Bill Lewis and Lori Battern represented Defendant Hy-Vee, Inc. in the case of Glenda Potter v. Hy-Vee, Inc. before a Greene County, Missouri jury in June 2017. After successfully obtaining a unanimous defense verdict on the premises liability case, plaintiff appealed the judgment entered in defendant’s favor alleging three points of error by the trial court: (1) plaintiff contended the trial court erred in submitting the verdict directing instruction as it did not properly state the substantive law; (2) plaintiff contended the trial court erred in admitting the testimony of defendant’s orthopedic expert as to the cause of plaintiff’s fall; and (3) plaintiff contended the trial court erred in admitting testimony from two of defendant’s experts about the results of an experiment measuring the slip-resistance of defendant’s floor. The Missouri Court of Appeals, Southern District unanimously affirmed the verdict in defendant/respondent’s favor.
The Court of Appeals opined that the trial court did not err in admitting defendant’s expert testimony on whether plaintiff’s physical condition, rather than a dangerous condition on defendant’s premises, caused her to fall in defendant’s premises when that expert was qualified to testify on physical conditions and the expert’s testimony was helpful to non-experts. The Court ruled that other objections to the evidence, not raised to the circuit court, are waived. The Court additionally ruled that defendant’s experts’ testimony on experiments that tested the coefficient of friction, or slipperiness, of the floor was admissible because defendant properly laid a foundation for its admissibility. Lastly, the Court ruled the verdict directing instruction offered by defendant and submitted by the trial court, over plaintiff’s objections, was proper. The publication of an approved instruction excludes all other instructions on that topic; departure is error. The approved instruction accurately described the law on liability of a retail self-service store when it submitted as an ultimate fact the issue of whether the owner had notice of the dangerous condition.
The full opinion can be read here.
