Georgia J. Carlson, Appellant, v. K-Mart Corporation, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Georgia J. Carlson, Appellant, v. K-Mart Corporation, Respondent. Case Number: 53151 Handdown Date: 01/13/1998 Appeal From: Circuit Court of Jackson County, Hon. William W. Ely Counsel for Appellant: Michael W. Manners Counsel for Respondent: Barry W. McCormick Opinion Summary: Georgia Carlson appeals the trial court's judgment on the jury's verdict in her favor for $100,000 in her negligence action against K-Mart corporation. Carlson alleges instructional error on damages and improper closing argument by the defense. AFFIRMED. Division holds: (1) The trial court did not err in refusing to modify the MAI 4.01 damages instruction to allow Carlson to recover damages that were "directly caused or contributed to be caused by the incident at K- Mart." On June 18, 1992, Carlson sustained injuries to the neck and back when boxes full of merchandise fell on her from a shelf in a K-Mart store in Independence, Missouri. On December 12, 1992, a drunk driver rear-ended Carlson in an automobile collision. There was evidence that Carlson suffered from a degenerative disk condition prior to both occurrences. The evidence in the record was equivocal as to the extent (if any) to which Carlson's back injury was caused by the occurrences individually and by Carlson's prior degenerative disk condition. Carlson's proposed modification to the 4.01 damages instruction was not necessary to allow Carlson to recover damages caused by K-Mart's aggravation of any prior back injury, because the instruction as written does not require that K-Mart have been the sole and exclusive cause of her injury. (2) Even assuming that Carlson's proposed modification of MAI 4.01 would have had the effect of permitting Carlson to recover damages under the theory of "indivisible injury", the indivisible injury doctrine was

inapplicable in this case, since the occurrence at K-Mart and the automobile collision were separated by six months and were not causally related. (3) The trial court did not err in inserting "K-Mart" before the word "occurrence" in the damages instruction, because the fact that there was evidence that Carlson's back injury may have resulted from a compensable event (the K-Mart incident) and a non-compensable event (the later automobile collision, for which K-Mart was not liable) demanded specificity as to the occurrence for which the jury was to compensate Carlson. (4) Any error the trial court may have made in overruling Carlson's objection to K-Mart's closing argument was not prejudicial. At the beginning of K-Mart's closing argument, counsel for K-Mart observed that, "[i]n this day and age, it doesn't seem like there is ever an accident anymore." Carlson's attorney objected at this point, and the trial court overruled the objection. K-Mart's attorney resumed his closing argument, conceding that some plaintiffs do have legitimate claims before he then went on to talk about the evidence in Carlson's case. Whatever anti-plaintiff tirade K-Mart's attorney had in mind before Carlson objected, he took the attack no further before returning to the facts on the record. Carlson had an opportunity to respond in closing to K-Mart's logical fallacy in comparing Carlson's injury to injuries caused by a claimant's own obvious negligence. Finally, the size of the award for Carlson ($100,000) was not so inadequate as to raise a presumption that K-Mart's improper closing remarks introduced an anti-plaintiff bias into the trial. Citation: Opinion Author: James M. Smart, Jr., Judge Opinion Vote: AFFIRMED. Lowenstein and Stith, JJ., concur. Opinion: Georgia J. Carlson appeals the Jackson County Circuit Court's judgment on the jury's verdict for $100,000 in the negligence action she brought against K-Mart Corporation. Carlson contends that the amount awarded would have been larger had the trial court not erred in refusing to submit her proposed damage instruction. Carlson also contends that the trial court should have sustained her objection to remarks made by the defense during its closing argument. Finding no reversible error, we affirm the judgment below. FACTUAL BACKGROUND On June 18, 1992, Carlson was shopping at a K-Mart store in Independence, Missouri, when boxes containing merchandise fell on her from the shelves on which they had been stacked, striking her in the face and

on her head and causing her to fall to the floor. Carlson went to a hospital, where she complained of injuries to her mouth, head, neck, and back. Over the next few weeks, Carlson began experiencing severe pain in her neck and back. She also had bruising on her arms, back, and face. While her neck pain decreased, Carlson's back pain worsened. At the end of July, 1992, Carlson visited a chiropractor, who diagnosed her as having lumbar nerve root irritation. An MRI (magnetic resonance imaging) scan on October 11, 1992, showed protrusion of the disk between the fourth and fifth lumbar vertebrae. The effect of the protrusion was to put pressure on the nerve root coming out of the spine at that level. At the time the MRI report was prepared, Carlson complained of pain in her lower back and right hip, and numbness in her right thigh. These symptoms were consistent with radiculopathy, which can be caused by L4-L5 protrusion. The MRI scan of October 11, 1992, also showed degenerative disk disease. There is no evidence in the record as to the cause of this condition, which is a part of the normal aging process. The condition was latent in Carlson prior to the accident. It is not uncommon for people having degenerative disk disease to be asymptomatic. Misfortune struck Carlson again on December 12, 1992, when a speeding drunk driver crashed into the rear of Carlson's car. Carlson again went to a hospital, informing the ambulance attendant en route that her lower back was hurting more than before. Carlson was released from the hospital after 50 minutes. Over the next several days, Carlson's neck became very painful and her lower back hurt her more than it did previously. On December 17, 1992, Carlson consulted an orthopedic surgeon as to her neck pain, which had increased since the automobile accident. In the months following the collision, Carlson's radicular problems worsened, and in June of 1993, a neurosurgeon diagnosed Carlson as having a bulging of the L4-L5 disk based on the MRI scan of the previous October. A December, 1993, CT scan showed the same protrusion of the disk as had been revealed by the previous MRI scan. In March of 1994, Carlson underwent back surgery, but the surgery failed to mitigate Carlson's symptoms. Carlson's total medical bills exceeded $58,000. Carlson will require future medical treatment for her condition, and her pain may continue for the rest of her life. Efforts to alleviate her symptoms, such as a chronic pain management program, could cost between $15,000 and $20,000. Carlson filed suit against K-Mart in Jackson County Circuit Court in 1994. Trial commenced in June,

1. At trial, there was a factual dispute as to the cause of Carlson's back injuries, specifically as to the precise

effect of the K-Mart incident on the development of Carlson's back problems. Some of the medical experts

testified that it was impossible to separate out the effects of the two injuries. One of plaintiff's experts testified that any effect of the automobile collision was negligible, and that all of plaintiff's problems were attributable to the incident at K-Mart. Experts also disagreed as to the importance of degenerative change in causing Carlson's back pain. The jury returned a verdict for Carlson in the amount of $100,000. Carlson moved for a new trial and judgment notwithstanding the verdict on the grounds of instructional error, improper closing argument, and inadequacy of the verdict. The trial court denied the motion and judgment was entered for Carlson pursuant to the jury's verdict. Carlson now appeals the judgment. INSTRUCTION OF JURY ON DAMAGES Carlson first contends that the circuit court erred in not accepting her proposed modified version of the MAI 4.01 jury instruction and in accepting K-Mart's suggested modification. At trial, the circuit court submitted the following verdict director and damage instruction to the jury: INSTRUCTION NO. 6 Your verdict must be for Plaintiff if you believe: First, there were boxes stored on the overhead shelf of the Kitchen Corner and as a result the aisles in the Kitchen Corner were not reasonably safe, and Second,Defendant knew or by using ordinary care could have known of this condition, and Third,Defendant failed to use ordinary care to remove it, barricade it, or warn of it, 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 and prudent person would use under the same or similar circumstances. INSTRUCTION NO. 7 If you find in favor of Plaintiff, then you must award Plaintiff such sum as you believe will fairly and justly compensate Plaintiff for any damages you believe she sustained and is reasonably certain to sustain in the future as a direct result of the K-Mart occurrence. Instruction Number 7 was taken directly from MAI 4.01, the standard personal damages instruction, except for the insertion of "K-Mart" before the word "occurrence." Carlson tendered a proposed instruction which differed from the instruction actually submitted in that the jury would have been instructed to award Carlson a sum she sustained and is reasonably certain to sustain in the future "which was directly caused or contributed to be caused

by the incident at K-Mart." Carlson argues on appeal that the circuit court's refusal of her modified instruction misinstructed the jurors by telling them that they were limited to awarding damages to compensate Carlson for injuries only to the extent her condition was caused exclusively by the K-Mart incident. Carlson maintains that the damages instruction should have been modified to reflect the plaintiff's legal right to collect damages for the full extent of her present condition. Carlson points to MAI 19.01, which provides for modification of the verdict director for cases in which the evidence reveals multiple possible causes of the plaintiff's injury. The first alternative of MAI 19.01, under which the jury found K-Mart liable in this case, permits the jury to find the defendant liable if the defendant negligently breached a duty to the plaintiff and thereby "directly caused or directly contributed to cause damage to plaintiff." Carlson contended during the instruction conference, and contends again on appeal, that the damages instruction should have been similarly modified. The 19.01 modification of a verdict director allows a jury to find liability as to any defendant it finds has, as a result of fault, "directly caused" or "directly contributed to cause" the plaintiff's damages. The causation language in 19.01 is designed to allow the jury to find defendant liable if the defendant was a "but for" cause of plaintiff's injury or if the defendant was not a "but for" cause, but was nevertheless a "substantial factor" in causing the plaintiff's injury, as in a case in which two independent and sufficient causes combine to cause plaintiff's loss. (FN1) Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 863 (Mo. banc 1993). The damage instruction, on the other hand, relates only indirectly to causation. The damage instruction is designed to instruct the jury to award the plaintiff a sum which will fairly and justly compensate plaintiff for damages proximately caused by the tortious conduct for which defendant has been found liable. INDIVISIBLE INJURY Carlson argues that the circuit court's failure to accept her modified version of MAI 4.01 denied her the benefit of recovering for her "indivisible injury." Carlson submits that the K-Mart incident and the car accident 6 months later were tortious acts that combined to create a back injury, the full extent of which was not susceptible to division on any reasonable basis. Carlson concludes that she has the right to recover all her damages from K- Mart, and that it is incumbent on K-Mart to prove the extent to which Carlson's injuries resulted from K-Mart's own negligence. According to Carlson, plaintiff's modified damages instruction would have informed the jury that it could award Carlson all of her damages for this combined injury so long as the jury found that her full injury "contributed to be caused by the incident at K-Mart."(FN2) Under the indivisible injury rule, the plaintiff who has suffered an injury caused by the consecutive or

successive acts of negligence of multiple tortfeasors acting independently may hold those tortfeasors jointly and severally liable for the whole injury if there is no reasonable basis for apportioning liability for the injury between the individual tortfeasors. Barlow v. Thornhill, 537 S.W.2d 412, 418 (Mo. banc 1976). The indivisible injury rule apparently has deep roots in the common law. See J. H. Wigmore, Joint-Tortfeasors and Severance of Damages; Making the Innocent Party Suffer Without Redress, 17 Ill. L. Rev. 458 (1923).(FN3) Some commentators have asserted that the rule developed out of a more general rule of law that the plaintiff need not prove what part of his damages are assignable to which defendant where all defendants concurred in proximately causing a single general harm. See Id.; See also J.D. Lee and Barry Lindahl, Modern Tort Law: Liability and Litigation section 6.02 (Rev. ed. 1988). On this account, the rule holding tortfeasors acting in concert jointly and severally liable for the injury to plaintiff and the indivisible injury rule are simply specific instances of the same basic rule.(FN4) Early joinder rules appear to have been an important factor in creating the rule. At common law, the plaintiff was not permitted to join in the same action tortfeasors who did not act in concert. William L. Prosser & W. Page Keeton, The Law of Torts section 47 (5th ed. 1984).(FN5) The reason is obscure, although one commentator has speculated that common law courts were concerned that juries had limited capacity to decide cases involving distinct claims against multiple defendants. Edward H. Hinton, An American Experiment with the English Rules of Court, 20 Ill. L. Rev. 533, 535 (1926).(FN6) Therefore, the only way for a plaintiff to recover full damages for an indivisible injury would be by suing both tortfeasors separately. Fowler V. Harper, Fleming James, Jr., & Oscar S. Gray, The Law of Torts section 10.1 (2d ed. 1986). Of course, the different factfinders would be under no compulsion to return consistent verdicts that would together fully compensate the plaintiff, who moreover would be unable to prove what portion of his damages had been caused by the individual defendant in each separate suit. See Id. Finally, courts then as now wished to discourage the multiplicity of suits. Therefore, without altering joinder rules, shifting the burden of proving causation, and encouraging multiple suits, the best way to promote full compensation for the plaintiff suffering a single injury was by allowing the plaintiff to recover full damages for the indivisible injury from any individual tortfeasor, despite the lack of concerted action. Unfortunately, courts became inclined to forget that the term "joint tortfeasor" had different meanings in the context of civil procedure and substantive liability. Wigmore, supra, at 458; Harper & James, supra, section 10.1. Increasingly reading the term "joint tortfeasor" to have the same meaning for purposes of joinder and substantive liability, many courts concluded that there could be no joint liability where there was no concerted

action. Wigmore, supra, at 458. Consequently, many courts effectively abandoned the indivisible injury rule. The result was that plaintiffs who suffered a single injury from concurrent but independent tortfeasors were often left without a legal remedy. Id. Although joinder rules have been liberalized in the United States so as to allow for the joinder of tortfeasors who do not act in concert, such joinder is permissive. See Fed. R. Civ. P. 20; Mo. R. Civ. P. 52.05(a). These new permissive joinder rules are based primarily on considerations of trial convenience rather than common substantive rights and liabilities. As a matter of substantive tort law, the plaintiff generally is allowed to recover all damages from an indivisible injury from one defendant. The current rationale for the indivisible injury rule is evidentiary rather than procedural: the plaintiff's inability to prove which defendant caused what portion of plaintiff's damages. The threshold requirement for an indivisible injury is an injury that is not susceptible to division between the contributing tortfeasors on any reasonable basis. Prosser & Keeton, supra, section 52. That is not to say that the plaintiff has an indivisible injury any time the factfinder does not have undisputed evidence as to what events caused what portion of the plaintiff's injury. Only when the apportionment of liability necessarily would be purely arbitrary is the injury incapable of reasonable division.(FN7) Id. There is dispute among authorities as to whether the concurring acts of negligence must be in close temporal and spatial proximity or whether it makes a difference that one of the acts of negligence would have been sufficient as the "but for" cause of the plaintiff's injury. Some authorities suggest that there is no difference under the indivisible injury rule between "concurring" and "successive" acts of negligence, and that the acts should be regarded as "concurrent" so long as they preceded the damage. See Harper & James, supra, section 10.1 n.9. Courts disagree as to whether concurrent or successive but independent tortfeasors are jointly and severally liable for an indivisible injury when none of the negligent acts would have been sufficient to cause the entire injury, but each would have caused some harm alone. Id. While Missouri courts have long applied the indivisible injury rule,(FN8) Brantley v. Couch, 383 S.W.2d 307 (Mo. App. 1964), is regarded as the first modern Missouri decision to declare the rule in its current form. In Brantley, the plaintiff was a passenger in a vehicle that was in the middle of a three-car chain collision. Id. at

1. The defendants were the three drivers. Id. At trial, the plaintiff established a single, indivisible injury, but the

driver of the second car successfully moved for judgment notwithstanding the verdict against him, arguing that he was not the proximate cause of all of the plaintiff's damages. Id. Citing the weight of modern authority on the

subject, the Court of Appeals reversed, holding that the second driver was liable as a joint tortfeasor, because his negligence was a consecutive act of negligence, closely related in point of time to other independent acts of negligence, that together with those other acts of negligence directly and proximately caused a single injury that the factfinder could not possibly apportion between the tortfeasors according to their contribution to the injury. Id. at 310-12. In Glick v. Ballentine Produce Inc., 396 S.W.2d 609 (Mo. 1965), the Missouri Supreme Court adopted the reasoning and language of the Brantley court and applied the indivisible injury rule to hold that venue was proper in the county where one of the tortfeasors was a resident. The plaintiffs filed a wrongful death action, alleging that the decedents were thrown from their car by a collision and then struck a "few minutes" later by three separate drivers on the road as they lay mortally wounded. Id. at 611. The court quoted the holding of Brantley and held that venue was proper, since the plaintiffs had alleged facts supporting joint liability under the indivisible injury rule. Id. at 613.(FN9) The Missouri Supreme Court again relied on the facts and language of Brantley in finding joint liability under the indivisible injury rule in Barlow v. Thornhill, 537 S.W.2d 412 (Mo. banc 1976). In Barlow, the plaintiff was injured in two collisions that occurred at the same location only fifteen minutes apart. Id. at 415-16. The second collision occurred after the plaintiff had finished exchanging information with the other driver in the first collision and then returned to his parked car. The court refused to impose an arbitrary time limit to extinguish joint liability under the indivisible injury rule, reasoning that "[t]he gist of the rule with respect to injuries is not so much the time separating the collisions as it is the impossibility of definitely attributing a specific injury to each collision." Id. at 419. Because the collisions occurred in the same place and were only separated by fifteen minutes, the court held that the fifteen minute gap did not "preclude the application of the indivisible injury rule." Id. The plaintiff in State ex rel. Retherford v. Corcoran, 643 S.W.2d 844 (Mo. App. 1982), sought application of the indivisible injury rule where she had suffered injuries as a result of three distinct automobile accidents. The first occurred in St. Louis County on May 25, 1977, the second occurred in St. Charles County on June 25, 1977, and the third occurred in St. Louis County on October 25, 1978. Id. at 845. While acknowledging the Supreme Court's declaration in Barlow that the time separating collisions was less important than the indivisibility of the injury, the Eastern District refused to apply the indivisible injury rule, since "the accidents were widely separated in time and place." Id. at 847. The court also noted that the plaintiff had failed to plead an

indivisible injury and instead had pleaded specific injuries, the later of which included "aggravation and reinjury of the prior injury." Id. Whatever the Supreme Court may have suggested in Barlow about the relative unimportance of the time separating collisions, in State ex rel. Jinkerson v. Koehr, 826 S.W.2d 346 (Mo. banc 1992), the Missouri Supreme Court dispelled the notion that time intervals were not material to the application of the indivisible injury rule when it effectively declared that the indivisible injury rule required that the events causing injury have arisen out of the same transaction or occurrence or series of transactions or occurrences. The issue before the Supreme Court was whether St. Louis City was the proper venue for an action in which the plaintiffs joined as tortfeasors two defendants who had allegedly injured the plaintiffs in two separate automobile accidents, the first of which happened in St. Louis County and the second of which occurred in St. Louis City. Id. at 346-47. The court held that the plaintiffs had to establish venue for each cause of action independently, because tortfeasors could not be joined under an indivisible injury theory where the accidents alleged by plaintiff "did not arise out of the same transaction or occurrence." Id. at 348. On the pleadings, each defendant was responsible "for the injuries caused in the accident in which he or she was involved." Id.(FN10) At least as to an earlier tortfeasor, the requirement that the concurrent or successive acts of negligence be part of the same transaction, occurrence, or series of transactions and occurrences has been viewed essentially as a proximate cause requirement.(FN11) Sometimes, there may be a causal relationship between the earlier and later injuries. It is often true, for instance, especially with an injury to the back or neck, that the immediate result of an injury is to expose the injured person to an increased risk of subsequent injury. It has been argued that in applying the indivisible injury rule, courts should not read the phrase "same transaction, occurrence, or series of transactions or occurrences" to create joint liability whenever there is any common question of fact, since to do so would allow the plaintiff potentially to hold jointly and severally liable every defendant who had injured the plaintiff throughout the plaintiff's life up to that point, at least where it was extremely difficult for the plaintiff to apportion the damages. Cf. Lawrence G. Crahan, Comment, Expansion of Permissive Joinder of Defendants in Missouri, 41 Mo. L. Rev. 199, 210-14 (1977). That is because, strictly speaking, life itself is a "series of occurrences." Id. at 210-11. The "essence" of the requirement is "a common factual basis--i.e., events, which must be alleged as an essential or material part of the claim against each defendant." Id. at 211. While we do not see that some sort of common factual basis or causal connection is logically necessary given the original policy behind the indivisible injury rule, we note that the unmistakable trend

of developments in the law of negligence in Missouri has been to require some factual, causal, or temporal connection between the events causing injury. In our recent opinion in Carlton v. Phillips, 926 S.W.2d 8 (Mo. App. 1996), we reviewed the recent Missouri decisions dealing with joint liability under the indivisible injury rule and concluded that "multiple defendants in separate, unrelated, yet successive auto accidents cannot be held jointly liable as it now stands." Id. at 12. We distinguished cases such as Brantley and Barlow on the ground that the successive accidents in those cases were so close together in time that they were part of the same occurrence (e.g., the chain collision in Brantley) or part of the same series of occurrences (e.g., a second collision occurring fifteen minutes after the first collision while the drivers from the first collision were exchanging information). Id. at 12 n.2. Consequently, we held that defendants who were allegedly involved in two separate automobile accidents three months apart were not jointly and severally liable for the plaintiff's injury, indivisible though it might have been. Id. In this case, one of Carlson's expert medical witnesses, Dr. Swaim, testified that he could not apportion Carlson's back injury between the K-Mart occurrence and the later car accident. Another of her witnesses, Dr. Blonsky, gave his opinion that the December 1992 automobile accident played no role in exacerbating Carlson's back injury. Another of Carlson's witnesses, Dr. Morgan, testified that Carlson suffered permanent, disabling injury to her spine before the December 1992 automobile collision and attributed her back injury to the K-Mart occurrence. Although Carlson thus sought to show that virtually all of plaintiff's present condition is attributable to the K-Mart incident, Carlson evidently is persuaded that in her case the jury chose to believe the testimony that it was impossible to make an allocation. In any event, Carlson was not entitled to the benefit of the indivisible injury rule under our understanding of the Supreme Court's determination in Jinkerson and our attempt to follow it in Carlton. The K-Mart occurrence and the later automobile accident were not causally related to one another and were separated in time by more than six months. Therefore, Carlson was entitled to recover from K-Mart only the damages that the jury believes were proximately caused by (directly resulted from) the negligence of K-Mart.(FN12) The fact that there may have been multiple causes for plaintiff's injuries, and the fact that various medical experts profess inability to make an allocation between the incidents, is not enough to warrant a modification of MAI 4.01. Cases in which the full extent of the plaintiff's injuries might be produced by multiple causes were not unanticipated by the drafters of MAI. Note 3 of the Notes on Use to MAI 4.01 addresses the issue of multiple causation where one cause is compensable by the defendant and the other is not. The notes do not discuss the

necessity of directly modifying the causation language. The only modification required by the notes for such cases is discussed in Note 3, where the Committee mandates that the instruction be modified to specify which "occurrence" directly caused plaintiff's injury when there are multiple causes, some of which are non- compensable. Failure to so modify 4.01 has been held to be reversible error. See Clark v. McCloskey, 531 S.W.2d 36, 38-39 (Mo. App. 1975) (plaintiff claimed that the defendant's negligence caused the plaintiff's back injury, and the evidence revealed that the plaintiff had suffered a previous back injury in addition to having congenital back problems). Carlson's argument that the circuit court erred in modifying 4.01 to make specific reference to the "K-Mart occurrence" in place of the general language of "the occurrence mentioned in the evidence" is without merit. In view of the inapplicability of the indivisible injury rule in this case, the trial court would have erred if the court had failed to modify the damages instruction by specifically identifying the K-Mart occurrence as the compensable event. It is true that Note 3 states that other modifications "may also be appropriate" in multiple causation cases. A modified damages instruction somewhat similar to that demanded by Carlson was submitted to the jury and upheld in Ponciroli v. Wyrick, 573 S.W.2d 731, 735 (Mo. App. 1978), a case in which the plaintiff alleged that a later automobile collision was proximately caused by the defendant's alleged negligence in causing an earlier collision. On appeal, the defendant claimed that the modification ("if you believe such [later] injuries were either caused by or contributed to by the injury sustained in the [earlier occurrence]") was improper only because the record provided an insufficient factual basis for a finding that the second collision was proximately caused by the first. The court disagreed with the defendant's reading of the evidentiary record, finding that there was evidence that the first injury weakened plaintiff's wrist, which caused him to lose his grip on the steering wheel and injure himself further in the second collision. The court found the instruction proper. Here, however, Carlson does not contend that the K-Mart occurrence in any way caused her later automobile accident. We see no easy answer to the difficulty faced by plaintiff in the circumstances of this case, where the inability to scientifically fix the degree of the injury caused by one defendant creates problems of proof, yet there is no causal relation between the two incidents, and the incidents are not closely connected in time. Plaintiff has an interest in receiving full compensation for the injuries caused by the defendant. The defendant has an interest in having liability be determined according to the defendant's actual fault. In a case in which plaintiff's injuries flowing from defendant's tortious conduct cannot be determined due to the fact of injury from another source, there is special tension between these two interests. It appears that, under the ruling in Jinkerson, supra,

plaintiff may be precluded from going to trial against both defendants in the same case unless there is a causal or close temporal relationship between the two incidents. Thus, the interrelatedness of the procedural rule and the substantive law may augment the challenge for a plaintiff unable to apportion the respective injuries. In any event, in this case, because the two events were not closely related either causally or temporally, we are unable to say that the trial court erred in the language of the damage instruction. IMPROPER CLOSING ARGUMENT Carlson claims that introductory remarks in K-Mart's closing argument injected an anti-plaintiff bias into the trial. Carlson contends that this bias was reflected in the size of the award ($100,000) that the jury returned for Carlson. Counsel for K-Mart began his closing with the observation that, "in our litigious society, I sometimes think we all lose sight of the meaning of the word 'accident'." Defense counsel continued in this vein, adding the observation: We all go through life, and lots of things happen to us. We get involved in car accidents ourselves, we hurt ourselves on the job, we hurt ourselves working out in the yard. In this day and age, it doesn't seem like there is ever an accident anymore. At this point, Carlson's trial attorney objected on the basis of improper argument of facts outside the record. The circuit court overruled the objection. Relying on the recent decision of Yingling v. Hartwig, 925 S.W.2d 952 (Mo. App. 1996), Carlson now claims that the trial court abused its discretion and prejudiced Carlson's recovery in permitting K-Mart to imply that Carlson's claim is on a par "with the McDonald's coffee case." K-Mart's observations on the alleged disappearance of the notion of "accident" in today's "litigious society" were not supported by the evidence. Nor were they reasonably inferred from the evidence or from common experience. Counsel was, in effect, proposing a universal negative: there are no "accidents" anymore -- meaning, of course, that no injured person is willing to properly take responsibility for his own injury. Such an argument is neither accurate nor helpful to the analysis the jury must employ. However, after Carlson's objection (which was overruled), counsel for K-Mart changed his direction: If somebody runs into your car, and they've run a red light, yes there is fault, there is negligence. But on the other hand, if you're out in your yard, and you're not looking where you're going and you run into a tree when you're mowing the yard, it's probably not somebody's fault. What I'm suggesting to you is that in a case like this, in a number of cases, but in a case like this, you have got to first answer the question, in your minds, is there negligence.

Thus, counsel conceded in these remarks that even if it "seems" that every injured person wants to blame someone else, there are nevertheless some instances in which such blame is appropriate. Thus, before shifting his focus to the facts of this case, counsel acknowledged that some claimants have legitimate claims, thereby rescuing the argument from becoming the "anti-plaintiff tirade" that it promised. Of course, a defendant in a tort case should not be permitted to hold forth on the general absence of "accident" in today's "litigious society" as an abstract proposition. Such general pronouncements are presumably an attempt to appeal to the prejudice of jurors and have no logical relevance as to whether a particular claim is valid. In this case, however, we fail to see that these limited remarks amounted to a "red hot iron of prejudice" as in Yingling, where the trial court allowed the defense to argue, based upon expert medical testimony, that tort plaintiffs generally lied about their recovery time. Yingling, 925 S.W.2d at 955. The trial court in this case may have assumed, at the time the objection was made, that the argument of counsel would be tied into the facts of this case, and would therefore have some materiality to the issues. As it turned out, no prejudice resulted, because counsel took it no further. Also, plaintiff had an opportunity to respond to K-Mart's remarks in plaintiff's rebuttal, by pointing out the logical fallacy of the defense in attempting to compare Carlson's injury at K-Mart (caused when boxes fell on her) to the act of running a lawnmower into a tree. In our view, it cannot be discerned that counsel's reference to the absence of "accident" had an impact on the amount of the award. Judgment affirmed. Footnotes: FN1. The best example is the classic "two fires" case. Callahan, 863 S.W.2d at 861. FN2. Logically, if the indivisible injury rule applied in this case, it seems that the proper modification to MAI 4.01 would be simply to refer to "the occurrences [plural] mentioned in the evidence," rather than to attempt to use the "caused or contributed to be caused by the incident at K-Mart" language, which would be language seemingly requiring plaintiff to prove a causal connection between the incident at K-Mart and the subsequent automobile injury. See, for instance, Poncriroli v. Wyrick, 573 S.W.2d 731, 735 (Mo. App. 1978)(allegation and evidence that first injury weakened plaintiff's wrist, contributing to plaintiff's inability to maintain grip on steering wheel causing second collision). In any event, for purposes of our analysis, we will assume that appellant's proposed language would also be a proper way of modifying MAI 4.01 to submit an indivisible injury proposition in this case. FN3. In his article, Professor Wigmore traces the rule back to Sir John Heydon's Case, 11 Coke Rep. 5 (1613). Wigmore, supra, at 458. FN4. The close connection between joint liability based on concerted action and joint liability under the indivisible injury rule is illustrated by the decision of this court in Meade v. Chicago, Rock Island & Pac. Ry., 68 Mo. App. 92 (1896). The plaintiff was a hobo who was severely burnt while sleeping in a railway depot. The evidence showed that the railway's station manager had poured benzene on the plaintiff while he was asleep. Even assuming that the fire was then ignited by a third person, the court nevertheless held that the railway would be liable for the injury, since there was a single injury that was proximately caused by the negligence of the railway's

employee. Id. at 100-01. The court likened the situation to a joint trespass, in which all the trespassers are jointly and severally liable as principals. Id. at 100. FN5. As another treatise explains: At common law the rules on joinder of actions were governed chiefly by the forms of action and not by principles of trial convenience. Similarly, joinder of parties depended upon what were considered to be the parties' substantive rights, and not on the simplest and quickest ways of litigating disputes. Plaintiffs and defendants had to sue and be sued in the same capacity. Permissive joinder of parties having a several right or duty, or affected by a common question of law or fact was not tolerated. 3A James Wm. Moore et al., Moore's Federal Practice section 20.02 (2d ed., 1995). FN6. Courts of equity were more willing to permit joinder in such cases so as to resolve common factual questions once and for all. Hinton, supra, at 536. Later changes in Anglo-American civil procedure, such as the Field Code and the English Rules of Court, were written so as to permit joinder, but law courts on both sides of the Atlantic continued to be reluctant in permitting joinder of tortfeasors where there was no concert of action. Prosser & Keeton, supra, section 47. FN7. No issue has been raised herein as to whether plaintiff should be procedurally precluded from requesting an indivisible injury instruction by the fact that not all of plaintiff's experts contended the injury was indivisible (some of plaintiff's experts attributed 100% of the injury to the incident at K-Mart). We note that this is not like a case where plaintiff's proof shows the defendant is responsible for 75% of the injury, and yet plaintiff requests an indivisible injury instruction, attempting to shift 100% of the responsibility to defendant. In other words, plaintiff's proof was all directed at an attempt to assign 100% of the responsibility to K-Mart, either directly through specific allocation, or indirectly through indivisible injury. FN8. See, e.g., Newcomb v. New York Cent. & Hudson River R.R., 169 Mo. 409, 69 S.W. 348, 351-54 (1902); Nagel v. Missouri Pac. Ry., 75 Mo. 653, 661 (1882); Berryman v. People's Motorbus Co. of St. Louis, 228 Mo. App. 1032, 54 S.W.2d 747, 749 (1932); Miller v. United Ry. of St. Louis, 155 Mo. App. 528, 134 S.W. 1045, 1048-49 (1911). FN9. Glicklain was subsequently overruled on other grounds in Bennett v. Owens-Corning Fiberglass Corp., 896 S.W.2d 464, 466 (Mo. banc 1995). FN10. In State ex rel. Sims v. Sanders, 886 S.W.2d 718 (Mo. App. 1994), the Eastern District of this Court held venue improper on facts very similar to Jinkerson, reasoning that the Supreme Court had held that successive accidents not arising out of the same transaction or occurrence did not provide a basis for joinder of parties under Rule 52.05 (a). Id. at 721. FN11. Earlier Missouri decisions invoking the indivisible injury principle expressly mentioned proximate causation as a requirement for application of the rule, looking to the absence of any "new and independent force" or "intervening efficient cause" that broke the connection between the original act and successive acts of negligence. See, e.g., Berryman v. People's Motorbus Co. of St. Louis, 228 Mo. App. 1032, 54 S.W.2d 747, 749 (1932); Floun v. Birger, 296 S.W. 203, 204 (Mo. App. 1927); see also Meade v. Chicago, Rock Island & Pac. Ry., 68 Mo. App. 92, 100-01 (1896). FN12. The "direct result" language of 4.01 is intended to communicate to the jury that they are to award those damages that are proximately caused by the defendant's tortious conduct. Vest v. City Nat'l Bank & Trust Co., 470 S.W.2d 518, 521 (Mo. 1971). Of course, such language does not preclude an award of damages for aggravation of a pre-existing condition, to the extent the aggravation was directly caused by the defendant's tortious conduct. Id. It is in such cases that the word occurrence should be modified to limit the jury to the occurrence produced by the defendant. Id. Separate Opinion: None

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.