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Porter v. City of St. Louis

Court of Appeals of Missouri, Eastern District, Second Division

June 12, 2018

MARK PORTER, Appellant,
v.
CITY OF ST. LOUIS, Respondent.

          Appeal from the Circuit Court of the City of St. Louis Honorable David L. Dowd

          PHILIP M. HESS, JUDGE

         Introduction

         Mark Porter ("Appellant") appeals the judgment of the Circuit Court of the City of St. Louis, following a jury trial, in favor of the City of St. Louis ("Respondent"). Appellant sued Respondent for negligently failing to repair a downed stop sign which led to Appellant's car accident. Appellant argues the trial court erred by: 1.) excluding a key witness's prior inconsistent statements, and 2.) allowing Respondent to argue prejudicial facts outside of the record during closing argument. We affirm in part and reverse in part.

         Factual Background

         On January 7, 2008, Appellant was driving southbound on Fair Avenue in St. Louis. As Appellant drove through the intersection with Lexington Avenue, Jordan Sherrod, driving westbound on Lexington Avenue, collided with Appellant's vehicle (the "Accident"). Appellant did not have a stop sign. The stop sign regulating westbound traffic on Lexington was down at the time of the Accident. Appellant sustained multiple injuries, including a left shoulder joint separation.

         In April 2011, Appellant sued the City for negligently failing to inspect and repair the downed stop sign, alleging the City knew or should have known of the dangerous condition.[1]

         In May 2012, attorneys for Appellant visited Rutha Liggins, who lived at the corner of Fair and Lexington Avenue. Ms. Liggins signed a statement (the "Statement") which read she had not witnessed the Accident itself, but "did look out at the scene." The Statement further read that the stop sign regulating westbound traffic on Lexington Avenue had been down for "about one week" prior to the Accident.

         On November 10, 2015, attorneys for the City visited Ms. Liggins and presented her with an affidavit, which she signed. The affidavit stated, in relevant part, "I have no knowledge as to when the stop sign at the intersection of Fair and Lexington came down or for how long it had been down."

         On November 23, 2015, attorneys for Appellant visited Ms. Liggins again and presented her with an affidavit (the "Affidavit"), which she signed. The Affidavit stated, in relevant part, that "[t]he stop sign, located at the Northeast corner of the intersection with Fair Avenue, had been down on the ground for approximately one week" and "I had seen the stop sign on the ground for approximately one week prior to [January 7, 2008]."

         On December 11, 2015, attorneys for both parties visited Ms. Liggins at her house to conduct a video deposition.[2] Ms. Liggins repeatedly testified she could no longer remember exactly how long the stop sign had been down prior to the Accident, but that at the time of the Accident she thought the stop sign had been down one week. She was presented with her Statement, and she acknowledged that she had recalled the specifics of the situation surrounding the Accident better when she signed her Statement. She said that her Statement was an accurate recording of her memory at the time she signed it. During cross-examination by the City's counsel, the following exchange took place:

Q. [By City's Counsel] Do you remember, the words that are in the [Statement], do you remember saying those words?
A. Yes.
Q. You do remember saying that?
A. Yes. . . . .
Q. [By City's Counsel] Okay. And how do you know that you said those words in that statement?
A. I-the reason I know I said them, because I signed the paper after.
Q. Do you remember those words, those exact words-
A. Yes, I remember.
Q. - being on that paper when you signed it?
A. Yes, I remember -
Q. Okay.
A. -signing it, but I don't know, remember who, who took the words, you know, who I gave them to.
Q. But you did say those words, is that correct?
A. Yes, uh-huh.

         The case was tried before a jury on February 8, 2016. On February 10, the trial court declared a mistrial after the jurors were unable to reach a verdict.

         In April 2016, Appellant dismissed his cause of action without prejudice and re-filed his case. The case was again tried before a jury in May 2017. During motions in limine, the trial court granted the City's motion to exclude the Statement, Affidavit, and the portions of Ms. Liggins' video deposition which referenced her Statement and Affidavit ...


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