Tiffany K. (Mahaffey) Brizendine v. Bartlett Grain CO., LP
2015 Mo. App. LEXIS 1330
Mo. Ct. App.2015Background
- On Oct. 29, 2011, Brizendine (a volunteer canine search-and-rescue worker) arrived at Bartlett Grain's gated emergency scene at night; she carried a hard hat with a headlamp and two flashlights but did not use them.
- While walking from a gravel parking area into grass to "break" her dog, she stepped into a hidden drainage ditch, sustaining a severe right tibial pilon fracture that required multiple surgeries.
- Brizendine sued Bartlett in Missouri (tort occurred in Kansas), alleging failure to barricade or warn of the ditch and seeking damages for medical expenses, pain, and lost earning capacity.
- Bartlett pleaded comparative fault, including failure to keep a careful lookout and failure to use a headlamp/flashlight; the trial court declined to give a separate withdrawal instruction excluding headlamp/flashlight evidence, instead submitting a MAI 32.28-based comparative-fault instruction.
- The jury found Brizendine 100% at fault; she appealed, arguing (1) the court should have withdrawn headlamp/flashlight evidence and barred related argument, and (2) the court erred by allowing cross-examination about her post-injury employment circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused its discretion by refusing to withdraw evidence/issue of Brizendine's nonuse of headlamp/flashlight | The headlamp/flashlight evidence misled the jury on duties, improperly shifted scope of "careful lookout," and lacked substantial evidence that such lighting would have revealed the ditch | Evidence of nonuse was directly relevant to whether Brizendine exercised ordinary care in very dark, unfamiliar conditions; conflicting testimony created a factual issue for the jury | Court did not abuse discretion; evidence properly submitted and withdrawal instruction denied |
| Whether Bartlett could rely on that evidence in closing argument | Bartlett's argument overstated an improper issue created by irrelevant evidence | Bartlett may argue any theory supported by the evidence and by the instructions, so long as within the record | Closing argument was permissible; court did not abuse discretion |
| Whether cross-examination about her change of employment (including Cerner records) was improper or unduly prejudicial | Such inquiry was irrelevant to damages and improperly attacked character | Brizendine made her employment and loss of earning capacity central to her damages case; questioning bore on motive for leaving Cerner and credibility of claimed injury effects | Cross-examination was logically relevant and admissible; court did not abuse discretion |
| Choice-of-law/proof standard for comparative-fault evidence | (implicit) Missouri procedure; Kansas substantive law controls negligence standard | Kansas law treats darkness and unfamiliar terrain as factors in plaintiff's duty to anticipate peril; evidence of available lighting bears on ordinary care | Court applied Kansas negligence law and Missouri procedural rules; submission of comparative-fault instruction appropriate |
Key Cases Cited
- Swartz v. Gale Webb Transp. Co., 215 S.W.3d 127 (Mo. banc 2007) (standard for reviewing trial-court rulings on withdrawal instructions)
- Haffey v. Generac Portable Prods., L.L.C., 171 S.W.3d 805 (Mo. App. 2005) (circumstances permitting withdrawal instructions)
- Deal v. Bowman, 286 Kan. 853 (Kan. 2008) (definition of negligence as lack of ordinary care under Kansas law)
- Kirsch v. Dondlinger & Sons Constr. Co., 206 Kan. 701 (Kan. 1971) (darkness as factor in duty to anticipate peril)
- Little v. Butner, 186 Kan. 75 (Kan. 1960) (reasonable use of one’s faculties for self-protection in familiar, well-lit conditions)