Andrew Denney, Appellant, v. Syberg's Westport, Inc., d/b/a Syberg's, Respondent.

Statutes

• RSMo § 490.680

  section 490.680, RSMo

  cited

Rules

• Rule 70.02

  Rule 70.02

  cited
• Rule 70.03

  Rule 70.03

  cited
• Rule 78.07

  Rule 78.07

  cited
• Rule 84.13

  Rule 84.13

  cited

Cases

• allen v st louis pub serv co 285 sw2d 663

  Allen v. St. Louis Pub. Serv. Co., 285 S.W.2d 663

  cited
• cox v jc penney co 741 sw2d 28

  Cox v. J.C. Penney Co., 741 S.W.2d 28

  cited
• dieser v st anthonys med ctr 498 sw3d 419

  Dieser v. St. Anthony's Med. Ctr., 498 S.W.3d 419

  cited
• edgerton v morrison 280 sw3d 62

  Edgerton v. Morrison, 280 S.W.3d 62

  cited
• gustafson v benda 661 sw2d 11

  Gustafson v. Benda, 661 S.W.2d 11

  cited
• hayes v price 313 sw3d 645

  Hayes v. Price, 313 S.W.3d 645

  cited
• hervey v mo dept of corrections 379 sw3d 156

  Hervey v. Mo. Dept. of Corrections, 379 S.W.3d 156

  cited
• holmes v gamewell 712 sw2d 34

  Holmes v. Gamewell, 712 S.W.2d 34

  cited
• in mackey v smith 438 sw3d 465

  In Mackey v. Smith, 438 S.W.3d 465

  followed
• jones v kennedy 108 sw3d 203

  Jones v. Kennedy, 108 S.W.3d 203

  cited
• joy v morrison 254 sw3d 885

  Joy v. Morrison, 254 S.W.3d 885

  cited
• kappel v slickman 401 sw2d 451

  Kappel v. Slickman, 401 S.W.2d 451

  cited
• klotz v st anthonys med ctr 311 sw3d 752

  Klotz v. St. Anthony's Med. Ctr., 311 S.W.3d 752

  cited
• lampley v missouri commn on hum rts 570 sw3d 16

  Lampley v. Missouri Comm'n on Hum. Rts., 570 S.W.3d 16

  cited
• lowe v mercy clinic e cmtys 592 sw3d 10

  Lowe v. Mercy Clinic E. Cmtys., 592 S.W.3d 10

  cited
• marion v marcus 199 sw3d 887

  Marion v. Marcus, 199 S.W.3d 887

  cited
• melton v st louis pub serv co 363 mo 474

  Melton v. St. Louis Pub. Serv. Co., 363 Mo. 474

  cited
• menschik v heartland regl med ctr 531 sw3d 551

  Menschik v. Heartland Reg'l Med. Ctr., 531 S.W.3d 551

  cited
• mitchell v kardesch 313 sw3d 667

  Mitchell v. Kardesch, 313 S.W.3d 667

  cited
• ordinola v univ physician assocs 625 sw3d 445

  Ordinola v. Univ. Physician Assocs., 625 S.W.3d 445

  cited
• rhoden v missouri delta med ctr 621 sw3d 469

  Rhoden v. Missouri Delta Med. Ctr., 621 S.W.3d 469

  cited
• state ex rel baldwin v gaertner 613 sw2d 638

  State ex rel. Baldwin v. Gaertner, 613 S.W.2d 638

  cited
• state ex rel state highway commn v koberna 396 sw2d 654

  State ex rel. State Highway Comm'n v. Koberna, 396 S.W.2d 654

  cited
• state ex rel tarrasch v crow 622 sw2d 928

  State ex rel. Tarrasch v. Crow, 622 S.W.2d 928

  cited
• sybergs cites the concurring opinion in stevens v kliethermes 811 sw2d 447

  Syberg's cites the concurring opinion in Stevens v. Kliethermes, 811 S.W.2d 447

  cited
• tharp v monsees 327 sw2d 889

  Tharp v. Monsees, 327 S.W.2d 889

  cited
• the fact denney proposed the disputed language also raises the possibility of invited error see state v clay 533 sw3d 710

  The fact Denney proposed the disputed language also raises the possibility of invited error. See State v. Clay, 533 S.W.3d 710

  cited
• transp commn v vitt 785 sw2d 708

  Transp. Comm'n v. Vitt, 785 S.W.2d 708

  cited
• wickham v hummel 659 sw3d 345

  Wickham v. Hummel, 659 S.W.3d 345

  cited
• williams v mercy clinic springfield cmtys 568 sw3d 396

  Williams v. Mercy Clinic Springfield Cmtys., 568 S.W.3d 396

  cited

1. Issue: Whether the circuit court erred in instructing the jury on comparative fault by failing to specify what conduct constituted "reasonable precautions," thereby giving the jury a roving commission.

   The appellate court declined to review this claim because Denney failed to specifically and distinctly raise this objection during the instructions conference, thus waiving appellate review.

2. Issue: Whether the circuit court erred by instructing the jury on comparative fault because Syberg's did not show Denney had a legal duty to take reasonable precautions.

   The circuit court did not err because there was substantial evidence from which a jury could reasonably conclude Denney was partially at fault, as Missouri law imposes a duty on every person to exercise ordinary care.

   Standard of review: de novo

3. Issue: Whether the circuit court erred by instructing the jury on comparative fault because Syberg's did not show any of Denney's acts or omissions caused his injuries.

   The circuit court did not err because there was substantial evidence for the jury to conclude Denney's comparative fault was a cause of the injuries he sustained.

   Standard of review: de novo

4. Issue: Whether the circuit court erred by excluding evidence of Denney's post-treatment symptoms under the original tortfeasor doctrine.

   The circuit court did not err because Denney failed to present expert testimony to demonstrate the paramedics were negligent, which is required to apply the original tortfeasor doctrine.

   Standard of review: abuse of discretion

5. Issue: Whether the circuit court erred by excluding evidence of Denney's post-treatment symptoms under the sudden onset doctrine.

   The circuit court did not err because Denney's post-treatment symptoms were not so obviously caused by his allergic reaction that the facts fell within the realm of lay understanding, requiring expert testimony.

   Standard of review: abuse of discretion

6. Issue: Whether the circuit court erred by excluding medical records of Denney's post-treatment symptoms as business records under section 490.680, RSMo.

   The circuit court did not abuse its discretion because Denney failed to lay an adequate foundation by providing expert testimony to establish a causal relationship between dining at the buffet, paramedic treatment, and his alleged post-treatment symptoms.

   Standard of review: abuse of discretion

7. Issue: Whether the circuit court erred by overruling Denney's objection to Syberg's closing argument comment about the absence of medical bills.

   The circuit court did not err because Denney failed to demonstrate prejudice, and the court's prior order did not prohibit reference to the failure to introduce medical bills in this case.

   Standard of review: abuse of discretion

8. Issue: Whether the circuit court erroneously denied Denney's motions to strike venirepersons 14 and 21 for cause due to alleged bias.

   The circuit court did not abuse its discretion because the venirepersons' full examinations indicated they could impartially determine the facts and perform their duties as jurors.

   Standard of review: clear abuse of discretion