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Collins v. Hertenstein9/3/2002
apprehension of a gun when he talked immediately after the shooting to an investigating homicide detective. Hertenstein told the detective that he had shot Wilson because Wilson was driving the pickup toward him. When Hertenstein fired, three other officers fired their guns. Thomas shot twice, and one of the bullets wounded Wilson. Keeney shot once, wounding Wilson. Malek fired at a rear tire. Twenty-six seconds elapsed between Wilson's driving the pickup into the vacant lot and the officers' shooting Wilson. Keeney testified that he shot Wilson because he could not locate his partner, Wilkerson, when the pickup moved forward and feared that he was underneath the pickup. Thomas said that he shot Wilson because the pickup was coming towards him. Thomas, however, was standing on the driver's side of the truck when he shot, and the pickup was moving to the right, veering away from Thomas. Wilson died from multiple gunshot wounds.
A dog in the truck with Wilson also died from multiple bullet wounds. One of the bullets from Hertenstein's gun entered the middle of Wilson's chest, went through his sternum, heart, esophagus, aorta, and diaphragm, and fractured the front part of Wilson's spinal vertebra. This wound alone was sufficient to have caused Wilson's death. Another of Hertenstein's bullets passed through Wilson's right forearm, fracturing a bone and tore through muscle before landing on the pickup's seat. Another bullet from Hertenstein's gun passed through the front of Wilson's right thigh and embedded into a muscle, and another passed through Wilson's right thigh and lodged behind Wilson's right knee. A bullet from Keeney's gun entered the left side of Wilson's chest, fractured a rib, went through the upper portion of his left lung, fractured another rib, and lodged under the skin in his lower neck and upper back region. As the bullet went through the lung, it caused a leak, which allowed air to escape the lung and caused the lung to collapse. This wound alone also could have caused Wilson's death.
The bullet from Thomas' gun passed through Wilson's left arm. A forensic pathologist indicated that this wound alone would not have likely caused Wilson's death.
Collins' Appeal
Collins asserts that the circuit court erred in granting judgment notwithstanding the jury's verdict for Thomas. She contends that she made a submissible case against Thomas under three distinct theories:
(1) that his gunshot was a contributing cause of Wilson's death;
(2) that he acted in concert with other officers as a contributor to cause Wilson's death; and
(3) that his gunshot was a contributed cause of Wilson's conscious pain and suffering. In reviewing the circuit court's granting of Thomas' motion for judgment notwithstanding the verdict, we must determine whether or not Collins made a submissible case. Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996).
We do this by reviewing the evidence in a light most favorable to the plaintiff. Id. "A presumption favoring the reversal of a grant of JNOV exists, unless the evidence and inferences favorable to the plaintiff leave no room for reasonable minds to differ as to the outcome." Sloan v. Bankers Life and Casualty Company, 1 S.W.3d 555, 564 (Mo. App. 1999). "Missouri law recognizes that where persons whose independent negligent acts coalesce to cause a single indivisible injury , each person may be jointly and severally liable for all the harm caused." Brickner v. Normandy Osteopathic Hospital, Inc., 687 S.W.2d 910, 912 (Mo. App. banc 1985) (citing Barlow v. Thornhill, 537 S.W.2d 412, 418 (Mo. banc 1976)).
The term "joint tortfeasor" includes a "single, indivi
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