Chris Boggs left his home on his bike one afternoon to deliver newspapers. Chris rode down his driveway and out into the street between two stopped trucks and was hit by a tractor-trailer truck hauling soybean meal for the Areher-Daniels-Mid-land Company (ADM). At the time he was injured, Chris was thirteen years old and living with his grandmother on East Holt Street in Mexico, Missouri. Holt Street runs east-west through a residential neighborhood, with houses lining both sides of the street. At the west end of Holt Street, near Chris’s home, is a soybean-processing facility, owned and operated by defendant ADM. The facility was built in the early 1950’s. ADM has operated the facility since 1985.
ADM processes soybeans into a variety of products, including meal and oil, at the Holt Street facility. Trucks filled with soybeans enter the facility via Holt Street, are weighed “full” at a scale located near the entrance to the facility, and then proceed further into the facility grounds to dump the beans into a “bean dump.” The trucks then return to the scale, are weighed again “empty,” and then exit the facility via Holt Street. As to the meal generated at the Holt Street facility, ADM hires trucks — meal haulers — to pick up the meal from the facility and then deliver it to ADM’s customers. The meal haulers enter the facility from Holt Street, are weighed “empty” at the scale, and then proceed further into the facility to be loaded with meal. The meal haulers then return to the scale, are weighed “full,” and then exit the facility via Holt Street. The City of Mexico has designated Holt Street as the only lawful route for trucks to enter and leave the ADM facility.
Access onto the ADM scale is controlled by a red-green light located on both sides of an office building next to the scale. The light is manually controlled by ADM’s scale operator, and is designed to direct trucks on and off of the scale. If there is a green light, the truck may enter the scale; if there is a red light, the truck may not
While trucks filled with soybeans waited on Holt Street for entrance to the ADM facility, certain other trucks did not wait in line typically the meal haulers. ADM had instructed the drivers of the meal trucks to pass the queued soybean trucks and to drive down the wrong side of the street in order to enter the ADM facility as a “first-priority” trucker.
Testimony from residents showed that, at times, there could be up to thirty trucks lined up, bumper-to-bumper, all the way down Holt Street. Truck traffic on Holt Street varies by the season and by the price of soybeans, with increased traffic seen during harvest time and when the price of soybeans rose. But as ADM’s plant manager, Mr. Stumpe, acknowledged, there could be a backup on Holt Street at other times of the year. Trucks queuing up on Holt Street while waiting to deliver soybeans to the ADM facility was a long-standing problem that residents had complained to the police about for many years. Residents had complained that the trucks were noisy and would block driveways along the street. Mr. Stumpe acknowledged that ADM knew of the residents’ complaints. At the time of trial, there had been ongoing discussions for over ten years between ADM and the Mexico Department of Public Safety regarding the problem of trucks stacking up on the street and blocking driveways. Mr. Stumpe acknowledged that ADM was aware its facility was in a residential neighborhood with pedestrians, cyclists, and children. He also admitted that having trucks parked on the street was not “the most ideal situation,” and that it could create a dangerous situation.
In the fall of 1992, nearly three years before Chris’s injury, ADM bought a vacant piece of property directly adjacent to its facility. This property is commonly referred to as the “Mo-Con” lot. As Mr. Stumpe testified, one reason ADM purchased the Mo-Con lot was to ease the traffic congestion on Holt Street by using the lot as a parking lot where arriving truck drivers could queue up and wait until it was their turn to enter the scales. ADM also purchased the lot for storing equipment and for large maintenance activities.
When ADM first purchased the Mo-Con lot, it was in a state of disrepair and in no condition to be used as a parking lot for the trucks. The lot was muddy and overgrown with weeds and brush. ADM began clearing and repairing the lot in the summer of 1993, with the idea of having the lot ready for truck parking for harvest time in the fall. ADM used the parking lot for a few weeks during the fall of 1993, and then ruts began to develop and drainage problems appeared that necessitated a ditch being dug in 1994. In 1995, ADM began a project to install new processing equipment in its bean-prep building. ADM used the northwest corner of the Mo-Con lot to store the equipment for its project. Mr. Stumpe testified ADM tried
On the day Chris was injured, September 15,1995, three Hinkle Brothers’ trucks were headed to ADM to deliver soybeans. Darrin Hinkle was driving the first truck, followed by Randy Nolke and Dean Hin-kle, respectively. Darrin Hinkle testified that he knew the Mo-Con lot was there, but when he drove past the lot he saw that the gate was closed, and so proceeded further down Holt Street towards the ADM facility. When Darrin Hinkle approached the end of Holt Street he saw an outbound truck on ADM’s scale, and the scale light was red. He stopped on Holt Street to wait for the red scale light to change to green. The driver of the second truck, Randy Nolke, stopped behind Darrin Hinkle’s truck, just in front of a “No Parking” sign. He put his emergency brake on and waited for the green light so that he could move forward once Darrin Hinkle drove onto the scale. The back part of Nolke’s truck was in front of the driveway to Chris’s house. As Nolke’s truck came to a stop, the third driver, Dean Hinkle, eased in behind Nolke’s truck. There was approximately fifteen feet between the back of Nolke’s truck and the front of Dean Hinkle’s truck. Although Dean Hinkle pulled up far enough to clear the driveway behind his truck, he too also partially blocked Chris’s driveway. Whether the Mo-Con lot was open on this date was disputed at trial. All the defendant truck drivers testified that the gate to the lot was shut.
In the meantime, Chris had arrived home from school and had folded the newspapers he was to deliver. He then got on his bike and saw that two trucks were stopped in front of his driveway. To his left, Dean Hinkle’s truck blocked Chris’s vision down the street. To his right, Randy Nolke’s truck blocked his vision up the street. Chris rode out onto Holt Street in between Dean Hinkle’s truck and Randy Nolke’s truck, and collided with a tractor-trailer truck driven by Eddie Lay. Lay, a meal hauler headed towards ADM to pick up a load, was driving west in the eastbound lane of Holt Street, driving between a parked car on his left and the Hinkle and Nolke trucks on his right. When Lay had turned onto Holt Street and saw the line-up of trucks, he had decided to go past the stopped trucks, as ADM had told him to do. As he made his way past the stopped trucks, he suddenly felt the rear tandems of his truck pick up in the air and slam to the pavement. Lay had not seen Chris on his bike. Lay immediately stopped, exited his truck, and discovered Chris under the back tires of his truck.
Chris suffered serious and permanent injuries. Chris sustained head injuries, multiple fractures, internal injuries, and a crushed pelvis, among other injuries. He initially spent over three weeks in the hospital, and underwent multiple surgeries over the next several years. During the time Chris was in eighth and ninth grade, he was required to wear a catheter and a urine bag. Surgeries have enabled Chris to urinate normally. Chris no longer has a normally functioning left foot, and he has no sexual function.
Chris brought suit alleging negligence against ADM, Eddie Lay, and the drivers of the three parked trucks — Darrin Hin-kle, Randy Nolke, and Dean Hinkle.
1
The
Discussion
ADM raises seven points on appeal, Lay three. ADM claims the plaintiff failed to make a submissible case on his negligence claim with respect to duty and proximate cause. ADM also alleges the trial court erred in submitting the verdict-directing instruction against ADM. Two of ADM’s allegations of error concern the trial court’s rulings regarding certain purported subsequent remedial measures. ADM’s two remaining points on appeal, as well as Lay’s three points on appeal, challenge the trial court’s award of prejudgment interest. We first address ADM’s allegations of error.
For its first point on appeal, ADM alleges the trial court erred in denying ADM’s motions for directed verdict and for judgment notwithstanding the verdict because the plaintiff failed to make a submissible case on his negligence claim against ADM with respect to the existence of any duty to the plaintiff on the part of ADM. In a second point on appeal, ADM alleges the trial court erred in denying ADM’s motions for directed verdict and for judgment notwithstanding the verdict because the plaintiff did not make a submissible case with respect to proximate cause.
The standard of review of a trial court’s denial of a motion for judgment notwithstanding the verdict is essentially the same as that for the denial of a motion for directed verdict.
Giddens v. Kansas City Southern Ry. Co.,
The plaintiff here brought a negligence action against ADM. To make a submissible case of negligence, a plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, that the defendant failed to perform that duty, and that the defendant’s failure proximately caused injury to the plaintiff.
Lopez v. Three Rivers Elec. Co-op., Inc.,
“
'Duty’ is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff.” William L. Prosser,
Law of Torts
section 53 p. 324 (4th ed.1971). It is “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another in light of the apparent risk.” 65 C.J.S.
Negligence
§ 33, p. 325 (2000); Prosser,
supra
p. 324;
see also Pierce v. Platte-Clay Elec. Co-op., Inc.,
The existence of duty. In other words, whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other — or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant.
Strickland v. Taco Bell Corp.,
Whether a duty exists is purely a question of law.
Lopez,
It is well settled that the duty to maintain a public road in a safe condition rests on the municipality, and not on the abutting property owner.
Caldwell v. McGahan,
Missouri courts recognize two exceptions to the general rule that an abutting property owner is under no duty to maintain a public road in a safe condition. Under the first, “special-use” exception, a duty will be imposed when an abutting property owner puts an obstruction on the public road which was not a part of the original construction in order to serve his own purposes, or, when the abutting owner has made use of the public road for some other purpose than merely using it as a road, such as a driveway or a private walkway.
Caldwell,
In this case, we hold ADM did not have a duty under the special-use exception. ADM did not obstruct nor alter the original construction of Holt Street in any manner. ADM did not make use of Holt Street for some other purpose than merely using it as a road. At no time was Holt Street used as something other than a street. The fact that trucks parked on the street and the traffic backed up down the street does not change the use from a street into a private parking lot as the plaintiff suggests.
See O’Neil For and on Behalf of O’Neil v. ADM Growmark River Systems, Inc.,
ADM asserts that the unavailability of ADM’s lot and the resulting queuing of trucks on Holt Street is insufficient to satisfy the artificial-hazard exception. ADM relies on this Court’s decision in
O’Neil
to support its argument that ADM had no duty in this case. In that case, the plaintiffs were the surviving relatives of a man who was killed when his tractor-trailer was struck by a train while he waited to enter and make a delivery to ADM Grow-mark’s grain elevator. As in this case, there was only one means of ingress and egress to ADM Growmark’s property. A rail crossing traversed the access road. And, as in this case, there were times when traffic would back up on the access road. The plaintiffs in
O’Neil
alleged, in part, that ADM Growmark owed a duty to the decedent to warn him of the dangers at the rail crossing and to take precautions to prevent injuries while making deliveries to the grain elevator because ADM Grow-mark had created a hazardous condition. This Court found no such duty because the only affirmative action by ADM Growmark was to open for the business of accepting grain deliveries.
O’Neil,
Here, however, we have much more. ADM’s operation of the red-green light for access onto its scales, its closure of the Mo-Con parking lot, and its instructions that the first-priority meal hauler’s should pass the other, parked trucks, all affirmatively created a condition on Holt Street that made passage unsafe. Because the convergence of ADM’s actions created a dangerous condition on Holt Street, we hold it had a duty to exercise ordinary care to guard the public from injury.
Public-policy considerations also support the imposition of a duty of care on ADM in this case. As stated earlier, one policy consideration the courts look to in determining whether a duty exists in a particular situation is the foreseeability of the injury. Missouri courts have consistently held that, in the absence of a particular relationship recognized by law to create a duty, the concept of foreseeability is paramount in determining whether a duty exists.
See, e.g., Lopez,
The evidence in this case supports a finding that ARM should have foreseen that there existed some probability of sufficient moment that an injury could occur. ADM knew that it was operating a facility in a residential neighborhood. ADM also knew that there were pedestrians, cyclists, and children in the neighborhood. ADM certainly knew that trucks backed up down Holt Street while awaiting access to the ADM scales. ADM admitted that having trucks parked on the street was not “the most ideal situation,” and that having trucks parked in the street could create a dangerous situation. Yet, ADM instructed the first-priority meal haulers to pass the parked trucks and drive down the wrong side of this narrow residential street in order to reach the ADM facility. We believe, on these facts, ADM knew, or should have known, of a risk of harm to residents on bicycles sufficiently probable to create a duty. Simply stated, in light of the apparent risk, the plaintiff in this case was entitled to protection.
Concluding, the plaintiff presented a submissible ease for negligence on his theory that ADM created a dangerous condition on Holt Street and thus had a duty to make Holt Street safe for use by members of the public. Accordingly, the trial court did not err in denying ADM’s motions for directed verdict and judgment notwithstanding the verdict. ADM’s first point is denied.
ADM also challenges the submissibility of the plaintiffs negligence claim against ADM with respect to proximate cause. ADM contends no conduct by ADM was the proximate cause of the plaintiffs injuries. Specifically, ADM claims that truck drivers Nolke and Dean Hinkle’s acts of illegally blocking the plaintiffs driveway were the intervening, superseding causes of the plaintiffs injuries.
Actionable negligence requires a causal connection between the conduct of the defendant and the resulting injury to the plaintiff.
Schaffer v. Bess,
If two or more persons are guilty of consecutive acts of negligence, closely related in time, there is a question of whether the initial act of negligence was a proximate cause of the injury or whether there was an efficient, intervening cause.
Buchholz,
ADM maintains that the truck drivers’ acts of blocking the plaintiffs driveway were just such an intervening cause. We disagree. Here, ADM set in motion the chain of circumstances leading to the plaintiffs injuries. On the day of Chris’s injury, ADM’s Mo-Con lot was unavailable for the trucks to use as a parking lot. Further, ADM controlled access to its scales via a signal light, and had instructed the first-priority meal haulers to pass the parked soybean trucks and drive down the wrong side of Holt Street in order to enter the ADM facility. With the Mo-Con lot unavailable, trucks delivering soybeans were required to stop and line up on Holt Street as they awaited entry to ADM’s scale. It was both foreseeable and natural that, when the trucks were required to stop on Holt Street, the trucks would block driveways along the street. This had been a long-standing problem that the residents of Holt Street had complained about for many years. ADM was aware of the resident’s complaints. There had been ongoing discussions for over ten years between ADM and the Mexico Department of Public Safety regarding the problem of trucks lining up on the street and blocking driveways. The truck drivers’ actions of blocking the plaintiffs driveway were not wholly independent and unrelated to ADM’s conduct, but rather, flowed from ADM’s actions. Further, the trucks not only blocked the plaintiffs driveway, but also restricted his vision up and down the street, and of meal hauler Lay who was driving down the wrong side of the street to pass the parked trucks, as he had been instructed to do by ADM. The truck drivers’ actions of blocking the plaintiffs driveway did not interrupt the chain of events set in motion by ADM, but rather, instead, contributed to the events leading to the plaintiffs injuries. And thus, accordingly, the truck drivers’ actions did not constitute an intervening cause so as to sever the causation between ADM’s conduct and the plaintiffs injury. The trial court did not err in denying ADM’s motions for directed verdict and judgment notwithstanding the verdict. ADM’s point is denied.
For its next point on appeal, ADM alleges the trial court erred in submitting Instruction Number 15, the verdict director
Whether a jury was properly instructed is a question of law which this Court reviews
de novo. Harvey v. Washington,
ADM contends that the instruction impermissibly assumed the disputed fact of whether ADM had control over Holt Street. More specifically, ADM argues that, if its alleged control over Holt Street could have been the source of a duty on ADM’s part, then the disputed question of whether ADM actually exercised control should have been submitted to the jury. ADM complains it was found liable without any finding by the jury that ADM controlled traffic on Holt Street. ADM’s argument misses the mark. Plaintiffs theory in this case was that ADM had created a dangerous condition on Holt Street. The duty asserted in this case was not a duty that arose by virtue of control; rather, it was a duty that arose by virtue of a hazardous condition. The disputed issue here is whether ADM, by its actions, had created a hazardous condition, not whether ADM had control over Holt Street.
The verdict director in this case tracked the provisions of M.A.I. 22.09, the verdict-directing instruction for a dangerous condition created by an abutting landowner. The instruction here required the jury to find ADM had created a dangerous condition because its parking lot was not available for use by the trucks. ADM’s other
For its fourth point on appeal, ADM alleges the trial court erred in overruling ADM’s objections and admitting evidence that, shortly after the plaintiffs injury, ADM kept the Mo-Con lot open more than before the injury and erected a sign instructing truck drivers to park on the lot. ADM argues this evidence constituted inadmissible evidence of subsequent remedial measures. We disagree.
Generally, evidence of subsequent remedial measures is inadmissible in negligence actions.
Cupp v. National Railroad Passenger Corp.,
The public-policy rationale for excluding evidence of post-accident remedial measures does not apply, however, if the measures in question were planned, provided for, or undertaken prior to the accident. Id. “The purpose of the exclusionary rule is to protect a defendant who has been first alerted to the possibility of danger after an accident and has been induced by the accident to make the repair to prevent further injury.” Id. “A defendant who is aware of the problem and has proposed measures for remediation prior to the accident is not entitled to the same protection.” Id.
Such is the case here. The evidence in this case clearly shows that ADM was aware of the problem of the truck traffic on Holt Street prior to the plaintiffs injury. ADM operated a signal light to control access onto its scales, which resulted in trucks lining up down Holt Street as they awaited access onto the scale. ADM acknowledged it was possible to get a backup of trucks even outside harvest times. Discussions between ADM and the Mexico Department of Public Safety had been ongoing for many years regarding the line-up and parking of trucks on the street. Further, the evidence indicates that the plaintiffs injury did not first alert ADM to the possibility of danger. ADM was aware its facility was in a residential neighborhood that had pedestrian and bicycle traffic. ADM was aware that the large tractor-trailer trucks had to access its facility via the narrow residential street. ADM had instructed the meal haulers to drive down the wrong side of the road in order to pass the
ADM had proposed measures for remediation prior to the plaintiffs injury. As Mr. Stumpe explained, ADM bought the Mo-Con lot in part to use the lot as a parking lot for the trucks, so as to ease the traffic congestion on Holt Street and alleviate the problems attendant with trucks parking on the street. ADM first opened up the Mo-Con lot for parking for a few weeks in the fall of 1993. And while there is evidence that problems with the lot appeared that necessitated certain repairs in 1994, there is evidence implying that the lot was open again prior to the plaintiffs injury in 1995. Mr. Stumpe testified that although they were using the Mo-Con lot for storage in conjunction with a construction project in 1995, ADM attempted to keep the lot open during the project. Further, there is some evidence implying that truck drivers knew prior to Chris’s injury that there was a parking lot for them to use as they awaited access to the ADM facility.
The evidence here shows that this is not a situation where ADM was first alerted to the possibility of danger and had been induced by the plaintiffs injury to take remedial measures. ADM was aware that trucks stopping and queuing up on Holt Street was a problem. ADM had proposed and implemented measures, including the availability of the Mo-Con lot, prior to the plaintiffs injury. Under these circumstances, the public-policy rationale for excluding evidence of post-accident remedial measures does not apply, nor is ADM entitled to the protection afforded by the general rule prohibiting the admission of subsequent remedial measures. Moreover, the complained-of measures here are simply reflective of ADM’s awareness of a problem and measures planned, and implemented, prior to Chris’s injury. The fact that, after the injury, ADM reopened the lot and placed a sign does not, under the circumstances, make them inadmissible subsequent remedial measures.
The trial court’s ruling on admissibility of evidence is accorded substantial deference and will not be disturbed, absent a clear abuse of discretion.
Brown v. Hamid,
We next address the allegations of error regarding the trial court’s award of prejudgment interest. Defendant Lay raises three points on appeal, two of which coincide with ADM’s remaining points on appeal. Lay first complains that there was ineffective service of the plaintiffs demand letter. Next, both Lay and ADM challenge the sufficiency of the plaintiffs demand letter. And lastly, Lay and ADM challenge the court’s calculation of the amount of prejudgment interest. We address each allegation in turn.
The issue raised in this point, as well as the other points on appeal dealing with prejudgment interest, is whether the trial court erred in applying section 408.040.2 to award prejudgment interest. This issue involved the interpretation of the statute and its application. Interpretation of a statute and whether a statute applies to a given set of facts are questions of law which this Court reviews
de novo. McKinney v. State Farm Mut. Ins.,
Prejudgment interest in a tort action is authorized under section 408.040.2. The statute allows a plaintiff to recover prejudgment interest if the plaintiff makes a demand for payment of a claim, or an offer of settlement, to the opposing party and any subsequent judgment in the case exceeds the amount specified in the demand or settlement offer. Section 408.040.2;
see also, Emery v. Wal-Mart Stores, Inc.,
Lay complains the plaintiff did not properly and successfully effectuate service of the demand letter, as required by the statute. He argues the statutory requirement of certified mail necessarily must imply that the certified mail service be completed properly and in accordance with the applicable service rules; in this case, that the letter be served upon Lay himself. We disagree. When statutory language is clear, courts must give effect to the language as written.
Emery,
For his second point on appeal, Lay challenges the sufficiency of the plaintiffs demand letter. ADM raises the same issue in its sixth point on appeal. We address both points together. Lay and ADM (the defendants) contend the plaintiffs demand letter runs afoul of section 408.040 and is insufficient to give rise to the right to prejudgment interest because the plaintiff failed to make a demand that was sufficiently definite and certain in its terms, as required by statute.
The plaintiff sent one demand letter, addressed to defendants ADM and Lay, as well as three other individuals. In pertinent part, the plaintiffs demand letter stated as follows:
Pursuant to section 408.040, RSMo. (1994), please let this letter serve as a settlement demand in the sum of $1 million, jointly and severally, to resolve the personal injury action arising from this tragedy. This offer shall be left open for 60 days unless earlier rejected.
The defendants contend that the plaintiffs single, unapportioned demand directed to a group of unrelated individuals and entities, is not sufficiently definite and certain in its terms, and thus is insufficient as an offer. The defendants complain that the plaintiffs demand did not identify: (1) whether a single defendant could accept the offer without the others; (2) who would be released if only one of the defendants accepted the offer; (3) the amount that a single defendant would have to pay if he was the only one that accepted; (4) how much any one defendant would have to pay in order to be released; (5) the amount that each of the defendants would have to pay if more than one accepted the settlement offer; or (6) the amount, if any, that the plaintiff was demanding from any particular defendant. In sum, the defendants complain that the demand should have been more individualized, and, that as it stands, the plaintiffs demand was incapable of acceptance. We disagree.
To begin, we find nothing in the plain language of the statute that precludes a plaintiff from serving a single, unapportioned demand on multiple parties. Next, the demand required under section 408.040 must be definite in its terms.
Brown v. Donham,
For his third, and last, point on appeal, Lay challenges the court’s calculation of the amount of prejudgment interest due. ADM also raises the issue of whether the trial court properly calculated prejudgment interest in its seventh point on appeal. Again, we address both points together.
The jury in this case assessed damages at $3,278,000. The trial court entered judgment against all liable defendants,
4
The defendants raise several challenges to the court’s order, and calculation, of prejudgment interest. Both defendants argue that, before calculating the amount of prejudgment interest owed, the trial court should have reduced the judgment by $700,000, the amount paid to the plaintiff after trial by defendants Hinkle and Nolke as partial satisfaction of the judgment. Lay additionally argues the trial court erred in entering judgment for any prejudgment interest against him. He argues no prejudgment-interest liability can attach to him because the apportioned amount of the judgment owed by him is less than the plaintiffs demand of one million dollars.
The defendants acknowledged at oral argument that their positions are substantially eroded by the recent opinions of
Bowan v. Express Medical Transporters Inc.,
The plaintiff in this case was entitled to prejudgment interest under section 408.040.2, as the total amount of judgment, $3,048,540, exceeded the plaintiffs demand of one million dollars. And, we find the court did not err in calculating prejudgment interest on the entire amount of the judgment, rather than first reducing the judgment amount by the $700,000 plaintiff received from defendants Hinkle and Nolke as partial satisfaction of the judgment. Defendants Hinkle and Nolke’s payment was paid to the plaintiff after the trial. Lastly, because Lay is jointly and severally hable for the entire amount of the judgment, his total liability exceeds the plaintiffs demand, and thus, the trial court did not err in entering judgment for prejudgment interest against him.
Werre-meyer,
The judgment is affirmed.
Notes
The plaintiff, Christian “Chris” Boggs, brought suit by and through his next friend,
. Instruction. No. 15 read as follows:
In your verdict you must assess a percentage of fault to defendant ADM whether or not plaintiff was partly at fault if you believe:
First, trucks waiting to enter ADM’s property were stopped or parked along the street, and as a result the street was not reasonably safe for the public, and Second, such condition was created by defendant ADM because its parking lot was not available for use by the trucks, and
Third, defendant ADM knew or by using ordinary care could have known that the condition would expose members of the public to an unreasonable risk of using the street, and
Fourth, defendant ADM failed to use ordinary care to make the street safe for use by members of the public, and Fifth, such failure directly caused or combined with the acts of others to directly cause or to directly contribute to cause damage to plaintiff.
. Section 408.040.2 reads as follows:
In tort actions, if a claimant has made a demand for payment of a claim or an offer of settlement of a claim, to the party, parties or their representatives and the amount of the judgment or order exceeds the demand for payment or offer of settlement, prejudgment interest, at the rate specified in subsection 1 of this section, shall be calculated from a date sixty days after the demand or offer was made, or from the
date the demand or offer was rejected without counter offer, whichever is earlier. Any such demand or offer shall be made in writing and sent by certified mail and shall be left open for sixty days unless rejected earlier. Nothing contained herein shall limit the right of a claimant, in actions other than tort actions, to recover prejudgment interest as otherwise provided by law or contract.
. The jury found defendant Darrin Hinkle 0% at fault.