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Friday v. McClure

Court of Appeals of Missouri, Western District, Second Division

October 24, 2017

MICHAEL MCCLURE, ET AL., Respondent-Appellant.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Robert M. Schieber, Judge

          Before Anthony Rex Gabbert, Presiding Judge, Thomas H. Newton, Judge, Gary D. Witt, Judge


         This case concerns an appeal by Appellant/Cross-Respondent Mike McClure ("McClure") and a cross-appeal by Respondent/Cross-Appellant Jason Friday ("Friday").

         McClure 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.

         Friday 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.

         Factual Background

         McClure 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.

         Procedural History

         On 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."[1] The next day, Friday filed a voluntary dismissal without prejudice of the remaining battery and negligence claims. He did not appeal.

         On 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.

         On July 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.

         The 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 ...

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