Verdicts & Settlements January 16, 2012: Jury favors defense in slip- and-fall suit [Missouri Lawyers Media]

A Morgan County jury determined that the owners of a Lake of the Ozarks lake house were not responsible for debilitating injuries a guest suffered.

The verdict came down after a trial during which the plaintiffs' lawyer claims the defendants' attorney misled the jury into thinking the plaintiffs already received compensation for their injuries from the homeowners' insurer.

In July 2006, 69-year old Vera Kirn and her family were vacationing at a lake house owned by Alphonse and Shirley Doering. The Kirns had rented the house, on the Lake of the Ozarks in Morgan County, from the Doerings. On the last day of the vacation, Vera Kirn fell down the porch's stairs, injuring her back, shoulder, legs and knees. Her family drove her to a hospital in Kansas City. The injuries incapacitated Kirn, requiring her to use a wheelchair. She had about $90,000 in medical bills, including for surgery to reattach a kneecap.

The Kirns sued the Doerings in April 2008. In their petition, the Kirns claimed that the Doerings failed in their duty as owners to ensure the stairs were safe. In particular, the Kirns claimed the stairs and their handrail were too narrow, and that there were too many stairs in a row without a landing between them.

At trial, the Kirns sought $290,000 in damages.

In their answer, the Doerings denied all of the claims leveled at them. They also claimed that Vera Kirn's injuries were primarily a result of her own negligence and that any recovery should be reduced by her share of fault.

At the August trial, each side brought a construction expert to testify about the porch's construction. During the trial, a dispute arose when a member of the jury asked Michael Maguire, the Doerings' attorney, whether his clients had homeowners' insurance. Maguire responded that insurance was not involved. According to an affidavit filed by a juror, the jury took his response to mean that the Kirns already had received payment from insurance and were "going after more money from the homeowners individually."

Jonathan Lourenco, the Kirns' attorney, objected to the judge because he knew the Kirns had not received any settlement from the Doerings' insurance company, Safeco. Despite his objection, he did not request a mistrial because, he said, he didn't want to wait up to a year for another trial with his client in failing health. Judge Kenneth Michael Hayden gave a corrective instruction to the jury to not consider whether insurance was involved but did not allow Lourenco to tell the jury about the Kirns' claim. After a three-day trial, the jury found the Doerings weren't responsible for Vera Kirn's injuries.

Maguire said it was irrelevant whether insurance was involved because the jury is not supposed to consider that when deliberating on personal injury cases. He also noted that Lourenco still filed a motion seeking a new trial after the jury ruled against him. The judge denied that motion in December.

"Jonathan waived any right to complain about it because he did not ask for a mistrial [during the trial]," Maguire said.

Maguire, of Brown & James in St. Louis, said Vera Kirn's medical record was the strongest evidence in the case. The record indicates that Kirn told a hospital attendant that she "simply tripped" on the porch.

"That was really the only evidence of why she fell," Maguire said. "'I simply tripped.' It's kind of hard to make a good case when that's out of her own mouth."

Lourenco, of Lourenco & Linville in Lee's Summit, said he knew it was a difficult case.

"When you have a case when you've got an older lady and nobody saw her fall, and she can't testify, it makes it a tough case," Lourenco said. "We knew it was tough going in."

But he said he's convinced the flap over the insurance claim hurt his case.

  Defense verdict

Premises liability

Venue: Morgan County Circuit Court

Case Number/Date: 08MG-CC00029/Aug. 31, 2011

Judge: Kenneth Michael Hayden

Plaintiffs' Expert: Kenneth Davidson, Lake Ozark (construction)

Defendants' Expert: Richard Unger, St. Louis (construction)

Last Pretrial Demand: $40,000 ($500,000 policy limit)

Last Pretrial Offer: $3,000

Insurer: Safeco

Caption: Vera and Gail Kirn v. Alphonse L. and Shirley J. Doering

Plaintiffs' Attorney: Jonathan Lourenco, Lourenco & Linville, Lee's Summit

Defendants' Attorney: Michael Maguire, Brown & James, St. Louis