*1 presumption proba- cient to establish a stopping
ble cause for Aron. finding inadequate trial court’s is, therefore,
probable cause erroneous on
the evidence before it. trial court’s
granting of Aron’s directed verdict motion opportunity present
foreclosed Aron’s
his defense. Aron’s may evidence reveal street,
that Ninth Street is a three-lane middle,
with lane Aron committing
was not a traffic violation suffi-
cient to probable establish to stop. opportunity
We do not foreclose Aron’s is,
present A such evidence. remand there-
fore, necessary. is reversed and the cause
remanded.
All concur. LOVE,
Danny al., Respondents, L. et
PARK LANE MEDICAL
CENTER, Appellant.
No. 69203. Supreme Missouri, Court of McMillin, Ronald R. City, Jefferson Rob- En Banc. Ford, Jr., ert Harrop, William F. Kansas Oct. 1987. City, for appellant. Manners, Hugh
Michael W. H. In- Ryan, dependence, respondents. WELLIVER, Judge.
Respondents1 filed this malprac- medical against tice appellant action Park Lane Medical negligently Center adminis- injection given tered Linda Basse employee nurse appel- Appellant lant. raised answer L., Respondents Danny husband, Danny Love and Linda D. former L. Love. The trial (now Basse) petition Love alleged filed a for medical court dismissed Count III which a tor- negligence on three respondent’s counts. The trial court dis- tious interference with contract II, plead missed respondent’s physician by appellant. Count which a cause of action Here- damages allegedly "respondent" suffered Mrs. Basse’s inafter refers to Linda Basse. *2 pain. the Nurse Semadeni in order to ease failing to seеk dent’s completed injection. the continued and timely and treatment appropriate hospital. On No- discharge from the her the that after shot Respondent testified 21, 1985, jury in a trial resulted vember from prevented and her pain the continued $69,500.00with a respondent verdict for for it. stated the area lying sitting on She against re- percentage оf fault assessed felt a knot blue and like turned black and judg- The court spondent of entered 49%. given. had been where the shot for respondent thereon ment for 21,1985, respondent’s fami- February On $35,445.00 appropri- computing after Whitley, noti- ly Dr. William was physician, jury respondent’s ate dollar reduction for difficulty. The fol- respondent’s fied about 10, 1985 fault. On December re- assessed day, doctor examined lowing judg- spondent filed a motion to amend the area, a hip very noted reddened dent’s ground insuffi- on the that there was ment diameter, approximately centimeter in one support submission re- cient evidence surrounding area swelling and for spondent’s fault the further reason hematoma or sub- which is indicative a that failure to obtain medical treatment electromyogram An surface bruise. was contributory negligence as matter of not performed damage no nerve was de- prior law under the law it existed Whitley prescribe any Dr. did not tected. hip. Respondent testi- medication for the on December Whitley fied did not tell her to come Dr. 20, 1985, the judgment amended for check-up. back stating Motion Amend “Plaintiff’s respondent’s Approximately a week after shown_” Judgment being Rule discharge hospital, from the the area on and entered for the full amount respondent’s hip turned black and covered $69,500.00. damages of assessed Respon- approximately a four inch area. Upоn appellant’s judg- denial of motion for sign dent to be a that it was believed this notwithstanding ment the verdict or new husband, former healing; respondent’s trial, appealed. defendant Love, he Danny continually testified District, Appeals, The Court of Western it but advised her to see doctor about pre-Gustafson on the basis of affirmed law stating respondent denied this her husband amending the trial court’s action in agreed process the hematoma was Manford, J., judgment. dissenting, certi- “just healing. Danny suggested Love she pursuant fied this the cause to Court Whitley it.” further confront Dr. about He Const, V, 10, being Mo. art. in conflict I that “if it was me have stated would with myself taken care of it and went to the We reverse remand. Whitley Respоndent doctor.” visited Dr. weekly allergy for her children’s shots but mention, Whitley she did not nor did Dr. substantially about, adopt inquire hip. We the statement of of her the condition area, time, majority opinion During facts forth in the filed now set blackened form, III, by Berrey Appeals, began chipping in a off. the Court of scab like Respondent applied District. that she hеat Western testified days up and ice on the area until a few 10, 1985, respondent February On was Whitley again. Dr. prior visiting Lane admitted to Park Medical Center for 12, 1985, approximately During April Finally, the treatment of ear infection. discharge from the stay injections her she received Nubaine seven weeks after her Whitley pain. February hospital, resрondent Dr. On asked Vistaril prompt- hip; request examine her her was Nurse James Semadeni administered the pain drainage of the pain injection hip. into left On ed increased needle, examination, Dr. Upon insertion testified infected area. excruciating pain Whitley she found the area had deteriorated felt screamed stop speed up injection which was surrounded the nurse to into a necrotic ulcer aby gap very skin and was red and Instruction No. 6 swollen. Treatment of this condition in- your In per- must assess a whirlpool cluded baths release the core centage of fault to Park Lane lesion, subsequent surgeries and two Center, Medical whether or not for debridement оf the dead tissue and to partly if you at fault believe: close the ulcer. First, injected nurse James Semadeni *3 the medication of Vistaril and Nubaine
Respondent
experts
testify.
called two
to
tissue,
into
subcutaneous
Connors,
Helen
professor
assistant
of nurs-
Second,
ing at
University
thereby
James Semadeni
of Kansas School of
was
negligent,
Nursing,
improperly
testified that an
ad-
injection
damage
ministered
can result in
Third,
negligence
such
directly caused
gluteal
the tissue and
or directly
abscess. She stated
damage
contributed to cause
pain
injected
plaintiff.
killer Vistaril should be
into the muscle and
subcutaneously.
never
“negligent”
“negligence”,
term
or
opined
Connors
that Nurse Semandeni
instruction,
used
means the
acceptable
failed to meet
prac-
standards of
degree
failure to use the
of skill and
in administering
pain
learning
tice
injection.
ordinarily used under the same
Respondent
also called
similar
Berry,
Barbara
as-
circumstances
the members
of
nursing
profession.
sistant director of
nurse James
University
Semadeni’s
Center,
Kansas Medical
21.01, modified,
who testified that
MAI
modified
just
patient
complains
pain
because
Benda,
v.
circumstances.
32.01(1) (1978 New)
II
MAI
Modified in Accordance with
theory
of submission of the case is
Ill v. (1897); Liddle Collins 44 S.W. 1053 Rule 75.01 stаtes trial court “[t]he Co., (Mo. Construction 283 474 S.W.2d during judgments retains control over Co., Kroger Brown v. 1955); 358 S.W.2d thirty-day period, entry judg after 429 (Mo.App.1962). parties may, giving after ment Gustafson, opportunity adopted system to be heard and for In we cause, vacate, correct, amend, comparative reopen, pure fault reflected the Uni- (UCFA) Comparative modify form Fault Act its within that time.” inso- trial has over trial of tort actions. We stated that inherent control its See rel. v. judgments. possible we the U.C. State ex far as would follow Stoffer Moore, (Mo. 637, excepted mat- 628 S.W.2d 644 F.A. and 10 banc footnote 1982); Devine, handling which was Pleading J. Missouri Civil ter of settlements Mirbaha, (Mo. mitigation damages is 2. Lee 80 In v. 722 S.W.2d banc the issue of whether fault, 1986), subject comparative the issue raised was that in- fault thus to a submitting compara- struction, the trial court erred in general ver- because the found tive fault instruction failure to required to dict for the and was not fingers surgery, exercise his after which contrib- apportion fault. damages. uted his court did not reach 724 1978,
dealt then ... failure to avoid an injury unrеasonable Missouri recently adopted following mitigate damages.” Commissioner’s Pacif- Kales, ic R.R. Whitehead & (c), Gustafson, 566 S.W.2d Comment UCFA 661 466 In sen- S.W.2d at 20. tence, exempted joint also and several we In Gustafson, recognized we that there liability as it then tort existed Missouri.3 “comparative existed both fault” “com- clearly supplant[ed] We stated that “wе parative negligence” recognized contributory negligence, doctrines of last Kales, years five earlier in Whitehead & chance, negligence clear and humanitarian this Court had committed us “in the di- comprehensive system compara- with a comparative rection of Gustafson, fault.” ...” Gustafson, 661 S.W.2d at tive fault recognized at 14. Wе also 16. years of experience five with a limit- “[o]ur Gustafson, application
In ed fully we said that we were fault adopting comprehensive demonstrates system justice “a of com- that fairness can parative through best tort cases applica- fault for the be achieved broader Gustafson, Gustafson, tion of that ...” doctrine.” S.W.2d at Thаt S.W.2d at 15. which we did could not have been more dramatically by Billings, described than Fault not to be confused with concurring: prior as it existed to pure comparative Because believe fault; Negligence type is but one *5 equitable just fault is more and than the also consequences, includes avoidable in harsh, nothing, ancient all or rule of cluding mitigation Wade, damages. of Uni contributory negligence, and the mathe- Act, Comparative form Fault 14 The Fo gymnastics matical in employed last rum, 379, 381, (1979). 389 cases, clear chance and I humanitarian act; The Act is a fault it is concur. not to confined actions. Historically, contributory negligence, standpoint From the it chance, neg- clear and humanitarian last measure,” negligence, any includes “in ligence, by judicial were bom decisions. se, encompassing negligence per thus judicial By bury decision we them. by whether established statute or court Gustafson, J., (Billings, 661 at 28 S.W.2d decision, by recklessness whatever name concurring). given state, particular it is in a strict (for liability abnormally danger- tort
Fault is defined in the UCFA to include: products liability) ous activities or for acts or any omissions that are in mea- warranty.... of From the breach negligent sure or reckless toward the standpoint part of fault the the others, person or property of the actor or plaintiff, it of course includes contrib- subject person that tort to strict utory negligence. assumption It covers liability. The term also includes breach of risk the extent that it bars an of warranty, assumption of unreasonable ground action on otherwise valid the constituting risk not an enforceable ex- plaintiffs product fault. Misuse of a is consent, press product of a for misuse also included if there would have been a which the defendаnt would be otherwise valid cause of action absence liable, and unreasonable failure the misuse. consequences Avoidable injury mitigate avoid an or to dam- specifically also included. ages. Legal requirements of causal rela- apply tion both the to fault as basis Id. liability contributory and to fault. provides The Act that “fault” includes 1(b), Gustafson, 661 S.W.2d at UCFA 18 “unreasonable failure avoid § (emphasis added). 1(b)). mitigate (§ damages” “The term also includes This handling joint (Vernon) (to liability 3. The and several has No. 1 be renumbered 4Í, by been modified H.R. 700 84th Gen. (1987); Assembly, Mo.Legis.Serv. 1st Sess. 1987 HIGGINS, Judge, concurring. together read with another should be plaintiff’s con- providing that sentence agree order of reversal and with the dimin- tributоry proportionately judg- re-entry original the remand damages awarded ishes the amount appears it the I do so because ment. claim- injury attributable the “for an submit this medical mal- parties chose to (§ 1(a)). The fault” ant’s comparative fault instruc- practice case on concept of Act the therefore covers jury thе to assess the which directed tions consequences provides avoidable fault, plain- if any, between percentages particular injury that could that for a performed The its jury tiff and defendant. by plaintiff or for have avoided been submis- with that function accordance damages he could the diminution sion, perfected original judgment by exercise of reason- have effected process. care, will be diminished able the amount by the exercised discretion according compa- proportionately to the rulings sup- in this is limited to case parties. rative fault good showing cause. Rule ported Wade, Liability and Plaintiff’s Products of this In the circumstances case 75.01. Comparative Fault Fault —The Uniform trial court’s unspecified reason for the Act, (1978). 29 Mercer L.Rev. 385-86 not, opinion, ruling my rise does includ- Mitigation damages expressly rule. as envisioned cause Expressing mitigation ed in the UCFA. damages reducing as a Justice, BILLINGS, dissenting. Chief proper is the method accounting miti- fairly for the failure to expand opinion principal seeks gate done in as was the instructions. Ben held what Court having properly 1983), been instruct- da, being ed and the submitted and the quoting adopting “comments” evidence, fully supported the trial As writings of Professor Wade. our *6 judge was without cause for amend- Brother Welliver well knows it ing original judgment. The cause is possible” was added to after “insofar as reversed and remanded to the trial court limiting scope opinion, thereby judgment for vacation of the amended to a leaving it case original re-entry in accord- basis, joined this by case writer opinion.4 ance this opinion.
Reversed and remanded with directions. principal opinion uses plaintiffs’ recovery. reduce DONNELLY, J. concurs. is not authorized Undеr nothing “bootstrap- less more or than ROBERTSON, J., in concurs result. by opinion comment and ping” adopt HIGGINS, J., separate concurs utterings of others. opinion filed. and vote to overrule dissent BLACKMAR, J., concurs and concurs separate concurring opinion HIGGINS, J. C.J.,
BILLINGS, in separate dissents
opinion filed.
RENDLEN, J., dissents and concurs separate dissenting opinion
BILLINGS, C.J. product liability damages" holding gation cases. It be noted herein should (Vernon) (to 36, totally compatible Mo.Legis.Serv. be No. 1 with H.B. 84th See 1987 (1987) Assembly, relating Gen. 1st Sess. to “miti- renumbered