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Miller v. City of Kansas City

12/9/2003

Opinion Vote: AFFIRMED.


Ellis, C.J., and Howard, JJ.


Opinion:


Anna Miller (appellant) sued the city of Kansas City, Missouri (City or respondent) for injuries sustained in a one-car accident. She alleged that a turn on the road where the accident occurred was unsafe and constituted a dangerous condition of City property. Miller claimed that she lost control of her car as she attempted to make the turn, which resulted in the accident. The jury returned verdict in favor of Kansas City.


This appeal is confined to two errors: (1) instructional error, and (2) improper exclusion of evidence. The court will first take up the effect of the error in instructions.


Miller submitted a verdict director based on MAI 31.16 [1995 Revision], the MAI verdict director to be given when liability is premised on a dangerous condition on a public entity's property, as modified by MAI 37.01 [1986 New], the MAI approved modification for cases involving comparative fault. Miller's verdict director, which was refused by the trial court stated:


In your verdict you must assess a percentage of fault to defendant whether or not plaintiff was partly at fault if you believe:


First, there was inadequate warning that NW 64th Street contained a turn that could not be made at the posted speed limit, and, as a result, NW 64th Street was not reasonably safe, and


Second, defendant knew or by using ordinary care could have known of this condition in time to warn of such condition, and


Third, defendant failed to use ordinary care to warn of such condition, and


Fourth, such failure directly caused or directly contributed to cause damage to plaintiff.


The phrase "ordinary care" as used in this instruction means that degree of care that an ordinarily careful person would use under the same or similar circumstances. (emphasis added)


Having refused Miller's proposed verdict director, the trial court submitted its own instruction. The verdict director given by the trial court as Instruction No. 6 stated:


In your verdict you must assess a percentage of fault to defendant whether or not plaintiff was partly at fault if you believe:


First, there was inadequate warning that NW 64th Street contained a turn that could not be made at the posted speed limit, and, as a result, NW 64th Street was not reasonably safe, and


Second, defendant knew or by using ordinary care could have known of this condition in time to warn of such condition, and


Third, defendant failed to use ordinary care to warn of such condition, and


Fourth, as a direct result of such failure plaintiff sustained damage.


The phrase "ordinary care" as used in this instruction means that degree of care that an ordinarily careful person would use under the same or similar circumstances. (emphasis added)


The trial court also submitted, without objection, the respondent's comparative fault instruction as Instruction No. 7:


In your verdict you must assess a percentage of fault to plaintiff, whether or not defendant was partly at fault, if you believe:


First, either:


plaintiff drove at an excessive speed, or


plaintiff failed to keep a careful lookout, or


plaintiff veered off the roadway, and


Second, plaintiff in any one or more of the respects submitted in Paragraph First, was thereby negligent, and


Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.


The t

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