V.P. Fair organized a Fourth of July fair in downtown St. Louis and contracted with Northstar Entertainment to operate a bungee-jumping attraction. Hatch bought a ticket, signed Northstar's release, and became the first jumper of the day. Northstar's crew lifted him 170 feet in a crane cage and told him he was safe to jump. But no one had attached the bungee cord to the crane. Hatch fell to the ground and sustained severe back, leg, and shoulder injuries.
Evidence showed that Northstar had substantially departed from its safety manual. It used a five-person crew rather than the recommended six, employed an eighteen-year-old controller where the manual called for a person at least twenty-five, had no documented daily equipment inspection, and conducted no required test jump before opening to the public.
Before trial, the court granted summary judgment for the defendants on the joint-venture claims and for Northstar on Hatch's ordinary-negligence claim based on the release. It also disposed of other claims against V.P. Fair. The case proceeded on Hatch's recklessness claim against Northstar and premises-liability claim against V.P. Fair under the inherently dangerous activity exception. The jury found Northstar reckless, found bungee jumping inherently dangerous, and awarded Hatch $5 million against both defendants. The trial court later entered judgment notwithstanding the verdict for V.P. Fair, ruling that bungee jumping was not inherently dangerous and that Northstar's failure to attach the cord was collateral negligence. Both sides appealed.
Issue #1
Whether the trial court properly entered judgment notwithstanding the verdict for V.P. Fair on the ground that bungee jumping was not inherently dangerous and Northstar's failure to attach the cord was collateral negligence.
Holding
No. Hatch made a submissible case that bungee jumping was inherently dangerous and that the failure to secure the cord was a risk V.P. Fair should have contemplated; the court reinstated the verdict against V.P. Fair.
Reasoning
A landowner ordinarily is not vicariously liable for an independent contractor's negligence. But when the landowner hires a contractor to perform an inherently dangerous activity, the landowner has a nondelegable duty to ensure that special precautions are taken. The resulting liability is vicarious: it arises from commissioning the activity, without proof that the landowner itself acted negligently.
The trial judge initially decides whether the evidence could support an inherently-dangerous-activity claim. If it could, however, the ultimate determination is for the jury under MAI 16.08. The court rejected the defendants' view that this issue is exclusively one of law, noting Missouri authority and the jury instruction's express placement of the ultimate question with the jury.
An activity is not rendered non-dangerous merely because it can be performed safely. The essential question is whether the activity necessarily presents a substantial risk of harm unless adequate precautions are taken. Bungee jumping from 170 feet, using a cord whose secure attachment is essential to prevent a fall, could reasonably be found to involve that peculiar risk. Northstar's own release acknowledged that the activity carried inherent risks of serious injury or death that care could not entirely eliminate.
The collateral-negligence limitation applies only when the contractor's negligence is unusual, abnormal, or foreign to the normal risks that the landowner contemplated or should have contemplated when it hired the contractor. It does not exempt a landowner simply because the contractor's negligence contributed to the injury.
Here, V.P. Fair should have contemplated that a failure in the cord, its attachment, or its operation could seriously injure a jumper. The extreme height and the central role of the cord made an attachment failure a risk inherent in the activity absent adequate precautions, not a wholly foreign or collateral act. The jury was properly allowed to decide both inherent danger and whether Northstar's negligence was collateral.
Issue #2
Whether V.P. Fair could preserve alternative grounds for judgment notwithstanding the verdict that it had not raised in its directed-verdict motion.
Holding
No. V.P. Fair could not rely on those unpreserved grounds.
Reasoning
V.P. Fair argued on appeal that the verdict could alternatively be set aside because the inherently dangerous activity exception applies only to negligence, not recklessness, or because Hatch's release barred his premises claim. But neither ground had been stated in its directed-verdict motion.
Under Missouri Rule 72.01, a motion for judgment notwithstanding the verdict is limited to the legal grounds raised in the preceding directed-verdict motion. Because V.P. Fair omitted these theories from that motion, it could not obtain judgment notwithstanding the verdict or appellate review on them.
Issue #3
Whether the trial court properly granted summary judgment rejecting Hatch's theory that V.P. Fair and Northstar were joint venturers.
Holding
Yes. The record did not establish a joint venture.
Reasoning
A joint venture requires an express or implied agreement, a common business purpose, a community of pecuniary interest in that purpose, and an equal right of control over the enterprise. Hatch could not establish these elements from the summary-judgment record.
The written contract identified Northstar as an independent contractor rather than V.P. Fair's agent or employee. Missouri courts will not imply a joint venture when the parties' express contract establishes a different business relationship.
The financial arrangement also lacked the required sharing of profits and losses. V.P. Fair received a fee from Northstar's gross bungee-jump receipts whether or not Northstar earned a profit, and V.P. Fair had no obligation to share Northstar's losses.
Finally, V.P. Fair's acts of choosing the site, handling tickets and payment, using its logo, controlling the crowd, and lining up jumpers did not give it an equal voice in operating the attraction. Uncontroverted evidence showed that V.P. Fair did not control Northstar employees' physical activities or the details of the jump operation.
Issue #4
Whether the appellate court needed to decide Hatch's retained-control premises theory or the effect of his release on his ordinary-negligence claim against Northstar.
Holding
No. The court declined to reach either issue.
Reasoning
Because V.P. Fair was vicariously liable under the inherently dangerous activity exception, the court did not need to decide whether V.P. Fair also retained sufficient control over the premises or operation to support liability on a separate theory.
Likewise, even if the release did not bar Hatch's ordinary-negligence claim against Northstar, Hatch had already recovered for the same injuries on his successful recklessness claim. Resolving the release's effect on the negligence count therefore would not change the judgment.
Issue #5
Whether Missouri recognizes a civil cause of action for recklessness.
Holding
Yes. Missouri recognizes recklessness as a tort distinct from ordinary negligence.
Reasoning
The defendants relied on the statement that Missouri recognizes no legal degrees of negligence. The court explained that this principle rejects the old categories of slight, ordinary, and gross negligence based on differing amounts of care; it does not abolish recklessness as a separate tort concept.
Recklessness concerns the actor's state of mind and differs in kind, not merely degree, from ordinary negligence. It includes intentionally acting or failing to act while knowing, or having reason to know, that the conduct creates an unreasonable risk and a high probability of substantial harm.
The court also noted that an exculpatory release cannot absolve a party from future intentional torts or gross negligence. Thus, even though Hatch's release barred his ordinary-negligence claim at the trial level, it did not bar the recklessness claim submitted against Northstar.
Issue #6
Whether Northstar preserved its challenge to the jury instruction defining recklessness.
Holding
No. Northstar failed to preserve the claimed instructional error, and the court declined plain-error review.
Reasoning
Missouri Rule 70.03 requires a party to state a specific objection and its grounds before the jury retires. Northstar's appellate complaint was that the instruction lacked a standard of care, but its trial objections instead asserted that recklessness was not an independent cause of action, that the instruction was not in MAI, and that gross negligence was the appropriate standard.
An appellate court will not review an instructional theory that differs from the objection made at trial. The court also declined plain-error review because counsel had the opportunity to identify the alleged flaw before submission, and the preservation rule is meant to prevent retrials over correctable instructional errors.
Issue #7
Whether the trial court abused its discretion by denying remittitur of the $5 million verdict.
Holding
No. The award was not so excessive as to shock the conscience or show an abuse of discretion by the jury and trial court.
Reasoning
Damage assessment primarily belongs to the jury, and the trial court has broad discretion in deciding whether to order remittitur. Appellate intervention is warranted only for an award so grossly excessive that it shocks the conscience.
Hatch was thirty-nine and had suffered serious, lasting injuries. He underwent six surgeries, experienced chronic pain and depression, required pain medication and antidepressants, lost his job because of injury-related absences, and could no longer work as an auditor or accountant or engage fully in sports and activities with his children.
The evidence included approximately $150,000 in medical expenses, $37,000 in past lost wages, and $670,000 in projected future lost wages. Comparable verdicts may inform the inquiry, but they are not controlling. Given the jury's and trial judge's superior opportunity to evaluate Hatch's injuries and losses, the court found no basis to reduce the award.