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Collins v. Hertenstein9/3/2002
went through the arm, the flesh part of the arm, have caused or would have contributed to the death of Timothy Wilson?
A: No, it would not.
The officers contend that Collins did not make a submissible case against Thomas because she did not establish that Wilson's death would not have occurred "but for" Thomas' acts. The officers rely primarily on Graham v. Ozark Mountain Sightseeing, Inc., 181 F.3d 924 (8th Cir. 1999), in making their argument. In Graham, the federal court concluded that, in a wrongful death action, a plaintiff must prove that a defendant's negligence was a direct cause of the victim's death. The Graham court also ruled that, if a plaintiff relies on medical experts, those experts must testify that they believe, within a reasonable degree of medical certainty, that, but for the defendant's negligence, the victim's death would not have occurred. Id. at 926.
In this case, the circuit court instructed the jury that it could find Thomas liable if it determined that he intentionally shot Wilson, used more force than was reasonably necessary, and caused or contributed to cause the wrongful death of Wilson. Although the forensic pathologist opined that Thomas' gunshot did not contribute to Wilson's death, the expert testified, within a reasonable degree of medical certainty, that bleeding was "a large part of the mechanism of [Wilson's] death." The expert acknowledged, of course, that Wilson bled from all of the wounds. This gave the jury a sufficient basis for concluding that Thomas' gunshot contributed to cause Wilson's death. The jury had a sound basis for concluding that the bleeding in Wilson's arm contributed to the restricted flow of blood and, therefore, hastened Wilson's death. " n act which accelerates death . . . causes death[.]" In re Estate of Eliasen, 668 P.2d 110, 120 (Idaho 1983).
This is true even if the act hastens death by merely a moment. Although Thomas' gunshot alone should not have caused Wilson's death, the jury could have found that Thomas' acts coalesced with those of Hertenstein and Keeney to hasten Wilson's death; hence, the jury reasonably concluded that the bullet Thomas fired contributed to cause a single, indivisible injury for which Thomas could be held liable. In her second point, Collins contends that the circuit court erred in denying her motion for new trial on the issue of damages for aggravating circumstances. The circuit court erred, she asserts, by not allowing her to admit evidence of the officers' current employment and income, by giving a cautionary instruction to the jury that it could not consider the officers' employment and income, and by limiting the scope and time of her closing argument. Collins asserts that evidence of the officers' employment and income was relevant to establishing the officers' financial condition for the purpose of damages for assessing aggravating circumstances.
"Damages awarded for aggravating circumstances in wrongful death cases are punitive in nature, and a punitive damages analysis applies in reviewing an award of aggravating circumstances damages[.]" Henderson v. Fields, 68 S.W.3d 455, 486 (Mo. App. 2001). Indeed, " n Call v. Heard, [925 S.W.2d 840, 847-49 (Mo. banc 1996),] the Supreme Court jettisoned the term 'aggravating circumstances damages' for 'punitive damages,' thereby solidifying its holding in Bennett [v. Owens-Corning Fiberglas Corporation, 896 S.W.2d 464, 466 (Mo. banc 1995)], that aggravating circumstances damages are the equivalent of punitive damages." Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 659 n.8 (Mo. App. 1997), cert. denied, 525 U.S. 827 (1998). Section 510.263, RSMo 2000, provides the procedure for a bifurcated trial whe
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