Randi McGaugh, et al. vs. Tyler Naudet, et al.

Decision date: UnknownWD87542

Opinion

RANDI McGAUGH, ET AL., ) ) Respondents, ) WD87542 consolidated with WD87576 ) v. ) OPINION FILED: ) MARCH 10, 2026 TYLER NAUDET, ET AL., ) ) Appellant. )

Appeal from the Circuit Court of Jackson County, Missouri The Honorable Cory L. Atkins, Judge

Before Special Division: Anthony Rex Gabbert, Chief Judge, Presiding, Cynthia L. Martin, Judge and Gary D. Witt, Judge

During a law enforcement operation, Tyler Naudet ("Naudet"), a law enforcement officer, discharged his weapon multiple times, killing Allen Cates ("Driver") as he was attempting to evade arrest in a vehicle, and injuring Randi McGaugh ("Passenger"), a passenger in the vehicle. A jury found in favor of Passenger on her claim of negligence, and in favor of Driver's children on their claim of wrongful death based on the commission of a battery. Naudet contends that the trial court erred in denying his motion for judgment notwithstanding the verdict because he was shielded from liability by official immunity as there was no evidence that he acted with malice. Naudet also claims that it was error to deny his motion for judgment notwithstanding the verdict because he

acted with legal justification and because he owed no duty to Passenger. Finally, Naudet claims instructional error, error in the admission of evidence, and error in issuing a judgment that is not final because it did not include required findings and failed to address a claim for punitive damages. We conclude that the judgment is final and that we have jurisdiction to entertain this appeal. The judgment in favor of Driver's children is affirmed because official immunity does not apply to shield liability on a claim submitted to the jury as an intentional tort, and because the other claims of error asserted by Naudet are without merit. The judgment in favor of Passenger is reversed because there was no evidence that Naudet acted with the actual intent to injure Passenger, so Naudet is shielded from liability on Passenger's claim by the doctrine of official immunity. Factual and Procedural Background 1

In 2019, Naudet was employed by the Jackson County Sheriff's Department ("Sheriff's Department") as a deputy working on the Sheriff's Department's special operations response team, a full-time tactical team whose primary function is to apprehend wanted fugitives. At the beginning of every workday, Naudet would use the Sheriff's Department's database to discover the most recent felony warrants issued in the county. Naudet searched the database one morning in late August or early September 2019 and discovered that Driver had multiple felony warrants, including one related to a home invasion. Naudet, along with the other members of the special operations response

1 We view the facts in the light most favorable to the jury's verdict. Bhoot v. 701- 709 NE Woods Chapel Rd., LLC, 704 S.W.3d 710, 715 n.1 (Mo. App. W.D. 2024).

team, began working to locate and apprehend Driver. Naudet devoted a substantial amount of time to this effort, including visiting addresses associated with Driver, but he was unable to locate Driver. The Sheriff's Department made a Facebook post asking the public for help in locating Driver. On September 12, 2019, Detective L.W. of the Independence Police Department's street crimes unit--a specific enforcement group that focuses on proactive law enforcement efforts, including apprehending wanted fugitives--contacted the Sheriff's Department and spoke with the captain responsible for the investigations unit. Detective L.W. told the captain that he had a confidential informant who could lure Driver to a house in Independence later that day for the purpose of purchasing narcotics from Driver. The Sheriff's Department captain instructed Naudet to contact Detective L.W. Naudet did so, and advised Detective L.W. that he wanted to participate in the arrest of Driver. Detective L.W. instructed Naudet to meet in a church parking lot in Independence at approximately 5 p.m. that afternoon. Detective L.W. met with the sergeant of the Independence Police Department's street crimes unit and the sergeant of the special weapons and tactics ("SWAT") team to formulate a plan for the arrest of Driver. Then, members of the street crimes unit and the SWAT team attended a briefing to discuss the plan. Detective L.W.'s confidential informant would meet Driver at a house in Independence while police were nearby. The SWAT team would "box in" Driver's vehicle once Driver arrived at the house. Because Driver was a known flight risk, Independence Police Department had a contingency plan. The members of the street crimes unit would establish an inner perimeter outside the

SWAT team. If Driver attempted to flee by vehicle, the street crimes unit would deploy "stop sticks" to disable Driver's vehicle. If, however, Driver's vehicle was not disabled from the "stop sticks," there would be no further vehicle pursuit of Driver unless Driver struck an officer while fleeing via vehicle. Naudet did not participate in this briefing. As instructed by Detective L.W., Naudet arrived at the church parking lot where the Independence Police Department was staging their planned operation. Naudet met with Detective L.W. and Detective L.V., another member of the Independence Police Department's street crimes unit. They relayed their plan to apprehend Driver. Naudet was told to stay on a secondary perimeter and to only participate in the planned operation if Driver broke through the inner perimeter because he was attempting to flee on foot. During this meeting, Naudet gave Detective L.W. and Detective L.V. a Sheriff's Department radio so that they could communicate with Naudet. Detective L.W. and Detective L.V. shared a vehicle during the operation. Detective L.W.'s role was to communicate with the SWAT team and street crimes unit over the Independence Police Department's radio frequency. Detective L.V. would then relay the same information to Naudet over the Sheriff's Department's radio frequency. 2

Detective L.W. and Detective L.V. parked down the street from the house where Driver was supposed to meet the confidential informant. Detective L.W. saw Driver arrive at the house, back into the driveway, exit the car, and walk to the house's side

2 Naudet was not the only deputy from the Sheriff's Department present for the operation, but the presence of other deputies is not relevant to the disposition of this appeal.

entrance. Detective L.W. and Detective L.V. relayed on both radio frequencies that they could see a passenger in Driver's car. Naudet heard this radio transmission. The planned arrest operation was not ready to execute, so no effort was made to block Driver's car. Driver returned to his car without incident and drove away, unaware of the police presence. After an unknown period of time, the confidential informant lured Driver back to the house at the direction of the Independence Police Department. When Driver returned to the house, no radio transmission was sent advising of the presence of a passenger in Driver's car. When Driver returned to the house, Naudet was in a covert Sheriff's Department vehicle in a church parking lot approximately one mile away from the house. As Driver pulled into the house's driveway, Detective L.V. used the Sheriff's Department's radio frequency to instruct Naudet to "pinch in." Officer C.S., a SWAT team member, pulled a police vehicle into the house's driveway in an attempt to block Driver's car from fleeing. Approximately three seconds later, two other SWAT team members, Officer D.R. and Officer K.P., arrived to the house and attempted to block Driver's car with their police vehicles. At the same time, Naudet arrived in the covert Sheriff's Department vehicle at the T intersection where the house is situated. Driver tried to drive around the police vehicles that were attempting to block his car. Detective L.V. announced on the Sheriff's Department's radio frequency, "He's running. He's running. He's running in the car." Naudet immediately jumped out of his vehicle and began running toward the house. As Naudet ran near Officer K.P.'s police

car, he heard Driver's car impact Officer K.P.'s police car and realized that Driver was fleeing by car, not on foot. Nevertheless, Naudet did not return to his vehicle. Instead, he kept running on foot toward Driver's car as it began reversing away from Officer K.P.'s police vehicle. As Driver's car began moving forward again, Naudet, who was off to the front side of Driver's car, fired five shots over the course of one second through the windshield. Naudet testified that he was shooting with the intent to hit Driver. Driver was struck four times in the neck and chest, and was pronounced dead on the scene. Passenger was struck twice in the left shoulder, and was transported to a nearby hospital where she received treatment for her injuries. Naudet testified he did not see Passenger in the car and that he did not intend to shoot her. Driver's children 3 and Passenger (collectively "Plaintiffs") filed suit against Naudet in July 2020. 4 In November 2023, Plaintiffs filed their third amended petition against Naudet, which alleged four counts: (1) Passenger's claim of battery; (2) Passenger's claim of assault; (3) in the alternative, Passenger's claim of negligence; and (4) Driver's children's wrongful death claim based on the commission of a battery. Naudet filed an answer to the third amended petition which raised several affirmative

3 Driver's children, both of whom were minors, filed a petition seeking the appointment of their natural mother as next friend in this matter. The trial court appointed their natural mother as requested. 4 Plaintiffs initially named Jackson County and the City of Independence as additional defendants. Plaintiffs later dismissed these defendants without prejudice.

defenses, including official immunity, self-defense, and the justified use of force by a law enforcement officer. 5

A trial to a jury began in May 2024. Over the course of six days, the jury heard testimony from Naudet; members of the Independence Police Department's SWAT team and street crimes unit who were involved in the planned arrest operation and present at the time of the shooting; a woman who witnessed the planned arrest operation and shooting from her home; an Independence Police Department crime scene investigator who analyzed the trajectory of the bullets shot from Naudet's firearm; an audio-video forensics expert who analyzed videos of the planned arrest operation and shooting; a use- of-force and police practices expert who reviewed the planned arrest operation and shooting; Passenger; a licensed clinical social worker who treated Passenger following the shooting; the natural mother of Driver's children; Driver's sister; and a police training expert who reviewed the planned arrest operation and shooting. Following the presentation of the evidence, the trial court instructed the jury on Passenger's claim of negligence. Passenger had announced during trial that she would not be submitting her intentional tort claims of battery and assault. The trial court also instructed the jury on Driver's children's wrongful death claim based on the intentional tort of battery. The verdict directors for both of the submitted claims required the jury to

5 Naudet's answer to the third amended petition included three counterclaims against Passenger and Driver: (1) negligence as to Passenger and Driver; (2) assault as to Passenger and Driver; and (3) negligent entrustment against Passenger. Plaintiffs moved to dismiss the counterclaims. During a pretrial hearing, Naudet dismissed the counterclaims without prejudice.

find that Naudet acted with malice, and instructed the jury that Naudet could not be found liable if the jury found that Naudet acted in self-defense or with legal justification in accordance with separately submitted instructions. With respect to Driver's children's claim against Naudet, eleven jurors found in favor of Driver's children and awarded damages of $7 million. With respect to Passenger's claim against Naudet, nine jurors found in favor of Passenger. The jury assessed 1 percent of fault to Passenger and awarded damages of $3 million. The trial court issued its judgment in accordance with the jury's verdicts on June 24, 2024, awarding each of Driver's two children $3.5 million, awarding Passenger $2.97 million, and ordering post-judgment interest to accrue at the statutory rate. On July 24, 2024, Naudet filed a motion for judgment notwithstanding the verdict ("JNOV"), or in the alternative, a motion for new trial, or in the alternative, a motion to amend the judgment, or in the alternative, a motion for remittitur (collectively "Post-Trial Motion"). The trial court issued an amended judgment on September 23, 2024 ("Amended Judgment") which varied from the original judgment by adding a footnote to note that Passenger's claims for assault and battery were not submitted to the jury as they had been dismissed during trial. The next day, the trial court entered an order denying Naudet's Post-Trial Motion. Naudet appeals. 6

6 Naudet filed a notice of appeal in the trial court on October 2, 2024, and a second notice of appeal in the trial court on October 19, 2024. The first was assigned case number WD87542, and the second was assigned case number WD87576. We consolidated the cases under case number WD87542.

Analysis Naudet challenges the trial court's denial of his motion for JNOV (Points One, Three, and Five); the verdict directing and self-defense instructions submitted to the jury (Points Two, Four, and Six); the admission of video evidence and a power point presentation through an expert witness (Points Seven and Eight); and the Amended Judgment's failure to make required findings (Point Nine). Because Naudet's ninth point on appeal challenges the finality of the Amended Judgment, and thus our jurisdiction to consider this appeal, we address that point first. I.

The Amended Judgment Is a Final Judgment, Supporting Our Exercise of Appellate Jurisdiction (Point Nine)

In his ninth point on appeal, Naudet argues that the trial court failed to make statutorily required findings in its Amended Judgment, despite his request for same in the Post-Trial Motion, and that as a result, the Amended Judgment is not final. In the argument portion of his Brief, Naudet further contends that the Amended Judgment is not final because it failed to address the prayer for punitive damages asserted by Passenger and Driver's children in their petition. The latter argument is not encompassed within the scope of the point relied on. Rule 84.04(e); 7 Johnson v. Usera, 695 S.W.3d 272, 285-86 (Mo. App. W.D. 2024) (holding that a claim of error that was raised in the argument portion but not in a point relied on is unpreserved for appellate review). We are

7 All Rule references are to Missouri Court Rules, Volume 1--State, 2024, unless otherwise noted.

nonetheless required to address both of Naudet's arguments as finality is a prerequisite to appellate jurisdiction. State ex rel. Solenov v. Mo. Comm'n on Hum. Rts., 718 S.W.3d 72, 77 (Mo. App. W.D. 2025) (observing that "[b]ecause the finality of a judgment is a prerequisite to our jurisdiction, . . . we must address the issue sua sponte even if the issue has not been [properly] raised by the parties"). "The right to appeal is purely statutory and, where a statute does not give a right to appeal, no right exists." First Nat'l Bank of Dieterich v. Pointe Royale Prop. Owners' Ass'n, 515 S.W.3d 219, 221 (Mo. banc 2017) (quoting Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011)). "Although many statutes govern 'the right to appeal, the only statute even potentially applicable to the present case is section 512.020(5),' which provides that 'final judgments' are appealable." Wilson v. City of St. Louis, 600 S.W.3d 763, 767 (Mo. banc 2020) (quoting First Nat'l Bank of Dieterich, 515 S.W.3d at 221). "If a judgment resolves all claims by and against all parties . . . it is commonly referred to as a final judgment." Id. at 768 (quoting State ex rel. Henderson v. Asel, 566 S.W.3d 596, 598 (Mo. banc 2019)).

A. Naudet first contends that the Amended Judgment in this case is not final because it did not make statutorily required findings pursuant to section 537.095. 8 We disagree. Section 537.095.3 provides: In any action for damages [in a wrongful death suit], the trier of the facts shall state the total damages found . . . . The court shall then enter a judgment as to such damages, apportioning them among those persons entitled thereto in proportion to the losses suffered by each as determined by the court.

Thus, "[i]n a wrongful death case, prior to the entry of a judgment apportioning damages pursuant to [s]ection 537.095, 'there can be no final judgment.'" Johnson v. BFI Waste Sys. of N. Am., Inc., 162 S.W.3d 127, 130 (Mo. App. E.D. 2005) (quoting Woods v. Cory, 149 S.W.3d 912, 914 (Mo. App. S.D. 2004)); see also Church v. CNH Indus. Am., LLC, 671 S.W.3d 829, 846 (Mo. App. W.D. 2023) (holding that the judgment in a wrongful death suit "stat[ing] the total damages and apportion[ing] them among those persons entitled thereto, . . . [was] the final and appealable judgment") (quoting Johnson, 162 S.W.3d at 130-31). Naudet concedes that the Amended Judgment stated the total damages awarded for Driver's wrongful death, and apportioned the total damages amongst Driver's minor children. Based on the aforesaid authorities, the Amended Judgment was final and appealable. Naudet nonetheless complains that the Amended Judgment was also required

8 All references to section 537.095 are to RSMo 2016 as amended through September 23, 2024, the date of the Amended Judgment, unless otherwise indicated. All other statutory references are to RSMo 2016 as amended through September 12, 2019, the day of the incident at issue in this case, unless otherwise indicated.

to include the "findings" described in section 537.095.4. That section provides as follows: The court [in a wrongful death suit] shall order the claimant:

(1) To collect and receipt for the payment of the judgment;

(2) To deduct and pay the expenses of recovery and collection of the judgment and the attorneys' fees as contracted, or if there is no contract, or if the party sharing in the proceeds has no attorney representing him before the rendition of any judgment or settlement, then the court may award the attorney who represents the original plaintiff such fee for his services, from such persons sharing in the proceeds, as the court deems fair and equitable under the circumstances;

(3) To acknowledge satisfaction in whole or in part for the judgment and costs;

(4) To distribute the net proceeds as ordered by the court; and

(5) To report and account therefor to the court. In its discretion the court may require the claimant to give bond for the collection and distribution. 9

By its plain terms, section 537.095.4 describes "orders" that a trial court is required to enter in a wrongful death suit, not "findings" that must be included in a final and appealable wrongful death judgment. The statute is silent as to when the required "orders" are to be entered. However, by their nature, the "orders" described in section 537.095.4 relate to the payment and/or enforcement of the judgment entered in a

9 The record reflects that Driver's children, the wrongful death claimants in this case, were minors. Section 507.150 requires a bond be executed by a next friend or guardian ad litem acting for a minor before that person "can receive or receipt for any money or property, personal or real, and before he can acknowledge satisfaction or discharge of any judgment." The Amended Judgment acknowledged "that proceedings have been initiated to create a conservatorship for the minors."

wrongful death suit, and thus to processes and procedures that are of no import until a final judgment has been entered and is collectible. Section 537.095.4 thus affords a trial court the express authority to oversee the distribution of wrongful death damages to the rightful recipients after a final and appealable wrongful death judgment has been entered, codifying, in effect, a trial court's inherent power to enforce a judgment as originally rendered. See, e.g., Mo. Hosp. Ass'n v. Air Conservation Comm'n of State of Mo., 900 S.W.2d 263, 267 (Mo. App. W.D. 1995) (holding that "[t]he trial court's inherent enforcement power applies to the judgment as originally rendered"); Lake Thunderbird Prop. Owners Ass'n v. Lake Thunderbird, Inc., 680 S.W.2d 761, 763 (Mo. App. E.D. 1984) (recognizing that "[c]ourts have inherent power to enforce their own judgments and should see to it that such judgments are enforced when they are called upon to do so") (quoting 46 Am. Jur. 2d Judgments section 898 (1969)). The guidance provided by section 537.095.4 with respect to enforcing a judgment as originally written is consistent with the fact that "[i]t is only by virtue of statutory enactments that a recovery may be had upon" a claim for wrongful death, as no such right of action existed at common law. State ex rel. Kansas City Stock Yards Co. v. Clark, 536 S.W. 2d 142, 144 (Mo. banc 1976). We therefore reject Naudet's contention that the "orders" contemplated by section 537.095.4 are "findings" that are required to be included in a wrongful death judgment as a condition to its finality. 10

10 Naudet also complains that the Amended Judgment did not include the trial court's earlier "pretrial" determinations about the sufficiency of notice provided to all parties having a cause of action for wrongful death under section 537.080. However, section 537.095 does not require a finding about the sufficiency of notice to be included

B. Naudet next argues that the Amended Judgment is not final because it did not address the claims for punitive damages asserted by Plaintiffs in their third amended petition. Naudet relies on the recent decision in Rhodes v. Missouri Highways & Transportation Commission, 718 S.W.3d 419 (Mo. banc 2025), to broadly argue that every prayer for relief described in a petition must be addressed in a judgment as a condition of the judgment's finality. In Rhodes, our Supreme Court reiterated the principle that "[a] final judgment is a legally enforceable judicial order that 'disposes of all claims (or the last pending claim) in a lawsuit.'" 718 S.W.3d at 422 (quoting Jefferson Cnty. 9-1-1 Dispatch v. Plaggenberg, 645 S.W.3d 473, 475 (Mo. banc 2022)). Rhodes also reiterated that "[i]f a complaint seeks to enforce only one legal right, it states a single claim, regardless of the fact that it seeks multiple remedies." Id. (quoting Comm. for Educ. Equal. v. State, 878 S.W.2d 446, 451 (Mo. banc 1994)). Thus, "if multiple forms of relief are sought with respect to one set of facts, it is still one claim, and an order resolving some prayers for relief and not

in a wrongful death judgment, and instead only provides that where two or more persons are entitled to sue for wrongful death, any one or more of them may maintain suit for wrongful death, "provided that the claimant or petitioner shall satisfy the court that he has diligently attempted to notify all parties having a cause of action under section 537.080." Here, Driver's children were both named as wrongful death claimants. There is nothing in the record to suggest that the trial court had actual written notice of any other person entitled to pursue an action under section 537.080. We reject Naudet's argument that the trial court was statutorily required to include a finding about notice in the Amended Judgment at all, let alone as a condition to the Amended Judgment's finality.

others does not fully resolve that claim and is not a judgment." Id. (quoting Wilson, 600 S.W.3d at 768 n.6). Rhodes applied these settled principles to examine whether a judgment entered in an employment discrimination case was final where the judgment was "silent . . . regarding prejudgment interest and appropriate equitable relief," though the petition filed in the case included prayers for both remedies. Id. The "appropriate equitable relief" sought in the petition included, but was not limited to, reinstatement of the plaintiff to the position he would have enjoyed but for the alleged discrimination and alternatively for front pay. Id. In addressing the prayed-for equitable relief, the Supreme Court observed that "[i]n cases presenting mixed issues of law and equity, 'trials should be conducted to allow the legal claims to be tried to a jury, with the court reserving for its own determination only equitable claims and defenses, which it should decide consistently with the factual findings made by the jury.'" Id. at 422-23 (emphasis added) (quoting State ex rel. Barker v. Tobben, 311 S.W.3d 798, 800 (Mo. banc 2010)). This observation was highly pertinent to the issue of finality because prejudgment interest and equitable relief in the form of reinstatement and front pay are matters that either can, or must, be determined by the trial court, and not by a jury. See section 408.040 (addressing the award of prejudgment interest by a trial court in tort actions under circumstances described); section 408.020 (addressing the right to prejudgment interest for moneys after they become due and payable in written contract actions, actions on account, and for money recovered for the use of another); Pitcher v. Centene Corp, 602 S.W.3d 216, 242- 43 (Mo. App. W.D. 2020) (holding in an employment discrimination case that equitable

claims are reserved for a trial court to determine after claims at law are tried to a jury, and that reinstatement, or front pay where reinstatement is not feasible, are alternative equitable remedies); Dierker Assocs., D.C. v. Gillis, 859 S.W.2d 737, 746 (Mo. App. E.D. 1993) (holding that when amount due is liquidated or readily ascertainable, it is permissible for the trial court rather than the jury to perform the mathematical process of computing prejudgment interest pursuant to section 408.020). The Supreme Court then noted that on the face of the judgment, "the circuit court entirely failed to consider the equitable relief requested, leaving such issues open for further adjudication." 11 Rhodes, 718 S.W.3d at 423. Because relief properly awarded by a trial court after the entry of a jury verdict was not resolved by the judgment, the Court concluded that "there is no final judgment." 12 Id. The same result was reached on the same day in Carter v. Missouri Department of Corrections, 718 S.W.3d 423 (Mo. banc 2025), where the remedies of prejudgment interest and equitable relief (including reinstatement to the plaintiff's position and/or front-pay) were sought in the plaintiff's petition, but were not expressly resolved by the judgment. Id. at 425 (holding that

11 The Supreme Court also noted that the judgment at issue did not "include a catch-all statement, such as: 'All other relief requested is denied,'" suggesting strongly that a judgment which includes this catch-all statement will be viewed as having resolved all issues otherwise left to the trial court for determination. Rhodes, 718 S.W.3d at 422 n.3. 12 This conclusion, which addresses the plaintiff's broad claim for "appropriate equitable relief," is repeated in a footnote where the Supreme Court held that the judgment's failure to address the disposition of the plaintiff's specific requests for front pay and prejudgment interest also meant that "there is no final judgment." Rhodes, 718 S.W.3d at 423 n.3.

judgment which was "silent . . . regarding prejudgment interest and appropriate equitable relief" sought in the petition was not final, requiring dismissal of the appeal). Rhodes and Carter are not groundbreaking. They reinforce long-settled principles that a "claim" includes all prayers for relief sought in a petition, and that a "claim" is not fully resolved unless all relief prayed in the petition for the "claim" has been determined or resolved. Plainly, a judgment entered on a jury verdict is not final if it fails to determine or resolve relief sought in a petition that can or must be granted by a trial court, and not by the jury, as the effect is to leave those unresolved issues open for future adjudication. Rhodes, 718 S.W.3d at 423 (holding that "the circuit court['s] fail[ure] to consider the equitable relief requested[] [left] such issues open for further adjudication") (emphasis added). Naudet relies on Rhodes and Carter to argue that the Amended Judgment in the instant case is not final because it did not resolve Plaintiffs' prayer for punitive damages asserted in the third amended petition. Naudet's reliance is misplaced. Punitive damages are not equitable relief that must, or even can, be determined by a trial court after the entry of a jury verdict. Instead, "[a]ll actions tried before a jury involving punitive damages . . . shall be conducted in a bifurcated trial before the same jury if requested by any party." Section 510.263.1. "In the first stage of a bifurcated trial, in which the issue of punitive damages is submissible, the jury shall determine . . . the liability of a defendant for punitive damages." Section 510.263.2.

Here, though a prayer for punitive damages was included in the third amended petition, Plaintiffs did not submit the issue to the jury for determination. 13 Because the issue of punitive damages must be submitted to the jury, Plaintiffs irrevocably abandoned any ability to recover punitive damages by not submitting the issue to the jury. See, e.g., State ex rel. Kansas City v. Campbell, 505 S.W.3d 299, 300 (Mo. App. W.D. 2016) (holding that, where breach of contract theory was pled but not presented to the jury, "[a] claim that was not submitted to the jury at the conclusion of the evidence is considered abandoned"); Heckadon v. CFS Enters., Inc., 400 S.W.3d 372, 377 n.3 (Mo. App. W.D. 2013) (holding that where four counts in a petition were not submitted to the jury, the theories of liability were abandoned because "theories of liability . . . pleaded and proved but not submitted [to the jury] are abandoned") (quoting Keller v. Int'l Harvester Corp., 648 S.W.2d 584, 590 (Mo. App. W.D. 1983)); Jefferson v. Lyon Sheet Metal Works, 376 S.W.3d 37, 41 n.1 (Mo. App. E.D. 2012) (observing that the "res ipsa loquitur count . . . was abandoned because it was not submitted to the jury"); Whitted v. Healthline Mgmt., Inc., 90 S.W.3d 470, 479 (Mo. App. E.D. 2002) (holding that the "failure to submit an instruction as to an affirmative defense constitutes a waiver of that defense"); Benson

13 In the motion for directed verdict following the close of Plaintiffs' evidence, Naudet's counsel noted that "up until this time we've been told that [Passenger] is no longer going forward on the assault and battery. [She's] only going forward on negligence. So that's what our motion for directed verdict is based upon. We've always been told there's no punitives." It is thus clear that Plaintiffs had communicated their intent to abandon Passenger's intentional tort claims, and their collective prayer for punitive damages, long before their case was submitted to the jury. In fact, in on-the- record discussions before voir dire, Plaintiffs' counsel reported to the trial court that they "don't see us submitting punitive damages."

Optical Co. v. Floerchinger, M.D., 810 S.W.2d 531, 536 (Mo. App. E.D. 1991) (holding that failure to submit a claim against one of several defendants "to the jury at the conclusion of the evidence constitutes an abandonment thereof"); Young By & Through Young v. Davis, 726 S.W.2d 836, 838 (Mo. App. S.D. 1987) (holding that the judgment was final, even though it did not address the third-party petition against motorcyclist or the motorcyclist's counterclaim against the van driver where those affirmative claims were abandoned, leaving nothing for future determination, because no instructions submitting those claims were tendered); Page v. Hamilton, 329 S.W.2d 758, 762 (Mo. 1959) (holding that a theory of negligence not submitted to the jury is deemed abandoned); Quinn v. St. Louis Pub. Serv. Co., 318 S.W.2d 316, 323 (Mo. 1958) (holding that where plaintiff elected to submit negligence based solely on one factual allegation, "he abandoned all other allegations of negligence contained in his petition"). Rhodes and Carter did not discuss, alter, or abrogate the long-settled doctrine of abandonment which, by its very nature, resolves claims (or portions thereof) that must be tried to, but that are not submitted to, the jury. Instead, Rhodes and Carter only addressed claims and/or prayers for relief that can or must be decided by a trial court in a judgment entered after a jury verdict. In the latter case, a judgment's silence leaves unresolved and open for future adjudication claims or prayers for relief a trial court must decide after a jury verdict. In stark contrast, asserted claims and defenses that must be tried to a jury, but that are not submitted to the jury, are not left unresolved and open for

future adjudication because they are deemed abandoned as a matter of law. 14 A judgment that fails to mention claims or prayers for relief that have been abandoned as a matter of law is nonetheless final. 15

We therefore reject Naudet's finality concerns and conclude that we have jurisdiction to entertain this appeal. Point Nine is denied. II. The Trial Court Did Not Commit Error in Denying Naudet's Motion for JNOV on Driver's Children's Claim for Wrongful Death Based on Battery Because Official Immunity Is Not a Defense to a Well-Pled or Properly Submitted Intentional Tort. However, the Trial Court Did Commit Error in Denying Naudet's Motion for JNOV on Passenger's Negligence Claim Because There Is No Evidence that Naudet Acted with the Actual Intent to Injure Passenger, an Essential Component of Malice, As to Overcome the Shield of Official Immunity (Point One) Naudet's first point on appeal argues that the trial court erred in denying his motion for JNOV on Plaintiffs' claims because Naudet was shielded from liability as a matter of law by the doctrine of official immunity as "there was no evidence upon which

14 This would not be the case, of course, where the record establishes that a trial court intentionally bifurcated a jury trial to dispose of some, but not all claims. See, e.g., Beckmann v. Wilson, 725 S.W.3d 389, 395-96 (Mo. App. E.D. 2025). 15 This court nonetheless reinforces the best practice alluded to in Rhodes, 718 S.W.3d at 422 n.2, and Carter, 718 S.W.3d at 425 n.2, that every judgment entered in a civil case include a catch-all statement that "[a]ll other relief requested is denied." Such a statement is essential in a bench-tried case to ensure complete resolution of all legal and equitable claims that have been pled and submitted to the trial court for determination. And, in a jury-tried case, the statement confirms that any claims, or portions thereof, that could or had to be determined by the trial court after the jury enters its verdict have been resolved such that the judgment is final. Though the statement is not required as a condition to a judgment's finality in a jury-tried case with respect to claims or prayers for relief that are abandoned unless they are submitted to the jury, the statement does no harm.

a jury could conclude that he acted with malice," an exception to the doctrine. [Appellant's Brief, p. 17] The standard of review of a trial court's denial of a motion for JNOV is the same as for denial of a motion for directed verdict. D.W. By & Through L.W. v. Hogan Preparatory Acad., Inc., 713 S.W.3d 654, 664 (Mo. App. W.D. 2025). Both motions require us to "determine whether the plaintiff made a submissible case." Id. Because this determination poses a legal question, our review is de novo. Id. In conducting de novo review, "[w]e 'view[] the evidence in the light most favorable to the verdict, and we give the plaintiff the benefit of all reasonable inferences, disregarding all conflicting evidence and inferences.'" Id. (quoting Anslinger v. Christian Hosp. Ne.-Nw., 687 S.W.3d 180, 183 (Mo. App. E.D. 2024)). Reversal of a jury's verdict is only appropriate if there is a "complete absence of probative facts to support the jury's conclusion." Id. (quoting Anslinger, 687 S.W.3d at 183). Applied to Naudet's first point on appeal, this standard of review requires us to determine whether there is a "complete absence of probative facts to support the jury's conclusion" that Naudet acted with malice, an exception to the affirmative defense of official immunity. Before engaging in this exercise, we first address the scope of official immunity, and what is required to establish malice as an exception to the defense. A. Official immunity is an affirmative defense that "protects public officials sued in their individual capacities from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts." State ex rel.

Love v. Cunningham, 689 S.W.3d 489, 494-95 (Mo. banc 2024) (quoting State ex rel. Alsup v. Kanatzar, 588 S.W.3d 187, 190 (Mo. banc 2019)). The purpose of official immunity is to allow public officials to exercise judgment in the performance of their duties, including making decisions that affect public safety and welfare, without fear of personal financial repercussions. Id. at 495. "A finding that a public employee is entitled to official immunity does not preclude a finding that he or she committed a negligent act- -because official immunity does not deny the existence of the tort of negligence, but instead provides that an officer will not be liable for damages caused by his negligence." Southers v. City of Farmington, 263 S.W.3d 603, 611 (Mo. banc 2008). "Courts applying the doctrine of official immunity must be cautious not to construe it 'too narrowly lest they frustrate the need for relieving public servants of the threat of burdensome litigation.'" Alsup, 588 S.W.3d at 191 (quoting Kanagawa v. State ex rel. Freeman, 685 S.W.2d 831, 836 (Mo. banc 1985)). The recognized exceptions to the doctrine of official immunity are thus construed through a narrow lens. "Official immunity does not apply, and a public official may be held personally liable for the damages the official caused, in two narrow exceptions: (1) when a public official fails to perform a ministerial duty required of the official by law, or (2) when a public official acts in bad faith or with malice." State ex rel. Love, 689 S.W.3d at 495. There is no contention in this case that Naudet failed to perform a ministerial duty required by law. Instead, Passenger alleged in the third amended petition that Naudet "acted with malice in that he wantonly shot a firearm into an automobile knowing that there was an uninvolved party present in the automobile," and "disregarded the presence

of [Passenger] in the automobile and thus intended his actions to be prejudicial to [her]." And, Driver's children alleged in the third amended petition that Naudet acted with malice because he "wantonly placed himself in the path of a vehicle despite being trained to do the opposite," and "by shooting and killing [Driver], intend[ing] his actions to be prejudicial to [Driver]." 16

The Missouri Supreme Court has consistently explained that, in the context of official immunity, "[a] defendant acts with malice when he wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another." State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 447 (Mo. banc 1986) (emphasis added); see also State ex rel. Love, 689 S.W.3d at 496-97 (citing Twiehaus with approval while repeating the identical definition of malice). This "test" thus requires two distinct components comprised of a qualifying act undertaken with the requisite intent. First, the public official must engage in a wanton act that a reasonable person would know to be contrary to duty. In this context, "[a]n act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others." State ex rel. Twiehaus, 706 S.W.2d at 447.

16 A petition must contain an "allegation of a malicious motive or purpose or of conscious wrongdoing" in order to state a claim against a public official that is not barred by official immunity. State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 447 (Mo. banc 1986). To survive a motion for judgment on the pleadings, the allegations must include factual allegations that a public official intended to cause injury or death to the plaintiff, as bare legal assertions that unspecified conduct was in "bad faith," "willfully wrong", or "malicious" will not suffice. State ex rel. Love, 689 S.W.3d at 497. The sufficiency of Passenger's third amended petition is not at issue in this case.

Second, the wanton act reasonably known to be contrary to duty must be done with the "actual intent to cause injury." Id. (emphasis added) (holding that in the context of official immunity, bad faith or malice "contain[] a requirement of actual intent to cause injury"). As most recently confirmed by our Supreme Court in State ex rel. Love, "[m]alice, or the actual intent to cause injury, is the only mental state to which official immunity does not apply under Missouri law." 689 S.W.3d at 498. Actual intent to injure cannot be inferred from the qualifying acts. Carlton v. Means, 688 S.W.3d 625, 631 (Mo. App. E.D. 2024) (holding that "reckless conduct alone does not amount to malice"). In fact, "[n]o Missouri cases have found malice based on an inference of intent drawn solely from the recklessness of an officer's conduct." Id. at 631-32. To hold otherwise would allow the malice exception to the official immunity doctrine to "virtually swallow the rule" in direct contravention of "the public policy behind the official immunity doctrine . . . and to the directive from the Supreme Court of Missouri that courts should avoid applying the doctrine too narrowly." Id. at 632. Thus, there "must . . . be evidence that the [public] official had the [specific] intent to injure or prejudice the plaintiff." Id. at 631. That is because the commission of an act, even one that increases the risk of injury to another, "does not unequivocally lead to the conclusion that the actor intended to [cause or] increase the risk of injury." Brock v. Dunne, 637 S.W.3d 22, 30 (Mo. banc 2021). Instead, "[a]bsent more, a negligent act is, simply, negligence." Id.; see also Carlton, 688 S.W.3d at 631 (evidence, including expert witness testimony that officer's actions were "off the charts irresponsible and reckless,"

was sufficient to establish that officer's conduct was "'wanton' for purposes of the first prong of the malice test . . . . [b]ut the intent prong of the malice test is another matter"). Against this backdrop, we evaluate Naudet's claim that no evidence established malice sufficient to overcome the shield of official immunity. We address this argument separately for each of Plaintiffs' claims. B. Driver's children's claim against Naudet was not a negligence claim. It was a claim for wrongful death based on the commission of an intentional tort--battery. 17

"As to tortious conduct, a battery consists of intended, offensive, bodily contact with another." Duvall v. Lawrence, 86 S.W.3d 74, 80 (Mo. App. E.D. 2002). "A battery is the willful touching of the person of another, and has been said to be the consummation of . . . assault." Armoneit v. Ezell, 59 S.W.3d 628, 632 (Mo. App. E.D. 2001) (quoting Adler v. Ewing, 347 S.W.2d 396, 402 (Mo. App. 1961)). "To commit an intentional tort, a person must intend the act and the resulting harm." Id. (emphasis added). As explained, supra, the doctrine of official immunity applies to shield a public official from claims of negligence involving discretionary acts. State ex rel. Love, 689 S.W.3d at 494-95 (holding that official immunity protects public officials from liability

17 Naudet did not argue at trial, and does not argue here, that it was error to permit the submission of Driver's children's claim of wrongful death based on the commission of the intentional tort of battery (as opposed to negligence). We need not address that issue, though we observe that the annotations to MAI 23.02, the approved verdict director for submitting the intentional tort of battery, provide that it is error to refuse to give the battery verdict director where a plaintiff's substantive rights arose from the defendant deliberately shooting him. MAI 23.02 (citing Martin v. Yeoham, 419 S.W.2d 937 (Mo. App. 1967).

"for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts"); Southers, 263 S.W.3d at 611 ("[O]fficial immunity . . . provides that an officer will not be liable for damages caused by his negligence."). Official immunity "does not apply to intentional torts" such as assault and battery. Elias v. Davis, 535 S.W.3d 737, 745 n.4 (Mo. App. W.D. 2017). The policy behind protecting public officials from liability for discretionary acts in the scope of their duties simply does not apply to intentional torts where a plaintiff will be required to prove the intentional commission of an offensive act with the actual intent to cause the resulting harm. See Armoneit, 59 S.W.3d at 632. Our conclusion is in line with the result reached in Hendrix v. City of St. Louis, 636 S.W.3d 889 (Mo. App. E.D. 2021). In Hendrix, a jury found in favor of an arrestee on a battery claim asserted against a law enforcement officer. Id. at 894. The officer appealed and claimed error in the denial of his motion for directed verdict because he claimed he was entitled to official immunity. Id. at 901. The arrestee argued that official immunity did not apply. Id. The Eastern District agreed that the doctrine of official immunity does not apply "when an officer 'uses more force than is reasonably necessary' when making an arrest." Id. at 902 (quoting Neal v. Helbling, 726 S.W.2d 483, 487 (Mo. App. E.D. 1987)). Neal involved claims of battery and assault asserted against arresting police officers. 726 S.W.2d at 484. Official immunity was not discussed at all in Neal. Instead, the court addressed settled law that a law enforcement officer "in the first instance is the judge of the manner and means to be taken in making an arrest. Unless a plaintiff can show that unnecessary force was used, courts will protect the officer." Id. at

487 (quoting Manson v. Wabash R.R., 338 S.W.2d 54, 61 (Mo. banc 1960)). See, e.g., Quraishi v. St. Charles County, Missouri, 986 F.3d 831, 840 (8th Cir. 2021) ("Under Missouri law, a law enforcement officer 'is answerable in damages as for assault and battery only when in the performance of his duty in making the arrest he uses more force than is reasonably necessary for its accomplishment.'") (quoting Schettle v. Jefferson Cnty., 788 F.3d 855, 861 (8th Cir. 2015) (quoting Neal, 726 S.W.2d at 487); State ex rel. Ostmann v. Hines, 128 S.W.248, 249-50 (Mo. App. St. L. 1910) ("The rule is the officer may use such force as appears to him at the time to be reasonably necessary to overcome the resistance put forth"). Simply stated, whether unnecessary force was used to effect an arrest, and thus to commit an assault or a battery, implicates the independent defenses of self-defense and/or legal justification. 18 These defenses may well operate to protect a law enforcement officer who commits an intentional tort from liability. However, official immunity, and its exceptions, apply only to claims of negligence, and are not implicated by well-pled claims that a public official committed an intentional tort. Naudet disagrees and claims that Moore v. City of O'Fallon, 681 S.W.3d 715 (Mo. App. E.D. 2023), concluded that official immunity is an affirmative defense to intentional torts. Naudet is mistaken. In Moore, the Eastern District simply held that "[p]laintiffs cannot trigger an exception to [official immunity] through the mere allegation of an intentional tort when they have failed to allege any facts supporting bad faith or malice."

18 The affirmative defense of justification in effecting an arrest is now codified at section 563.046, and is made applicable to civil actions by section 563.074.

Id. at 726. In concept, this is absolutely correct. 19 An intentional tort is not well-pled as to negate application of the official immunity doctrine without sufficient factual allegations identifying offensive acts that were intentionally undertaken with the actual intent to cause injury to the plaintiff. The petition in Moore did not meet this standard, as it included no more than "'[t]he mere assertion of recklessness as a separate cause of action from negligence, [which] is insufficient to implicate [any of the exceptions]' to [] official immunity." Id. (quoting Throneberry v. Mo. State Hwy. Patrol, 526 S.W.3d 198, 204 (Mo. App. W.D. 2017)). The Supreme Court echoed the same refrain in State ex rel. Love, when it held that allegations that a public official intentionally violated workplace policies amount to nothing more than a public official's "intentional[] fail[ure] to perform the discretionary duties required of them by law, which is negligence covered by official immunity" unless the actual intent to injure the plaintiff is specifically alleged. 689 S.W.3d at 497. Moore and State ex rel. Love simply underscore that actual intent to injure a plaintiff is the "only mental state to which official immunity does not apply under Missouri law." State ex rel. Love, 689 S.W.2d at 498. In application, this principle

19 We say that Moore was correct in concept because Moore was addressing an allegation of "recklessness" and characterized the allegation as an intentional tort. Moore, 681 S.W.3d at 726. "Recklessness is an aggravated form of negligence." Fowler v. Phillips, 504 S.W.3d 107, 110 (Mo. App. E.D. 2016). Though there is some authority for recognizing recklessness as an intentional tort, see, e.g., Hatch v. V.P. Fair Found., Inc., 990 S.W.2d 126, 139 (Mo. App. W.D. 1999), the Supreme Court's recent discussion of "recklessness" in the context of official immunity suggests otherwise. See State ex rel. Love, 689 S.W.3d at 497-98 (holding that even where the "intentional" violation of workplace policies is argued to "amount to gross negligence or recklessness, official immunity still applies" because "Missouri does not recognize a cause of action for gross negligence, and official immunity applies to recklessness to the same extent as negligence).

recognizes that official immunity is overcome as a defense to a claim of negligence only where a public official's tortious acts are wanton and contrary to duty and where the public official had the actual intent to injure. State ex rel. Twiehaus, 706 S.W.2d at 447; State ex rel. Love, 689 S.W.3d at 496-97. But official immunity is not available as a defense at all to a well-pled claim of intentional tort because a public official's tortious acts were intentionally undertaken with the actual intent to cause the resulting injury to the plaintiff. Undeterred, Naudet relies heavily on the holding in Conway v. St. Louis County, 254 S.W.3d 159 (Mo. App. E.D. 2008), to urge that official immunity and the exception for malice must apply to Driver's children's wrongful death claim. Conway also involved a police shooting that resulted in death, but in that case, a grant of summary judgment was affirmed because there was no evidence of malice. Id. at 161-62. Conway is readily distinguishable. In Conway, police officers shot and killed a suicidal man who had barricaded himself in his room and who, when officers breached the door to the room, charged the officers with a sword the officers had been warned he would use. Id. at 163. Summary judgment was granted on the issue of official immunity because there was no genuine issue of fact in dispute to permit the inference that the officers acted with malice. Id. at 164, 165. On appeal the Eastern District affirmed the grant of summary judgment because there was no evidence of "intentional wrongdoing" or of "ulterior motives or ill will." Id. at 165.

The wrongful death claim asserted in Conway relied on allegations that the officers were negligent in deciding to force their way into the suicidal man's room. Id. at

The officers were not accused of having committed an intentional tort. Official

immunity and the exception for malice were thus appropriately at issue in Conway. Naudet's reliance on Conway is misguided based on that critical distinction alone. Moreover, though Conway found that neither prong of the malice test was established by the uncontroverted facts, we question how that could be the case with respect to the actual intent to cause injury prong. It was uncontroverted that the officers shot decedent and intended to do so. Though the shooting may well have been legally justified because the officers were acting in self-defense, it is difficult to fathom how the actual intent to injure prong of the malice test was not established by the evidence. 20

We nonetheless agree with the outcome reached in Conway because the Eastern District separately found that there was no evidence of "conscious wrongdoing or breach of a known duty through ulterior motives or ill will," and thus no evidence that the officers engaged in conduct that would satisfy the first prong of the malice test. 254 S.W.3d at 165; see also Twiehaus, 706 S.W.3d at 447 (explaining that malice first

20 The Eastern District found that because the officers did not have the actual intent to injure the decedent when they decided to enter the decedent's room, the actual intent to injure prong of the malice test could not be shown. Conway, 254 S.W.3d at 165. The Eastern District's focus on the officer's decision to enter the suicidal man's room (and not the discharge of the officers' weapons) is likely explained by the allegations of negligence in Conway which were focused on the decision to enter the room, and not on the decision to shoot the decedent after entering the room. That supposition reveals yet another material distinction between Conway and Naudet's case, where the Driver's children expressly alleged that Naudet acted with malice "by shooting and killing [Driver], intend[ing] his actions to be prejudicial to [Driver]."

requires a wanton act which "a man of reasonable intelligence would know to be contrary to his duty," and explaining that "[a]n act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others"); State ex rel. Love, 689 S.W.3d at 496-97 (same). Conway's conclusion that the officers did not engage in acts that would satisfied the first prong of the malice test is of no assistance to Naudet, as Naudet conceded at trial the sufficiency of the evidence to satisfy the first prong of the malice test. The essential premise of Naudet's first point on appeal as it relates to Driver's children's wrongful death claim is that he was shielded from liability as a matter of law by official immunity because there was no evidence of malice. But for the reasons we have explained, official immunity was not available to shield Naudet from liability from the commission of the intentional tort of battery, rendering malice as an exception to official immunity immaterial. To be clear, and as previously explained, although intentional torts committed by public officials are not subject to the affirmative defense of official immunity, they are subject to other affirmative defenses, including self-defense and legal justification. See MAI 32.11 (the approved jury instruction for submitting the affirmative defense of self- defense in a civil action involving the intentional tort of battery); section 563.074 (providing that self-defense as described in Chapter 563 is an absolute defense to both criminal and civil liability). Self-defense and legal justification were asserted by Naudet as affirmative defenses in this case. We address Naudet's claims of error relating to those defenses later in this opinion.

Point One is denied as it relates to Driver's children's claim of wrongful death based on Naudet's commission of the intentional tort of battery. C. Passenger's claim against Naudet was submitted solely on a theory of negligence. 21

As such, the parties agree that the affirmative defense of official immunity shielded Naudet from liability on Passenger's negligence claim unless the evidence supported the exception of malice as pleaded in Plaintiffs' third amended petition. When arguing his motion for directed verdict after the close of all evidence, Naudet's attorney conceded that Passenger had submitted sufficient evidence to establish the first prong of the malice test, which focuses on the nature of Naudet's acts. 22 Naudet argued, however, that there was no evidence presented from which the jury could conclude that Naudet had the actual intent to injure Passenger, the second prong of the malice test which focuses on Naudet's intent. Naudet's motion for JNOV, and the argument developing Naudet's first point on appeal, similarly focus on whether the evidence established that Naudet had the actual intent to injure Passenger. We therefore limit our discussion to whether the trial court erred in denying Naudet's motion for JNOV because there was a "complete absence of probative facts to support" finding that Naudet

21 As noted, supra, Passenger originally asserted alternative claims for assault and for battery, but these intentional tort claims were abandoned by Passenger during trial. 22 We agree that there was sufficient evidence for the jury to have found that Naudet's acts were wanton (that is, done of wicked purpose or needlessly manifesting a reckless indifference to the rights of others) where a reasonable person would know the wanton acts to be contrary to duty. See State ex rel. Twiehaus, 706 S.W.2d at 447.

acted with the actual intent to injure Passenger. D.W. By & Through L.W., 713 S.W.3d at

Passenger's third amended petition claimed that Naudet acted with malice toward her because he fired his weapon into Driver's vehicle aware that Passenger, an uninvolved person, was in the vehicle, and thus with disregard for her presence. But, Passenger presented no evidence that Naudet knew that Passenger was in Driver's vehicle. In fact, Naudet testified that he did not know that Passenger was in the vehicle with Driver when he shot Driver, and that Passenger "absolutely was not" his intended target and that he "in no way, shape, or form, wanted [Passenger] to be struck." Other officers on the scene also testified they did not see Passenger in the vehicle before Naudet fired his weapon. And, unlike the first time that Driver arrived on the scene, when Driver returned to the house after an unspecified period of time, there was no radio communication alerting officers that a passenger was in Driver's vehicle. Even if the evidence established that Naudet knew, or should reasonably have anticipated, that Passenger was in Driver's vehicle, that evidence would be probative of the reckless nature of Naudet's actions (part of the first prong of the malice test), but would not be probative of his actual intent to injure Passenger. See Carlton, 688 S.W.3d at 631 (concluding that evidence, including expert witness testimony that officer's actions were "off the charts irresponsible and reckless," was sufficient to establish that officer's conduct was "'wanton' for purposes of the first prong of the malice test . . . . [b]ut the intent prong of the malice test is another matter"). Passenger's Brief emphasizes the reckless nature of Naudet's actions when shooting into Driver's vehicle. However, as

previously explained, no matter how reckless, Naudet's actions do not permit an inference that he had the actual intent to injure Passenger when he engaged in those actions. Id. at 631-32 (holding that "reckless conduct alone does not amount to malice," and that "[n]o Missouri cases have found malice based on an inference of intent drawn solely from the recklessness of an officer's conduct"). Passenger also argues that it "does not matter that Naudet did not intend to shoot [Passenger]" because Naudet's admission that he had the actual intent to shoot and injure Driver constitutes evidence of actual intent to injure "another," and the intent to injure "another" is all that is required to establish the second prong of the malice test. [Plaintiffs' Brief, p. 30]. We disagree. While the generally stated test for "malice" refers to the requirement to prove "an actual intent to injure or prejudice another," Carlton, 688 S.W.3d at 630, in applying the test, Missouri courts have always required evidence that a public official had the actual intent to injure the plaintiff alleging malice. For example, in Carlton, the Eastern District held that "there must also be evidence that the official had the intent to injure or prejudice the plaintiff." Id. at 631 (emphasis added). Then, in State ex rel. Love, our Supreme Court held that "conclusory allegations of 'malice,' 'willfully wrong,' and 'bad faith' [in the plaintiffs' petitions] are legal conclusions," and that there must be a "factual allegation [that] the [Missouri Department of Transportation employees] intended to cause injury or death to [their fellow employee or her unborn child]" 23 to overcome a

23 The employee defendants were supervisors or managers who were aware that decedent was pregnant. State ex rel. Love, 689 S.W.3d at 493.

motion for judgment on the pleadings. 689 S.W.3d at 497 (emphasis added). The Supreme Court went on to find that "[t]here is nothing in the pleadings from which a jury reasonably could infer the employees collectively or any employee individually intended to cause the injury or death of [the MODOT employee or her unborn child] through a vehicle operated by [a third party] entering the work space and striking [the MODOT employee]." Id. at 498 (emphasis added). The Supreme Court's message could not be clearer, especially given the Court's pronouncement that "[m]alice, or the actual intent to cause injury, is the only mental state to which official immunity does not apply under Missouri law." Id. Malice sufficient to overcome official immunity requires evidence that a public official's wanton acts satisfying the first prong of the malice test were committed with the actual intent to injure or prejudice the plaintiff claiming malice. Id. We therefore reject Passenger's contention that Naudet's actual intent to injure Passenger is shown by evidence that Naudet's intentional decision to use deadly force against Driver involved the risk of hitting a bystander. Passenger disagrees and contends that Naudet's actual intent to injure Driver transfers to satisfy the actual intent to injure Passenger necessary to establish malice, and thus to overcome the defense of official immunity that would otherwise bar Passenger's recovery on her negligence claim. We disagree. First, Passenger's reliance on transferred intent to establish actual intent to injure merely repackages Passenger's contention that the reckless nature of Naudet's actions supports an inference that Naudet had the actual intent to injure her. We have already

explained that this proposition is without merit. Carlton, 688 S.W.3d at 631 (holding that "reckless conduct alone does not amount to malice"). Second, the common law doctrine of transferred intent applies to extend an actor's liability for intentional torts like assault and battery by permitting the actor's intent to injure one party to satisfy the intent required to commit an intentional tort against an unintended third party. Restatement (Third) of Torts section 110(a) (2014). Here, however, Passenger abandoned her intentional tort claims of assault and battery. She is not relying, therefore, on the doctrine of transferred intent in an effort to extend Naudet's liability for an intentional tort. 24 Instead, Passenger is relying on the doctrine of transferred intent for the collateral purpose of negating an affirmative defense to her claim of negligence. No authority supports reliance on the doctrine of transferred intent to establish negligence. And, no authority supports reliance on the doctrine of transferred intent for the collateral purpose of negating an affirmative defense to negligence. "[T]he policies and principles served by the transferred-intent doctrine are not necessarily served by recognizing the doctrine when applying collateral legal doctrines." Restatement (Third) of Torts section 110, cmt. c (2014) (referring, as an example, to insurance policy exclusions for intentional torts). Instead, our Supreme Court has plainly announced that

24 The continued utility, or modern-day acceptance, of transferred intent in Missouri intentional tort cases is not clear. In fact, the most recent Missouri case this court could locate where the doctrine of transferred intent was actually applied to affirm civil liability in tort for assault and battery case is quite dated. See Carnes v. Thompson, 48 S.W.2d 903, 904 (Mo. 1932).

actual intent to injure the plaintiff must be shown to establish malice for purposes of overcoming the defense of official immunity. State ex rel. Love, 689 S.W.3d at 498 (holding that "actual intent to cause injury is the only mental state to which official immunity does not apply under Missouri law"). We perceive no room in this clear directive that would permit expanding a public official's liability in negligence to include cases where the actual intent to cause injury to a plaintiff can only be established by reliance on the doctrine of transferred intent. See id. at 495 (emphasizing that the only two recognized exceptions to official immunity are "narrow exceptions"); cf., e.g., Rivera v. Safford, 377 N.W.2d 187, 189 (Wis. Ct. App. 1985) (holding that an injured employee could not overcome the bar of worker's compensation exclusivity by relying on the doctrine of transferred intent to assert the intentional tort of assault against a co-employee police officer who had the actual intent to cause bodily harm to a suspect they were chasing). Point One is granted as it relates to Passenger's claim because Passenger failed to make a submissible case of malice, as no evidence establishes or permits the inference that Naudet had the actual intent to injure Passenger. Naudet is thus shielded from liability on Passenger's negligence claim by the doctrine of official immunity. The Amended Judgment in favor of Passenger and against Naudet is reversed. III. Naudet's Challenge to the Definition of "Malice" in the Verdict Directors Is Moot as to Passenger's Claim and Fails to Demonstrate Prejudice Supporting Reversal as to Driver's Children's Claim (Point Two)

Naudet's second point on appeal claims error in instructing the jury because the verdict directing instructions for Plaintiffs' claims used a definition of malice that did not comport with substantive law because it "did not require a finding of wrongful intent." [Appellant's Brief, p. 29] The Missouri Approved Instructions ("MAI") for civil cases do not include a definition for "malice" as an exception to the doctrine of official immunity. Instructions 8 and 14 were the respective verdict directors for Driver's children's wrongful death claim based on the intentional tort of battery and Passenger's negligence claim. Both verdict directors included a requirement that the jury find that Naudet "acted with malice." Both verdict directors included a definition of malice as follows: "(1) an act contrary to duty and done with a wicked purpose; or (2) an act in reckless disregard of others' rights and an actual intent to injure or prejudice another." The definition was submitted by Plaintiffs who argued it complied with the definition of malice in Carlton v. Means, 688 S.W.3d 625 (Mo .App. E.D. 2024). We have serious reservations about the definition of malice included in the verdict directors, 25 but those reservations do not warrant relief.

25 As announced in State ex rel. Twiehaus, 706 S.W.2d at 447, and repeated in State ex rel. Love, 689 S.W.3d at 496-97, acts are committed with "malice" sufficient to overcome official immunity when a public official "wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial to another." As we explain, supra, his "test" thus requires a qualifying act (an act done wantonly that a reasonable person would know to be contrary to duty), and a qualifying mental state (the actual intent to injure), which is intent specific to the plaintiff alleging malice. An act can be wanton in two ways: when it is done with a wicked purpose, or when it is done needlessly as to manifest a reckless indifference to the rights of others. State ex rel. Twiehaus, 706 S.W.2d at 447. But, an act that is wanton under either possibility must still must be one that a reasonable person would know to be contrary to duty.

Naudet's second point on appeal is moot as it relates to Passenger's claim because we have already concluded that the trial court erred in denying Naudet's motion for JNOV. See Buckner v. Pillsbury Co., 661 S.W.2d 626, 628 (Mo. App. E.D. 1983) ("Plaintiffs' claim of error in Pillsbury's contributory negligence instruction, while meritorious, is rendered moot due to their failure to present a submissible case against Pillsbury."). Naudet's second point on appeal is immaterial to Driver's children's claim of wrongful death based on the intentional tort of battery because, for the reasons we have explained, the verdict director on that claim should not have submitted malice at all. But, Naudet does not argue that the verdict director on Driver's children's claim was erroneous because it should not have submitted the issue of malice at all. We will not make that argument for him. In any event, the inclusion of a required finding of malice in the verdict director could not have prejudiced Naudet because it operated to heighten Driver's children's burden of proof. And, though Naudet expresses concern that the definition of "malice" in the verdict director did not require the jury to find that he had the actual intent to injure Driver, that concern is facially negated by the fact that the verdict director

The definition of "malice" used in the verdict directors did not comport with the substantive law because: (i) it permitted the jury to find malice if it found an act done contrary to duty and with a wicked purpose without requiring a finding of actual intent to injure; (ii) it permitted the jury to find malice if it found an act in reckless disregard of other's rights with the actual intent to injure without requiring a finding that the act was contrary to duty; and (iii) with respect to the "reckless act" part of the submitted definition, it permitted the jury to find malice based on the actual intent to injure "another" when actual intent to injure the plaintiff alleging malice must be shown.

otherwise required the jury to find that Naudet "intentionally shot [Driver]," as an essential element of the intentional tort of battery. Point Two is denied. 26

IV. Whether Naudet Owed Passenger a Common Law Duty of Care Given Her Status as a Voluntary Passenger in a Fleeing Vehicle Need Not Be Determined in This Case (Point Three) In his third point on appeal, Naudet argues that it was error for the trial court to deny his motion for JNOV on Passenger's claim of negligence because law enforcement officers owe no duty of care to passengers voluntarily occupying a fleeing vehicle. Naudet's argument relies on the recent decision in Woolfolk v. St. Louis County, 689 S.W.3d 186 (Mo. App. E.D. 2024). We have already concluded that the evidence failed to establish malice as an exception to Naudet's affirmative defense of official immunity with respect to Passenger's claim of negligence. We need not determine whether Woolfolk affords an independent basis for reversing the Amended Judgment in favor of Passenger because Naudet owed her no duty at common law.

26 We acknowledge Plaintiffs' claim that Naudet failed to preserve his challenge to the definition of "malice" in Instructions 8 and 14 for appellate review. We tend to agree with Plaintiffs. Among other things, Naudet tendered proposed verdict directors that were identical to submitted Instructions 8 and 14, except they included an alternative definition of malice that would have required the jury to find that Naudet "act[ed] intentionally with an evil motive or act[ed] primarily for a purpose other than bringing an offender to justice." This definition of malice also fails to comport with the substantive law. We will not consider an instructional challenge on appeal when an appellant's proffered instruction suffered the same alleged deficiency as the challenged instruction. See Reyna Hotel Corp. v. Lotus Hosp. Mgmt., LLC, 714 S.W.3d 423, 439-40 (Mo. App. W.D. 2025).

Point Three is denied as moot by virtue of our reversal of the Amended Judgment in favor of Passenger on another ground. V. Claimed Error in Removing an Essential Element from the Verdict Director Submitted on Passenger's Negligence Claim Need Not Be Addressed (Point Four)

In his fourth point on appeal, Naudet argues that the trial court violated Rule 70.02 relating to the giving of civil jury instructions because the verdict director for Passenger's negligence claim removed an essential element and thus misstated substantive law. Whether the trial court properly instructed the jury is a question of law that this court reviews de novo. Hervey v. Missouri Dep't of Corr., 379 S.W.3d 156, 159 (Mo. banc 2012). Naudet argues that Instruction 14, the verdict director for Passenger's negligence claim, did not require the jury to determine whether Naudet was negligent. Passenger argues that paragraph second of the verdict director required the jury to find that Naudet acted with malice. Passenger thus argues that the failure to include a required finding in the verdict director that Naudet was negligent was harmless because malice would subsume any such finding. Passenger also argues that in any event, Naudet's claim of instructional error is not preserved for our review because Naudet did not raise this issue during the instructions conference as required by Rule 70.03. We need not address the merit of Point Four, nor the contention that the claim of error therein asserted is not preserved for our review. Point Four is rendered moot by our conclusion that the Amended Judgment in Passenger's favor must be reversed because

Passenger did not make a submissible case of malice as an exception to official immunity as a matter of law. Point Four is denied as moot. VI. Naudet's Claims that the Self-Defense Instructions Submitted in This Case Violated Rule 70.02, and that Self-Defense Pursuant to Section 563.046 Was Established by the Evidence as a Matter of Law, Are Without Merit (Points Five and Six)

In his fifth point on appeal, Naudet argues that it was error to deny his motion for JNOV because the evidence unambiguously established that his use of force was justified under section 563.046. In his sixth point on appeal, Naudet argues that the self-defense instructions submitted to the jury violated Rule 70.02 because they conflicted with substantive law. Both points involve Chapter 563 self-defense statutes more commonly deployed in criminal proceedings, but which are also implicated in civil cases where the use of force is argued to be in self-defense. A. Self-defense as codified in Chapter 563 is an absolute defense to civil liability, and the self-defense instructions in this case were submitted pursuant to the authority of Chapter 563

Section 563.031 describes the lawful use of force by someone in defense of themselves or another. Section 563.046 narrowly describes the lawful use of force by a law enforcement officer in making an arrest. Prior to 2007, these statutes, and others in Chapter 563 describing lawful justification for the use of force, only applied to criminal cases, as section 563.016 provided:

The fact that conduct is justified under this chapter does not abolish or impair any remedy for such conduct which is available in civil actions.

In 2007, however, the General Assembly enacted section 563.074.1, which provides: Notwithstanding the provisions of section 563.016, a person who uses force as described in sections 563.031, 563.041, 563.046, 563.051, 563.056, and 563.061 is justified in using such force and such fact shall be an absolute defense to criminal prosecution or civil liability.

Section 563.074.1 thus codified the availability of affirmative defenses to shield against all claims of civil liability, whether sounding in intentional tort or in negligence, where justification for the use of force has been injected by the defendant. 27

27 We express no opinion as to whether the plaintiff or the defendant in a civil case has the burden to disprove or prove, as the case may be, self-defense as recognized in Chapter 563 once the issue is injected into a case by the defendant. In a criminal case, the State has the burden to disprove self-defense beyond a reasonable doubt once the issue is properly injected by the defendant. State v. White, 92 S.W.3d 183, 191 (Mo. App. W.D. 2002) (holding that when self-defense is injected by the defendant in a criminal case, the burden shifts to the State to prove beyond a reasonable doubt that the defendant did not act in self-defense, and the jury must be so instructed with an affirmative defense instruction and with the addition of a paragraph in the verdict director requiring the jury to find that the defendant did not act in lawful self-defense in accordance with the submitted affirmative defense instruction). In contrast, it is ordinarily the case in a civil action that "[t]he party asserting an affirmative defense bears the burden of proof." Kansas City Power & Light Co. v. Bibb & Assocs., Inc., 197 S.W.3d 147, 156 (Mo. App. W.D. 2006). However, we are not aware of any case that has examined whether this general rule in civil cases applies to Chapter 563 self-defense claims asserted in a civil case by virtue of section 563.074. There is reason to question the matter. MAI 23.02, the approved instruction for submitting the intentional tort of battery, provides as follows: Your verdict must be for plaintiff if you believe: First, defendant intentionally (here describe act such as "struck") plaintiff, and Second, defendant thereby caused plaintiff bodily harm. [unless you believe that plaintiff is not entitled to recover by reason of Instruction Number ___ (here insert number of affirmative defense instruction)].

Here, consistent with section 563.074, affirmative defenses based on self-defense and justification were submitted to the jury on Driver's children's wrongful death claim (which relied on the intentional tort of battery) and on Passenger's negligence claim. For both claims, two affirmative defense instructions were submitted. The first, which was Instruction 9 as to Driver's children's wrongful death claim and Instruction 15 as to Passenger's negligence claim, submitted the defense afforded by section 563.031. The second, which was Instruction 10 as to Driver's children's wrongful death claim and Instruction 16 as to Passenger's negligence claim, submitted the defense afforded by section 563.046. Both instructions purported to modify MAI 32.11, the approved jury instruction for submitting self-defense in a civil action alleging the intentional tort of battery. As relevant to this case, the approved version of MAI 32.11 provides as follows: Your verdict must be for the defendant if you believe:

Plainly, decisional law long before the enactment of section 563.074 has consistently held that where an arresting police officer is the defendant in a civil case submitted on an intentional tort theory, the fact of use of unreasonable force is an element of the plaintiff's case that requires modification of MAI 23.02. Neal, 726 S.W.2d at 486-87 (citing State ex rel. Ostmann v. Hines, 128 S.W. 248, 248-49 (Mo. App. 1910); Manson v. Wabash R.R., 338 S.W.2d 54, 61 (Mo. banc 1960) (holding in a civil false arrest, false imprisonment, and assault case that "the officer in the first instance is the judge of the manner and means to be taken in making an arrest. Unless a plaintiff can show that unnecessary force was used, courts will protect the officer." (emphasis added)). Though the issue of where the burden lies to prove or disprove self-defense in a civil case by virtue of the enactment of section 563.074 remains an open question, that question need not be resolved here, as no claim of error involving the issue has been asserted by Naudet.

First, defendant had reasonable cause to apprehend and did apprehend [great bodily harm from plaintiff] [bodily harm from plaintiff] [offensive contact from plaintiff], 28 . . . and

Second, defendant did not create the situation that caused defendant's apprehension,

Third, the (describe act of defendant, such as "striking of plaintiff"), was in defense against this apprehended [great bodily harm from plaintiff] [bodily harm from plaintiff] [offensive contact from plaintiff], and

Fourth, defendant used only such force as was reasonable and necessary. With the exception of preliminary language identifying the proper plaintiff(s), the affirmative defense instructions submitted for Plaintiffs' claims were identical. 29

Specifically, Instruction 9 and Instruction 15, which submitted the defense contemplated by section 563.031, provided as follows: Your verdict must be for Defendant Tyler Naudet and against [named plaintiff(s)] if you believe:

First, defendant Tyler Naudet had reasonable cause to apprehend and did apprehend imminent danger of death, serious physical injury, or the commission of a forcible felony, and

Second, the shooting of [Driver] was in defense against this apprehended imminent danger of death, serious physical harm, or forcible felony, and

28 Paragraph first of MAI 32.11 must be modified to require a finding that a defendant believed he was in imminent danger of death or great bodily harm where the defendant's act involved shooting the plaintiff. Martin, 419 S.W.2d at 950. 29 It is not clear from the record who prepared the drafts of Instructions 9, 10, 15, and 16 that were discussed during the instructions conference and ultimately submitted to the jury. The self-defense instruction included in Plaintiffs' packet of proposed instructions filed with the trial court just a few days before trial suggested the use of a self-defense instruction that was virtually identical to MAI 32.11, modified as required by Martin v. Yeoham. The self-defense instructions included in Naudet's proposed jury instructions filed with the trial court just a few days before trial were lengthy approved criminal MAI self-defense instructions that were refused by the trial court during the instructions conference.

Third, Tyler Naudet reasonably believed that the use of deadly force was necessary to protect himself from death, serious physical injury, or the commission of a forcible felony.

As used in this instruction, the term forcible felony means any felony involving the use or threat of physical force or violence.

Instruction No. 10 and Instruction No. 16, which submitted the defense contemplated by section 563.046, provided as follows: Your verdict must be for Defendant Tyler Naudet and against [named plaintiff(s)] if you believe:

First, Defendant Tyler Naudet was a law enforcement officer making or attempting to make a lawful arrest or what he reasonably believed to be a lawful arrest of [Driver], and

Second, Defendant Tyler Naudet reasonably believed that [Driver] was attempting to escape by use of a deadly weapon or dangerous instrument, and

Third, the Defendant Tyler Naudet reasonably believed that the use of deadly force was immediately necessary to effect the arrest or prevent an escape from custody, and

Fourth, the shooting of [Driver] was objectively reasonable in light of the totality of the particular facts and circumstances confronting Deputy Naudet at the scene.

We turn to the merits of Naudet's fifth and sixth points on appeal, 30 though we address them in reverse order.

30 Points Five and Six are denied as moot to the extent they relate to Passenger's negligence claim, as we have already concluded that the Amended Judgment in Passenger's favor must be reversed for the reasons explained in this opinion.

B. In his sixth point on appeal, Naudet claims that the self-defense instructions submitted to the jury violated Rule 70.02 because they conflicted with substantive law. The essence of Naudet's argument is that MAI 32.11, the approved jury instruction for submitting self-defense in a civil battery case, has not been modified by the Supreme Court to comport with Chapter 563 self-defenses that are now applicable in civil cases by virtue of section 563.074. As a result, Naudet argues that Rule 70.02 required the trial court to submit the Missouri Approved Instructions-Criminal ("MAI-CR") submitting self-defense pursuant to sections 563.031 and 563.046. "Whether a jury was instructed properly is a question of law this [c]ourt reviews de novo." Hervey, 379 S.W.3d at 159. During the jury instructions conference, Naudet tendered proposed self-defense instructions drawn from (and virtually identical to) the MAI-CR for submitting self- defense pursuant to sections 563.031 and 563.046. The instructions were refused. The trial court expressly found that Comment G to MAI 32.11 incorporates section 563.074, which itself makes it clear that justifiable force pursuant to either section 563.031 or 563.046 is an absolute defense to criminal liability. The trial court thus found that pursuant to guidance from the civil instructions committee, "MAI 32.11 is the correct pattern instruction to submit any affirmative defense rooted in sections 563.031 and 563.046." Naudet argues that the trial court's refusal of the MAI-CR self-defense instructions he tendered violated Rule 70.02. We disagree.

Rules 70.01 through 70.03 are rules of civil procedure applicable to civil actions. See Rule 41.01(a). Rule 70.01 addresses the approval of jury instructions in civil actions. Rule 70.02(b) requires that where there is "an instruction applicable in a particular case . . . such instruction shall be given." Of necessity, this Rule is referring to approved civil jury instructions applicable to a particular civil case. MAI 32.11 is an approved civil instruction for use in submitting self-defense in a civil battery action. Driver's children's wrongful death claim was submitted based on a claim of battery. The trial court was obligated by Rule 70.02(b) to use MAI 32.11 to submit Driver's children's wrongful death claim to the jury. Rule 70.02(b) also authorizes a trial court to modify an approved MAI instruction "to fairly submit the issues in a particular case." Given the impact of section 563.074, the issues to be fairly submitted included claims of self-defense pursuant to sections 563.031 and 563.046. The trial court was thus authorized to modify MAI 32.11 to address the impact of section 563.074. Standing alone, the directives in Rule 70.02 required use of MAI 32.11, modified as required to submit the issues in Naudet's case, including the impact of section 563.074 on the approved instruction. In addition, as the trial court correctly noted, Comment G to MAI 32.11 addresses section 563.074, and provides as follows: In 2007, the Missouri legislature enacted what is commonly referred to as the "castle doctrine." Those provisions are contained in amendments to sections 563.011 et seq., RSMo, and specifically section 563.031, RSMo. Section 563.031 was amended again in 2010.

Section 563.031, RSMo, sets forth the parameters for the use of force in self-defense and defense of others. Under certain circumstances, it

authorizes the use of deadly force against one who unlawfully enters a dwelling place, residence, or vehicle. Section 563.031.2(2). The defendant shall have the burden of injecting the issue of justification. Section 563.031.5. The use of such deadly force must be "necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force." Section 563.031.5, RSMo.

Section 563.074, RSMo, enacted in 2007 makes the use of deadly force under the circumstances allowed in chapter 563 an absolute defense to criminal or civil liability.

Comment G thus contemplates that, pursuant to the authority of section 563.074, MAI 32.11 will need to be modified where self-defense under Chapter 563 is asserted in any civil case, including but not limited to a battery action. A simple comparison of MAI 32.11; submitted Instructions 9, 10, 15, and 16; and sections 563.031 and 563.046, reflect modifications to MAI 32.11 designed to submit Naudet's Chapter 563 self-defenses, consistent with the trial court's duty as described in Rule 70.02(b). 31 We reject Naudet's contention that the trial court violated Rule 70.02 by submitting self-defense instructions that modified MAI 32.11 instead of submitting the MAI-CR instructions he tendered. The only other issue raised in the argument developing Naudet's sixth point on appeal is that Naudet was prejudiced by the failure to use the MAI-CR instructions to submit self-defense because "the trial court's modified instruction created confusion, [a]ffecting the outcome of the jury's decision [in this] case." [Appellant's Brief, p. 49]

31 We express no opinion about whether the modifications to MAI 32.11 were sufficient or appropriate to submit self-defense pursuant to sections 563.031 or 563.046. Other than the absence of a definition of "reasonably believe," which we discuss, infra, in addressing Point Five on appeal, Naudet has not specifically challenged any of the modifications that were made, or not made, to MAI 32.11.

The only example of "confusion" described in Naudet's brief is his complaint that the submitted self-defense instructions modeled after MAI 32.11 did not define "reasonably believe," though the approved criminal instructions for self-defense do. It is true that the approved criminal instructions for submitting self-defense pursuant to section 563.031 (MAI-CR 406.06) and pursuant to section 563.046 (MAI-CR 406.14) include a definition of "reasonably believe" that must be included in all cases. However, Naudet never asked the trial court to include a definition of "reasonably believe" in the submitted self-defense instructions that were modeled after MAI 32.11. Although Naudet tendered approved criminal instructions for use in submitting self- defense, he never argued that the criminal instructions should be used because they include a definition for "reasonably believe." Nor did Naudet separately argue after his tendered criminal instructions were refused that the definition of "reasonably believe" used in the approved criminal instructions should be added to the modified versions of MAI 32.11 that were submitted to the jury. Naudet's claim of instructional error is thus not preserved for our review. Claims of instructional error require "specific objections to instructions considered erroneous." Rule 70.03; see also Holmes v. Kansas City Pub. Sch. Dist., 571 S.W.3d 602, 615 (Mo. App. W.D. 2018) (holding that "[t]o preserve a claim of instructional error, a specific objection must be made") (quoting Carroll v. Kelsey, 234 S.W.3d 559, 562 (Mo. App. W.D. 2007)). "No party may assign as error the giving or failure to give instructions unless that party objects thereto on the record during the instructions conference, stating distinctly the matter objected to and the grounds of the objection." Eads v. Taylor Auto.

Grp., LLC, 682 S.W.3d 825, 831 (Mo. App. S.D. 2024) (quoting Penzel Constr. Co. v. Jackson R-2 Sch. Dist., 635 S.W.3d 109, 127 (Mo. App. E.D. 2021)). Consistent with this requirement, the trial court unequivocally reminded counsel at the beginning of the instructions conference that "[y]ou['ve] got to make a record [during this instructions conference]. When we were having our informal conferences we weren't on the record, and I don't want anything to get missed." "Where specific objections to [civil] jury instructions were not made prior to submission of the case, the matter is not preserved for review except for plain error under Rule 84.13." Sasnett v. Jons, 400 S.W.3d 429, 437 (Mo. App. W.D. 2013) (quoting Martha's Hands, LLC v. Starrs, 208 S.W.3d 309, 315 (Mo. App. E.D. 2006)). Rule 84.13(c) provides that "[p]lain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." However, "plain error review is rarely applied in civil cases, and may not be invoked to cure the mere failure to make proper and timely objections." Sasnett, 400 S.W.3d at 437 (quoting Atkinson v. Corson, 289 S.W.3d 269, 276 (Mo. App. W.D. 2009)). Instead, reversal based on plain error in a civil case requires "the injustice of the error [to be] so egregious as to weaken the very foundation of the process and seriously undermine confidence in the outcome of the case." Id. at 438 (quoting Atkinson, 289 S.W.3d at 276-77). That standard is not met here. The unmodified version of MAI 32.11 includes the phrase "reasonable cause" in paragraph first to describe the defendant's apprehension of bodily harm or offensive contact, but does not require the phrase to be defined.

Similarly, other approved MAI affirmative defense instructions applicable to various civil battery fact patterns use the term "reasonable" without requiring a definition of the term. See MAI 32.08 (the affirmative defense instruction for use in a battery action where consent is claimed, which requires the jury to find that plaintiff consented to the acts of the defendant and to "the reasonable consequences thereof"); MAI 32.09 (the affirmative defense instruction for use in a battery action involving the ejectment of a trespasser, which requires the jury to find that the defendant "used only such force as was reasonable and necessary to remove plaintiff from the premises"); MAI 32.10 (the affirmative defense instruction for use in a battery action where defense of property is claimed, which requires the jury to find that the defendant "used only such force as was reasonable and necessary"). In fact, the word "reasonable" or "reasonably" appears in a number of approved MAI civil instructions without a required definition for the term. See, e.g., MAI 39.02 (the verdict director for violating the Missouri Merchandising Practices Act which uses the phrases "reasonable person" and "reasonable consumer" without defining those terms); MAI 32.13 (the verdict director for false imprisonment-shoplifting which uses the phrases "reasonable cause," "reasonable manner," and "reasonable length of time" without defining for those terms); MAI 24.01(B) (the verdict director in a Federal Employers' Liability Act case where constructive knowledge is disputed which uses the phrases "reasonably safe" and "reasonably adequate" without defining the terms); MAI 10.08 (the instruction for awarding penalties and attorney's fees in a vexatious-refusal-to- pay case which uses the phrase "without reasonable cause or excuse" without defining the

term). The only exception this court could locate is MAI 23.07 (the verdict director for malicious prosecution for initiating or continuing criminal or civil actions), which uses the term "reasonable grounds," and which requires the term to be defined in the manner set forth in MAI 16.05 for criminal actions or MAI 16.06 for civil actions. Under the circumstances, the trial court's failure to sua sponte include a definition for "reasonably believe" in the self-defense instructions submitted in this case was not plain error, let alone error so egregious as to weaken the very foundation of the process and to seriously undermine confidence in the outcome of Naudet's case. 32 Though Naudet summarily argues that the submitted self-defense instructions "created confusion" that "[a]ffect[ed] the outcome of the jury's decision," his assertion is neither developed nor self-proving, leaving no basis for this court to find a manifest injustice or miscarriage of justice warranting plain error relief. Sasnett, 400 S.W.3d at 438 (holding that to establish plain error, appellant must demonstrate that instructional error "so misdirected or failed to instruct the jury that it is evident that the instructional error affected the jury's verdict" resulting in a "manifest injustice or miscarriage of justice") (quoting Hensley v. Jackson Cnty., 227 S.W.3d 491, 497-98 (Mo. banc 2007); Atkinson, 287 S.W.3d at 277). Point Six is denied.

32 Because Naudet did not ask for a definition of "reasonably believe" to be included in the modified MAI 32.11 self-defense instructions submitted to the jury, we do not address whether the refusal of a requested definition for "reasonably believe" to submit self-defense under either section 563.031 or section 563.046 would be error.

C. In his fifth point on appeal, Naudet argues that it was error to deny his motion for JNOV because the defense of justification under section 563.046 was established by the evidence as a matter of law. We disagree. The instructions submitting self-defense pursuant to section 563.046 (Instructions 10 and 16) required the fact finder to determine whether Naudet reasonably believed he was making a lawful arrest of Driver; whether Naudet reasonably believed that Driver was attempting to escape by use of a deadly weapon or dangerous instrument; whether Naudet reasonably believed that the use of deadly force was immediately necessary to effect the arrest or prevent an escape from custody; and whether the shooting of Driver was objectively reasonable in light of the totality of the particular facts and circumstances confronting Naudet at the scene. These essential findings align with those required by section 563.046.2 and .3(2)(b) to establish justification for the use of deadly force in making an arrest. It is settled law in Missouri that "reasonableness" when addressing the use of force is an issue to be determined by the jury. See, e.g., State v. Jones, 686 S.W.3d 293, 303 (Mo. App. E.D. 2024) (holding that a "reasonable belief" in the context of exemption from criminal liability under section 571.030.1 "is a question of fact reserved for the jury's determination"); State v. Havens, 177 S.W.2d 625, 628 (Mo. 1944) (holding that an officer "may not use more force than was reasonably necessary to accomplish [an] arrest," and that "the officer is not arbitrarily the judge" of "the reasonable necessity . . . to kill in order to secure [a] prisoner," but instead that "whether such a necessity existed,

as a matter of fact, is a question for the jury 'to be determined from all the evidence of the case'"); State v. Parker, 199 S.W.2d 338, 340 (Mo. 1947) (citing Havens with approval). In light of section 563.074, the holdings in these criminal cases are of equal application in civil cases relying on Chapter 563 self-defense claims. Moreover, the holdings in the aforesaid criminal cases align with settled principles of general application in civil cases where "reasonableness" is at issue. See, e.g., Watters v. Travel Guard Int'l, 136 S.W.3d 100, 109 (Mo. App. E.D. 2004) (holding that "[g]enerally, a question of reasonableness is a question of fact for the jury rather than a question of law for the court") (citing Wunsch v. Sun Life Assurance Co., 92 S.W.3d 146, 153 (Mo. App. W.D. 2002)). The only exception to this general rule is where the "question of reasonableness can be determined as a matter of law based upon undisputed facts." Id. (citing Wunsch, 92 S.W.3d at 153). Naudet argues that this exception applies to his case. We disagree. Even if we assume, arguendo, that undisputed facts establish that Naudet reasonably believed he was making a lawful arrest of Driver (the first required finding submitted in Instructions 10 and 16), and that Naudet reasonably believed that Driver was attempting to escape by use of a deadly weapon or dangerous instrument, namely Driver's vehicle (the second required finding submitted in Instructions 10 and 16), we cannot say that undisputed facts establish that Naudet reasonably believed that the use of deadly force was immediately necessary to effect the arrest or prevent an escape from custody (the third required finding submitted in Instructions 10 and 16) or that the shooting of Driver was objectively reasonable in light of the totality of the

particular facts and circumstances confronting Naudet at the scene (the fourth required finding submitted in Instructions 10 and 16). With respect to the third required finding, the standard for the use of force described in section 563.046--that an "officer reasonably believes that such use of deadly force is immediately necessary to effect the arrest or prevent an escape from custody"--is a codification of Missouri law, as expressed in State v. Nolan, 192 S.W.2d 1016 (Mo. 1946), with "addition of the word 'immediately'" intended to "make[] it clear that the use of force is limited to situations where other less extreme methods of apprehension reasonably appear useless." Section 563.046 (Comment to 1973 Proposed Code). Here, whether Naudet's use of deadly force as to Driver was immediately necessary was disputed. Officer K.P., the Independence Police officer who was directly in front of Driver's car when Naudet began firing, testified as follows: Q. You didn't observe that car have a deliberate intent to strike anyone, did you? A. I did not. Q. You said that unfortunately you put yourself in a position you shouldn't have been in, correct? A. That's correct. Q. You were able to move out of danger, correct? A. Yes. Q. You didn't have to shoot or kill anyone to get out of danger, did you? A. No.

Video evidence submitted to the jury showed that Naudet was located to the left of Driver's car, and not directly in its path, when he began firing. Standing alone, this evidence created a jury question on the issue of whether Naudet's use of deadly force was immediately necessary to effect Driver's arrest or to prevent Driver from escaping because other less extreme methods of apprehension reasonably appeared to be useless. Officer K.P.'s testimony and video evidence, when considered in concert with evidence that other police officers at the scene were "shocked" and "surprised" at Naudet's acts, further supports the conclusion that the immediate need to use deadly force was a fact in dispute. We cannot say that "fair-minded people, exercising reasonable judgment, [would be unable to] reach different conclusions" on the issue of whether the use of deadly force was "immediately necessary," leaving that issue one of fact for the jury to determine. Watters, 136 S.W.3d at 109 (holding that an issue is a question of fact to be determined by the jury only "fair-minded people, exercising reasonable judgment, could reach different conclusions" on the issue) (quoting Wunsch, 92 S.W.3d at 153). For the same reasons, we cannot say that undisputed facts establish that Naudet's shooting of Driver was objectively reasonable in light of the totality of the particular facts and circumstances confronting Naudet at the scene, the fourth required finding submitted in Instructions 10 and 16. Naudet argues that evidence suggesting he could have retreated was relied on to create a disputed issue about whether his of deadly force was authorized, and that this is improper because section 563.046.1 provides that "[a] law enforcement officer need not retreat or desist from efforts to effect [an] arrest, or from efforts to prevent the escape

from custody." However, even accepting that Naudet had no statutory obligation to retreat or desist from his position (which is to say that Naudet had no obligation to remove himself from his position off the front side of Driver's vehicle), that "fact" is not self-proving of whether Naudet's use of deadly force to shoot Driver was "objectively reasonable in light of the totality of the particular facts and circumstances confronting the officer on the scene" (section 563.046.2), or of whether Naudet "reasonably believe[d] that such use of deadly force [was] immediately necessary" to effect an arrest or prevent an escape (section 563.046.3(2)). Those issues were in dispute independent of evidence suggesting that Naudet could have retreated from his physical position. The trial court did not commit error in denying Naudet's motion for JNOV on the issue of the affirmative defense of self-defense submitted pursuant to section 563.046. 33

Point Five is denied. VII.

The Trial Court Did Not Abuse Its Discretion in Permitting the Admission of Exhibits 50, 51, and 592 (Points Seven and Eight)

In his seventh and eighth points on appeal, Naudet claims error in the admission of Exhibits 50, 51 and 592, which were created by one of Plaintiffs' expert witness who testified at trial. In Point Seven, Naudet argues that the exhibits were erroneously admitted because they "were not practical, instructive, or calculated to assist the jury in

33 Though Naudet's point relied on only addresses self-defense as submitted pursuant to section 563.046, Naudet suggests that his arguments apply equally to self- defense as submitted pursuant to section 563.031. We also conclude that the trial court did not err in denying Naudet's motion for JNOV on the issue of self-defense submitted pursuant to section 563.031.

understanding the case and their prejudicial effect greatly outweighed their probative value, in that the exhibits were not used to controvert [Naudet's] testimony but to suggest a better course of action on the part of [Naudet] based on hindsight." [Appellant's Brief, p. 49] In Point Eight, Naudet argues that the exhibits were erroneously admitted because they included a yellow arrow that purported to represent Naudet's location, and the expert witness's opinion about Naudet's position "lacked sufficient foundation and was not the product of any reliable methodology, in that [the] opinion was not based on scientific or technical knowledge but on direct observation, which the jury was fully capable of doing themselves." [Appellant's Brief, pp. 53-54] We address these points collectively. 34

A trial court "is granted considerable discretion in deciding whether to admit or exclude evidence." Williams v. Mercy Clinic Springfield Cmtys., 568 S.W.3d 396, 416 (Mo. banc 2019). "A trial court's decision regarding admissibility of evidence is reviewed only for an abuse of discretion, such as when the ruling is clearly against the logic of the circumstances and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful, deliberate consideration." Id. at 416-17 (quoting Howard v. City of Kansas City, 332 S.W.3d 772, 785-86 (Mo. banc 2011)). However, we will not reverse even where a trial court is found to have abused its

34 Rule 81.16(a) mandates that "[i]f original exhibits are necessary to the determination of any point relied on, they shall be deposited in the appellate court by the appellant." Although Naudet did not deposit Exhibits 50, 51, and 592 with this court, Plaintiffs did. As a result, we have the ability to review the exhibits which are the subject of the claims of error presented in Naudet's seventh and eighth points on appeal.

discretion in admitting evidence "unless the error 'materially affected the merits of the action.'" Id. at 417 (quoting Shallow v. Follwell, 554 S.W.3d 878, 881 (Mo. banc 2018)). Here, the three exhibits in question were created by Plaintiffs' expert witness, who Naudet conceded at trial was qualified as an expert in media forensics, acoustic analysis, and psychoacoustics. Exhibits 50 and 51 are videos, with each including approximately 20 seconds of dashcam video from another officer's vehicle on the scene (which had been separately admitted without objection as Exhibit 46), and approximately 20 seconds of a neighbor's Ring camera video (which had been admitted without objection as Exhibit 49). Exhibits 50 and 51 displayed the dashcam video on top half, and Ring camera video on the bottom half, permitting the jury to watch both videos at the same time. Exhibit 50 slowed both videos to 25 percent speed, while Exhibit 51 played both videos in real time. Exhibit 592 was a powerpoint that showed the distance between the dashcam and Ring camera videos and the incident, and oriented the jury to the location of the cameras in relation to the incident. Though Exhibit 592 is mentioned in Points Seven and Eight, no effort has been made by Naudet in the argument developing either point on appeal to explain why admission of the powerpoint was erroneous. Instead, the arguments developing Points Seven and Eight focus only on Naudet's claims of error in admitting the videos, Exhibits 50 and 51. "A submission of error, being without reasoned argument does not require, or even allow, a decision." Kader v. Harris Stowe State Univ., 712 S.W.3d 820, 822 (Mo. App. W.D. 2024) (quoting Firestone v. VanHolt, 186 S.W.3d 319, 324 (Mo. App. W.D. 2005)). Because Naudet has failed to develop at all, let alone adequately, an argument to

support his claims of error with respect to the admission of Exhibit 592, those claims of error are deemed abandoned. Northup v. Bakula, 701 S.W.3d 678, 685 (Mo. App. E.D. 2024) (holding that appellant's failure to develop some claims asserted in a point relied on in the argument section of a brief waives the undeveloped claims); Eagle ex rel. Estate of Eagle v. Redmond, 80 S.W.3d 920, 924 (Mo. App. W.D. 2002) (holding that the failure to develop an argued claim of error asserted in a point relied on constitutes abandonment of the claim). Points Seven and Eight are denied with respect to the trial court's admission of Exhibit 592. We turn our attention to Exhibits 50 and 51. At trial, Naudet objected to the admission of Exhibits 50 and 51 on the basis that the demonstrative videos did not illustrate physical properties or scientific principles that an average lay person would find difficult to understand, and because similar evidence had already come in through the original dashcam and Ring camera videos and through the testimony of eye witnesses, so that the prejudicial effect of the videos outweighed their probative value. Naudet also objected to the admission of Exhibits 50 and 51 because the yellow arrow added to the Ring camera portion of each exhibit to show Naudet's position when shots were fired was not based on scientific or specialized knowledge, but instead on visual observations the jurors were capable of making on their own. The trial court overruled the objections, at which point Naudet sought a limiting instruction. The trial court agreed to give the limiting instruction sought by Naudet and instructed the jury that the expert's videos "should only be considered as a demonstration to illustrate [the expert's] scientific principles he relied on in coming to his conclusions."

Naudet has not complained on appeal about the admission of Plaintiffs' expert's testimony. In that testimony, the expert explained that there is a time delay between the audio and video features of the Ring camera video, and that because light travels faster than sound, the sound of Naudet's gunshots arrived at the Ring camera's microphone after the image of the gunshots. Utilizing his expertise with acoustic wave forms, the expert was able to determine the timing of Naudet's gunshots in relation to the movement of Cates's vehicle, and thus to the images shown on the videos. To do so, the expert performed a frame-by-frame analysis of the Ring camera video to account for the time delay between sound and image in order to make the audio and video synchronous. To assist the jury, the expert added a timer to the videos in Exhibits 50 and 51. And, the Ring camera video in Exhibits 50 and 51 was zoomed to remove a fisheye effect, while the images were brightened. However, there is no evidence or even argument that the dashcam video or the Ring camera video were altered, with the exception of the addition of the yellow arrow to follow Naudet's path as he moved in the Ring camera video, as its pixelated nature made it difficult to differentiate people. Naudet does not argue that Exhibits 50 or 51 were in any manner inaccurate even with respect to his complaint about the addition of the yellow arrow depicting Naudet's location on the Ring camera video. His arguments instead are that Exhibits 50 and 51 were cumulative of the raw dashcam and Ring camera videos, and of testimony about what happened on the scene, and that the videos depicted nothing more than what the jury could discern for itself from the raw videos.

We disagree. When addressing the admission of videos, "the proper inquiry is whether [they are] practical, instructive, and calculated to assist the trier of fact in understanding the case." Saint Louis Univ. v. Geary, 321 S.W.3d 282, 290 (Mo. banc 2009) (quoting Gomez v. Constr. Design, Inc., 126 S.W.3d 366, 374 (Mo. banc 2004)). Exhibits 50 and 51 satisfy this standard. The expert's testimony about the speed of sound and light, and the mathematical computations required to synchronize the two, are not matters the jury could discern for themselves. If the expert's testimony was not improperly admitted (and Naudet makes no contention that it was), then we are hard pressed to discern why Exhibits 50 and 51 were improperly admitted, especially as they were subject to a limiting instruction that reduced their value to serving as demonstrative evidence illustrating the scientific principles the expert relied on to come to his conclusions. The expert explained that the audio and video on the "raw" Ring camera video was not in sync given the difference between the speed of light and sound. Exhibits 50 and 51 demonstrated the synchronization of this data about which the expert testified. Without evidence time-syncing the audio and video, the "raw" Ring video camera footage was misleading, as it suggested that Naudet's gunshots occurred 1-12 video frames later than they really did, distorting Naudet's physical relationship to the Driver's vehicle when he fired shots. The same is true with respect to the expert's addition of a yellow arrow to the Ring camera video to follow Naudet's position as he moved in the grainy, highly pixelated video footage. We cannot say that the jury would have been able to distinguish Naudet from other images on the Ring camera video on their own, and even if they might have

been able to do so, the addition of the yellow arrow was plainly calculated to assist the jury in visualizing Naudet's physical relationship to the Driver's vehicle at the time shots were fired. The trial court did not abuse its discretion in admitting Exhibits 50 and 51. But, even if we were to question the admission of Exhibits 50 and 51, which we do not, Naudet has not explained how error in admitting the exhibits materially affected the merits of the action. Williams, 568 S.W.3d at 417 (holding that reversal following an abuse of discretion in the admission of evidence is not warranted unless the admitted evidence materially affected the merits of the action). Though Naudet complains in his brief that the videos, particularly the one that was played in slow motion, unfairly suggested that Naudet had a better course of action than that actually taken by him, Naudet fails to explain why evidence offered for that purpose was not admissible. Other evidence was admitted at trial for the same purpose, including, without limitation, testimony from Officer K.P., the Independence Police officer who, unlike Naudet, was directly in front of Driver's car, that he put himself in a position he should not have been in, that he was able to move out of danger, and that he did not have to shoot or kill anyone to get out of danger. Naudet has not established that the admission of Exhibits 50 and 51 materially affected the merits of this action. Points Seven and Eight are denied.

Conclusion The Amended Judgment in favor of Passenger is reversed, and pursuant to our authority set forth in Rule 84.14, we enter judgment in favor of Naudet on Passenger's negligence claim. In all other respects, the Amended Judgment is affirmed.

__________________________________ Cynthia L. Martin, Judge

All concur

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