Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Jason R.
E. SCOTT, J.
Martin tripped on a crank protruding from a relative's
hospital bed at Mercy Villa, a skilled nursing facility. A
jury assessed Mercy 70% of the fault and liability for Ms.
Martin's injuries and denied her husband's consortium
claim. Mercy appeals, raising three points. We affirm.
I & II
in reverse order Mercy's charges that the trial court
erred in refusing to grant a mistrial or strike the venire
due to allegedly prejudicial remarks by panelists during voir
argues in Point II that Ms. Martin's counsel stipulated
to such relief and the trial judge "refuse[d] to enforce
a stipulation against the will of both parties." Yet it
was only after the verdict, via new-trial motion,
that Mercy first cited such "stipulation" or
claimed the court had to honor it. This was too late. Cf.
State v. Marr, 499 S.W.3d 367, 377 (Mo.App. 2016) (even
a criminal defendant convicted by an
unconstitutionally-composed jury waives relief by failing to
give the trial judge an opportunity to act while correction
remains possible). We deny Point II without need to detail
other doubts about Mercy's "stipulation" claim.
reject Point I's more general charge that "multiple
prospective jurors made inflammatory or prejudicial
statements toward Mercy, " so the trial court erred in
denying Mercy's motions for mistrial or to strike the
trial court enjoyed broad discretion in ruling Mercy's
motions. State v. Stewart, 296 S.W.3d 5, 9 (Mo.App.
2009). That court was best positioned to assess any effect of
alleged improprieties; we will not reverse unless we find a
clear abuse of discretion; i.e., an illogical,
arbitrary, unreasonable, ill-considered ruling that shocks a
sense of justice. Id. at 9-10. We presume the trial
court ruled correctly (id. at 10) and Mercy must
prove otherwise by showing that the challenged comments were
so inflammatory and prejudicial as to transgress Mercy's
right to a fair trial. State v. Sprinkle, 122 S.W.3d
652, 668-69 (Mo.App. 2003).
these respects, Mercy's complaints fall woefully short.
Although Mercy repeatedly labels the cited comments
"unsolicited, " none of them were. All six
were in response to questions posed by the court or counsel;
only two can fairly be said to criticize Mercy or Mercy Villa
(Ms. Sammon and Mr. Daniel's first response); and
"[t]here are many cases where statements far more
inflammatory or prejudicial than those by any of the jurors
in this case were not considered grounds to quash the panel
or declare a mistrial." Id. at 669 (citing
examples). The trial court's ruling was not illogical,
arbitrary, unreasonable, ill-considered, or shocking to a
sense of justice. Point I fails.
also complains that Ms. Martin testified, over hearsay
objection, that personnel escorting her to her car after the
fall said they too had nearly fallen in similar fashion and
the hand cranks were a problem.
it fairly debatable that this was hearsay, offered
for its truth, without sufficient foundation to admit it as
Mercy's own statement (admission of a party opponent).
Even so, arguendo, this point fails because
"[t]he improper admission of hearsay evidence requires
reversal [only] if such evidence is prejudicial."
Saint Louis Univ. v. Geary, 321 S.W.3d 282, 291 (Mo.
banc 2009). "A complaining party is not entitled to
assert prejudice if the challenged evidence is cumulative to
other related admitted evidence." Id. at 292
(internal quotation omitted). "Cumulative evidence is
additional evidence that reiterates the same point."
Freight House Lofts Condo Ass'n v. VSI Meter
Services, Inc., 402 S.W.3d 586, 593 (Mo.App. 2013). In
other words, we cannot find that Mercy was prejudiced because
"the challenged evidence [was] merely cumulative to
other admitted evidence of like tenor." Missouri
Land Dev. I, LLC v. Raleigh Dev., LLC, 407 S.W.3d 676,
689 (Mo.App. 2013).
Newberry, who had worked at Mercy Villa as an LPN and knew
the bed-crank type at issue, testified that it was
"common for staff to, you know, run into them because
people get busy and they forget to fold them back underneath
the bed. So it's very common for us to run into them with
our shins or ankles depending on the height of the bed."
She further testified:
Q. Now at Mercy Villa have you ever hit your shin on a bed
crank that was left out?
A. Yeah, 'cause I remember like -- I don't know, it
was like the first or second day that I was working there. I
worked on a hall and there was a room just like almost in
front of the nurse's station down a hallway there. And
the bed was along the side of the wall, but the crank kind of
stuck out in the doorway, if it was left out. And I went in
there to do a treatment on a lady and was putting Vicks on
her toe nails. Anyways, I hit my shin on it.
Q. Now did you fall?
A. No, I didn't fall. I caught myself with the bed, but
it sure hurt.
Q. Okay. It is an uncommon phenomenon in a nursing home
setting to run into those manual cranks, if they have still
have manual beds?
A. They're often left out because like I said, people --
staff get in a hurry because, I mean, you're dealing with
like 20 or 30 people that you're usually taking care of,
you know, in a hallway.
And so people get in a hurry like when they're laying
people down or they're getting people up and sometimes
they get called into another room because of something. So
they sometimes forget to put the cranks back underneath the
bed. I mean, it's just human nature almost to sometimes
forget that when you're in a hurry.
foregoing was admitted without objection, is not complained
of on appeal, and is of like tenor and reiterates the same
point as Ms. Martin's testimony. Thus, "[i]n light
of other evidence in the case, [the challenged] statements
were cumulative and were not prejudicial." Freight
House Lofts, 402 S.W.3d at 593. Mercy's arguments to
the contrary are wholly unpersuasive. We deny Point III and
affirm the judgment.
W. LYNCH, P.J. - CONCURS
WILLIAM W. FRANCIS, JR., J. - CONCURS
Panelist Comments Cited by Mercy
1. Mr. Siegmann, Ms. Baumgartner, and Ms. Sammon responded to
the trial court's panel question: "Does anybody have
any personal or business relationship or - with Mercy
Hospital or Mercy Villa?":
VENIREPERSON SIEGMANN: Yes, sir. Matthew Siegmann. My mother
was a pharmacist with Mercy from 1988 to 2006, at which time
she switched working to Walgreen's. She worked at the
main hospital in the pharmacy there and was, at one point, a
supervisor for a few years. And so -- then she did switch
jobs because of a dispute over retirement benefits so.
THE COURT: Okay. Well, let's get right to that, sir.
Certainly, understanding she's your mother and
understanding that she had had a dispute about that matter,
do you think that would make it hard for you to set aside
your mom's situation and her dispute so that Mercy and
the plaintiffs started out at the same spot in this case?
VENIREPERSON SIEGMANN: I really don't know. I just wanted
to disclose the information. Most of the time she worked
there I was just a kid. But it's hard to say if I ...