 

3511 the missuuri thurt of appeals
QEaStern Eiﬁtt‘ttt
DIVISION ONE

LARRY WILLIAMS AND LELA DAVIS, No. ED101478

Appeal from the Circuit Court
of the City of St. Louis

Respondents,

vs.
Honorable Michael W. Noble
KAYATANA A. THOMPSON,

vvvvvvvvv

Appellant. Filed: May 5, 2015

The defendant, Kayatana Thompson, appeals the judgment entered by the Circuit Court
of the City of St. Louis against her and in favor of the plaintiffs, Larry Williams and Lela Davis.
The plaintiffs sued the defendant for personal injuries and property damage, respectively, that
they sustained when the defendant’s vehicle struck the vehicle operated by Williams and owned
by Davis.

in eight points on appeal, the defendant challenges the trial court’s grant of the plaintiffs’
motion for a directed verdict, the weight of the evidence to support Williams’s claim of personal
injury, the trial court’s personal jurisdiction over her, the trial court’s subject-matter jurisdiction
over Davis’s claim, and prejudicial statements the trial court allegedly made. Because we
conclude that the trial court erred in granting the plaintiffs’ motion for a directed verdict based

on the rear-end collision doctrine, we reverse and remand to the trial court for a new trial.

Factual Background

011 February 21, 2010, plaintiff Williams drove the car owned by his mother, plaintiff
Davis, to the market. Williams was stopped at a red light on southbound North Florissant at its
intersection with Madison in the City of St. Louis. Another car was stopped in front of him at
the tight. The iight turned green, but the car ahead of Williams did not move forward. After
waiting about 30 seconds for the car ahead of him to go, Williams honked his horn, and the car
in front of him proceeded forward. Williams testiﬁed that before he could take his foot from the
brake to drive forward, the defendant’s vehicle collided with the rear of the vehicle he was
driving. Wiiliams testiﬁed that he suffered permanent aggravation of pre—existing neck and back
injuries, and that he incurred approximately $18,000 in bills for medical treatment of his injuries.
Wiliiams introduced no medical records or bills into evidence. Williams called no doctor to
testify. Williams further testified that his mother’s car suffered damage that cost $845.09 to
repair.

The defendant, who appeared pro 36 at trial, admitted that her vehicle collided with the
rear of the piaintiffs’ vehicle. She testified in the plaintiffs’ case as follows.

Q. Miss Thompson, you were driving an automobile on February 21st, 2010, on North
Florissant?

A. Yes, sir.

Q. Did the front. of your vehicle ever come into contact with the rear of Mr. Williams'[s]
car?

A. Yes, sir.

After the plaintiff rested, the trial court gave the defendant the opportunity to testify.

THE COURT: You are reminded that you are under oath. Please have a seat.

Miss Thompson, can you explain your version of events of February 2t, 2010?
MS. THOMPSON: On February 2lst, 2010, around about 1:30 p.n1., going southbound
on North F lorissant and Madison in St. Louis, Missouri, 1 was going to work. At the time
there was rain. The pavement was wet.

As I approached the street of Madison at the red light, there was a vehicle right in
front of me, which was Mr. Larry Williams.

As I approached him and as the pavement was wet, I tried to stop, which I cannot
stop. I blew my horn. When I blew my horn, he did not move.

I tried to avoid from hitting him, so when I kind of just, I don’t want to say the
word like swerved from to hit him full, but swervejust to hit—to not swerve—I hit him
in the back of the trunk and collided with Mr. Williams.

At the time I got out and asked Mr. Williams, and l asked him if I could make a
payment ‘cause I did not have insurance. He stated to me that he couid not, because it

was his mother’s car.

The police arrived. The police asked for my driver’s license asked for his driver
license and asked us if wemasked me was I hurt and asked Mr. Williams was he hurt.
We both said no, we did not need ambulance to take us to the hospital or no assistance.

Then I pulled over to the gas station to the right and which the police took all my
information and proceeded with the questions for, of the accident.

To my knowledge I feel I did not injur[e} Mr. Larry Williams. I just don‘t. I
don’t, i don't think that—I’m not going to say i don’t think, I know I did not make these
personal injuries for Mr. Larry Williams.

At this point, the plaintiffs’ counsel objected, and the trial court sustained the objection. The
defendant had nothing further to add to her testimony, the plaintiffs chose not to cross—examine
her, and the defendant rested.

Oniy plaintiff Williams and the defendant testified at triai. The parties introduced no
evidence of the speed limit on North Fiorissant, the defendant’s rate of speed, the distance or
time before impact once the defendant saw the piaintiffs’ vehicle, whether the police identiﬁed
skid marks on the road, or the length of any skid marks.

The plaintiffs renewed their motion for directed verdict at the close of all the evidence,
both as to the claim for Williams's injury and the claim for Davis’s property damage. The trial
court granted the plaintiffs’ motion. The trial court stated:

[ij they have hit ali three of the eiements that they need to prove, and the issue in this

case is negligence, the issue is not whether the injuries occurred, it’s this car striking the

other car, it’s a very low hurdle, they’ve met their burden, so I’m going to have to grant
the [m]otion for directed verdict.
The trial court awarded $36,500 in damages to piaintiff Williams for his personal injuries, and

awarded $845.09 to plaintiff Davis for her property damage. The defendant timely flied a

motion for new trial. She then filed an addendum to her motion in an effort to add further

grounds for a new triai after the 30uday time limit for ﬁiing post-trial motions had expired. Ruie
78.04. The trial court denied the defendant’s motion for a new trial, and she appeals pro se.
Discussion

The defendant’s ﬁrst two points challenge the trial court’s grant of the plaintiffs’ motion
fora directed verdict. We address these points together because both present the fundamental
question whether the trial court properly granted the plaintiffs’ motion fora directed verdict.

A directed verdict is a drastic action, and the court should grant it oniy when reasonable
persons could not differ on the correct disposition of the case. Garcia v. Lefnvich—Kitchen, 412
S.W.3d 348, 350 (Mo. App. WI). 2013); Breaker v. Haid, 786 S.W.2d 615, 616 (Mo. App. ED.
1990). When reviewing a plaintiff’s motion for directed verdict, we must view the evidence in
the light most favorable to the defendant, giving the defendant the beneﬁt of ail favorable
inferences reasonably drawn from the evidence, and disregarding the plaintiff’s evidence that
does not support the defendant’s case. Clark v. Beifonte Distributing, Inc, 163 S.W.3d 581, 584
(Mo. App. W.D. 2005). A negligence action that depends upon orai testimony rarely presents a
case in which the court is justiﬁed in directing a verdict in favor of the party having the burden
of proof. Garcia, 412 S.W.3d at 350; Duvail v. Smith, 950 S.W.2d 526, 527 (Mo. App. ED.
1997). Justification exists, however, when the defendant in her pleadings or by her counsel in
open court admits, or by her own evidence estabiishes, the plaintiff" 3 claim, or where there exists
no reai dispute of the basic facts supported by uncontradicted testimony essentiai to the claim.
Garcia, 412 S.W.3d at 350-51; Duvaii, 950 S.W.2d at 527; Breaker, 786 S.W.2d at 616.

The rear-end collision doctrine recognizes that if one has his vehicle in a portion of the
highway where he should have it in view of his course, and another person traveling behind him

in the same direction overtakes him and permits her vehicie to run into the rear of the one ahead,

proof of the collision under these circumstances makes out a primafacie case of speciﬁc
negligence against the driver operating the overtaking vehicle. Garcia, 412 S.W.3d at 351;
Diwali, 950 S.W.2d at 527. The doctrine applies Where the lead vehicle is stopped at a stop light
or stop Sign. 15!. The rationale behind the doctrine is that the party in the rear vehicle has a view
of what is in front of her and can better explain why her vehicle struck the rear of the car ahead.
Clark, l63 S.W.3d at 583-84. The doctrine is similar to res ipsa quuifur because the fact that
the collision occurred “bespeaks” the defendant’s negligence. Id. at 584. Time and distance
available for the overtaking driver are factors necessary in determining whether the overtaking
driver “permitted” the collision to occur. 1d. The doctrine establishes a primafacie case, but
does not compel a directed verdict. Garcia, 412 S.W.3d at 351. Once the plaintiff establishes a
primaﬂicie case, the burden shifts to the defendant to produce rebuttal evidence. Id.

Viewed in the light most favorable to the defendant, the evidence was sufficient to create
an issue of fact as to whether she exercised the applicable standard of care. The defendant
adduced evidence to rebut the plaintiffs’ primafacie case of negligence under the rear-end
collision doctrine, namely the road conditions and her attempts to avoid the collision. The facts
she adduced rendered a directed verdict for the plaintiffs under this theory inappropriate. The
defendant testiﬁed that the road was wet, that she saw the plaintiffs’ vehicle, that she tried to stop
but could not, that she honked her horn but the plaintiffs’ vehicle did not move, and that she took
evasive action to try to avoid hitting the plaintiffs’ vehicle “full.”

Because the defendant’s evidence neither “bespeaks negligence” nor supports an
inference that she “permitted” her vehicle to collide with the plaintiffs’ vehicle, the trial court
erroneously granted the plaintiffs’ motion for a directed verdict. See Garcia, 412 S.W.3d at 351-

52 (defendant’s evidence that her view was obstructed before cresting hill, that she complied

with speed limit, that lead vehicle stopped on road although not at intersection, that her vehicle
left 149-foot skid marks, and that she had no safe place to swerve to avoid collision sufﬁcient to
create issue of fact as to whether defendant exercised applicable standard of care); Clark, 163
S.W.3d at 584-85 (facts neither bespoke negligence nor supported inference that defendant
permitted collision to occur where he encountered no icy roads before reaching the accident
location; he attempted to stop 100 yards before intersection by applying normal pressure to
brakes but truck did not respond; and he tried to avoid collision by pumping brakes, honking
horn, and swerving). We reverse the judgment and remand to the trial court fora new trial.l

In her third and fourth points, the defendant challenges the weight of the evidence to
support the directed verdict for the plaintiffs. In her ﬁfth point, the defendant challenges the
weight of the evidence for the damage award to plaintiff Williams. Given our determination that
the trial court erred in granting the plaintiffs’ motion for directed verdict, we decline to address
these points. We deny the defendant’s third, fourth, and fifth points.

In her sixth point, the defendant claims the trial court iacked personal jurisdiction over
her because she was not properly served pursuant to Rule 54.13(b)(l). The defendant did not
include this issue in her original motion for new trial, so it is not preserved for our review. Rule
78.07(a). Furthermore, the record reveals that the defendant was served with a summons and the
original petition on December 27, 2012. The defendant now compiains that she was not
personally served with another summons along with the amended petition that added Davis as a
party and increased the amount of Williams’s damages claim. The defendant misconstrues Rule

54. l3(b)(1), which governs personal service on an individual within the State of Missouri. The

a The defendant is entitled to a new trial as to both Eiability and damages. Even if we were not compelied to reverse
the trial court for directing a verdict as to the defendant’s iiabitity, we would have to reverse its assessment of
damages. The rear-end collision doctrine may establish a defendant’s tiability, but it does not establish the
assessment of damages, which are for the trier of fact.

rule does not require issuance and personal service of a new summons upon a defendant, who
was previously served, each time that a petition is amended.

Even were we to assume, arguendo, that service was somehow defective, the defendant
submitted herseif to the jurisdiction of the trial court by undertaking numerous actions in the
case, including answering the amended petition, filing motions to compel, setting hearings, ﬁling
a motion for summary judgment, and defending herself at trial. With the exception of an
objection to subject-matter jurisdiction, if a party takes any action in a case that recognizes the
case as being in court, this amounts to a general appearance. KNT Mgmf., LLC v. Flenoid, 4i 9
S.W.3d 897, 900 (Mo. App. ED. 2014). “In short, the test of a general appearance conferring
jurisdiction over the person is whether the defendant becomes an actor in the cause.” Id. The
defendant’s sixth point is meritless, and we deny it.

In her seventh point, the defendant claims the trial court lacked subject-matter
jurisdiction to adjudicate plaintiff Davis’s claim because Davis was not a party to the underlying
cause of action. The amended petition added plaintiff Davis, who claimed property damage to
her vehicle. “Subject-matter jurisdiction” means the court’s authority to render ajudgment in a
particular category of case. J.C. W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc
2009). “[T]he subject matter jurisdiction of Missouri’s courts is governed directiy by the state’s
constitution. Article V, section 14 sets forth the subject matterjurisdiction of Missouri’s circuit
courts in pienary terms, providing that ‘[t]he circuit courts shall have original jurisdiction over
all cases and matters, civil and criminai.” Id. (alteration in original). The defendant’s seventh
point is meritless, and we deny it.

In her eighth and ﬁnal point, the defendant ciaims “the trial court was prejudice[d]

against [the defendant] when it offered its opinion to state that {she} was winning at trial; and

sequentially [sic], discharged the jury before it rendered a verdict, and entered a judgment for a
directed verdict in favor of Williams and Davis and against [the defendant].” The plaintiffs point
out that no such statement appears in the record, despite the defendant’s citation to the transcript.
The defendant then claims in her reply brief that the trial court’s statement occurred off the
record. The trial court made no such statement on the record, nor does the transcript reveal any
off-the-record proceedings around the time that the defendant contends the court made its
statement. The defendant’s ﬁnal point is meritless, and we deny it.

The trial court erred in granting the plaintiffs’ motion for a directed verdict based on the

. . . . . 2
rear—end collision doctrine. Thus, we reverse and remand to the trial court fora new trial.

Y, P SIDING JUDGE

LAWRENCE E. MOONE

 

CLIFFORD H. AHRENS, J., and
LISA VAN AMBURG, J ., concur.

2 We deny all pending motions.

