## Facts

- A fire hydrant near an intersection in St. Louis discharged water across the street, creating spray and wet pavement and forming a shallow pool by a clogged drain.
- Four-year-old Latonya Lester was outside near her apartment; her mother, Wanda Thompson, crossed the street with a younger child to play near the pooled water, leaving Latonya at the doorway.
- Mark T. Sayles drove a one-ton flat-bed truck owned by McHenry Truck Equipment, Inc. through the intersection; he saw the water spray and people nearby and slowed, but testified he never saw Latonya.
- Latonya entered the street and was struck broadside, pulled underneath, and run over, suffering severe brain damage and permanent spastic quadriplegia.
- A jury awarded Latonya $19,817,000 and Wanda $1,860,000, reducing Wanda’s recovery by 10% for her comparative fault.
- On the day of trial, defendants sought to amend their answer to plead Latonya’s comparative fault; the trial court denied the amendment and did not instruct on Latonya’s fault.
- During deliberations, the trial court allowed jurors to use a damages chart prepared by plaintiffs’ counsel that had not been admitted into evidence.

## Issues

1. Whether allowing the jury, during deliberations, to use a non-admitted damages chart prepared by counsel required reversal.
2. Whether the trial court erred by denying defendants leave to amend to plead Latonya’s comparative fault and by refusing a comparative-fault submission as to the child.
3. Whether prejudgment interest was properly awarded under the governing statute and whether the statute was constitutionally valid as applied.
4. Whether errors requiring a new trial on Latonya’s claim also required reversal of Wanda’s separate judgment.

## Decision

- The judgment for Latonya was reversed and remanded for a new trial.
- The judgment for Wanda was affirmed, including the prejudgment-interest component and the 10% comparative-fault reduction.
- It was reversible error to permit the jury to take into deliberations a damages chart that was not admitted into evidence and reflected counsel’s argument.
- The trial court erred in refusing the day-of-trial amendment to plead Latonya’s comparative fault; the record permitted submission of the child’s comparative fault to the jury.
- The prejudgment-interest statute was enforced; the constitutional challenge did not warrant relief on Wanda’s judgment.
- The trial errors affecting Latonya’s claim did not require disturbing Wanda’s separate recovery.

## Legal Principles

- Jurors may consider only admitted evidence and the court’s instructions; sending a non-admitted, argument-based demonstrative (such as a damages chart prepared by counsel) into deliberations is improper and may be prejudicial error.
- Comparative fault is an affirmative defense that must be pleaded; leave to amend should be granted when justice requires and the evidence supports submission.
- A child’s negligence is measured by the conduct of a reasonably careful child of similar age, intelligence, and experience; whether a child near five years old is capable of comparative fault is generally a jury question unless incapacity is established as a matter of law.
- Statutes are presumed constitutional and are enforced unless they plainly and palpably violate constitutional limits; prejudgment-interest statutes are applied under that presumption.
- When claims are distinct and trial error affects only one claimant’s issues, an appellate court may reverse as to one claimant while affirming another’s judgment.

## Conclusion

The court ordered a new trial on the injured child’s claim because jurors received a non-evidentiary damages chart and the defendants were improperly prevented from pleading and submitting the child’s comparative fault, while affirming the mother’s separate judgment as unaffected by those errors and sustaining the prejudgment-interest award.


Lester v. Sayles, 850 S.W.2d 858 (Mo. 1993)