DocketNumber: No. ED 106157
Citation Numbers: 559 S.W.3d 923
Judges: Mooney
Filed Date: 10/23/2018
Status: Precedential
Modified Date: 1/21/2022
In this action for personal injuries arising out of an automobile collision occurring on a private parking lot, Peter Barth argues the trial court erred in not submitting his proposed comparative-fault instruction, which hypothesized failure to yield the right-of-way as a ground to assess fault to the defendant. We affirm because Mr. Barth did not propose an acceptable instruction defining the phrase "yield the right-of-way," and we decline his invitation to recognize a new common-law right-of-way rule.
Factual and Procedural Background
Peter Barth and Brooke Cannon were involved in an automobile collision on the parking lot of Mercy Hospital in St. Louis County, Missouri.
At trial, Mr. Barth tendered Instruction A, a disjunctive comparative-fault instruction, which hypothesized failure to yield the right-of-way as a ground to assess fault to defendant St. Jude Medical. In its entirety, proposed Instruction A read:
In your verdict, you must assess a percentage of fault to defendant St. Jude Medical, Inc. whether or not plaintiff was partly at fault if you believe:
First, either:
Brooke Cannon failed to keep a careful lookout, or *925Brooke Cannon failed to yield the right of way to plaintiff, or
Brooke Cannon knew or by the use of ordinary care should have known of the reasonable likelihood of collision in time thereafter to have stopped, but Brooke Cannon failed to do so, and
Second, Brooke Cannon, 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.
In conjunction with this proffered instruction, Mr. Barth tendered Instruction B, which contained a definition, fashioned by Mr. Barth, for the phrase "yield the right-of-way."
The trial court refused to submit the two instructions. Instead, the trial court submitted two comparative-fault instructions, both hypothesizing two grounds of possible fault - failure to keep a careful lookout and failure to stop after likelihood of collision was apparent. One instruction was for assessing fault to Ms. Cannon, the other for assessing fault to Mr. Barth.
The jury rendered its verdict for St. Jude Medical, assessing 0% fault to Ms. Cannon and 0% fault to Mr. Barth, and finding the total amount of Mr. Barth's damages to be zero dollars. Mr. Barth appeals, alleging the trial court erred in not submitting his proffered instructions.
Standard of Review
The trial court's refusal to submit a party's proffered instruction to the jury is a matter that this Court reviews de novo. Cluck v. Union Pacific R. Co.,
Discussion
Mr. Barth proffered a disjunctive comparative-fault instruction that hypothesized failure to yield the right-of-way as a ground to assess fault to defendant St. Jude Medical. Mr. Barth based this portion of the proposed instruction on Missouri's approved instruction for failing to *926yield the right-of-way, MAI 17.08. The Notes on Use for that approved instruction state that the appropriate right-of-way definition must be used in conjunction with the failure to yield submission. Notes on Use MAI 17.08; see also, Howe v. Bowman ,
Missouri's approved instructions supply eight different definitions for the phrase "yield the right-of-way." MAI 14.02-14.09. Counsel for Mr. Barth correctly acknowledged at the instruction conference that these definitions are patterned after state statutes, and that statutory right-of-way provisions did not apply in this case, because the incident occurred on a private parking lot. Doolin v. Swain,
The parties cite but two cases wherein the court has pronounced a common-law rule of the road regarding yielding the right-of-way - Doolin v. Swain,
Accordingly, unable to cite precedential authority, Mr. Barth proposed the following "right-of-way" definition:
The phrase "yield the right-of-way" as used in these instructions means a driver backing out of a parking spot of a parking lot is required to yield to another vehicle approaching in the lane adjacent to the parking spot.
Mr. Barth admits that in fashioning his proposed definition he modified a Missouri approved instruction, MAI 14.06, that sets out the definition of "yield the right-of-way" for when a vehicle enters a roadway from an alley, private road, or driveway. But MAI 14.06 is based on Section 304,351.5, which is a statutory rule of the road. Committee Comment MAI 14.06. And as noted earlier, the statutory rules of the road do not apply in this case. It is error to submit a statutory right-of-way instruction for a private parking-lot accident. Doolin,
*927Further, Mr. Barth urges this Court to recognize his proposed common-law right-of-way rule requiring vehicles backing out of parking spaces to always yield to vehicles approaching in the traffic lane adjacent to the parking spot.
We affirm.
SHERRI B. SULLIVAN, P.J., and JAMES M. DOWD, J., concur.
Ms. Cannon was an employee of St. Jude Medical, Inc. The parties at trial stipulated that at the time of the collision, Ms. Cannon was acting within the scope and course of her employment and/or agency with St. Jude Medical.
Instruction 7, submitted by the court, read:
In your verdict, you must assess a percentage of fault to defendant St. Jude Medical, Inc., if you believe:
First, either:
Brooke Cannon failed to keep a careful lookout, or
Brooke Cannon knew or by the use of ordinary care should have known of the reasonable likelihood of collision in time thereafter to have stopped, but Brooke Cannon failed to do so, and
Second, Brooke Cannon, 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.
Instruction 9 similarly read:
In your verdict, you must assess a percentage of fault to plaintiff if you believe:
First, either:
plaintiff failed to keep a careful lookout, or
plaintiff knew or by the use of ordinary care should have known of the reasonable likelihood of collision in time thereafter to have stopped or swerved but plaintiff failed to do so, and
Second, plaintiff, 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.
Of course, the Missouri legislature is free to announce the law that should apply under these circumstances.