ROBERT M. CLAYTON, III, Judge.
Joyce Meyer Ministries, Inc. ("Defendant") appeals the judgment entered upon a jury verdict awarding Gwendolyn Medley ("Plaintiff") $280,000.00 on her personal injury claim arising out of Plaintiff's trip and fall during a conference hosted by Defendant at the Edward Jones Dome ("the Dome"). We affirm.
The following evidence was adduced at the jury trial on Plaintiff's personal injury claim. On September 17, 2010, Defendant hosted a women's conference at the Dome ("the conference"). At least 12,000 women, including Plaintiff, attended the conference.
Defendant set up a "boutique" area in the Dome for the display and sale of its merchandise to women attending the conference. Defendant considered the boutique to be a store. The merchandise at the boutique included items such as t-shirts, tote bags, purses, and key chains.
In the boutique area, Defendant placed a display which the parties referred to at trial as the "window display." The window display was a three-dimensional storefront, measuring sixteen feet long, eight feet tall, and forty-two inches deep. The front of the window display had a black frame and was twelve inches wide along its length, including a part that rested on the floor of the boutique. The window display had two purposes, to "look pretty" and to notify attendees of the conference of the boutique's location.
Defendant made the decision to create the window display, to use the display, and where to place the display. Defendant also designed and constructed the window display and made a floor plan which included Defendant's desired location of the display. After Defendant submitted the floor plan to the Dome, Defendant placed the window display in the boutique at the place of Defendant's choosing as set forth in Defendant's floor plan. Two of Defendant's employees, Michelle Wieczorek and Lonnie Turnbeaugh, admitted at trial that
On the day of the conference, Plaintiff went to the boutique area to purchase a t-shirt. At that time, there were several women waiting in line to get into the boutique, and witnesses at trial described the environment as "chaotic" and "congested." Employees from Defendant's advertising department managed traffic flow in and out of the boutique, holding people back and allowing only a few women into the boutique at a time until others exited.
Plaintiff eventually entered the boutique and purchased a t-shirt. As Plaintiff began exiting the boutique, she stepped toward the front of the window display to allow another person room to pass beside her. Plaintiff then hit her lower leg on the display and tripped and fell, scraping her shin on the board at the bottom that framed the display and injuring her ankle.
Subsequently, Plaintiff sought medical treatment for her injuries, and she filed a personal injury claim against Defendant based on a theory of premises liability. Plaintiff's petition alleged in relevant part that, (1) because of the relationship between Defendant and Plaintiff, Plaintiff was an invitee of the Defendant; (2) "Defendant controlled or had the right to control that area of the premises in which Defendant constructed, or caused to be constructed, the [b]outique and in which Defendant placed, or caused to be placed, the [window] [d]isplay"; (3) Defendant negligently placed the window display in an area Defendant anticipated would be crowded and congested with attendees of the conference; and (4) Plaintiff suffered injuries and damages as a result of Defendant's negligence.
At trial, Defendant attempted to present evidence of a license agreement entered into by the St. Louis Convention and Visitors Commission ("the CVC")
Defendant then made an offer of proof during which multiple witnesses testified regarding the CVC's involvement in the conference and the CVC and Defendant's relationship. After the offer of proof, the trial court found in pertinent part that, (1) there was no evidence to suggest that Defendant was not in possession of the premises where Plaintiff's injury occurred; (2) the only relevant relationship in the case was the relationship between Plaintiff and Defendant; and (3) the evidence presented by Defendant in its offer of proof was not relevant. Accordingly, the trial court excluded evidence of the license agreement, excluded evidence regarding the CVC's involvement in the conference, and excluded
After Defendant's offer of proof, the court held an instruction conference. Plaintiff's proposed verdict director, which the trial court submitted as Instruction No. 8, was based on Missouri Approved Instruction ("MAI") 22.03 (7th ed. 2012)
Instruction No. 9, which was also submitted to the jury, stated:
Comparative fault instructions were also submitted to the jury.
During the instruction conference, Defendant attempted to submit Instruction C, which stated, "Your verdict must be for [D]efendant if you believe that [D]efendant was not in possession or control of the premises." However, the trial court refused to submit Instruction C.
After the instruction conference, the jury entered a verdict finding that Plaintiff's total damages were $400,000.00. The verdict assessed Defendant seventy percent at fault and Plaintiff thirty percent at fault, thereby awarding Plaintiff $280,000.00 in damages. The trial court entered a judgment in accordance with the jury's verdict, and Defendant subsequently filed a motion for new trial, which the trial court denied. Defendant appeals.
Defendant raises three points on appeal. Defendant's first and third points on appeal assert that the trial court erred in excluding evidence. Defendant's second point on appeal contends that the trial court erred in refusing to submit Instruction C.
Because Defendant's first and third points on appeal relate to the trial court's exclusion of evidence, we will consider them together. Defendant's first and third points claim the trial court erred in excluding the CVC and Defendant's license agreement from evidence, in excluding evidence regarding the CVC's involvement in the conference, and in excluding testimony concerning the relationship between the CVC and Defendant. The trial court excluded the evidence on the grounds it was
The trial court has broad discretion to exclude evidence and to rule on questions regarding the relevancy of evidence, and our Court will not reverse the trial court's rulings absent an abuse of discretion. Moore v. Ford Motor Co., 332 S.W.3d 749, 766 (Mo banc 2011). In re Calleja, 360 S.W.3d 801, 803 (Mo.App.E.D. 2011). "An abuse of discretion occurs when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration." Calleja, 360 S.W.3d at 803.
Evidence is admissible only if it is both logically and legally relevant. Mengwasser v. Anthony Kempker Trucking, Inc., 312 S.W.3d 368, 372 (Mo.App. W.D.2010). Evidence is logically relevant if it tends to prove or disprove a fact in issue. McGuire v. Kenoma, LLC, 375 S.W.3d 157, 185 (Mo.App.W.D.2012). Evidence is legally relevant where its probative value outweighs its prejudicial effect. Mengwasser, 312 S.W.3d at 372.
In order to determine whether the trial court abused its discretion in excluding the license agreement, the evidence regarding the CVC's involvement in the conference, and the testimony concerning the relationship between the CVC and Defendant, we must examine the applicable law of premises liability.
Missouri Courts have adopted the Restatement (Second) of Torts (1965)
The Restatement defines the terms "invitee" and "possessor." Restatement (Second) of Torts sections 332 and 328E. In this case, Defendant does not dispute that, assuming Defendant was a possessor of the boutique and window display area where Plaintiff was injured, Plaintiff was an invitee of Defendant when she was injured in the area after she purchased a t-shirt from Defendant.
The Restatement (Second) of Torts defines the term "possessor" in relevant part as a party "who is in occupation of the land with intent to control it." Restatement (Second) of Torts section 328E(a). Under that definition, a non-owner of the premises may be a possessor. See Bowman, 916 S.W.2d at 285 ("[o]wnership is not a requirement for possession of the land in order to establish liability under section[ ] 328E . . . of the Restatement"). For purposes of determining whether a person is a possessor, "[t]he important thing . . . is the possession, and not whether it is or is not rightful as between the possessor and some third person." Restatement (Second) of Torts section 328E cmt. a. The term "possession" is often "used to denote the legal relations resulting from the facts." Id. Moreover, when the facts surrounding the status of a party-defendant are not in dispute, the determination of whether the defendant is a possessor of land is a question of law. See Adams, 114 S.W.3d at 436 (holding that when the facts surrounding the status of an entrant of the land are not in dispute, the determination of whether the entrant is a license or invitee is a question of law).
In ascertaining whether a party intended to control the premises, the party's conduct is an important factor, and we find cases from other states to be persuasive on this issue. Lahr v. Lamar R-1 School Dist., 951 S.W.2d 754, 756, 757 (Mo. App.S.D.1997). Only a party who actually exercises control over the premises is considered a possessor of land who owes a duty to an invitee; a party who merely has a right to control the premises but does not exercise that right owes no such duty. Millette v. Connecticut Post Ltd. Partnership, 143 Conn.App. 62, 70 A.3d 126, 132 (2013); Concklin v. Holland, 138 S.W.3d 215, 221 (Tenn.Ct.App.2003); Carroll by Carroll v. Jagoe Homes, Inc., 677 N.E.2d 612, 616 (Ind.Ct.App.1997); See Lahr, 951 S.W.2d at 755-58 (evidence that a party other than defendant maintained, repaired, grated, paved, and cleared the area where a plaintiff fell demonstrated that the party intended to control that area for purposes of a "possession" analysis). A party exercises
As previously stated, the Restatement (Second) of Torts defines the term "possessor" in relevant part as a party "who is in occupation of the land with intent to control it." Restatement (Second) of Torts section 328E(a). Here, it is undisputed that Defendant was in occupation of the boutique and window display area where Plaintiff was injured, because Defendant's employees set up the area and were stationed and working there. The issues in this case are, (1) whether Defendant occupied the boutique and window display area with the intent to control it; and (2) whether the license agreement, the evidence regarding CVC's involvement in the conference, and the testimony concerning the relationship between the CVC and Defendant was relevant to prove that Defendant was not the possessor.
The following evidence pertaining to Defendant's intent to control the boutique and window display area was adduced at trial, and this evidence was uncontroverted even by the evidence presented in Defendant's offer of proof. First, there was uncontroverted evidence at trial that Defendant exercised its right to direct the use and placement of the boutique and window display area. Defendant set up the boutique area and sold its merchandise there during the conference, and it was selling its merchandise during the time of Plaintiff's injury. Defendant made the decision to create the window display, to use the display, and where to place the display. Defendant also designed and constructed the window display and made a floor plan which included Defendant's desired location of the display. After Defendant submitted the floor plan to the Dome, Defendant placed the window display in the boutique at the place of Defendant's choosing as set forth in Defendant's floor plan. Additionally, two of Defendant's employees, Wieczorek and Turnbeaugh, admitted at trial that it would have been feasible for Defendant to place the window display in another location at the Dome. Turnbeaugh specifically testified that, "We could put [the window display] anywhere we wanted to."
There was also uncontroverted evidence adduced at trial that Defendant exercised its right to admit people to the boutique and exclude people from it. At the time Plaintiff was injured on the window display in the boutique area, Defendant's employees were managing the traffic flow in and out of the boutique, holding people back and allowing only a few women into the boutique at a time until others exited.
Defendant argues that the evidence of the CVC's rights under the license agreement which was presented during
Defendant also claims that evidence presented during the offer of proof regarding the CVC's involvement in the conference demonstrates that the CVC, rather than Defendant, controlled the boutique and window display area. Defendant points to documentary evidence and testimony that the CVC approved Defendant's floor plan and that if Defendant wanted to move the window display it had to get approval from the CVC beforehand. We find that this evidence does not demonstrate that the CVC exercised any right to control the boutique and window display area, especially in light of the uncontroverted evidence adduced at trial that Defendant was the party who actually made the floor plan and controlled the placement of the boutique and window display. As previously stated, there was testimony that, (1) Defendant made the floor plan; (2) Defendant placed the window display in the boutique at the location as set forth in Defendant's floor plan; (3) two of Defendant's employees admitted that it would have been feasible for Defendant to place the window display in another location at the Dome; and (4) one of Defendant's employees specifically testified at trial that "We could put [the window display] anywhere we wanted to."
Defendant points to additional evidence presented during the offer of proof regarding the CVC's involvement in the conference, including that, (1) the CVC was in charge of security personnel and crowd control at the Dome throughout the conference; (2) representatives of the CVC were present at the Dome throughout the set up phase and during the conference; (3) the security plan provided that one of CVC's representatives was supposed to be stationed at the atrium of the Dome on the day of the conference with the responsibility of "ingress/egress;" and (4) the boutique and window display area was located in the atrium of the Dome. Again, we find that
Based on the foregoing, we find that the evidence regarding the CVC's involvement in the conference did not tend to prove that Defendant was not the possessor of the boutique and window display area. Accordingly, the evidence was not logically relevant, and the trial court did not abuse its discretion in excluding it. See McGuire, 375 S.W.3d at 185; Mengwasser, 312 S.W.3d at 372.
Finally, Defendant maintains that evidence of the CVC's and Defendant's purported licensor-licensee relationship (testimony regarding the relationship which was presented during the offer of proof as well as specific provisions of the CVC and Defendant's license agreement
Because Defendant exercised its right to direct the use and placement of the boutique
Moreover, the evidence presented during Defendant's offer of proof (the license agreement, the evidence regarding CVC's involvement in the conference, and the testimony concerning the relationship between the CVC and Defendant) did not tend to prove Defendant was not the possessor of the boutique and window display area. Therefore, the evidence was not logically relevant, and the trial court did not abuse its discretion in excluding it. See McGuire, 375 S.W.3d at 185; Mengwasser, 312 S.W.3d at 372. Points one and three are denied.
In its second point on appeal, Defendant contends the trial court erred in refusing to submit Defendant's proposed Instruction C to the jury. Instruction C stated, "Your verdict must be for [D]efendant if you believe that [D]efendant was not in possession or control of the premises."
We initially note that Instruction C is an affirmative converse instruction.
We review the trial court's refusal to submit an affirmative converse instruction de novo. Wheeler ex rel. Wheeler v. Phenix, 335 S.W.3d 504, 512 (Mo.App.S.D.2011). An affirmative converse instruction is appropriate where the verdict directors assume as true or omit a disputed ultimate issue of fact. Hiers, 834 S.W.2d at 735; Quinn v. Lenau, 996 S.W.2d 564, 570 (Mo.App.E.D.1999). Moreover, an affirmative converse instruction should only be given if it is supported by the evidence. Hiers, 834 S.W.2d at 736.
In this case, we find that Instruction Nos. 8 and 9 properly submitted all disputed ultimate issues of fact to the jury, namely the factual issues relating to whether Defendant as the possessor of land fell below the standard of care owed to Plaintiff as an invitee.
Instruction No. 9 submitted Defendant's affirmative defense to the jury which Defendant was permitted to do pursuant to MAI 22.03. Instruction No. 9 stated:
Defendant argues that the issue of possession and control was a factual issue that should have also been submitted to the jury. However, there was no evidence to support the language set forth in Defendant's Instruction C requiring the jury to enter a verdict for Defendant if they believed that "[D]efendant was not in possession or control of the premises." As we concluded in Section II.A.3.iii, there was no evidence adduced at trial or presented in Defendant's offer of proof demonstrating that any party other than Defendant exercised control over the boutique and window display area. Consequently, the facts surrounding the status of Defendant are not in dispute, Defendant occupied the boutique and window display area with the intent to control it, and therefore, Defendant was a possessor of the boutique and window display area as a matter of law. See Adams, 114 S.W.3d at 436; Restatement (Second) of Torts section 328E(a); Millette, 70 A.3d at 132; Concklin, 138 S.W.3d at 221; Carroll, 677 N.E.2d at 616. Because Instruction C was not supported by the evidence, the trial court did not err in refusing to submit it to the jury. See Hiers, 834 S.W.2d at 736. Point two is denied.
The judgment entered upon a jury verdict awarding Plaintiff $280,000.00 on her personal injury claim is affirmed.
Patricia L. Cohen, P.J., and Roy L. Richter, J., concur.