Court of Appeals of Missouri, Southern District, Second Division
CHARLES A. MYERS, a minor, by and through his mother and next friend SUSAN SCHULZ, Plaintiff-Respondent,
CITY OF WEST PLAINS, MISSOURI, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY. Honorable R. Craig Carter, Special Judge.
For Appellant: Woodrow R. Trowbridge of Jefferson City, MO.
For Respondent: H. Lynn Henry of West Plains, MO.
Nancy Steffen Rahmeyer, J. -- Opinion Author. Gary W. Lynch, J. - Concurs. Mary W. Sheffield, P.J. - Concurs.
Nancy Steffen Rahmeyer,
Charles Myers (" the child" ), by his next friend and mother, Susan Schulz, brought suit against the City of West Plains (" Appellant" ) for an injury that occurred in a park in West Plains. The jury returned a verdict allocating 85% fault to Appellant and 15% to the child. In both its points, Appellant challenges the giving of a withdrawal instruction, which stated: " The evidence of Susan Schulz's supervision or lack of supervision of [the child] is withdrawn from the case and you are not to consider such evidence in arriving at your verdict."
In Point I, Appellant claims the trial court erred when it offered the withdrawal instruction,
because it abused its discretion and prejudiced Appellant in that tendering the withdrawal instruction was not supported by evidence, was misleading to the jury, directed the jury to disregard testimony that disputed Respondents' evidence regarding the condition of the Park, and eliminated evidence relating to Appellant's affirmative defense of comparative fault.
In Point II, Appellant claims the trial court erred when it offered the withdrawal instruction " because it abused its discretion and prejudiced Appellant in that the withdrawal instruction was too broad and removed evidence that concerned issues still before the jury at the close of evidence." First, we note that our standard of review is an abuse of discretion. That means that we will not reverse the decision
regarding the giving of a withdrawal instruction unless the trial court ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration. Robert T. McLean Irrevocable Trust u/a/d March 31, 1999 ex rel. McLean v. Ponder, 418 S.W.3d 482, 498 (Mo.App. S.D. 2013). " Withdrawal instructions should be given when there is evidence which might mislead the jury in its consideration of the case as pleaded and submitted." Arnold v. Ingersoll- Rand Co., 908 S.W.2d 757, 764 (Mo.App. E.D. 1995). Because it is not clear from the points just what evidence was " improperly" excluded, we will address the points together with the necessary background for the trial court's decision.
In a discussion with the attorneys about the proposed withdrawal instruction, the trial court expressed concern of the parent's negligence being imputed to the child. The issue had first been raised in voir dire when a potential juror asked: " My question -- well, of course, you probably can't answer it, but where was the supervision for the child while he was being hurt?" The potential juror further stated that he could not be impartial because Susan Schulz was not at the park at the time of the accident.
Seven other potential jurors agreed that they would " lean toward the City" if the child's mother was not right there with him. In an attempt to rehabilitate some of those ...