Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of the City of St. Louis Honorable
David L. Dowd
M. HESS, JUDGE
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.
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
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
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
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."
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]."
December 11, 2015, attorneys for both parties visited Ms.
Liggins at her house to conduct a video
deposition. 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?
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
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 -
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.
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.
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