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Varsalona v. Ortiz

Court of Appeals of Missouri, Western District, Second Division

October 14, 2014


Appeal from the Circuit Court of Clay County, Missouri. The Honorable Shane Terril Alexander, Judge.

For Appellant: Danieal Miller, Bradley Lockenvitz, Columbia, MO.

For Respondent: Blaine Dickeson, St. Louis, MO; John Weist, Overland Park, KS.

Before Division Two: Victor C. Howard, P.J., James Edward Welsh, and Anthony Rex Gabbert, JJ. All concur.


Page 138

James Edward Welsh, Judge.

Paul Varsalona appeals the circuit court's judgment after a jury verdict in favor of Rafael Jimenez Ortiz in his automobile negligence case against Ortiz. Varsalona's claims on appeal are based on his contention that Ortiz was required to plead as an affirmative defense that Varsalona backed into him. We affirm.


In December 2011, Paul Varsalona filed a lawsuit against Rafael Jimenez Ortiz claiming that Ortiz negligently collided with the back of his vehicle. The case was tried before a Clay County jury over three days in June 2013.

Varsalona testified at trial that on May 13, 2011, he was on his way to the airport when he decided to stop by a friend's house on 48th Terrace in Clay County. He stated that he observed in his rear-view mirror that Ortiz's car had been " tailgating" him for the " last two, three blocks" prior to arrival at his friend's house. Varsalona testified that as he slowed to turn into his friend's driveway, his car was struck from behind by Ortiz's vehicle and was pushed forward about ten feet. Varsalona stated that his vehicle was then struck again by Ortiz's car and that the second collision knocked his vehicle to within a few feet of the driveway. Varsalona asserted that the impacts caused him to " bounce back and forth" and that he sustained a debilitating back injury from the collision.

Ortiz testified that he was heading to his home on 48th Street in Clay County, when he encountered Varsalona's vehicle traveling very slowly on 48th Terrace. Ortiz stated that Varsalona " was traveling really slow" and was " looking to his right and hitting the brake." Ortiz explained that as he approached Varsalona's vehicle, " [w]e were both traveling really slow, and I was about two to three cars' distance behind him." When Varsalona drove slowly up to what apparently was his destination, Ortiz observed that " he passed the driveway a little bit, and he pressed the brakes, and I saw the red lights come on. Then I stopped and I was right on the line of the driveway when I stopped." In other words, Varsalona's vehicle had come to a stop in the street just past the driveway (which by Varsalona's estimation was some thirty to forty feet wide), and Ortiz came to a stop at the beginning of the driveway. Ortiz stated that after both vehicles came to a stop, Varsalona then " very quickly . . . started going in reverse, and I honked my horn, but I didn't have a chance to move back, and he just hit me." Ortiz introduced photographs of both vehicles taken after the accident. He pointed out that the only damage to Varsalona's vehicle consisted of some " little dots" on the bumper from the bolts on Ortiz's license plate holder. Ortiz's vehicle suffered only a small crack in the bumper.

The evidence showed that after the collision, the parties exchanged information, and Varsalona called the police. A police officer came to the scene shortly thereafter, but, after speaking with both drivers, the officer made no report and issued no tickets. On June 21st, thirty-nine days after the accident, Varsalona filed a " walk-in" police report.

Page 139

Varsalona presented evidence that, despite having back problems for over sixty years, he had been very active, had a high tolerance for pain, and did not need a walker prior to the May 2011 accident. After the accident, however, Varsalona and his witnesses testified that he was in constant pain, consistently needed a walker, wheelchair, or assistance in walking, and needed help from home health workers or family members with his everyday activities. Varsalona asked for an award of damages for the injuries that he sustained in the collision.

Missouri has adopted the doctrine of " comparative fault" in negligence cases. Lester v. Sayles, 850 S.W.2d 858, 867 (Mo. banc 1993) (citing Gustafson v. Benda, 661 S.W.2d 11, 15 (Mo. banc 1983)).[1] During the instruction conference in this case, the circuit court ruled that because Ortiz did not properly plead comparative fault, the court would not submit his comparative fault instruction. The circuit court also rejected Varsalona's request to submit the case to the jury pursuant to ...

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