LONG v. SALTZMAN (2026)

Introduction

Angie Long (Long) appeals from the trial court's judgment entered upon a jury verdict in her favor and against Louise F. Saltzman (Saltzman), but reducing the amount by the 33 percent fault assessed to Long. We reverse in part and affirm in all other respects.

Background

In November 2019, Long filed a petition alleging Saltzman negligently caused a collision with her vehicle on August 3, 2017. As depicted in Plaintiff's Exhibit 8(a), Saltzman testified she was stopped in a U-turn lane turning onto Manchester Road when she accelerated between 30 and 35 miles per hour to make a sharp right turn across a solid white line from the farthest left lane of traffic across three lanes of traffic to enter a parking lot. In doing so, she failed to see Long who was driving straight in the farthest right lane. Long testified she was driving the speed limit. She attempted to avoid the accident as soon as she saw Saltzman by braking and turning to her right.

Long sought damages for her pain and personal injuries. The cause proceeded to trial in 2025. Following the close of evidence, the parties submitted instructions for the jury. Saltzman initially submitted a comparative fault instruction based on the failure to keep a careful lookout and excessive speed, which the trial court rejected. The court did permit a second proposed Instruction No. 9 for comparative fault, omitting the excessive speed language. Immediately following was Instruction No. 10, which stated:

If you assess a percentage of fault to Defendant Louise Saltzman, then, disregarding any fault on the part of Plaintiff Angie Long, you must determine the total amount of Plaintiff's damages to be such sum as will fairly and justly compensate Plaintiff for any damages you believe Plaintiff sustained and is reasonably certain to sustain in the future that the automobile collision of August 3, 2017, directly caused or contributed to cause. You must state such total amount of Plaintiff's damages in your verdict.

In determining the total amount of Plaintiff's damages, you must not reduce such damages by any percentage of fault you may assess to Plaintiff. The judge will compute Plaintiff's recovery by reducing the amount you find as Plaintiff's total damages by any percentage of fault you assess to Plaintiff. (emphasis added)

The jury returned a verdict of $115,000 but assessed 67 percent fault to Saltzman and 33 percent fault to Long. As a result of the fault assessed to Long, the trial court entered judgment on the jury's verdict, and reduced her damages to $77,050. Long filed a motion for new trial, which the trial court denied. This appeal follows.

Discussion

In her sole point on appeal, Long argues the trial court erred in submitting Instruction No. 9, the comparative fault instruction based on her alleged failure to keep a careful lookout, because the instruction was not supported by substantial evidence. She claims no evidence was presented at trial she could see Saltzman's vehicle in time and with means to avoid the collision. Instead, she contends the evidence showed only she was driving the speed limit in her own lane, she did not see Saltzman's vehicle until it entered her lane, when she immediately braked and swerved to the right in her attempt to avoid the collision.

Standard of Review

We review the question of whether the jury was properly instructed de novo. Hayes v. Price, 313 S.W.3d 645, 650 (Mo. banc 2010) (citing Bach v. Winfield-Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo. banc 2008)). We view the record in the light most favorable to the submission of the instruction. Id. An instruction based on comparative fault must be supported by substantial evidence. Collier v. Steinbach, 597 S.W.3d 317, 321 (Mo. App. E.D. 2019) (internal citation omitted). “Substantial evidence is evidence which, if true, is probative of the issues and from which the jury can decide the case.” Powderly v. S. County Anesthesia Assocs. Ltd., 245 S.W.3d 267, 276 (Mo. App. E.D. 2008) (citing Romeo v. Jones, 144 S.W.3d 324, 330 (Mo. App. E.D. 2004)). If the evidence supports a finding the conduct of both parties contributed to cause injury, the jury should not be prevented from assessing respective percentages of fault to each party. Collier, 597 S.W.3d at 321 (internal citation omitted).

Analysis

Instruction No. 9 was submitted to the jury on the basis of Long's alleged comparative fault for “failure to keep a careful lookout.” Missouri drivers have a duty to keep an attentive lookout, and the basis of a claim for failure to do so is the failure to see and act. Savage v. Dittrich, 589 S.W.3d 628, 633 (Mo. App. E.D. 2019) (internal citations omitted). This instruction is proper only if there is substantial evidence in the record to show if the allegedly negligent driver had kept a careful lookout, he or she could see the other vehicle in time to take “effective precautionary action.” Id. (quoting Rouse v. Cuvelier, 363 S.W.3d 406, 412 (Mo. App. W.D. 2012)). The inquiry is twofold: first, if the driver was keeping a careful lookout, could he or she see the danger; and second, if the driver was able to see the danger, could he or she take some precautionary measure to prevent the accident. Id. (citing Hayes, 313 S.W.3d at 650).

Long relies heavily on Hayes, in which the Missouri Supreme Court concluded a comparative fault instruction based on the plaintiff's failure to keep a careful lookout was not supported by substantial evidence. Id. at 652. In Hayes, a motorcyclist was traveling straight through an intersection on a green light with the right-of-way when the driver of a vehicle turned left into him, causing a collision. Id. at 648, 649. The Supreme Court found although there was evidence from which the jury could have concluded the motorcycle driver had the ability to observe the driver's vehicle, the motorcyclist had the right of way as he approached the intersection. Id. at 650. As a result, the motorcyclist was justified to assume the driver would yield to oncoming traffic until he was reasonably aware she would not do so. Id. Until he was so aware, he was not required to take evasive action. Id. at 652. The Court held there was no evidence a reasonable driver could or should have had any indication of danger proceeding through the intersection with the right-of-way to allow him the means and ability to see the driver and take evasive action; therefore, the comparative fault instruction based on failure to keep a careful lookout was improperly submitted to the jury. Id.

The collision in this case similarly occurred when Long was traveling straight on eastbound Manchester Road at the speed limit in the farthest right lane. The testimony and evidence, including an overhead diagram of the collision submitted at trial, established Saltzman was stopped in the farthest left U-turn lane and then “gunshotted to go across” three lanes of traffic, directly into Long's path in the far right lane. Long testified she could see a “fairly long distance” ahead on Manchester Road, and she did not see Saltzman's vehicle until it was in her lane.

Based on the record before us, Long could not reasonably expect Saltzman would suddenly speed up across multiple lanes of traffic into Long's lane of travel. There was no evidence to show Long could or should see any indication of danger when traveling the speed limit straight on Manchester Road in the far right lane in time to allow her to have the means and ability to use evasive action to avoid the accident. In fact, the evidence shows as soon as Long saw Saltzman's vehicle, she immediately took action to avoid the collision. Thus, the failure to keep a careful lookout instruction was improperly submitted to the jury. As in Hayes, the improper submission of comparative fault resulted in prejudice because Long was assessed a percentage of fault and her damages were reduced accordingly. Id. at 652. Thus, we reverse the portion of the judgment assessing 33 percent fault to Long.

Long argues a new trial is merited rather than a modified judgment because the issues of damages and fault are so “interwoven.” We are unpersuaded by the several cases upon which she relies. These cases are not directly on point because they are factually and procedurally distinct and do not support her argument such relief is warranted on the record before us. See e.g. Phillips v. Lively, 708 S.W.2d 369 (Mo. App. W.D. 1986) (appellate review for abuse of discretion after plaintiff prevailed in the trial court and was awarded new trial on all issues); Kramer v. Chase Resorts, Inc., 777 S.W.2d 647 (Mo. App. E.D. 1989) (trial court erroneously refused comparative fault instruction); Rider v. The Young Men's Christian Assoc. of Greater Kansas City, 460 S.W.3d 378 (Mo. App. W.D. 2015) (error submitting comparative fault instruction and appellate court entered modified judgment awarding full damages amount to plaintiff).

Indeed and most persuasive, the record before us reflects the next instruction given to the jury, Instruction No. 10, directed the jury to specifically disregard “any fault on the part of Plaintiff Angie Long” and “determine the total amount of Plaintiff's damages to be such sum as will fairly and justly compensate Plaintiff․” (emphasis added). As a result, we presume the jury, as instructed, determined the total amount of damages Long sustained without regard to her fault. See Rider, 460 S.W.3d at 386 (juries are presumed to follow instructions given by the trial court).

Conclusion

Missouri Supreme Court Rule 84.14 authorizes us to modify the judgment by eliminating the reduction in damages due to erroneous assessment of comparative fault. See also Hayes, 313 S.W.3d at 656 (internal citation omitted). The judgment of the trial court assessing 33 percent fault to Long is reversed. Judgment is entered to assess 100 percent fault to Saltzman and award Long $115,000, the full amount of damages assessed by the jury. The trial court's judgment is affirmed in all other respects.

Lisa P. Page, Presiding Judge

Rebeca Navarro-McKelvey, Judge and Kathleen S. Hamilton, Judge concur.