Court of Appeals of Missouri, Western District, Second Division
JASON FRIDAY, AS REPRESENTATIVE OF WRONGFUL DEATH CLASS OF LINDA FRIDAY, Appellant-Respondent,
MICHAEL MCCLURE, ET AL., Respondent-Appellant.
from the Circuit Court of Jackson County, Missouri The
Honorable Robert M. Schieber, Judge
Anthony Rex Gabbert, Presiding Judge, Thomas H. Newton,
Judge, Gary D. Witt, Judge
ANTHONY REX GABBERT, JUDGE.
case concerns an appeal by Appellant/Cross-Respondent Mike
McClure ("McClure") and a cross-appeal by
Respondent/Cross-Appellant Jason Friday ("Friday").
appeals a trial court's denial of his motions for
directed verdict and judgment notwithstanding the verdict
(JNOV) in a negligence claim brought by Friday. McClure
raises two points on appeal. First, he argues the trial court
erred, because Friday's negligence claim was barred by
the doctrines of official immunity and public duty. Second,
he argues the trial court erred, because Friday did not have
a submissible negligence claim, in that extant evidence only
established an intentional tort. We reverse.
cross-appeals the trial court's dismissal by res
judicata of an underlying trespass claim Friday had
refiled. He contends the trial court erred, because res
judicata does not apply where there was no final
judgment on the merits of the initial claim. We affirm the
trial court's dismissal of Friday's trespass claim.
is a police officer with the Kansas City Police Department.
On February 12, 2007, he and Officer Keli Theison
("Theison") answered a 911 call made by
Friday's mother ("Ms. Friday"), with whom
Friday lived. When the officers arrived at Ms. Friday's
residence, Friday informed them Ms. Friday no longer needed
help. The officers informed him protocol required they check
on her because she had made the call. The officers knew Ms.
Friday had been arrested the previous day while exhibiting
"bizarre" and "possibly emotionally
disturbed" behavior. Before Friday led the officers into
his mother's bedroom, Ms. Friday yelled she did not need
their help and commanded them to leave. Upon entering,
McClure asked Ms. Friday if she was okay and then proceeded
to turn the volume down on her stereo. McClure testified
that, as he adjusted the volume, he might have inadvertently
brushed Ms. Friday's leg. Ms. Friday suddenly jumped from
her bed, grabbed a gun, and pointed the gun at Theison.
McClure then drew his sidearm and fatally shot Ms. Friday.
February 2, 2010, Friday filed a wrongful death claim
(Friday I) against McClure and Theison on behalf of
Ms. Friday. The claim pled theories of conversion, trespass,
assault, negligence, and battery, resulting in Ms.
Friday's death. On January 30, 2014, McClure filed a
motion to dismiss the wrongful death claims, arguing
Friday's alleged torts were not the natural and probable
cause of Ms. Friday's death. On February 13, 2014, the
trial court granted McClure's motion with respect to
Friday's claims for conversion, trespass, and assault,
finding they "are not cognizable claims under Section
537.080" and thus "fail to state a claim upon which
relief may be granted." The next day, Friday filed a
voluntary dismissal without prejudice of the remaining
battery and negligence claims. He did not appeal.
December 8, 2014, Friday refiled his wrongful death claim
(Friday II). Friday II pled theories of
wrongful death arising from trespass, battery, and
negligence. Friday contends the second trespass claim
contained new facts regarding causation. On May 15, 2015,
McClure filed a motion to dismiss, arguing res
judicata barred the new trespass claim, as it was
essentially identical to Friday I. On July 29, 2015,
the court ruled that because Friday I was dismissed
on the merits, res judicata barred re-litigation of
the trespass issue. On July 1, 2016, Friday filed a motion
for reconsideration, which the trial court denied.
25, 2016, McClure and Theison filed a motion for leave to
file an answer out of time, which the court granted. In their
answer, the officers pled official immunity and public duty
as bars to Friday's negligence claims, because the fatal
shooting was discretionary, and the officers violated no
particular duty owed to Ms. Friday.
matter was tried to a jury on the surviving negligence claim.
At the conclusion of Friday's evidence, McClure made a
motion for directed verdict, which the court denied. McClure
also proffered a battery instruction prior to the verdict
director's delivery. The court rejected the instruction.
On August 8, 2016, a jury returned its verdict in favor of
Theison but against McClure on Friday's negligence claim.
McClure filed his motion for ...