Opinion
No. ED88734
October 16, 2007
Appeal from the Circuit Court of Lincoln County Hon. Dan Dildine.
Ryan R. Cox, St. Charles, MO, FOR APPELLANT.
Gregory H. Wolk, St. Louis, MO, FOR RESPONDENT,
KATHIANNE KNAUP CRANE, P.J. and KENNETH M. ROMINES, J., concur.
Sandra Bach ("Bach") appeals from the trial court's judgment of $15,000 against defendant, Winfield-Foley Fire Protection District ("Winfield"), and Winfield cross-appeals from the judgment. Bach argues the trial court erred in giving instruction numbers 7, 8, 9, 10, and Verdict A and in refusing Bach's instructions B, C, and "refused" Verdict A because any negligence of the driver, Samuel E. Madden ("Madden"), cannot be imputed to Bach, the passenger, and the trial court also erred in giving the compromise instruction number 7 and in refusing Bach's instruction B because there was substantial evidence to support the submission of the disjunctive theory of the negligent parking of the firetruck. In its cross-appeal, Winfield contends the trial court erred and abused its discretion in refusing to permit Winfield to amend its answer and assert a right of set-off and when it refused to offset its judgment by $25,000, the amount of Bach's settlement with Madden. Winfield also argues that if the judgment is reversed and remanded for a new trial as to liability, it should also be remanded for a new trial as to damages. We find the trial court committed no error and affirm.
On May 3, 2004 at about six o'clock in the evening, Bach was a passenger in a car she owned that was being operated by Madden, her nephew, who was sixteen years old at the time of the accident. Madden was driving Bach, at Bach's request, to a widower's meeting. Bach and Madden were traveling westbound on Route Y when their car collided with one of Winfield's emergency vehicles, a firetruck, that had been parked with its emergency lights on in a westbound lane of Route Y.
Bach filed suit against Winfield and Madden. In Bach's second amended petition, she alleged Winfield negligently failed to exercise the highest degree of care in the operation of its emergency vehicle in that it failed to adequately warn Bach of the blockage of the roadway; it stopped its emergency vehicle in a lane reserved for moving traffic; in order for a medical helicopter to evacuate people injured in a previous unrelated accident, it attempted to establish a landing zone at or near an intersection reserved for moving traffic, instead of in an area free of moving traffic; it failed to park its emergency vehicle within the intersection of Highway EE and Route Y; and it failed to direct and stop westbound traffic on Route Y. Bach alleged Winfield's negligence caused or contributed to cause her serious, permanent injuries.
In Winfield's answer, it argued, among other things, that Bach's own negligence contributed to her injuries and that Bach was engaged in a joint venture or joint journey at the time of the incident so Bach is responsible for the contributory fault of Madden as though it were her own fault. Winfield also filed a cross-claim for contribution against Madden alleging he was negligent in the incident.
Bach eventually settled her case with Madden for $25,000 and dismissed him from the suit. The case against Winfield went to trial, and the jury returned a verdict apportioning fifteen percent of the fault to Winfield and eighty-five percent to Bach. The jury also found the total amount of Bach's damages to be $100,000. Winfield moved to apply the $25,000 settlement Bach received from Madden against the judgment, and the motion was denied. The trial court entered its judgment ordering Winfield to pay Bach $15,000.
Subsequently, Bach filed a motion for new trial on the issue of liability, arguing the trial court erred in instructing the jury because Bach was a passenger so Madden's negligence could not be imputed to her. Further, Bach contended that the trial court erred in refusing to submit the alternative theories of negligence in Instruction No. 7.
The trial court denied Bach's motion for a new trial on the issue of liability as well as Winfield's motion for judgment notwithstanding the verdict or alternative motion for new trial as to damages and Winfield's post-trial motion to apply the amount of the settlement with Madden to reduce the judgment against Winfield. These appeals followed.
In Bach's first point, she argues the trial court erred in giving instruction numbers 7, 8, 9, 10, and Verdict A and in refusing Bach's instructions B, C, and "refused" Verdict A and in denying Bach's motion for a new trial on the issue of liability because the evidence did not support the submission of comparative fault as to Bach because any negligence of the driver, Madden, cannot be imputed to Bach. Bach maintains that she did not have a mutual right to control the car because she never learned how to drive. Bach also contends Madden, a minor, did not have the capacity to contract and, therefore, he could not be a member of a joint venture. We disagree.
Instruction 7 and refused instruction B will be discussed further in Bach's second point. Instruction 9 is printed below to demonstrate the comparative fault and imputation of negligence at issue in the instructions cited in Bach's first point. It provided:
In your verdict, you must assess a percentage of fault to plaintiff, whether or not defendant was partly at fault, if you believe:
First, the driver Samuel Madden failed to keep a careful lookout, and
Second, Samuel Madden was thereby negligent, and
Third, as a direct result of such negligence plaintiff sustained damage.
In assessing any such percentage of fault against plaintiff, you must consider the fault of Samuel Madden as the fault of plaintiff.
The trial court shall either give or refuse a jury instruction according to the law and the evidence in the case. Rule 70.02(a). The question of whether a jury was properly instructed is an issue of law, which we review de novo. Ploch v. Hamai, 213 S.W.3d 135, 139 (Mo.App. E.D. 2006). We review the evidence in the light most favorable to submission of the instruction. Id. We will reverse only if the error resulted in prejudice that materially affected the merits of the action.Id.
Generally, the negligence of a driver of an automobile will not be imputed to a mere passenger who has no control or authority over the automobile or over the driver. Mitchem v. Gabbert, 31 S.W.3d 538, 542 (Mo.App.S.D. 2000). However, the doctrine of joint venture constitutes an exception to this rule whereby joint venturers are jointly and severally liable for torts committed within the scope of the joint venture. Firestone v. VanHolt, 186 S.W.3d 319, 324 (Mo.App.W.D. 2005). A joint venture is a species of partnership. Id. A joint venture is different from a conventional partnership in that the former exists for a particular, defined purpose. Id. Though a joint venture is a consensual arrangement, no particular formalities are necessary. Id. In a joint venture, there is a mutual agency among the venturers for activities within the scope of the venture, and all have equal right of control. Id.
The term "joint venture" is usually considered in a commercial or business trip context; however, here it is used in the sense of a mutual enterprise within the concept of agency. For purposes of this opinion, no prejudice can result from the use of the term "joint venture" because the elements of that term, as contained in the definition, properly describe a relationship between plaintiff and her driver which permitted the negligence of the driver to be imputed to her and for which there is evidentiary support. It is not a matter of major significance that we characterize the relationship as a joint venture rather than "a joint journey or enterprise," (or similar term) in which the automobile owner retained control. Perricone v. DeBlaze, 655 S.W.2d 724, 725 (Mo.App. E.D. 1983).
In order for a passenger to be found to be engaged in a joint venture or enterprise involving the use of an automobile, the passenger must be found to have an equal right to be heard in the manner in which it is driven. Mitchem, 31 S.W.3d at 542. More specifically, the essential elements of a joint enterprise are (1) an agreement, express or implied, among the members of the group, (2) a common purpose to be carried out by the group, (3) a community of interests, among the group, in that purpose, and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. Id. at 541. To be sure, joint venture does not require any actual control, authority or direction, but only the right to control. Commerford v. Kreitler, 462 S.W.2d 726, 735 (Mo. 1971). In a case involving the theory of imputed negligence, the Supreme Court has held that where the passenger was the owner of the car, he or she was automatically entitled to a right of control. Manley v. Horton, 414 S.W.2d 254, 260 (Mo. 1967). The mutual "right of control" is over the operation of the vehicle. Id. More specifically, a right to control denotes an equal right in the passenger to be heard as to the manner in which it is driven. Id. "It is not the fact that he does or does not give directions which is important in itself, but rather the understanding between the parties that he has the right to have his wishes respected, to the same extent as the driver."Id.
Bach contends there was no agreement to share money for gas or other expenses associated with her trip with Madden. Further, Bach argues she did not know how to drive so there was no expectation that she would share any of the driving responsibilities with Madden, nor was there any expectation she would dictate the manner in which the car was to be driven. Bach relies primarily on Mitchem, which is easily distinguishable from this case because in Mitchem the court found that the negligence of the driver of a car, who was also the owner of the car, could not be imputed to a passenger because the passenger had no right to control the car. Mitchem, 31 S.W.3d at 538.
In this case, Bach owned the car, but was a passenger. As mentioned above, the Supreme Court has found ownership of a car automatically gives a passenger a right to control the car. Manley, 414 S.W.2d at 260. Furthermore, Madden testified that he and Bach had an informal agreement according to which Madden would take Bach to the meeting and, more generally, wherever she needed to go in exchange for the use of her car at other times. The fact that Bach did not know how to drive is of little consequence because the absence of knowledge with regard how to operate an automobile does not necessarily deprive one of the ability to recognize that a car is being driven in an unsafe or improper manner. The question is only whether Bach's opinion as to the manner in which Madden was driving the car was entitled to respect. In this case, her ownership of the car entitled her to tell Madden how to operate the car. Thus, Bach had an equal right to control it for purposes of imputing Madden's negligence to her under the theory of joint venture.
Bach also argues that Madden was a minor at the time of the accident, and thus could not participate in a joint venture. However, a minor can act as the agent of another for the purpose of operating an automobile.Wells v. Wells, 48 S.W.2d 109, 112 (Mo.App. 1932). Further, where a twelve-year-old nephew was driving his uncle, the owner of the car, to his home and became involved in an accident, the court found that the nephew's negligence could be imputed to the uncle on a theory of agency.Roland v. Anderson, 282 S.W. 752, 754 (Mo.App. 1926).
As mentioned above, joint venture is a species of partnership and there is mutual agency among the venturers. Firestone, 186 S.W.3d at 324. InWells and Roland, the courts found that a minor can act as the agent of another. Therefore, we find a minor can act as an agent for the purpose of being a member of a joint venture. Madden and Bach had an informal agreement with the common purpose of using Bach's car to get around. Bach's interest was getting Madden to drive her because she did not know how to drive, and Madden's interest was obtaining the use of Bach's car at other times. Both parties had a right to control the car: Bach as the owner and Madden as the driver. Therefore, Madden was acting as the agent of Bach, his aunt, and they were engaged in a joint venture when he was driving her to the meeting in her car.
Bach relied primarily on Commerford and Bell v. Green, 423 S.W.2d 724 (Mo. 1968) for her argument that a minor could not be a member of a joint venture. Those cases can be distinguished from this case because they involved the question of whether a minor may appoint an agent rather than whether a minor may act as an agent as in the instant case.
Therefore, the trial court did not err in giving instruction numbers 7, 8, 9, 10, and Verdict A and refusing instructions B, C, and "refused" Verdict A and in denying Bach's motion for a new trial on the issue of liability because the evidence supported the submission of comparative fault instructions as to Bach because any negligence of Madden can be imputed to Bach because Bach and Madden were engaged in a joint venture. Point denied.
In Bach's second point, she argues the trial court erred in giving instruction number 7 and refusing instruction B and in denying Bach's motion for new trial on the issue of liability because there was substantial evidence to support the submission of the disjunctive theory of the negligent parking of the firetruck within the intersection. We disagree.
To preserve a claim of instructional error for appellate review, counsel must make specific objections to the instruction at trial and again raise the error in the motion for a new trial. Hertz Corp. v. Raks Hospitality, Inc., 196 S.W.3d 536, 546 (Mo.App.E.D. 2006). In cases where an alleged error relating to an instruction differs from the objections made to the trial court, the error is not preserved. Seidel v. Gordon A. Gundaker Real Estate Co., Inc., 904 S.W.2d 357, 364 (Mo.App.E.D. 1995). However, we have discretion to review for plain errors affecting substantial rights, even when they are not raised or preserved. Rule 84.13(c). We will only find plain error where a manifest injustice or miscarriage of justice has resulted. Rule 84.13(c). Plain error is rarely used in civil cases. Martha's Hands, LLC v. Starrs, 208 S.W.3d 309, 315 (Mo.App.E.D. 2006)
In this case, Bach did raise the issue of the disjunctive theory of negligence in her motion for new trial. However, because Bach's objection to instruction number 7 at trial was limited to comparative fault and lack of a joint venture, this point is not preserved for our review. We will, nonetheless, exercise our discretion to review this point for plain error.
When an instruction is disjunctive, all submissions must be supported by substantial evidence. Foster V. Barnes-Jewish Hosp., 44 S.W.3d 432, 435 (Mo.App.E.D. 2001). To obtain reversal, the complaining party must show prejudice from the refusal of an instruction. Id. Where the instructions require the jury to apply a standard of care higher than that required by law, the instructions are erroneous. Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 161-62 (Mo. 2000).
The trial court submitted Instruction 7, which was a compromise instruction, to the jury. Instruction 7 stated:
Instruction 7 was based on "MAI 6th 17.02 modified by 17.20 and 37.01 and Not in MAI."
In your verdict you must assess a percentage of fault to defendant whether or not plaintiff was partly at fault if you believe:
First: defendant stopped its motor vehicle in a lane reserved for moving traffic, and failed to adequately warn Samuel Madden of the blockage of Route Y by defendant's firetruck, and
Second, defendant in any one or more of the respects submitted in paragraph First, was thereby negligent, and
Third, as a direct result of such negligence, plaintiff sustained damage.
For purposes of comparison, Bach's refused instruction B stated:
Bach's proposed instruction was based on "MAI 6th 17.02 modified by 17.20 and Not in MAI."
Your verdict must be for plaintiff if you believe:
First, either: defendant stopped its motor vehicle in a lane reserved for moving traffic, or defendant failed to adequately warn Samuel Madden of the blockage of Route Y by defendant's firetruck, or defendant failed to park its motor vehicle within the intersection of Highway EE and Route Y, and
Second, defendant in any one or more of the respects submitted in paragraph First, was thereby negligent, and
Third, as a direct result of such negligence, plaintiff sustained damage.
The procedure for automobiles approaching emergency vehicles is set forth in Section 304.022.2, RSMo Cum. Supp. 2007, which provides that "[u]pon approaching a stationary emergency vehicle displaying lighted red or red and blue lights, the driver of every motor vehicle shall: (1) Proceed with caution and yield the right-of-way, if possible with due regard to safety and traffic conditions. . . ." Section 304.022.5 further provides that "[t]he driver of an emergency vehicle may: (a) Park or stand irrespective of the provisions of sections 304.014 to 304.025." Sections 304.014 to 304.025 constitute the general rules of the road for all drivers and also spell out certain exceptions for emergency vehicles.
All further references are to Cum. Supp. 2007 unless otherwise indicated.
Bach argues that Section 300.100 also regulates emergency vehicles and requires that irrespective of other provisions, emergency vehicles must be driven with due regard for the safety of all persons. However, Section 300.100 is part of the model traffic ordinance, and Section 300.600 provides in pertinent part "[t]his ordinance or any designated part thereof shall become effective in any city of the state upon the adoption thereof by the legislative body of the city by an ordinance appropriately describing this ordinance or the part thereof adopted." Because there is no evidence in the record that Section 300.100 has been adopted by the city or county where the accident took place, we find Section 300.100 is inapplicable. See Board of Educ. of City of St. Louis v. Daly, 129 S.W.3d 405, 408 (Mo.App.E.D. 2004).
In Dick v. Scott Construction Co., 539 S.W.2d 688, 690 (Mo.App. 1976), the plaintiff ran into the back end of a road grader backing up in a northbound traffic lane. The plaintiff submitted a verdict directing instruction which read,
Your verdict must be for plaintiff on plaintiff's claim for damages if you believe:
First, defendant operated its motor grader in a lane reserved for moving traffic, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence the plaintiff sustained damage. . . .
Id. The court found that the plaintiff's verdict director was erroneous because it failed to hypothesize a negligent act on the part of the defendant. Id. The jury was instructed to hold the defendant liable if they found the road grader was being operated in a lane reserved for moving traffic and that defendant was thereby negligent. Id. However, the plaintiff's theory was not that the defendant was negligent because of the fact that the road grader was in a lane reserved for moving traffic, but rather that it was the presence of the road grader in the northbound lane without giving adequate warning to motorists of the presence of the grader. Id. The plaintiff's verdict director spoke only of the fact that defendant "operated" its road grader in a lane reserved for moving traffic which plaintiff admitted was not, without more, negligence. Dick, 539 S.W.2d at 691. Therefore, the court found that the first paragraph failed to hypothesize any facts which constitute negligence under the circumstances of this case.Id.
Unlike in Dick, Bach maintains in her refused instruction B that Winfield could be negligent for merely blocking a traffic lane without any accompanying failure to warn. Id. However, Winfield was within its rights to block a lane of traffic with its emergency vehicle according to Section 304.022. Therefore, Winfield's blockage of the lane was not negligent per se. In a proper jury instruction, Winfield's blockage of the lane had to be connected to a negligent failure to adequately warn Bach.
Because Winfield was within its rights to stop its motor vehicle in a lane reserved for moving traffic and all submissions in a disjunctive instruction must be supported by substantial evidence, the law did not support the submission of Bach's disjunctive refused instruction B.Foster, 44 S.W.3d at 435. Thus, we find it was not plain error for the trial court to refuse Bach's refused instruction B. Further, because Bach's theory that Winfield was negligent for failing to park the firetruck within the intersection was only included as part of refused instruction B, the improper disjunctive instruction, she was not entitled to an instruction on that theory. Point denied.
In Winfield's first point on cross-appeal, it argues the trial court erred and abused its discretion in refusing to permit Winfield to amend its answer and assert a right of set-off, and in refusing to offset its judgment by $25,000, the amount of Bach's settlement with Madden, because the matter and amount of the settlement was tried by consent and the only reason for not allowing the set-off is Winfield's untimely request for leave to amend its petition to request the set-off. We disagree.
The argument that this matter was tried by consent is without merit because no evidence was adduced by Winfield on this issue at trial.
The trial court has broad discretion to grant a party leave to amend a pleading. Rule 55.33; In re Estate of Goldschmidt, 215 S.W.3d 215, 223 (Mo.App.E.D. 2006). We will disturb a trial court's denial of a motion to amend a pleading only if the decision is clearly erroneous. In re Estate of Goldschmidt, 215 S.W.3d at 223. However, it is considered an abuse of discretion to refuse to grant leave to amend a pleading when justice so requires. Sloan-Odum v. Wilkerson, 176 S.W.3d 723, 725 (Mo.App.E.D. 2005). In determining whether the trial court erred in denying leave to amend, we consider: 1) the hardship to the moving party; 2) the reasons for the moving party's failure to include the matter in the original pleadings; and 3) the injustice to the nonmoving party should leave to amend be granted. Id.
Winfield bases its claim for set-off on Section 537.060. Section 537.060 provides:
Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tort-feasors for the damage unless the terms of the agreement so provide; however such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater. The agreement shall discharge the tort-feasor to whom it is given from all liability for contribution or noncontractual indemnity to any other tort-feasor. . . .
A reduction of a judgment under Section 537.060 must be pleaded and proved as an affirmative defense. Rule 55.08; Norman v. Wright, 153 S.W.3d 305, 306 (Mo. banc 2005).
In this case, on February 27, 2006, Bach filed a "Stipulation for Dismissal of Samuel E. Madden," which stated "[a]ll matters and things in controversy between these parties having been finally and fully settled and disposed of, it is stipulated and agreed that this cause may be and is hereby dismissed with respect to Defendant Samuel E. Madden. . . ." On June 3, 2006, Winfield filed a request for admissions seeking information about Bach's settlement with Madden. On July 6, 2006, Bach responded to Winfield's June 3, 2006 request for admissions, stating "[Bach] admits she settled her case against Samuel E. Madden for $25,000.00." On July 7, 2006, the trial court entered an order giving Winfield until July 18, 2006 to file its responsive pleadings to Bach's second amended petition. Winfield failed to include its right to set-off in its answer to Bach's second amended petition.
On July 20, 2006, the jury delivered its verdict. After the verdict was read, but before the trial court had entered its judgment, Winfield orally moved to apply the $25,000 settlement with Madden against the verdict. Bach countered that Winfield was required to plead and prove the set off as an affirmative defense under Section 537.060. The trial court entered judgment on the jury's verdict and denied Winfield's motion because Winfield had neither pleaded nor proved the affirmative defense of reduction under Section 537.060. Winfield also moved for leave to amend its answer, arguing that Winfield had never been notified "by way of a pleading" that Bach had reached a settlement with Madden. There was discussion of whether Winfield was properly served with notice of the settlement with Madden. Then the trial court entered judgment for $15,000 for Bach and stated that there were "thirty days to file a post-trial motion if you wish to do so."
Winfield admits in its brief that it was aware before the trial that there had been a settlement. Winfield further admits that it "could have sought discovery some weeks earlier to determine how much was the settlement amount, for the purposes of asserting [its] right of set off."
On August 17, 2006, Gregory H. Wolk, counsel for Winfield, filed an affidavit stating that he had to date received no response to Winfield's June 3, 2006 request for admissions, which sought information about the settlement with Madden. However, the supplemental legal file filed by Wolk contradicts this assertion because it contains a copy of Bach's response to Winfield's request for admissions regarding the settlement with Madden, and Bach's response was filed on July 6, 2006. Also, on August 17, 2006, Winfield filed a post-trial motion requesting the trial court to apply the settlement amount to reduce judgment against Winfield or to grant Winfield leave to amend its answer to assert its right of set-off of the settlement with Madden.
On September 18, 2006, Winfield's post-trial motion to apply the settlement amount to reduce judgment against Winfield and for leave to amend its answer was called, heard, argued, and taken under advisement, and on September 20, 2006, the trial court denied this motion.
Winfield did not include its right to set-off in its answer. Thus, it failed to plead and prove the affirmative defense of set-off, and was not entitled to have the $25,000 settlement applied toward the judgment against Winfield. Norman, 153 S.W.3d at 306.
Winfield relies on the case of Hoover v. Brundage-Bone Concrete Pumping, Inc., 193 S.W.3d 867 (Mo.App.S.D. 2006) to support its contention that the trial court should have granted Winfield leave to amend its answer. This case is distinguishable from Hoover where the defendants argued the trial court abused its discretion in refusing to allow them to amend their answer with the defense of set-off because they first became aware of plaintiff's Section 537.060 settlement after the trial and their lack of awareness was the result of plaintiff's failure to supplement a prior interrogatory answer regarding any settlement monies received by plaintiffs. Hoover, 193 S.W.3d at 870. In Hoover, the defendant could not have included the set-off defense in its earlier pleadings because there was no settlement until approximately seventeen days before trial, the defendants never knew about the settlement until after trial, and the defendants' lack of knowledge was not the result of inattention or lack of diligence on their part. Id. at 872. Rather, the defendants were kept in the dark about the settlement because the plaintiffs did not supplement their interrogatory answers as required by discovery rules. Id. The court found that refusing to allow an amendment to the pleading under these circumstances constituted an abuse of the trial court's discretion.Id. at 873.
In this case, on February 27, 2006, Bach filed a "Stipulation for Dismissal of Samuel E. Madden," which gave notice of her settlement with Madden. Further, the record shows that Bach filed a response to Winfield's June 3, 2006 request for admissions on July 6, 2006, stating "[Bach] admits she settled her case against Samuel E. Madden for $25,000.00." On July 7, 2006, the trial court entered an order giving Winfield until July 18, 2006 to file its responsive pleadings to Bach's second amended petition. Winfield failed to include its right to set-off in its answer to Bach's second amended petition. Because information on the $25,000 settlement with Madden was filed on July 6, 2006 and Winfield had until July 18, 2006 to file its responsive pleading, the trial court's decision not to allow Winfield to amend its answer was not clearly erroneous.
Under the circumstances of this case, we find the trial court did not abuse its discretion in refusing to permit Winfield to amend its answer to assert a right of set-off or when it refused to offset its judgment by $25,000. Point denied.
In Winfield's second point on cross-appeal, it argues that in the event that the trial court's judgment is reversed and Bach's claim is remanded for a new trial as to liability, the cause should also be remanded for a new trial as to damages. Having found that the trial court did not err in its determination of liability, we need not address this point.
The judgment is affirmed.
Kathianne Knaup Crane, P.J. and Kenneth M. Romines, J., concur.
OPINION SUMMARY
Sandra Bach ("Bach") appeals from the trial court's judgment of $15,000 against defendant, Winfield-Foley Fire Protection District ("Winfield"), and Winfield cross-appeals from the judgment. Bach argues the trial court erred in giving instruction numbers 7, 8, 9, 10, and Verdict A and in refusing Bach's instructions B, C, and "refused" Verdict A because any negligence of the driver, Samuel E. Madden ("Madden"), cannot be imputed to Bach, the passenger, and the trial court also erred in giving the compromise instruction number 7 and in refusing Bach's instruction B because there was substantial evidence to support the submission of the disjunctive theory of the negligent parking of the firetruck. In its cross-appeal, Winfield contends the trial court erred and abused its discretion in refusing to permit Winfield to amend its answer and assert a right of set-off and when it refused to offset its judgment by $25,000, the amount of Bach's settlement with Madden. Winfield also argues that if the judgment is reversed and remanded for a new trial as to liability, it should also be remanded for a new trial as to damages.
AFFIRMED.
Division One Holds: The trial court did not err in giving instruction numbers 7, 8, 9, 10, and Verdict A and refusing instructions B, C, and "refused" Verdict A and in denying Bach's motion for a new trial on the issue of liability because the evidence supported the submission of comparative fault instructions as to Bach because any negligence of Madden can be imputed to Bach because Bach and Madden were engaged in a joint venture. In addition, it was not plain error for the trial court to refuse Bach's refused instruction B because the law did not support the submission of Bach's disjunctive refused instruction B. Finally, the trial court did not abuse its discretion in refusing to permit Winfield to amend its answer to assert a right of set-off or when it refused to offset its judgment by $25,000.