dissenting.
I respectfully dissent from the principal opinion because I believe under the facts of this ease that the jury was instructed properly when examining the record as a whole and the verdict should be upheld.
Whether a jury was instructed properly is a question of law that this Court reviews de novo. Edgerton v. Morrison, 280 S.W.3d 62, 65 (Mo. banc 2009). This Court conducts its review in the light most favorable to the submission of the instruction, and if the instruction is supportable by any theory, then its submission is proper. Klotz v. St. Anthony’s Medical Center, 311 S.W.3d 752, 766 (Mo. banc 2010). “Jury instructions are not to be viewed in isolation, but are to be taken as a whole to determine whether error occurred.” State v. Storey, 40 S.W.3d 898, 912 (Mo. banc 2001). Reversal for instructional error is appropriate when the instruction misdirected, misled, or confused the jury and resulted in prejudice. Edgerton, 280 S.W.3d at 66. “This Court must review all submitted instructions together to determine if [the error] resulted in prejudicial error.” State v. Anderson, 306 S.W.3d 529, 535 (Mo. banc 2010) (quoting State v. White, 622 S.W.2d 939, 943 (Mo. banc 1981)).
When examining the jury instructions as a whole, it is evident the question of Ms. Hervey’s disability was placed squarely in front of the jury to determine as a threshold issue. Jury Instruction No. 2 directs the jury that “[y]ou should consider each instruction in light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence.”
Jury Instruction No. 6 provides a definitional instruction for the word “disability.” It states: “A disability is a physical or mental impairment which substantially limits one or more of a person’s major life activities, which with or without reasonable accommodation does not interfere with performing the job.” This definition comports verbatim with the statutory definition of “disability” provided in section 213.010(4), RSMo Supp.2011.
Next, Jury Instruction No. 8, Hervey’s verdict director, states: “Your verdict must be for the Plaintiff if you believe: First, Defendant discharged Plaintiff; and Second, disability was a contributing factor in such discharge; and Third, as a result of such conduct, Plaintiff sustained damage.” This instruction is patterned after MAI 31.24 without modification. Rule 70.02(b) provides, “Whenever Missouri Approved Instructions contains an instruction applicable in a particular case that the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other instructions on the same subject.” (Emphasis added). Further, Rule 70.02(c) directs, “The giving of an instruction in violation of the provisions of this Rule 70.02 shall constitute error, its prejudicial effect to be judicially determined” in the face of a timely objection.
Finally, Jury Instruction No. 9, the DOC’s affirmative converse states: “Your verdict must be for Defendant if you believe: First, defendant discharged plaintiff because she could not successfully complete her probationary period, and Second, in doing so, her complaint of disability discrimination was not a contributing factor.”
Here, I believe the jury was instructed properly to find all three elements for a MHRA claim under the law. There can be no doubt that the issue of whether Ms. Hervey was disabled was contested hotly throughout the trial. Since jurors are presumed to follow the court’s instructions, *167the Court must assume that the jury considered the definition of “disability,” which comports with the substantive law mandating what a plaintiff must prove to establish disability discrimination under the MHRA. Moreover, the jury was instructed to consider whether disability, properly defined in the jury instructions, contributed to Ms. Hervey’s discharge. Ms. Hervey’s alleged disability could not be a contributing factor absent a finding by the jury that she did in fact have a disability, as was explained fully to the jury by the attorneys for both parties in their respective closing arguments.
I recognize the verdict director submitted in this ease was not a model of clarity, and going forward, perhaps MAI 31.24 should be reexamined. However, when examining the evidence presented, the closing arguments of the parties, reading the jury instructions as a whole, and presuming jurors of reasonable intelligence followed the instructions, I do not believe the jury was misdirected, misled, or confused in rendering its verdict. Further, there is no evidence in the record that the verdict was inconsistent or otherwise confusing.
Therefore, I would find the verdict director proper, and I would affirm the trial court’s judgment, including the trial court’s calculation of damages pursuant to section 510.265.1, RSMo Supp.2011.