## Facts

- Rosemary Bray fell in the Gateway Arch Parking Garage, operated by Bi-State Development Corporation, while walking on an elevated pedestrian refuge area that dropped down to the parking surface.
- Bray saw a yellow line and believed it marked a parking space rather than a curb edge; when the refuge area ended, she lost her balance and fell, breaking her shoulder, arm, and kneecap.
- At the time of the fall, the garage operated under a daylight policy that turned off every other high sodium light; the circuit design permitted the alternating pattern, and the light above the fall area was off.
- Curbs were painted optic yellow and parking spaces were marked with white lines.
- Bray tried the case on theories that Bi-State failed to adequately light or warn of the drop-off or to place a guardrail around it.
- A jury returned a verdict for Bi-State and assessed Bray 100% at fault.
- On appeal, Bray challenged (1) admission of Bi-State’s computer-generated lighting-intensity chart, (2) exclusion of her expert’s post-deposition light readings offered in rebuttal, and (3) an unobjected-to closing argument reference to insurance.

## Issues

1. Whether the trial court abused its discretion by admitting a computer-generated, color chart depicting light intensity in the fall area based on a lighting program and expert inputs.
2. Whether the trial court abused its discretion by excluding plaintiff’s expert testimony about additional light readings taken after deposition and offered for the first time in rebuttal.
3. Whether a defense closing-argument reference to insurance, not objected to at trial, constituted plain error requiring reversal.

## Decision

- The judgment was affirmed.
- The trial court did not abuse its discretion in admitting the computer-generated lighting chart because the sponsoring expert provided an adequate foundation as to the program’s reliability, the inputs and assumptions used, and the chart’s usefulness to the jury; disputes about assumptions went to weight, not admissibility.
- The trial court did not abuse its discretion in excluding plaintiff’s expert’s new light readings because they were undisclosed new evidence and not proper rebuttal, and exclusion prevented unfair surprise.
- The unobjected-to insurance reference in closing argument did not amount to plain error causing manifest injustice.

## Legal Principles

- Computer-generated charts or simulations may be admitted when supported by expert foundation showing the computer process is reliable, the inputs and underlying calculations are sufficiently complete and accurate for the purpose offered, and the method is accepted and relied upon in the relevant field.
- Challenges to the assumptions or completeness of a computer-generated analysis generally affect evidentiary weight, not admissibility, when the foundational showing is otherwise adequate.
- Trial courts have broad discretion to exclude expert evidence offered as “rebuttal” when it constitutes undisclosed new substantive testing that should have been presented in the case-in-chief and would cause unfair surprise.
- A party’s failure to make a contemporaneous objection to closing argument limits appellate review to plain error; relief is granted only for errors that affect substantial rights and result in manifest injustice.

## Conclusion

The appellate court left intact a defense verdict assigning the plaintiff full fault, holding that the trial court permissibly admitted a computer-generated lighting-intensity exhibit with sufficient expert foundation, properly excluded undisclosed post-deposition light measurements offered as rebuttal, and found no plain error from an unpreserved closing-argument reference to insurance.


Bray v. Bi-State Dev. Corp., 949 S.W.2d 93 (Mo. Ct. App. 1997)