Missouri Court of Appeals
Southern District
Division Two
AMANDA WAMPLER and GENE )
WAMPLER, )
)
Plaintiffs-Appellants, )
)
vs. ) No. SD33911
)
WESLEY SPEAKE, ) Filed January 25, 2016
)
Defendant-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable Michael Cordonnier, Circuit Judge
REVERSED AND REMANDED
Amanda Wampler 1 brought an action for negligence against Wesley Speake following an
auto accident in which she alleged she sustained damages. A jury found in favor of Speake, and
Wampler brings two claims of error on appeal: (1) the trial court erred in refusing to instruct the
jury on the rear-end collision doctrine; and (2) the trial court erred in overruling her objection to
a portion of Speake’s closing argument. Finding merit in Wampler’s first point, which is
dispositive of this appeal, we reverse and remand without reaching her second point.
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Amanda Wampler’s husband, Gene Wampler, brought a derivative claim for damages based on his wife’s injuries.
For simplicity, we refer solely to Amanda Wampler throughout this opinion; however, our decision to reverse
applies to Gene Wampler’s derivative claim as well.
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Standard of Review
“Whether a jury was properly instructed is a question of law that this Court reviews de
novo.” Bach v. Winfield-Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo. banc 2008). We
view the evidence and inferences in a light most favorable to giving the instruction and disregard
contrary evidence. Choate v. Natvig, 952 S.W.2d 730, 734 (Mo.App. 1997).
For disjunctive verdict directing instructions to be appropriate, each disjunctive
alternative instruction proffered by a party must be supported by substantial
evidence. Substantial evidence is that which, if true, has probative force upon the
issues, and from which the trier of facts can reasonably decide a case. There must
be substantial evidence[,] and a mere scintilla of evidence[] or speculative
deductions and conclusions will not suffice.
Marion v. Marcus, 199 S.W.3d 887, 894 (Mo.App. 2006) (internal citations and quotations
omitted). We reverse for instructional error only if the error resulted in prejudice that materially
affects the merits of the action. Bach, 257 S.W.3d at 608.
Factual and Procedural Background
On a “chilly, but nice February day,” four vehicles traveled east on Sunshine Street and a
motorcycle traveled west. The first of the four eastbound vehicles signaled to turn left onto
Royal Drive and stopped in the eastbound lane, yielding to the westbound motorcycle. The
second vehicle, driven by Wampler, successfully stopped behind the first. The third vehicle,
driven by Dennis Gammon, “whipped” into the motorcyclist’s lane, almost hitting the
motorcycle head on, causing the motorcyclist to swerve onto the shoulder to avoid an accident.
Gammon then “moved back to the right” and came to a stop without hitting Wampler’s vehicle.
The fourth vehicle, a box van driven by Speake, was unable to stop and hit Gammon’s stopped
vehicle, causing it to move “forward and to the left,” thereby knocking it “somewhat over into
the westbound lane.” The impact damaged the rear passenger’s side of Gammon’s vehicle.
After that impact, Speake’s box van “sheered [sic] off to the right of [Gammon]” and, while
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Speake was “paying attention to other things,” hit Wampler’s vehicle. Speake’s second impact
damaged the rear bumper and the driver’s-side taillight of Wampler’s vehicle.
After the close of evidence, Wampler proffered Instruction A to the trial court, which
read:
Your verdict must be for plaintiff Amanda Wampler if you believe:
First, either:
Defendant’s automobile came into collision with the rear of
plaintiff Amanda Wampler’s automobile, or
Defendant was following the plaintiff Amanda Wampler’s
automobile too closely, or
Defendant knew or by the use of the highest degree of care could
have known that there was a reasonable likelihood of collision in
time thereafter to have
stopped; or
swerved; or
slackened speed
but defendant failed to do so; or
Defendant failed to keep a careful lookout, and
Second, defendant, in any one or more of the respects submitted in
paragraph First, was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause
damage to plaintiff Amanda Wampler.
The term “negligent” or “negligence” as used in this instruction means the
failure to use the highest degree of care. The phrase “highest degree of care”
means that degree of care that a very careful person would use under the same or
similar circumstances.
(Emphasis added.)
The trial court refused to give this instruction with the italicized portion concerning the
rear-end collision doctrine because it concluded that:
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The law is clear that the rear-end collision doctrine is not appropriate in anything
other than a clear and simple situation of one vehicle overtaking another. The
Supreme Court has said it is not recommended that this theory of recovery be
employed, except where the facts come strictly within the pattern of a typical rear-
end collision. Time and distance are necessary factors in determining whether the
overtaking driver permitted the collision to occur. The Court finds in this instance
there are much more complicating factors than a simple one vehicle overtaking
the other; thus, the rear-end collision doctrine would be inappropriate, and the
Court would refuse Instruction A.
Instead, the trial court submitted to the jury Instruction 6 that was identical to the refused
Instruction A except for the omission of the portion relevant to the rear-end collision doctrine
italicized in Instruction A set forth supra.
Following the jury’s verdict in favor of Speake, Wampler raised the issue of the trial
court’s refusal to give Instruction A in her motion for new trial. The motion was denied, and this
appeal timely followed.
Discussion
The rear-end collision doctrine recognizes that if one has his vehicle in a portion
of the highway where he should have it in view of his course, and another
traveling behind him in the same direction overtakes him and permits his vehicle
to run into the rear of the one ahead, proof of the collision under such
circumstances makes out a prima facie case of specific negligence against the
driver operating the overtaking vehicle.
Ethridge v. Gallagher, 773 S.W.2d 207, 211 (Mo.App. 1989). “The rear-end collision doctrine
is limited in scope, and a trial court may instruct a jury under the theory only when the case falls
squarely within the doctrine’s factual prerequisites.” Varsalona v. Ortiz, 445 S.W.3d 137, 139
(Mo.App. 2014); see also Clark v. Belfonte Distrib., Inc., 163 S.W.3d 581, 585 (Mo.App.
2005). The doctrine may be applied where the deviation from the typical scenario is sufficiently
akin to the typical class of cases, but other expansion of the doctrine is not recommended.
Witherspoon v. Guttierez, 327 S.W.2d 874, 878 (Mo. 1959).
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There are several considerations that are important to determining whether to instruct
under the rear-end collision doctrine, see Kaufmann by Kaufmann v. Nagle, 807 S.W.2d 91, 94-
95 (Mo. banc 1991), and “‘[c]ases might be cited pro and con ad infinitum on this subject but,
after all, each case depends upon its own particular facts and it is seldom that one decision really
controls another[,]’” Bryan v. Peppers, 323 S.W.3d 70, 73 (Mo.App. 2010) (quoting Price v.
Seidler, 408 S.W.2d 815, 820 (Mo. 1966)). The ultimate determination as to whether the court
should instruct under the doctrine is whether the evidence justifies an inference of negligence.
Varsalona, 445 S.W.3d at 139.
In viewing the evidence and inferences in the light most favorable to giving Instruction
A, we are required to ignore contrary evidence and inferences. The evidence and inferences
here, when so viewed, support that Wampler’s vehicle—traveling east in the eastbound lane on
Sunshine but stopped for a vehicle in front turning left—was located in a portion of the highway
where Wampler should have had it in view of her course. See Ethridge, 773 S.W.2d at 211.
Speake was traveling behind Wampler in the same direction, overtook Wampler, and permitted
his vehicle to run into the rear of Wampler’s vehicle. Id. Wampler, therefore, made a prima
facie case of specific negligence supporting the giving of Instruction A. Id.
Speake, however, lists six “complicating factors” that he argues remove this case from
any factual scenario warranting the instruction:
1. An unknown vehicle stopped abruptly in front of Wampler’s vehicle;
2. The vehicle behind Wampler’s vehicle and in front of Speake—driven by
Gammon—was following Wampler’s vehicle too closely;
3. Gammon abruptly swerved his vehicle into the westbound lane to avoid a
collision with Wampler’s vehicle, instead of merely bringing his vehicle to a stop
or driving onto the shoulder to the right;
4. Gammon swerved his vehicle back into the eastbound lane to avoid colliding
with an oncoming motorcycle;
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5. Gammon’s vehicle collided with Speake’s vehicle as it re-entered the
eastbound lane; and
6. Speake’s vehicle “bounced” or “catapulted” into Wampler’s vehicle.
Speake’s argument is flawed in that it presupposes the jury found the evidence supporting
his six “complicating factors” credible. “[E]vidence never proves any element until the [fact-
finder] says it does.” State v. Jackson, 433 S.W.3d 390, 392 (Mo. banc 2014). “The jury, as the
trier of fact, was free to believe or disbelieve all, part or none of the testimony, even if it was
unimpeached or uncontradicted.” Harmon v. Hamilton, 903 S.W.2d 610, 613 (Mo.App. 1995).
Our standard of review rejects this presupposition by compelling us to disregard evidence
and inferences contrary to the giving of the instruction. Speake supports his second, fifth, and
sixth “complicating factors” by citing to testimony in the trial transcript as direct evidence of
those facts. That evidence, however, is contrary to giving the requested instruction and must be
ignored under our standard of review because the jury was free to disbelieve it, even if it was
unimpeached or uncontradicted.
Similarly, Speake’s first, third, and fourth “complicating factors” are based upon
inferences contrary to giving the requested instruction. Whether a vehicle “abruptly stopped,”
“abruptly swerved,” or simply “swerved” are merely inferences the fact-finder could have drawn,
but was not required to draw, from the evidence. As stated above, we draw all inferences in the
light most favorable to giving the requested instruction. Choate, 952 S.W.2d at 734. Speake’s
argument relies upon factual inferences contrary to giving the requested instruction. Because
such inferences are ignored under our standard of review, they provide no analytical support for
Speake’s contention.
Speake relies solely on Clark and Witherspoon to support his argument that these
“complicating factors” remove the case from the purview of the rear-end collision doctrine. In
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Clark, the trial court refused to instruct on the rear-end collision doctrine, and that decision was
affirmed on appeal because apparently the uncontested evidence at trial was that the defendant
had attempted to avoid a collision but was unable to do so because of icy road conditions. 2
Clark, 163 S.W.3d at 585. Because the evidence did not show that defendant had “permitted”
his vehicle to run into the rear of the one ahead, a necessary element, instruction under the
doctrine was inappropriate. Id. Here, unlike in Clark, there were several conflicting versions of
the events surrounding the collision of Speake’s and Wampler’s vehicles, any one of which the
jury could have believed. One of those possible versions, as set out in the first paragraph of the
factual background above, warranted giving the refused instruction.
In Witherspoon, the trial court instructed the jury concerning the rear-end collision
doctrine, and the jury rendered a verdict for the plaintiff. Witherspoon, 327 S.W.2d at 875, 877.
The defendant argued on appeal that the facts took the case out of the traditional, simple factual
scenario. Id. at 877. Although the appellate court agreed that if the plaintiff’s evidence had been
in accord with the defendant’s evidence, the rear-end collision instruction would not have been
appropriate, the court determined that the instruction was appropriate based on the plaintiff’s
version of the events. Id. at 879. Here, as in Witherspoon, there are alternate versions of the
events, one of which supports the giving of the instruction, and the jury should have been
allowed to decide which version was true.
Wampler argues that she was prejudiced by the trial court’s refusal to instruct the jury
under the rear-end collision doctrine because she was denied a possible avenue for the jury to
2
Clark does not indicate that any of the facts it relied on in resolving this issue were contested or otherwise identify
any standard of review it employed to resolve contested facts. In the absence of either, the only logical assumption
is that those facts were uncontested. See White v. Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010)
(appellate court gives no deference to trial court’s credibility determinations only when evidence is uncontested).
Regardless, Clark is clear that the appellate court considered that the evidence supported only one version of the
facts and that version did not warrant giving the instruction under the rear-end collision doctrine.
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find in her favor. Speake does not argue otherwise, and we agree with Wampler. Point I is
granted.
Conclusion
The trial court’s judgment is reversed, and the case is remanded for a new trial.
GARY W. LYNCH, J. – Opinion author
NANCY STEFFEN RAHMEYER, J. – concurs
WILLIAM W. FRANCIS, Jr., J. – concurs
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