543 S.W.3d 109
Mo. Ct. App.2018Background
- Plaintiff Adam Payne fell head-first from an unattended Spaceball human gyroscope at a fundraising event at a facility owned by Fiesta Corporation and sustained a C4 facet fracture and chronic neck pain, later treated by neurosurgeon Dr. Armond Levy.
- Fiesta owned the ride; trained HYFC operators allegedly failed to appear, and patrons used the ride unsupervised with bystanders assisting harnessing.
- Payne sued Fiesta (and initially others), dismissed claims for past medical bills and past lost wages before trial, and proceeded on negligence for ongoing injuries and future care.
- Trial evidence included Dr. Levy’s video deposition (causation and need/likelihood of future fusion surgery), lay testimony about altered lifestyle and pain, and Fiesta’s defense expert, Dr. Brancato.
- Jury found Fiesta 100% at fault and awarded $1,500,000; trial court denied Fiesta’s directed verdict/JNOV, motions for mistrial, motion to exclude Dr. Levy, and post-verdict motions for new trial/remittitur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Levy’s deposition on causation and future pain/suffering | Levy’s opinions connect the fall to ongoing pain and increased likelihood of future surgery; admissible under §490.065 | Testimony speculative, based on preexisting degenerative condition; should be excluded as unreliable | Court admitted significant portions; no abuse of discretion—opinions were within a reasonable degree of medical certainty and supported by records and diagnostic imaging |
| Exclusion of past medical bills and past lost wages evidence | N/A (Plaintiff had dismissed those claims) | Fiesta: exclusion via motion in limine improperly barred relevant evidence | Issue not preserved—Fiesta did not attempt to admit the items at trial or make an offer of proof; appellate relief denied |
| Mistrial for implied insurance reference during cross | N/A | Question implied expert was paid by insurer; prior mistrial had occurred for insurance reference—Fiesta sought mistrial | No manifest abuse of discretion—court sustained objection, no insurance stated, and trial court reasonably found no prejudicial injection of insurance |
| Directed verdict / JNOV based on assumption of risk (primary) | N/A | Fiesta: riding Spaceball (and risk of being jettisoned) is inherent; plaintiff assumed risk as a matter of law | Reversed? No — trial court and appellate court held primary implied assumption of risk inapplicable because the injury resulted from negligent supervision/harnessing (a non‑inherent, increased risk); comparative fault for jury to decide |
| Excessive verdict / remittitur | N/A | Verdict ($1.5M) is excessive, unsupported by evidence, and caused by trial errors | Denied—award within jury discretion; trial court did not abuse discretion in refusing remittitur or new trial after weighing evidence of ongoing pain, future treatment risk, and plaintiff’s life-impacting injuries |
Key Cases Cited
- Peters v. Wady Indus., Inc., 489 S.W.3d 784 (Mo. banc 2016) (elements of negligence)
- Spalding v. Stewart Title Guar. Co., 463 S.W.3d 770 (Mo. banc 2015) (§490.065 expert testimony requirements)
- Edgerton v. Morrison, 280 S.W.3d 62 (Mo. banc 2009) (medical certainty for causation)
- Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127 (Mo. banc 2007) (expert testimony about increased likelihood of future surgery admissible to assess damages)
- Hancock v. Shook, 100 S.W.3d 786 (Mo. banc 2003) (motion in limine rulings preserve nothing unless evidence is later offered)
- Delacroix v. Doncasters, Inc., 407 S.W.3d 13 (Mo. App. E.D. 2013) (mistrial is drastic remedy; abuse of discretion standard)
- Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184 (Mo. banc 2014) (implied primary assumption of risk doctrine and duty question for the court)
- Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439 (Mo. banc 1998) (factors for assessing excessiveness of damages)