Court of Appeals of Missouri, Western District, Special Division
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Sandra Midkiff, Judge.
Laura L. Del Percio and Douglas Ronald Horn, Independence, MO, for appellant.
P. Benjamin Cox, Kansas City, MO, for respondent The Board and Swope.
G. Steven Diegel, Kansas City, MO, for respondent City of Kansas City, Missouri.
Before Special Division: Cynthia L. Martin, Presiding Judge, Gary D. Witt, Judge and Zel M. Fischer, Special Judge. All concur.
Gary D. Witt, J.
Joe Frazier (" Frazier" ) was injured when the car in which he was riding was struck by a vehicle that was fleeing the police in a high speed pursuit. Frazier sued the city of Kansas City (" City" ), the Kansas City Missouri Board of Police Commissioners (" Board" ) through its individual board members, and Officer Ryan Swope (" Officer Swope" ) (collectively, the " Defendants" ). Frazier's cause of action against the Defendants consisted of three counts in which he alleged negligence, negligence per se, and recklessness. Before trial, the trial court granted the Defendants' motion for partial summary judgment as to some counts, leaving only the count of recklessness. A trial took place on the allegations of recklessness in the Circuit Court of Jackson County after which the Defendants were found not liable for Frazier's injuries. The trial court entered judgment for the Defendants and denied Frazier's motion for a new trial. This appeal follows.
For reasons fully explained below, we affirm.
FACTS AND PROCEDURAL HISTORY
On July 6, 2010, officers with the KCPD Metro Property Crimes Task Unit were conducting surveillance on a stolen truck parked at a house in Kansas City, Missouri. KCPD Squad #280 was on stand-by to assist. A man later identified as Brian Rimmer (" Rimmer" ) left the house, got into the stolen truck, and drove to a Wal-Mart in Raytown. The KCPD followed Rimmer to the Wal-Mart parking lot. While Rimmer sat in the stolen truck in the parking lot, officers approached him. Before they reached Rimmer, he sped out of the parking lot, striking an occupied parked car, and then proceeded westbound in the eastbound lanes of 350 Highway.
Sgt. Jason Rusley (" Sgt. Rusley" ) was the controlling supervisor at the scene. As Rimmer continued driving into oncoming traffic on 350 Highway at a high rate of speed with no police officers behind him, Sgt. Rusley made the decision to allow pursuit by the use of the police helicopter, stop sticks, and any patrol car with lights and siren that could safely get behind the stolen truck. Over the police radio, he gave permission for officers to pursue the stolen truck, stating he needed cars with stop sticks to get in front of Rimmer. Sgt. Rusley testified that he gave permission for the pursuit because Rimmer presented a clear and immediate danger to the safety of others. The police helicopter was able to locate and follow Rimmer's vehicle.
Officer Swope first observed Rimmer as Rimmer drove westbound in the same direction
as the flow of traffic on 63rd Street. With his lights and siren activated, Officer Swope turned west from Jackson onto 63rd Street, in pursuit of Rimmer. Officer Swope observed Rimmer turn north into the southbound lanes of Highway 71. With his lights and siren still activated, Officer Swope followed Rimmer onto Highway 71. Officer Swope drove his patrol car on the shoulder of the highway, remaining several hundred feet behind Rimmer. Rimmer continued northbound in the southbound lanes of Highway 71. At the intersection of Highway 71 and 55th Street, Rimmer crashed into a vehicle in which Frazier was riding as that vehicle crossed through the intersection. Officer Swope's vehicle did not come into contact with the vehicle in which Frazier was a passenger. Rimmer was arrested and later pled guilty to multiple felonies arising out of the events occurring that day, including four counts of the class C felony of assault in the second degree (one count for each person who was injured as a result of the accidents that occurred during the chase, including Frazier), one count of the class C felony of tampering with a motor vehicle, one count of the class D felony of resisting arrest, one count of the class D felony of leaving the scene of an accident and one count of the class D felony of operating a vehicle with a suspended or revoked license.
Frazier filed a three-count petition for civil damages against Officer Swope, the City and the individual members of the Board in which he alleged negligence, negligence per se and recklessness. Before trial, the court granted Defendants' motion for partial summary judgment, leaving only the count of recklessness to be submitted to the jury.
At trial, Frazier presented evidence that Officer Swope caused the accident by recklessly pursuing Rimmer. Chuck Drago, a thirty-two year veteran police officer and former Chief of Police of Oviedo, Florida, testified as an expert on police pursuit tactics on behalf of Frazier. After serving as police chief for three years, Drago was appointed to a state agency overseeing business licensing for the state of Florida. He then went on to serve as Senior Law Enforcement Advisor to the governor. When the governor left office, Drago started his own consulting firm.
Drago based his opinions on his review of the " dash-cam" footage from Officer Swope's vehicle and the radio transmissions between the officers. He testified that he assumed Rimmer saw Officer Swope when he commenced the pursuit and that Rimmer's reckless driving was a result of the pursuit. Drago, however, did not know for certain whether Rimmer was aware that he was being pursued at various points, or whether he was aware of the helicopter overhead. Defendants presented evidence that Officer Swope did not violate any KCPD protocols in pursuing Rimmer and alleged that Officer Swope was not the proximate cause of the collision.
The jury returned a verdict for Defendants and the trial court entered judgment accordingly. Frazier filed a motion for a new trial arguing that various evidentiary rulings were erroneous and that the verdict was against the weight of the evidence. The trial court denied the motion. This appeal follows.
In his eight points raised on appeal, Frazier alleges error by the trial court in (1) granting Defendants' motions for partial summary judgment regarding his claims for negligence, (2) excluding portions of the " dash-cam" video evidence, (3) excluding testimony regarding Officer Swope's prior violations of KCPD protocols,
(4) admitting evidence of the fleeing suspect's plea of guilty to assault in the second degree by use of a vehicle, (5) admitting evidence of the amount of Frazier's medical bill " write-offs," (6) overruling Frazier's Batson  challenges, (7) denying Frazier's motion for a new trial because the verdict was against the weight of the evidence, and (8) denying his motion for a new trial based on cumulative error.
In Point I, Frazier claims the trial court erred in granting Defendants' motions for partial summary judgment regarding the counts of negligence because the rulings were based on the court's finding that there was no evidence that Officer Swope's actions were the proximate cause of the accident.
Standard of Review
Our review of the trial court's grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-- Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id.
Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. ITT Commercial Fin. Corp., 854 S.W.2d at 377. Facts contained in affidavits or otherwise in support of a party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. at 376. A defending party may establish a right to judgment as a matter of law by showing any one of the following: (1) facts that negate any one of the elements of the claimant's cause of action; (2) the non-movant, after an adequate period of discovery, has not and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or (3) there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. Id. at 381.
Frazier argues that the court erred when determining that the material facts of the case were not in dispute and that there was no evidence that Officer Swope was the proximate cause of the accident that injured Frazier. He contends that whether Swope's pursuit of the fleeing suspect caused the accident was a factual dispute and should have been submitted to the jury. Defendants, however, maintain that the trial court was correct in following the controlling precedent established by our Supreme Court in Stanley v. City of Independence, 995 S.W.2d 485 (Mo. banc 1999) and granting summary judgment.
After reviewing the evidence submitted on summary judgment, the trial court found our Supreme Court's holding in Stanley to be controlling and, therefore, granted summary judgment in favor of Defendants on Frazier's claims of negligence and negligence per se. The court concluded that it was " constitutionally bound to follow the Stanley decision as the last controlling and on-point decision of the Missouri Supreme Court."
A. Missouri Supreme Court Precedent Set in Stanley v. City of Independence
In Stanley, the court reviewed a case involving facts very similar to those in the
case at bar. There, the fleeing suspect was driving a van that matched the description of a vehicle involved in a robbery thirty minutes earlier. Id. at 486. When the van was spotted by Officer Hill, he attempted to initiate a traffic stop by turning on the emergency lights of his marked patrol car and giving a " quick yelp" of the siren. Id. The van did not yield; instead, it fled and Officer Hill pursued activating the siren. Id. The officer followed the van through a residential neighborhood and on various surface streets at speeds of approximately 55 miles per hour. Id. As the fleeing van approached an intersection, the traffic in its lane was stopped at a stoplight. Id. The van veered into the oncoming lane of traffic at nearly 70 miles an hour. Id. Michael and David Stanley were traveling in their vehicle, approaching the same intersection from the opposite direction. Id. They were in the proper lane of traffic and attempted to get out of the way of the fleeing van. Id. Their vehicle was struck by the van, and both men were killed. Id. At the moment of impact, Officer Hill was 191 feet behind the van. Id. The entire duration of the pursuit lasted 45 seconds. Id.
The plaintiffs alleged that the pursuing officer was negligent in following the suspect and that his pursuit proximately caused the accident. In order to establish proximate cause, the plaintiff must show that the injury was the " natural and probable consequence of the defendant's negligence." Id. at 488 (citation omitted). The Missouri Supreme Court concluded that the pursuing officer's conduct was not a proximate cause of the collision, and explained:
The suspects in the van made the initial decision to flee, sped through red lights and in the wrong lane of traffic, and collided with the decedents. Any negligence by [O]fficer Hill is connected to the plaintiffs' injury solely through the conduct of the fleeing van. Thus, the only conceivable causal link between the officer's alleged negligence and the collision is the conjectural effect of his pursuit on the pursued vehicle. Shortly after initiating the pursuit, the officer observed, " this guy is going nuts on us." There is nothing other than speculation to reach a conclusion that the officer's conduct was a " cause of the collision." Put another way, there is no way to tell whether the collision would have been avoided if the officer had abandoned the pursuit after initiating it. Thus, there is no factual basis to support a finding of proximate cause.
It further reasoned that because " there is no way to tell whether the collision would have been avoided if the officer had abandoned the pursuit after initiating it . . . there is no factual basis to support a finding of proximate cause." Id. It then affirmed the grant of summary judgment in favor of the defendants and concluded that without a causal link between the pursuing officer and the collision, there were no facts to support a finding of proximate cause. Id.
B. Trial Court's Application of Stanley v. City of Independence to Frazier's Facts
After applying the holding of Stanley to the nearly identical undisputed facts in the case at bar, the trial court held that, just as in Stanley, the evidence did not support a causal link between the conduct of Officer Swope and the collision. Indeed, the trial court concluded that " the only conceivable causal link between Officer Swope's alleged negligence and the collision is the conjectural effect of his pursuit on the pursued vehicle." The trial court reasoned that the absence of a causal link
made summary judgment proper, stating that " Plaintiff cannot, as a matter of law, show that Officer Swope, as a pursuing officer that did not collide with Plaintiff, was the ...