Thompson v. Marler

DON E. BURRELL, Presiding Judge,

concurring in point I and in result only as to points II and III.

I write separately because I believe the comparative fault instruction (Instruction No. 9) propounded by defendant and submitted by the trial court was not supported by substantial evidence. No authority has been cited for the proposition that it is a violation of the rules of the road or is otherwise negligent for a motorist to come to a stop in the center turn lane of a five lane road. The district traffic engineer’s direct examination testimony was that the center lane of the five lane road at issue was designed for at least two purposes: 1) to give drivers wanting to make a left turn from the lanes of travel a place to stop and wait for oncoming traffic to clear; and 2) to give drivers turning left from a parking lot or side street into the lanes of travel a place to stop and wait for oncoming traffic to clear so they can merge into those lanes.

*268The evidence most favorable to the submission of the instruction occurred during that witness’s cross-examination when he acknowledged that the Missouri Department of Revenue’s Driver’s Guide1 (the “driver’s guide”) “recommends” that the center lane not be used for this second purpose for which the lane was designed. No authority has been cited to support the Driver’s Guide recommendation to “not use this lane when entering the roadway from a side street” as a rule of law. In fact, section 300.215 — a portion of the Model Traffic Ordinance2 — would suggest the contrary. That section provides, in relevant part:

Where a special lane for making left turns by drivers proceeding in opposite directions have [sic] been indicated by official traffic control devices[3]: ... A vehicle shall not be driven in the lane except [1] when preparing for or making a left turn from or into the roadway or [2] when preparing for or making a u-turn when otherwise permitted by law.

(emphasis added). Thus, the model code promulgated by the legislature approves the use of this type of center lane (a designated two-way left turn lane) “when preparing for ... making a left turn ... into the roadway.” Here, plaintiff did just that. Defendant’s comparative fault submission was based on plaintiffs testimony that she made a left turn out of the parking lot, pulled into the center lane, stopped, and was preparing to merge right into traffic to complete her left turn into the roadway when defendant’s vehicle struck her vehicle. Absent a showing that the actions plaintiff testified to violated one of the recognized rules of the road, there is no presumption that her conduct was negligent, and I do not believe that the district traffic engineer’s cross-examination testimony (assumed as true) acknowledging that the driver’s guide recommends against this particular use was probative of the question of whether plaintiff failed to exercise that degree of care that a very careful person would use under the same or similar circumstances when she pulled into the center turn lane and stopped.4 See MAI5 11.01; section 304.012.1.

*269Secondly, even if being “stopped in the center lane” under these circumstances could be considered negligent, defendant presented no evidence that the reason for plaintiff being there (to merge instead of to turn) was the proximate cause of the collision. In other words, there was no showing that the fact that plaintiffs vehicle was standing motionless in the center turn lane because she was waiting to merge (not a recommended use according to the driver’s guide) instead of being in that very same spot waiting to turn left onto a parking lot or side road (a use approved by the driver’s guide) either caused or contributed to cause any damages plaintiff may have sustained. Although one could speculate that such evidence might consist of evidence that plaintiff was looking back over her right shoulder (waiting to merge) instead of looking forward (waiting to turn left) deprived her of an ability to see defendant’s vehicle coming toward her and thereby deprive her of any chance to see the impending collision and attempt to take any action to avoid it, no such evidence was presented in this case. In addition, defendant’s intervening negligence in striking plaintiffs motionless vehicle meant there was no evidence that the collision was the natural and probable consequence of plaintiff being stopped in the center lane to merge right instead of to turn left.

Despite my belief that the trial court’s comparative fault instruction was not supported by substantial evidence, I concur in the result because I also believe that the jury’s award of zero damages demonstrates that the error was harmless. “In any action for negligence, the plaintiff must establish the existence of a duty on the part of the defendant to protect plaintiff from injury, failure of the defendant to perform that duty and, that plaintiffs injury was proximately caused by defendant’s failure.” Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. banc 1990) (emphasis added; citations omitted). “If the negligence causes no actual damages to plaintiff, defendant is entitled to a verdict.” Copeland v. Compton, 914 S.W.2d 378, 382 (Mo.App. S.D.1996).

Because the jury in the instant case found defendant 50% at fault but also found that plaintiff suffered no damage, its verdict was inconsistent. In Douglass v. Safire, 712 S.W.2d 373 (Mo. banc 1986), our Supreme Court explicitly held that an inconsistent verdict must be brought to the attention of the trial court before the jury is discharged or the claim of inconsistency is waived. Id. at 374. Because plaintiff did not challenge the jury’s finding of zero damages at trial, she has waived the inconsistency. “Once that waiver occurred, the trial court did not err in treating [the jury’s verdict] as a verdict in favor of the [defendant].” Hadley v. Burton, 265 S.W.3d 361, 370 (Mo.App. S.D.2008).

In Campbell v. Kelley, 719 S.W.2d 769 (Mo. banc 1986), our Supreme Court noted that “[i]n suits involving unliquidated damages where the jury finds for plaintiff but does not award damages the federal courts treat the verdict as one for the defendant.” Id. at 771. Although the Court did not explicitly adopt this rule in Missouri, it certainly cited it favorably, noting “[t]his result logically follows in negligence claims where unliquidated damages are an element of the cause of action.” Id. As pointed out by the dissent in Tauchert v. Ritz, 909 S.W.2d 687 (Mo.App. E.D.1995), “[e]ven if no comparative fault were found in plaintiff, and 100% were assessed *270against defendant, plaintiffs recovery would still be zero.” Id. at 692 (Smith, G., dissenting). Because I believe this case is not like Tauch&nt — -where the defendant had conceded at trial that the plaintiff had suffered significant injuries6 — I would affirm the trial court’s judgment on the grounds that the jury’s award of zero damages demonstrated a failure of one of the necessary elements of plaintiffs claim and rendered harmless the erroneous submission of Instruction No. 9.

. The driver’s guide was not provided in the record, but we were able to discern the relevant portions from the testimony at trial. A current version of the driver's guide is available at http://dor.mo.gov/mvdl/drivers/dlguide/ dlguide.pdf.

. A set of state-approved traffic ordinances that become effective when adopted (in whole or in part) by any city’s governing body. Section 300.600. Although no applicable city ordinance was before the trial court in this case, it is interesting to note that the city of Springfield has adopted the language of the model code and provides: ("Where a special lane for making left turns by drivers proceeding in opposite directions has been indicated by official traffic control devices: ... A vehicle shall not be driven in the lane except when preparing for or making a left turn from or into the roadway or when preparing for or making a U-turn when otherwise per-milted by law.”) (emphasis added). Springfield, Mo., Code section 106-184 (1981).

. Section 300.010(19) defines "official traffic control devices” to mean "all signs, signals, markings and devices not inconsistent with this ordinance placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning or guiding traffic.”

. I do acknowledge that our Supreme Court has used the driver's guide as support for a conclusion it reached after construing two statutes, see Reed v. Dir. of Revenue, 184 S.W.3d 564, 567 (Mo. banc 2006) (construing the term "accident” to require either property damage or personal injury), but my research did not discover any cases holding that the driver’s guide is adopted as a rule of law.

. Mo. Supreme Court Comm, on Jury Instructions, Missouri Approved Jury Instructions 253 *269(Stephen H. Ringkamp & Richard E. McLeod eds., West Group 6th ed.2002) (hereinafter MAI).

. In the instant case, defendant contested plaintiff's assertion that she was injured as a result of the collision, and plaintiff's father testified that the vehicle plaintiff was driving was titled solely in his name. Although I question whether Tauchert is consistent with our Supreme Court’s pronouncements in Campbell and Douglass, the question of whether this court should follow it can wait until the issue is unavoidably before us.