its original form. A dismissal without prejudice may be "res judicata" of what the judgment actually decided. In the first action, the court dismissed the suit without prejudice on the grounds that the allegaions did not state a claim for relief. Because the petition in the second action was, in all material respects, virtually identical to the petition that was previously dismissed in the first action for failure to state a claim, the trial court did not err in dismissing the second action on the grounds that it was barred by res judicata.

Directed Verdict at Close of Plaintiffs Opening Statement is Highly Unusual and Rarely Justified

In Giles v. American Family Life Insurance Co., No. W.D. 55768 (Mo.App. W.D. 1999), the trial court granted a directed verdict to the defendant at the close of the plaintiffs opening statement. The plaintiff had filed suit for the recovery of insurance benefits she claimed due to her upon the death of her husband. The plaintiffs attorney acknowledged in opening statements that no life insurance policy had been issued, but stated that the life insurance company had issued a receipt for payment of the premium. The appellate court reversed the trial court and remanded the case.

Courts should be reluctant to direct a verdict at the close of plaintiffs opening statement. To do so is highly unusual and rarely justified. The opening statement is merely an outline, not a detailed statement of the anticipated proof. Counsel is neither expected nor required to recite every detail of evidence to be offered; the purpose of opening statement is to inform the judge and jury of the general nature of the action. Here, the appellants opening statement accurately outlined her legal theory and the basis for her claim. The circumstances of this case did not support the "highly unusual and rarely justified" act of directing a verdict for the defendant at the close of plaintiffs opening statement.

Federal Rule of Evidence 702 Requires Expert Testimony to be Relevant and Reliable

In Weisgram v. Marley Company, No. 97-3735 (8th Cir. 1999), the Eighth Circuit Court of Appeals vacated a jury verdict for the plaintiff in a product liability case and entered judgment as a matter of law for the defendant. Weisgram contended that the baseboard heater manufactured by Marley was defective and caused the fire in his mothers home, which resulted in her death. At trial, Weisgram introduced the testimony of two fire investigators and a metallurgist.

The first investigator was permitted to testify that he believed the fire started due to "a malfunction of the heater" and that there was "a runaway of that heater." As a qualified expert in fire investigation, he was free to testify about the physical evidence he observed regarding the fire, but his opinion that the heater was a "runaway" was "blatant speculation." The next investigators testimony was based upon information that the first investigator had provided to him; he never went to the house. His testimony about the possibility of defects in the heater was also "rank speculation." Finally, the testimony of the metallurgist was based upon information that the second investigator had provided to him. His testimony that the thermostat contacts in the heater were defectively designed was not based on any tests he performed, but was based on theories he formulated. His opinion was not scientifically sound and amounted to no more than subjective belief or unsupported speculation; it was unreliable.

The opinions of these three witnesses amounted to speculation and were not sufficiently reliable under Federal Rule 702 to be admissible into evidence. Since these witnesses offered the only evidence of the defect in the heater, their testimony obviously had a substantial influence on the jurys decision finding Marley strictly liable for the fire and ultimate death of Weisgrams mother. Because that testimony was inadmissible, the jury verdict could not stand. (While noting that the question of whether all expert testimony admitted pursuant to Federal Rule 702 is subject to review under the four reliability factors set forth in Daubert, or whether the four-part test only applies to scientific testimony is still unresolved, the court decided not to get into that thicket. Here, the testimony at issue did not meet the general principles of reliability and relevance applied to all Rule 702 expert testimony, regardless of subject matter.)

Privilege Against Self-Incrimination Applies to Penalty Phase of Criminal Trial

In State of Missouri v. Storey, No. 80200 (Mo.banc 1999), the defendant was convicted of first degree murder and given the death sentence. On his first appeal the conviction was affirmed, but his death sentence was reversed because his defense counsel was ineffective for not objecting to improper penalty-phase argument. At the second penalty-phase trial, the jury again recommended the death penalty. On this appeal, the Supreme Court again reversed the death sentence.

At the second penalty-phase trial, Storeys attorney requested a pattern jury instruction (MAI-Cr.3d 308.14) advising the jury that the defendant had the right not to testify and that no presumption may be drawn from the defendants decision not to testify. The trial court refused this instruction and the SupremeCourt found this to be error. The privilege against self-incrimination guarantees the right to remain silent and the right not to have adverse inferences drawn from exercising that privilege. The Fifth Amendment requires that a criminal trial judge must give a "no-adverse inference" jury instruction when requested by a defendant to do so. There is no basis to distinguish between the guilt and penalty phases of a capital murder trial so far as the protection of the Fifth Amendment privilege is concerned. When a defendant does not testify in the penalty phase of a capital murder trial, the court must give a "no-adverse inference" instruction if the defendant so requests.

The state argued that the error was harmless because the prosecutor never commented to the jury on the defendants silence. The Court rejected the states contention. The refusal of a no-adverse inference instruction violates the Fifth Amendment. The trial court must give this instruction if requested by the defendant, whether or not the prosecutor makes any adverse comment. Moreover, statements by defendants counsel during voir dire that the defendant had the right not to testify did not have the purging effect that an instruction from the judge would have had. Thus, the failure to give the requested instruction was not harmless beyond a reasonable doubt.

Photographs Admissible Even Though Subsequent Remedial Measures Shown

The exclusion of photographs offered by the plaintiff to show the steps on which she fell was held to be error in Danbury v. Jackson County, No. WD 55681 (Mo.App. W.D. 1999). At trial, the plaintiff offered photographs of the natural stone and mortar steps she fell on. The photographs were taken approximately one year after her fall. The photographs show that no mortar was missing between the stones. In identifying the photographs, the plaintiff testified that they depicted the steps she fell on, except that they showed mortar between the steps that was not there when she tripped and fell on them and that her fall was caused by the missing mortar. Defendant objected on the grounds that the photographs were an attempt to show subsequent remedial repairs, which is inadmissible in a negligence action. The appellate court found that the trial court erred in excluding the photographs and remanded the case for a new trial.

While evidence of subsequent repairs made to defective property is inadmissible to prove negligence, evidence showing subsequent remedial measures may be admissible if offered for a purpose other than drawing an inference of negligence from the fact of the repairs. Evidence showing subsequent remedial measures may be admissible to show the condition of the accident site at the time that the accident occurred. Evidence that is inadmissible for one purpose may be admissible for another. If photographs showing subsequent measures were never admissible, a defendant would always be able to keep from the jury any photograph of the site f an alleged property defect simply by conducting repairs before the plaintiff has an opportunity to take a photograph. Such was certainly not the intention of the general rule excluding evidence of subsequent remedial measures to show negligence. The rationale for excluding evidence of subsequent remedial measures does not erect an impenetrable wall against the admission of photographs by plaintiffs who have a legitimate need to let juries see the site of the plaintiffs injury. Thus, such photographs will generally be admissible in cases where the photographs have evidentiary value independent of such repairs.

There may be cases in which the evidentiary value of an exhibit is quite limited and the risk of prejudice and confusion is substantial because of the subsequent measures. Here, however, the photographs would have aided the jury in visualizing the uneven steps formed from the stones on which the plaintiff fell. The evidentiary value of the photographs as a visual aid was sufficient to overcome an objection based on the concern that the photographs showed subsequent remedial measures. The photographs were important to the plaintiffs case and the exclusion of them was an abuse of discretion.