Comparative Fault and Choice of Law - Rider v. YMCA
Kansas City, MO by Mark Ware
The Missouri Court of Appeals, Western District, recently issued an opinion in Rider v. Young Men's Christian Association of Greater Kansas City, Case No. WD76680 (Mo. App. W.D. Jan. 13, 2015), which addresses the burden of proof for a defendant to assert a comparative fault defense in slip-and-fall cases. The Missouri Court of Appeals also refused to apply the Kansas cap on non-economic damages even though the incident giving rise to the litigation occurred in Kansas.
Plaintiff was a six-year-old minor on December 16, 2003 when, while attending an after-school daycare at a Kansas YMCA facility, he slipped and fell in the facility's cafeteria. Prior to the fall, plaintiff and his classmates were playing outside. There was melting snow and ice on the playground. After playing for a time, the children were instructed to re-enter the facility through a cafeteria door, cross the tiled cafeteria floor, wash their hands at a sink, then again cross the cafeteria and line up. There were no floor mats at the cafeteria door or the sink. After entering the facility through the cafeteria door, crossing the cafeteria floor, and washing his hands, plaintiff left the sink and was proceeding back across the cafeteria when he fell, breaking his left tibia. Due to congenital health issues, plaintiff underwent multiple unsuccessful surgeries in an attempt to repair his leg. Ultimately, plaintiff's left leg was amputated below the knee.
Plaintiff denied seeing any water on the floor prior to his fall. However, plaintiff did testify that his clothes were dry before his fall and wet afterwards. All of the YMCA staff persons present testified they did not observe any wet conditions on the floor. There was no testimony indicating the plaintiff had violated any command or safety rule, was engaging in horseplay, or was otherwise not using proper care in his manner of walking at the time of the fall.
Plaintiff, by and through his mother, sued the YMCA of Greater Kansas City, alleging general negligence. At trial, the YMCA offered a "failure to keep a careful lookout" comparative fault instruction, asking the jury to assess a percentage of fault to the plaintiff for failing to identify and avoid an openly dangerous condition on the floor.
Ultimately, the jury found plaintiff had been damaged to the amount of $5,906,525. The jury thereafter assessed 90% of the fault to plaintiff pursuant to YMCA's comparative fault jury instruction, reducing plaintiff's recovery to $590,652.50. Plaintiff appealed, arguing the trial court erred in giving the "careful lookout" comparative fault jury instruction because there was not sufficient evidence to support the instruction. Defendant YMCA cross-appealed on several issues.
On appeal, the Western District Court of Appeals ruled in favor of the plaintiff, since no evidence was submitted at trial indicating a wet floor was plainly visible before plaintiff's fall occurred. Instead, the only evidence of a wet floor arose after the fall, as plaintiff's clothes were dry before he fell and wet afterwards. The Court of Appeals held the comparative fault instruction based on failure to keep a careful lookout is only proper if the dangerous condition was plainly visible prior to the fall. The Court found the comparative fault instruction had, therefore, been improperly given, and entered judgment for Rider for the full amount of damages found by the jury, without a reduction for comparative fault.
In considering YMCA’s cross-appeal, the appellate court made a distinction between evidence required for submission of a “careful lookout” comparative fault instruction – a plainly visible condition prior to the fall – and evidence required to show a breach of duty by the defendant – a wet and slippery floor, even if not discovered until after the fall. The evidence that there was water on the cafeteria floor causing the floor to become slippery was sufficient to show a breach of duty by defendant YMCA, even though the evidence arose after the fall.
The appellate court also addressed a number of choice of law issues in the cross-appeal. At the time of the accident, plaintiff was a Kansas resident injured at a Kansas facility. Prior to filing suit, plaintiff's family moved from Kansas to Missouri. Defendant YMCA was and is a Missouri corporation. The trial court found that because plaintiff and YMCA were both Missouri residents at the time of the trial, the State of Kansas did not have any interest in limiting the recovery of damages as between two Missouri residents and, therefore, applied Missouri law on plaintiff's "right of recovery." As a result, plaintiff was able to avoid the Kansas cap on non-economic damages. The trial court applied Missouri substantive law as to plaintiff's general negligence claim as well, finding no substantive difference between Missouri and Kansas law with respect to the elements of negligence. The appellate court affirmed the trial court's choice of law decisions.