Hollis v. Poplar Bluff Reg'l Med. Ctr., LLC

674 S.W.3d 76

Tyler HOLLIS, a Minor BY AND THROUGH His Next Friend, Mother, and Conservator, Karen HOLLIS, Appellant,

v.POPLAR BLUFF REGIONAL MEDICAL CENTER, LLC, et al., Respondents.

No. ED 110884

Missouri Court of Appeals, Eastern District, SOUTHERN DIVISION.

FILED: June 13, 2023

Application for Transfer to Supreme Court Denied July 18, 2023

Application for Transfer to Supreme Court Denied September 26, 2023

For Appellant: R. Douglas Gentile, Jeffrey D. Rowe, Daniel A. Kopp, 5250 W. 116th Pl., Ste. 400, Leawood, KS 66211, Douglas R. Kennedy, Christopher L. Yarbro, 1165 Cherry St., Poplar Bluff, MO 63902.

For Respondents: Joseph C. Blanton, Jr., Thomas W. Collins III, Shaun D. Hanschen, Dierdre A. Peters, 219 S. Kingshighway, P.O. Box 805, Sikeston, MO 63801.

KURT S. ODENWALD, Presiding Judge

Introduction

Tyler Hollis ("Appellant"), a minor, by and through his next friend and mother, Karen Hollis ("Adoptive Mother") appeals from the trial court's judgment following a jury trial finding in favor of Poplar Bluff Regional Medical Center, LLC (the "Hospital") and Jennifer Lay ("Lay") (collectively, "Respondents") on Appellant's negligence claim. Appellant was severely injured on December 8, 2007 and diagnosed with shaken baby syndrome. Heather Lane ("Mother") pleaded guilty to child abuse following Appellant's injuries. Appellant alleged Respondents had been in a patient-provider relationship with Mother four months earlier and negligently failed to warn of child abuse. At trial, Respondent introduced evidence that Mother's then-boyfriend, Ben Andrews ("Boyfriend"), abused Appellant and caused his injuries. Appellant raises five points on appeal, four of which challenge an affirmative converse instruction given by the trial court instructing that the jury should find for the Respondents if it believed Boyfriend injured Appellant. Appellant argues the affirmative converse instruction was improper and prejudicial because (1) the verdict directors did not omit any disputed ultimate issue, (2) the instruction's hypothesized facts were insufficient to bar Appellant's recovery, (3) the instruction was a prohibited sole cause instruction, and (4) the instruction gave the jury a roving commission by not specifying what "injured" meant in the case. Lastly, Point Five challenges the admission of evidence that supported the affirmative converse instruction. In particular, Point Five argues the trial court erred in admitting evidence of Boyfriend's fault because the evidence was inadmissible hearsay that lacked logical and legal relevance.

We hold that whether Mother or Boyfriend injured Appellant on December 8, 2007 was a disputed ultimate issue sufficient to bar Appellant's recovery that was omitted from the verdict directors. The trial court thus did not err in giving the affirmative converse instruction, which hypothesized that Respondents owed no duty at law to protect Appellant from the unforeseen criminal act of a third party outside the patient-provider relationship. We further hold that the supported affirmative converse instruction was not a prohibited sole cause instruction, and Appellant's roving-commission claim was not preserved for appellate review. We therefore deny Points One through Four. Because the record contained circumstantial evidence that Boyfriend abused Appellant, which was relevant to rebutting the duty element of Appellant's negligence claim, Appellant did not demonstrate reversible error in the trial court's evidentiary rulings, and we deny Point Five. Accordingly, we affirm the trial court's judgment.

Factual and Procedural History

The following facts are limited to only those necessary to resolve the appeal.

Mother voluntarily committed herself to the Hospital's psychiatric ward from August 5 to August 10, 2007. Mother had multiple treating health care providers, including Lay, a clinical therapist who provided mental health counseling. The parties dispute whether Mother indicated during her sessions with Lay that she posed a risk of abusing Appellant.

On December 8, 2007, approximately four months after Mother's release from voluntary commitment, Appellant was severely abused at his home, resulting in catastrophic injuries. Appellant was diagnosed with shaken baby syndrome.

Appellant filed his Third Amended Petition on May 16, 2019, alleging Respondents were liable for the abuse Appellant suffered through the catastrophic head and brain injuries he received on December 8, 2007 because Respondents negligently did not report Mother's risk for committing child abuse or neglect relative to Appellant when Mother was a patient.

At trial, Appellant adduced evidence that Mother abused Appellant. Mother was in jail during this civil trial because she had admitted to the criminal offense of abusing Appellant, specifically confessing that she injured him on December 8, 2007. Appellant sought to prove Respondents were negligent because had Lay made a hotline call to the Children's Division due to Mother's risk factors for committing child abuse or neglect while Mother was under Lay's care, Appellant would have been removed from Mother's custody and would not have been abused under her care.

Respondents adduced evidence that Boyfriend, not Mother, was caring for Appellant on December 8, 2007 and severely injured him. Appellant had filed motions in limine to preclude Respondents from introducing evidence that Boyfriend, not Mother, was the perpetrator of the child abuse against Appellant. The trial court ruled to exclude evidence of alleged fault of anyone other than Respondents with regard to comparative fault and apportionment of damages; however, the trial court permitted Respondents to introduce sole cause evidence. During trial, Appellant called two expert witnesses on the issue of causation, Shawn McCarver ("McCarver") and Margaret Fletcher ("Fletcher"). Both experts testified that they considered Boyfriend's criminal record in arriving at their opinions. Over objection, Respondents introduced evidence of Boyfriend's prior conviction for assault against a child. Mother's uncle, Raymond Rodgers ("Uncle") testified that Boyfriend called him on the day of the incident and told Uncle he "dropped" Appellant. The trial court sustained Appellant's objection to Boyfriend's hearsay statement in the phone call. Uncle further testified that when he arrived at the scene, he found Appellant injured. Only Boyfriend was present. Mother was not at home but instead was at work. Over Appellant's objections, Respondents also introduced phone calls between Uncle and Mother as well as between Adoptive Mother and Mother, which were recorded by the Department of Corrections ("DOC") and admitted as business records. In extensive phone conversations between Mother and Adoptive Mother, Adoptive Mother said she believed that Boyfriend, not Mother, committed the child abuse.

Following a jury instruction conference, the trial court read the instructions to the jury, including Instructions Nos. 7 and 8, the verdict directors for Lay and the Hospital, respectively (collectively, the "Verdict Directors"). The Verdict Directors had tails relating to the affirmative converse Instruction No. 9. Instruction No. 7 provided:

Your verdict must be for [Appellant] and against [Lay] and [the Hospital] if you believe:

First, [Lay] knew, or pursuant to the standards of her profession should have known, that [Mother] presented a serious danger of future harm to a readily identifiable victim, [Appellant], and

Second, [Lay] failed to notify appropriate authorities of the danger, and

Third, [Lay] was thereby negligent, and

Fourth, such negligence directly caused or directly contributed to cause damage to [Appellant].

...

Unless you believe [Appellant] is not entitled to recover by reasons of Instruction No. 9.

(Emphasis added). Instruction No. 8 provided:

Your verdict must be for [Appellant] and against [the Hospital] if you believe:

First, [the Hospital] either:

hired [Lay], or

failed to adequately train [Lay], or

failed to adequately supervise [Lay], or

failed to adequately enforce its mental health policy T3 ..., and

Second, [the Hospital] was thereby negligent, and

Third, such negligence directly caused or directly contributed to cause damage to [Appellant].

...

Unless you believe [Appellant] is not entitled to recover by reasons of Instruction No. 9.

(Emphasis added). The trial court also gave Respondents’ proffered affirmative converse instruction, Instruction No. 9, which stated:

Your verdict must be for [the Hospital] and [Lay] if you believe [Boyfriend] injured [Appellant].

Appellant objected to Instruction No. 9 on multiple grounds, including that it was insufficient to defeat Appellant's claim, was not supported by the evidence, was unnecessary to negate causation, and was an improper sole cause instruction.

In closing argument, Appellant argued that the evidence showed Mother abused Appellant on December 8, 2007 and caused his severe injuries. The jury found the Respondents not liable. Appellant moved for a new trial, and the trial court overruled the motion. This appeal follows.

Points on Appeal

Appellant raises five points on appeal. Points One through Four allege the trial court erred in giving Instruction No. 9. Specifically, Point One argues the trial court erred in giving Instruction No. 9 because the verdict director did not assume or omit any disputed ultimate issue. Point Two maintains the trial court erred in giving Instruction No. 9 because its hypothesized facts were insufficient to bar recovery. Point Three asserts the trial court erred in giving Instruction No. 9 because it was a sole cause instruction prohibited by the Missouri Approved Instructions—Civil 1.03 (8th ed.) ("MAI"). Point Four argues the trial court erred in giving Instruction No. 9 because the instruction was vague and gave the jury a roving commission. Specifically, Appellant argues that the instruction did not specify what "injured" meant in the context of the case. Lastly, Point Five...