author: JOHNSON, Judge.

text:
    Monette WHEELER, Appellant/Cross-Appellee, v. William G. WHEELER, Appellee/Cross-Appellant.
    Nos. 2002-CA-002440-MR, 2002-CA-002496-MR.
    Court of Appeals of Kentucky.
    April 2, 2004.
    Discretionary Review Denied by Supreme Court Feb. 9, 2005.
    Barbara Anderson, Lexington, KY, for appellant/cross-appellee.
    Glen S. Bagby, J. Robert Lyons, Jr., Lexington, KY, for appellee/cross-appel-lant.
    Before JOHNSON, TAYLOR and VANMETER, Judges.
   OPINION

JOHNSON, Judge.

Monette Wheeler has appealed from an order of the Fayette Circuit Court entered on October 30, 2002, which reduced her former husband William Wheeler’s spousal maintenance obligation from $2,000.00 per month to $1,000.00 per month. William has cross-appealed from that same order, arguing that the trial court should have terminated his maintenance obligation altogether. Having concluded that the trial court erred by limiting its inquiry to the consideration of only those changes that had occurred since 1992 when the trial court denied Monette’s first motion to increase maintenance, we vacate and remand for further proceedings.

William and Monette were married on August 29, 1952, when they were both approximately 18-years-old. During the early years of their marriage, Monette completed training at a business school and obtained a secretarial job, while William completed both his undergraduate collegiate studies and medical school. After the birth of the couple’s first child in May 1960, William and Monette agreed that Monette would quit her job and care for the children at home. Thereafter, the couple had three more children and Mon-ette did not work outside the home for the remaining years of the marriage.

On April 2, 1979, the Fayette Circuit Court entered a decree dissolving the parties’ marriage which incorporated by reference the parties’ property settlement agreement. The property settlement agreement provided, inter alia, that William would pay Monette $2,000.00 per month in spousal maintenance “until she dies or remarries.” The parties further agreed that the maintenance obligation would be “subject to the further orders of the Fayette Circuit Court in the event that either of the parties has a change of circumstances.”

Approximately 13 years later, on November 13, 1992, Monette filed a motion seeking to increase her maintenance to $5,700.00 per month, on the grounds that there had been a “change of circumstances” since the couple’s divorce in 1979. Specifically, Monette noted that her annual gross income had decreased from $33,000.00 in 1979, to $28,403.37 in 1991, and that William’s annual gross income had increased from $112,812.00 in 1979, to $425,329.00 in 1991. On December 23, 1992, the trial court entered an order denying Monette’s motion to increase maintenance.

Following the denial of her motion to increase maintenance, Monette appealed to this Court. In an unpublished decision rendered on March 31, 1995, this Court affirmed the trial court’s denial of Mon-ette’s motion to increase maintenance. Specifically, this Court stated:

The terms of the [property settlement] agreement were general; the agreement provided that the maintenance sum “... shall be subject to the further orders of the Fayette Circuit Court in the event that either of the parties has a change in circumstances.” The agreement did not establish any standard for modification.

Since the property settlement agreement did not provide a specific standard for the trial court to follow in determining whether there had been a “change of circumstances,” this Court stated that the unconscionability standard found under KRS 403.250(1) controlled whether either party, would be entitled to a maintenance modification. Finally, this Court held that the trial court had not abused its discretion by finding that Monette had failed to show a “change in circumstances” which would render the $2,000.00 per month maintenance payment “unconscionable.”

On March 12, 2002, William filed a motion seeking to terminate, or in the alternative, reduce his maintenance obligation. In support of his argument that a “change of circumstances” had occurred rendering his $2,000.00 per month maintenance obligation unconscionable, William noted that Monette was receiving Social Security benefits in the amount of $544.00 per month. William also argued that Monette’s relationship with Charles C. Mihalek, a man she began dating after the couple’s divorce in 1979, was “substantial in its nature, and has progressed to the point that they have been living together in Florida.” In her response, Monette not only objected to William’s motion to terminate or reduce maintenance, but she moved the trial court to increase maintenance to $3,000.00 per month.

On July 31, 2002, a hearing was held before the trial court on the parties’ cross-motions to modify maintenance. On September 3, 2002, after considering the evidence offered by both parties, the trial court entered findings of fact and conclusions of law. Among other things, the trial court found that Monette’s receipt of $544.00 per month in Social Security benefits was attributable to her marriage to William. Thus, the trial court ruled that William was entitled to a $544.00 per month offset in his maintenance obligation, due to Monette’s receipt of Social Security benefits.

In addition, the trial court found that Monette had “an intense social relationship” with Mihalek, and that Mihalek helped her significantly with various expenses. Hence, the trial court ruled that William was entitled to an additional offset of $456.00 per month in his maintenance obligation due to Mihalek’s “contributions” toward Monette’s expenses.

On October 30, 2002, the trial court entered an order granting William’s motion to reduce maintenance, and denying Mon-ette’s motion to increase maintenance. The trial court ordered that William’s maintenance obligation be reduced from $2,000.00 per month to $1,000.00 per month. Monette’s appeal and William’s cross-appeal from that order followed.

We first address Monette’s argument that in determining whether William had shown a “substantial and continuing” change so as to render the maintenance obligation unconscionable, the trial court erred by limiting its inquiry to those changes that had occurred since 1992, when the trial court considered Monette’s first motion to increase maintenance. In response, William claims that the doctrine of res judicata precluded the trial court from considering events prior to the trial court’s denial of Monette’s motion to increase spousal maintenance in 1992.

This issue appears to be one of first impression in Kentucky. As a general rule, res judicata precludes the relitigation of issues that have been previously decided between two or more parties. In the context of motions to modify spousal maintenance, there is considerable support for the proposition that “[wjhere the court has decided one petition for modification, the order entered in that proceeding is res judicata, and a second petition for modification thus cannot be entertained unless it can be shown that there has been a substantial change of circumstances since the earlier decision was made.” In Micheu v. Micheu, the Louisiana Court of Appeals framed the issue as follows:

The determination, then, to be made is — has a substantial change of circumstances occurred since the award of alimony, or since the last change in that award? This analysis is to be made each time either spouse files a rule to increase, decrease, or terminate alimony previously granted.

However, unlike Micheu and the other cases cited in support of this rule, in the case sub judice there has been no prior modification of the maintenance obligation. While the trial court did consider Monette’s motion to increase maintenance in 1992, it found that Monette had failed to demonstrate a sufficient change in circumstances to warrant an increase in maintenance.

Comment c to Section 13 of the Re statement (Second) of Judgments discusses the doctrine of res judicata as it relates to judgments which are subject to subsequent modification:

A judgment concluding an action is not deprived of finality for purposes of res judicata by reason of the fact that it grants or denies continuing relief, that is, requires the defendant, or holds that the defendant may not be required, to perform acts over a period of time. Judgments of these types are rendered typieally in actions for injunctions, specific performance, alimony, separate maintenance, and child support and custody.
The res judicata consequences of such judgments follow normal lines while circumstances remain constant, but those consequences may be affected when a material change of the circumstances occurs after the judgment. Thus if the judgment denied on the merits the continuing relief sought, but there has been a later material change of conditions, a new claim may arise upon the later facts (to be considered sometimes in combination with the old), and that claim will be held not barred by the previous judgment [emphasis added].

Therefore, since no modification was made when the trial court considered Mon-ette’s first motion to increase maintenance in 1992, the doctrine of res judicata did not preclude the trial court from considering all of the changes which may have occurred since the original spousal maintenance obligation was established in 1979. Accordingly, the trial court erred by limiting its inquiry to the consideration of only those changes that had occurred since 1992.

We next turn to Monette’s argument that the trial court erred by reducing William’s maintenance obligation by $544.00 per month due to her receipt of Social Security benefits. Monette relies on Williams v. Williams, where our Supreme Court held that a pre-1972 property settlement agreement, which made no provision for an adjustment of maintenance due to the subsequent receipt of Social Security benefits, was not subject to modification if the agreement was deemed to be a final and complete settlement of the parties’ property rights.

Monette notes that the property settlement agreement in the case at bar does not specifically provide for an adjustment of maintenance in the event either spouse begins to receive Social Security benefits. Hence, Monette argues that Williams controls and that the trial court erred by modifying the maintenance obligation. We disagree.

Prior to our General Assembly’s enactment of Kentucky’s no-fault divorce law in 1972, the determination of whether a maintenance obligation in a settlement agreement was subject to modification turned on whether the provision dealing with maintenance was deemed to be an integral part of a final and complete property settlement agreement, or whether the maintenance provision was simply deemed to be an agreed upon amount for spousal support. If the provision fell into the former category, the maintenance obligation was not subject to modification, since the court did not have the authority to modify a complete and binding contract entered into by the parties. However, if the provision fell into the latter category, the court retained the authority to modify the maintenance obligation upon a showing of a sufficient change in circumstances.

However, the Legislature’s enactment of Kentucky’s no-fault divorce law significantly changed the mode of analysis with respect to this modification issue. Pursuant to KRS 403.180(6), the terms in a settlement agreement related to maintenance are subject to modification unless the agreement expressly prohibits modification. Further, KRS 403.250(1) specifically states that “the provisions of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.”

In Williams, the Supreme Court was careful to note that the agreement at issue was a pre-1972 property settlement agreement. As such, the Court looked to determine whether the maintenance provision was an integral part of a final and complete property settlement agreement. After finding that the parties’ 1970 property settlement agreement was a “final settlement of all of the parties’ property rights as distinguished from a provision for a mere right of support,” the Court held that the maintenance provision was not subject to modification.

In the case sub judice, the property settlement agreement was entered into in 1979. Therefore, the modification rules governing pre-1972 settlement agreements do not apply. Instead, whether the maintenance provision in the case at bar is subject to modification depends upon the application of KRS 403.180 and KRS 403.250; thus Monette’s reliance on Williams is misplaced. Accordingly, if the standard established under KRS 403.180 and KRS 403.250 is satisfied, Monette’s receipt of Social Security benefits could support a reduction in William’s maintenance obligation.

As we mentioned previously, the trial court reduced William’s maintenance obligation by $544.00 per month after finding that “she would not have received [these benefits] but for the marriage to [William].” We hold that this factual finding by the trial court is clearly erroneous. Our review of the record shows that only 47% of Monette’s Social Security benefits of $544.00 per month was derived from her marriage to William. The remaining 53% was derived from her own earnings record. Hence, the trial court clearly erred by finding that the entire $544.00 per month was attributable to Monette’s marriage to William. Accordingly, we vacate that portion of the trial court’s order granting William a $544.00 per month offset in his maintenance obligation, and remand this matter with directions for the trial court to reconsider, in light of the changes that have occurred since 1979, whether William is entitled to a reduction under KRS 403.180 and KRS 403.250.

Next, we turn to Monette’s claim that the trial court erred by reducing William’s maintenance obligation by $456.00 per month due to her relationship with Mihalek. In particular, Monette argues that her relationship with Mihalek did not, as a matter of law, “equate to cohabitation.” However, Monette’s focus on the legal concept of “cohabitation” overlooks the proper inquiry with respect to this issue.

In Combs v. Combs, the Supreme Court held that where the former wife was able to enjoy a new “financial resource” as a result of her subsequent relationship with another man, the continuation of the former husband’s maintenance obligation could be deemed “unconscionable,” thereby justifying a reduction in the former husband’s maintenance obligation. Although the former wife in Combs had begun “cohabitating” with another man, whether- or not the couple’s relationship amounted to “cohabitation” was not at issue. Rather, the Court’s analysis focused on whether the nature of the former wife’s new relationship was such that there had been a “change of circumstances” under KRS 403.250(1).

The Combs Court went on to list six elements for a trial court to consider when determining whether a former spouse’s new relationship with another individual justifies a reduction in the obligor spouse’s maintenance obligation:

1. Duration — It should never be the intention of the Court to allow for maintenance reduction based upon casual “overnights” or dating. A showing of substantially changed circumstances under KRS 403.250(1) based upon cohabitation, necessarily involves proof of some permanency or long-term relationship.
2. Economic Benefit — The relationship must be such to place the cohabitating spouse in a position which avails that spouse of a substantial economic benefit. The scope and extent of the economic benefit should be closely scrutinized. If the “cohabitation” does not change the cohabitating spouses economic position, then reductions should not be permitted.
3. Intent of the Parties — Does it appear that the cohabitating spouse is avoiding re-marriage to keep maintenance? Does it appear from the circumstances that the cohabitating parties intend to establish a “lasting relationship?”
4. Nature of the Living Arrangements — Does it appear that the cohabitation is merely a space sharing situation or is there one common household?
5. Nature of the Financial Arrangements — Is there a “pooling of assets?” Is there actually a joint or team effort in the living arrangement? Who pays the bills and how are they paid?
6.Likelihood of a Continued Relationship — Does it appear that the relationship will continue in the future? Do the parties intend the relationship to continue indefinitely?

Finally, the Court in Combs was careful to note that if a trial court reduces or terminates an obligor spouse’s maintenance obligation based upon a recipient spouse’s relationship with another individual, the trial court “retain[s] jurisdiction over the issue to make subsequent modifications if a substantial change occurs in the [new] relationship.”

As we discussed previously, in considering the parties’ cross-motions to modify maintenance, the trial court erred by limiting its inquiry to the consideration of only those changes that had occurred since 1992. Hence, because of this error, that portion of the trial court’s order reducing William’s maintenance obligation by $456.00 per month must be vacated and this matter is remanded with directions to consider the six elements listed in Combs, together with the changes that have occurred since 1979, to determine whether Monette’s relationship with Mihalek constitutes grounds for a modification of William’s maintenance obligation.

On remand, the trial court must examine Monette’s relationship with Mihalek to determine whether the nature of that relationship is such that it constitutes a new “financial resource” for her. While the couple’s living arrangements is certainly a factor to consider, it is “not dispositive of the issue, nor is it necessarily the focus of the inquiry. In Combs, the Court recognized that not every instance of cohabitation constitutes a change in circumstances” which would justify a reduction in maintenance. The converse is also true, i.e., “cohabitation,” as the term is defined in Cook, is not a prerequisite for reducing an obligor spouses maintenance obligation if there has otherwise been a sufficient change of circumstances under KRS 403.250(1). Accordingly, that portion of the trial courts order reducing William’s maintenance obligation by $456.00 per month due to Monette’s relationship with Mihalek is vacated and this matter is remanded for further proceedings consistent with this Opinion.

Finally, we address William’s argument on his cross-appeal that the trial court erred by not terminating his maintenance obligation altogether. Once again, we note that in considering the parties’ cross-motions to modify maintenance, the trial court erred by limiting its inquiry to the consideration of only those changes that had occurred since 1992. Therefore, this is an issue which must be reexamined once the trial court makes the appropriate factual findings using 1979 as the benchmark year to determine whether a sufficient change of circumstances has occurred. Accordingly, that portion of the trial court’s order denying William’s motion to terminate his maintenance obligation is vacated and this matter is remanded for further proceedings consistent with this Opinion.

ALL CONCUR.

      . William is an orthopedic surgeon.

      . 1993-CA-000184-MR.

      .Kentucky Revised Statutes.

      . Monette has not appealed from that portion of the trial court’s order denying her motion to increase maintenance.

      . Napier v. Jones By and Through Reynolds, Ky.App., 925 S.W.2d 193, 195 (1996).

      . 24A AmJur.2d Divorce and Separation § 822 (2003).

      . 440 So.2d 240, 242 (La.Ct.App.1983).

      . See also Hosford v. Hosford, 362 So.2d 973, 974 (Fla.Ct.App.1978)(holding that "[o]nce the court has found sufficient change in circumstances to require modification and thereupon enters an order, the facts and circumstances supporting that modification may not be revisited by the court as a basis for further modification”); Marriott v. Marriott, 347 Ill.App. 372, 106 N.E.2d 876, 878 (1952)(stating that a previous order granting a modification of maintenance was res judicata, and that the circumstances which justified the original modification could not be used to support a subsequent motion to modify); and Farnsworth v. Farnsworth, 553 S.W.2d 485, 487 (Mo.Ct.App.1977)(holding that "the date of the change of circumstances to be used would be the last prior modification rather than the circumstances existing on the date of the original decree”).

        . Restatement (Second) of Judgments § 13, comment c (1982). See also In re Marriage of Pedersen, 237 Ill.App.3d 952, 178 Ill.Dec. 835, 605 N.E.2d 629, 633 (1992)(noting that while the husband could not rely on those circumstances which justified a prior modification of maintenance, "[a] different result might obtain if the [previous motion to modify] had not actually resulted in a modification”).

      . Ky., 789 S.W.2d 781 (1990).

      . Id. at 782.

      . See Richey v. Richey, Ky., 389 S.W.2d 914, 919 (1965)(stating that when the issue is modification of a maintenance obligation, the key determination is whether the maintenance provision is an integral part of a final and complete property settlement agreement).

        . See Renick v. Renick, 247 Ky. 628, 57 S.W.2d 663 (1933).

      . See Boehmer v. Boehmer, 259 Ky. 69, 82 S.W.2d 199 (1935).

      . See Scott v. Scott, Ky., 529 S.W.2d 656, 657 (1975)(noting that KRS 403.180(6), which deals with the modification of maintenance obligations in settlement agreements, states a different rule than that as announced in Richey, supra).

      . See Kentucky Rules of Civil Procedure 52.01; and Weiand v. Board of Trustees of Kentucky Retirement Systems, Ky., 25 S.W.3d 88, 92 (2000) (stating that "[t]he findings of a trial judge sitting without jury may not be set aside unless clearly erroneous”).

      . See Cook v. Cook, Ky., 798 S.W.2d 955, 957 (1990). In Cook, our Supreme Court, quoting from Black's Law Dictionary, 5th edition, defined "cohabitation” as:
      To live together as husband and wife. The mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations.
      The Court went on to hold that under the facts of Cook, the former wifes relationship with another man did not constitute "cohabitation,” and that the former husband was therefore not entitled to have his maintenance obligation terminated under the parties' property settlement agreement.

      . Ky., 787 S.W.2d 260, 262 (1990).

      . Id. The Court stated "[w]e believe that a maintenance recipients cohabitation can render continued maintenance 'unconscionable' if the nature of the cohabitation constitutes a new 'financial resource’ as contemplated in KRS 403.200(2)(a).”

      . See Cook, supra at 957 (1990)(stating that "[w]hether or not conduct amounted to cohabitation was not an issue in Combs ...”).

      . Combs, 787 S.W.2d at 262.

      . Id. at 263.

        .Id. at 262.

      . See Williams v. Williams, Ky.App., 554 S.W.2d 880, 881 (1977)(affirmmg a trial court's decision to terminate maintenance where it was discovered that the obligor spouse’s financial situation had "waned,” while the recipient spouse had "done better” because of her new relationship with "a gentlemen of some means


source: Caselaw Access Project

author: MINTON, Judge.

license: Public Domain

text:
    Scottie ELKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-CA-001569-MR.
    Court of Appeals of Kentucky.
    Sept. 17, 2004.
    Rehearing Denied Dec. 6, 2004.

      Irvin J. Halbleib, Appellate Public Advocate, Louisville, KY, for appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Frankfort, KY, for appel-lee.
    Before MINTON, SCHRODER, and TAYLOR, Judges.
   MINTON, Judge.

Scottie Elkins appeals from a judgment of the Laurel Circuit Court sentencing him to seven years following his plea of guilty to criminal attempt to manufacture methamphetamine. We affirm.

Elkins argues that the circuit court abused its discretion in refusing to allow him to withdraw his guilty plea prior to sentencing. He maintains that Kotila v. Commonwealth, published in the period between the entry of his plea and his sentencing hearing, effectively precluded his liability for the crime to which he pleaded guilty and thereby rendered his plea unintelligent and involuntary.

In November 2002, Elkins was charged with possession of anhydrous ammonia with intent to manufacture methamphetamine. The indictment was subsequently amended to a charge of manufacturing methamphetamine by knowingly and unlawfully possessing the chemicals and equipment for the manufacture of methamphetamine with the intent to do so. Elkins initially entered a plea of not guilty but then decided to accept the Commonwealth’s offer on a plea of guilty that included a reduction of the charge from manufacturing methamphetamine, a class B felony, to criminal attempt to manufacture methamphetamine, a class C felony. The Commonwealth recommended a sentence of seven years. Elkins entered a plea of guilty on June 2, 2003. At his sentencing hearing on June 20, 2003, against his attorney’s recommendation, El-kins moved to withdraw his guilty plea, citing Kotila v. Commonwealth, which was published on June 12, 2003. The circuit court refused to grant his motion and entered final judgment and sentence in accordance with the plea agreement.

KRS 218A.1432(1) provides:

A person is guilty of manufacturing methamphetamine when he knowingly and unlawfully:
(a) Manufactures methamphetamine; or
(b) Possesses the chemicals or equipment for the manufacture of methamphetamine with the intent to manufacture methamphetamine.

In Kotila, the Kentucky Supreme Court interpreted the wording of the statute to mean that in order for a defendant to be found guilty under part (b), he or she has to possess all the chemicals necessary for the manufacture of methamphetamine.

Elkins argues that because the initial charge against him was for possession of one ingredient only (anhydrous ammonia), under Kotila, he could not possibly have been found guilty of manufacturing methamphetamine. Elkins maintains that because the state of the law was unsettled when he entered his plea, pending the outcome in Kotila, the plea was necessarily involuntary and unintelligent. He argues that he did not have real notice of the charge against him or an understanding of what he was being asked to admit. Consequently, he asserts, the circuit court abused its discretion in refusing to allow him to withdraw the plea.

Kentucky Rules of Criminal Procedure (RCr) 8.10 provides that a plea of guilty may be withdrawn. The motion to withdraw must be granted if the plea was involuntary. If the plea was voluntary, however, the decision to allow the withdrawal is within the trial court’s discretion. A trial court abuses its discretion when it renders a decision which is arbitrary, unreasonable, unfair, or unsupported by legal principles.

Generally, a plea cannot be automatically rendered involuntary by a subsequent change in the relevant law. In Brady v. United States, the United States Supreme Court held that a plea was not rendered involuntary simply because a subsequent case held that the maximum possible penalty for the crime was less than the defendant was told at the time his plea was entered. The Court reasoned as follows:

[A] voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant’s lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.

Arguably, Elkins’s situation is distinguishable from that of the defendant in Brady. In Elkins’s case, the issue is the defendant’s knowledge or understanding of the prerequisites or preliminary proof required to sustain a charge pursuant to the statute under which he is being charged, whereas, in Brady, the issue was the impact of the defendant’s knowledge or understanding of the potential length of the sentence on his decision to plead guilty.

This distinction is not critical, however, because we are simply not convinced that even under the holding in Kotila, Elkins’s conduct could not meet the elements for criminal attempt to manufacture methamphetamine. The Kentucky Supreme Court stressed that its decision in Kotila did “not mean that there could never be a conviction of criminal attempt to manufacture methamphetamine.” The Court went on to explain as follows:

For example, a defendant who possessed less , than all the necessary chemicals to manufacture methamphetamine could be convicted of criminal attempt to violate KRS 218A.1432(l)(a) if he had already begun the manufacturing process. [...] Or, the defendant may engage in other actions leaving no reasonable doubt of a criminal intent.

An examination of the record in this case reveals that Elkins may well have possessed all of the ingredients to manufacture methamphetamine, notwithstanding the fact that the initial charge against him was for possession of anhydrous ammonia only. The post-arrest complaint in the police citation states that Elkins “had in his possession all the precursor[s] to manufacture methamphetamine.” (Emphasis added.) It further specifies that “subject had several packs of pseudophed-rine, lithium batteries, 62 grams of crushed pseudophedrine,” as well as “a propane tank filled with anhydrous ammonia” in the back seat of his car. Therefore, although the citation specifically lists only three of the six ingredients necessary to the manufacture of methamphetamine (the remaining ingredients being salt, drain cleaner, and ether), the fact that a considerable quantity of the pseudophed-rine tablets was described as being crushed suggests that Elkins may have “begun the manufacturing process” as it is described in Kotila. The complaint also states that the “subject [Elkins] openly admitted to making methamphetamine.” (Emphasis added.)

From the evidence in the record, therefore, Elkins allegedly had in his possession all the ingredients for the manufacture of methamphetamine, or had started to manufacture methamphetamine as evidenced by the crushed pseudophedrine tablets. Furthermore, he allegedly admitted as much to police. This evidence was more than adequate to sustain a charge of attempt to manufacture methamphetamine under the law as it stood both before and after the decision in Kotila.

Elkins has drawn our attention to a Fifth Circuit Court of Appeals case, United States v. Presley, in which it was held that the defendants should have been allowed to withdraw them guilty pleas prior to sentencing due to an intervening United States Supreme Court opinion. We note that this case is not binding precedent and that it has been treated critically in other jurisdictions. Furthermore, the case is distinguishable because the intervening Supreme Court opinion drew into serious question the jurisdiction of the federal district court. The Fifth Circuit was concerned that the appellants may have been “sentenced for acts which may not have constituted a federal offense.” By contrast, in Elkins’s case, as we have noted, the description in the police citation contains sufficient factual predicates to sustain a charge under the interpretation of the statute in Kotila. Kotila did not in any way alter the underlying circumstances of Elkins’s plea in such a way as to render it involuntary. The circuit court did not, therefore, abuse its discretion in refusing to allow Elkins to withdraw his guilty plea.

For the foregoing reasons, the order of the Laurel Circuit Court is affirmed.

ALL CONCUR.

      . Ky., 114 S.W.3d 226 (2003).

      . Id.

        . Id. at 240-41.

      . Rodriguez v. Commonwealth, Ky., 87 S.W.3d 8, 10 (2002).

      . Id.

      . Goodyear Tire and Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 581 (2000).

      . 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

      . Id., 397 U.S. at 757, 90 S.Ct. 1463.

        . Kotila, 114 S.W.3d at 245.

      . Id. at 245.

      . See id. at 236.

      . 478 F.2d 163 (5th Cir.1973).

      . See Presnell Constr. Managers, Inc. v. EH Constr., LLC, Ky., 134 S.W.3d 575, 581 (2004).

      . See United States v. LeFaivre, 507 F.2d 1288, 1297, n. 13 (4th Cir.1974).

      . See United States v. Ramos, 923 F.2d 1346, 1359 (9th Cir.1991).

      . Presley, 478 F.2d at 167.


author: WILLIAM H. CRANDALL, JR., Judge. CLIFFORD H. AHRENS, P.J.,

text:
    Fernando Ibarra MALDONADO, Plaintiff/Respondent, v. GATEWAY HOTEL HOLDINGS, L.L.C, Defendant/Appellant.
    No. ED 81381.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 7, 2003.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 17, 2003.
    Case Transferred to Supreme Court Jan. 27, 2004.
    Case Retransferred to Court of Appeals Feb. 16, 2005.
    Original Opinion Reinstated Feb. 22, 2005.

      Thomas B. Weaver, Debbie S. Champion, St. Louis, MO, for appellant.
    Jeffrey J. Lowe, St. Louis, MO, for respondent.
   WILLIAM H. CRANDALL, JR., Judge.

Gateway Hotel Holdings, L.L.C. (“Gateway”) appeals the judgment on a jury verdict in favor of Fernando Maldonado (“Maldonado”) on his negligence claim for bodily injuries suffered in a boxing match. The jury awarded Maldonado $13.7 million in compensatory damages. We affirm.

In December 1998, an agreement was entered into between Doug Hartmann Productions, L.L.C. (“Hartmann Productions”) and the Regal Riverfront Hotel (“hotel”) to schedule a boxing event at the hotel. Gateway owns the hotel. The contract outlined the area to be used for the event, and discussed the catering and beverage responsibilities of the hotel. Pursuant to the contract, Gateway received a non-refundable deposit and payment for room rentals and food and beverage. The contract also contained a provision stating that a five million dollar indemnity insurance policy was to be provided, and Hart-mann Productions was to provide a doctor at ringside for the match and an ambulance on stand-by at the hotel the night of the event. The boxing match took place on January 29, 1999. Maldonado was a professional boxer who participated in the match. The fight ended when Maldonado was knocked out. He was revived and left the ring and walked to his dressing room. Maldonado later lost consciousness in his dressing room. There was no ambulance on site. An ambulance was called and Maldonado was taken to a hospital. He suffered severe brain damage as a result of his injury.

Maldonado filed a petition for damages against several defendants, including Gateway. He claimed that Gateway and Hart-mann Productions owed him a duty to provide an ambulance on the premises during the boxing match and to monitor his condition after the fight. He alleged that the failure to have an ambulance at the venue delayed his treatment and caused his brain damage. Prior to trial, Maldonado dismissed all defendants except Gateway, the hotel, and Richfield Hotel Management, Inc., a joint owner of the hotel. The case was tried and the jury returned a verdict in favor of Maldonado of $13.7 million in compensatory damages. Although the issue of punitive damages had not been submitted, the jury also added an award of punitive damages of $27.4 million to the verdict form. The trial court struck the punitive damages and entered judgment in the amount of the compensatory damages only. Gateway filed a motion for judgment notwithstanding the verdict, and an alternative motion for new trial and motion for remittitur, all of which were denied by the court. The present appeal followed.

Gateway raises seven points on appeal. In the first point, Gateway raises arguments relating to the inherently dangerous activity doctrine. First, Gateway claims that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict (“JNOV”) because Maldonado did not prove that Gateway was hable under the inherently dangerous activity doctrine. Specifically, Gateway claims that Maldonado did not prove that Hartmann Productions was an independent contractor hired by Gateway to perform an inherently dangerous activity. Additionally, Gateway asserts that Maldonado assumed the risks inherent in boxing and he could not recover for risks not inherent in the activity.

“Our review of the denial of a motion for directed verdict and a motion for JNOV is essentially the same.” Crawford v. Shop ‘N Save Warehouse Foods, Inc., 91 S.W.3d 646, 650 (Mo.App. E.D.2002). If the plaintiff fails to make a submissible case, a directed verdict or JNOV will be appropriate. Id. We view the evidence in a light most favorable to the jury’s verdict, and we grant the plaintiff all reasonable inferences therefrom. Id. We disregard any evidence or inferences to the contrary. Id. We will reverse a jury verdict only where there is a complete absence of probative facts to support the jury’s decision. Id.

The term “inherently dangerous activity” means an activity that necessarily presents a substantial risk of harm unless adequate precautions are taken. MAI 16.08. It is a theory of premises liability under which a landowner that hires an independent contractor to perform an inherently dangerous activity has a “nondel-egable duty to take special precautions to prevent injury from the activity.” Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 134 (Mo.App. E.D.1999). Liability is imposed upon the landowner without any requirement that the landowner be proven negligent in any respect. Id. This exception applies “only where ‘the harm results from the negligence of the contractor in failing to take precautions against the danger involved in the work itself, which the employer should contemplate at the time of the contract.’ ” Id. at 135 (quoting Restatement (Second) of Torts sec. 427 cmt. d (1965)). However, if the negligence of the independent contractor is “collateral,” the general rule exempting a landowner from liability for injuries to third parties caused by the negligence of an independent contractor applies. Id.

Gateway initially argues that Maldonado failed to prove that Hartmann Productions was an independent contractor hired by Gateway. Gateway claims that because Hartmann Productions initiated the relationship, and Gateway only rented space to stage the boxing match, there was no independent contractor relationship between the parties, which would subject Gateway to liability under the inherently dangerous activity doctrine. According to Gateway, it did not request the services of Hart-mann Productions for the event, and any services were not performed on behalf of or for the benefit of Gateway; therefore, Hartmann Productions could not be considered to be its independent contractor. We disagree.

Missouri courts have yet to define the term independent contractor under the inherently dangerous activity doctrine. Gateway cites Hougland v. Pulitzer Pub. Co., Inc., 989 S.W.2d 31, 38 (Mo.App. E.D.1997), for the general definition of independent contractor. In Hougland, the court stated that, “[a]n independent contractor is one who contracts with another to do something for him but is neither controlled by the other nor subject to the other’s control with respect to his physical conduct in the performance of the undertaking.” Id. (quoting Tom Lange Co. v. Cleaning by House Beautiful, 793 S.W.2d 869, 871 (Mo.App.1990)). However, we do not believe such a broad definition of the term is appropriate here. Additionally, we note that the test of control in the independent contractor relationship has been “overemphasized in judicial reasoning.” 5 Harper and James, The Law of Torts, sec. 26.11 (2nd ed.1986). The control justification is often insufficient, and the motive behind vicarious liability is based upon the principle that “an enterprise (and its beneficiaries) should pay for the losses caused by the risks that it creates (even without its fault).” Id.

In the present case, we are faced with a unique relationship, and it must be evaluated on its particular circumstances. Trinity Lutheran Church v. Lipps, 68 S.W.3d 552, 558 (Mo.App. E.D.2001). In evaluating the relationship between a hotel, which is providing a venue for an inherently dangerous activity and the promoter who is coordinating such an event, as in the present case, we consider several factors. The primary consideration is the benefit to the hotel from the relationship. Hartmann Productions contracted with the hotel to stage a boxing match at the hotel. Although there was evidence that Hart-mann Productions initially approached the hotel about the event, there was also evidence that Hartmann Productions contracted with the hotel to promote the event to the benefit of the hotel. Carrie Pashia, the convention services manager for the hotel, believed the match would be a profitable endeavor for the hotel. The hotel received profits from room rentals, food and beverage sales. Additionally, the hotel was to receive compensation regardless of whether the event actually took place. The event was advertised as “Ringside at the Regal,” which provided significant exposure for the hotel on national television. Pashia stated that the event would help people become acquainted with the hotel and bring them into the hotel. Thus, the hotel had a dual interest. Not only was the hotel to benefit from the rental income and food and beverage sales, but also, the hotel would benefit from future business generated by the exposure and promotion it would receive from hosting the event.

We next consider Gateway’s ability to minimize its exposure to potential risks from the activity performed at the hotel. Pursuant to the contract, Hartmann Productions was required to provide a five million dollar indemnity insurance policy. Hartmann Productions was also to provide a doctor at ringside for the match and an ambulance on stand-by the night of the event. The hotel provided security for the event, and agreed, pursuant to the contract, to “coordinate all aspects” of the event.

Although Gateway did not solicit Hartmann Productions’ business, ultimately the activity performed by Hartmann Productions benefited the hotel, which is the primary consideration in determining whether sufficient evidence existed of an independent contractor relationship. The hotel was to receive the benefits of the work of Hartmann Productions, not only through profits, but also through national exposure. Additionally, the hotel retained possession of the premises while the event was occurring, and the hotel was in a position to insure against or minimize potential risks of the event by allowing only responsible, experienced promoters to stage matches at the location, by including an indemnification requirement in the contract, and by including the provision requiring Hartmann Productions to secure a ringside physician and an ambulance for the event. Based on the factors discussed above and the particular circumstances regarding the relationship between Hart-mann Productions and Gateway, we find that there was sufficient evidence that Hartmann Productions was the independent contractor of Gateway under the inherently dangerous activity doctrine.

Gateway also claims that Maldonado failed to prove that Gateway was liable under the inherently dangerous activity doctrine because Maldonado assumed any risks inherent in boxing, and he was not entitled to recover for risks not inherent in the activity.

Gateway correctly notes that a person who participates in sports “assumes the risks” inherent in that sport. Sheppard by Wilson v. Midway R-1 School Dist., 904 S.W.2d 257, 263 (Mo.App. W.D.1995). Where parties voluntarily enter a relationship, as they did here, where the plaintiff will assume certain well-known risks, the defendant has no duty to protect the plaintiff from those risks. Id. at 261. However, assumed risks in sporting events do not include those created by a defendant’s neghgence. Id. at 262-63. Maldonado acknowledges that he may have assumed the “primary risk” of being injured by a punch during the boxing match; however, he claims that he did not assume the risk of being injured because of the failure to provide medical monitoring or an ambulance on site. Gateway claims that Maldonado failed to make a submissible case because this risk of injury is not one inherent in boxing, but rather is a risk created solely by alleged neghgence for which Gateway should not be hable. We disagree.

As noted above, under the inherently dangerous activity exception to landowner liability, a landowner hiring an independent contractor to perform an inherently dangerous activity has a “nondelegable duty to take special precautions to prevent injury from the activity.” Hatch, 990 S.W.2d at 134. However, the landowner will not be considered hable if the negh-gence of the independent contractor is “collateral.” Id. at 135.

Collateral neghgence has been defined as “neghgence, which is unusual or abnormal, or foreign to the normal or contemplated risks of doing the work....” Id. (quoting Restatement (Second) of Torts sec. 426 cmt. a (1965)). Pursuant to the Restatement (Second) of Torts, it is not necessary for a landowner to contemplate these unusual or abnormal types of negh-gence by the contractor, or neghgence which may occur in the ordinary operative details of the work being carried out which may be expected to be assumed with proper care. However, it is necessary for the landowner to contemplate this neghgence when “the circumstances under which the work is done give him warning of some special reason to take precautions, or some special risk of harm to others inherent in the work.” Restatement (Second) of Torts sec. 426 cmt. b (1965).

Here, we find that the failure of Hartmann Productions to have medical monitoring and an ambulance present at the hotel for the boxing match was not collateral negligence. Rather, this was “negligence of the contractor in failing to take precautions against the danger involved in the work itself, which the employer should contemplate at the time of the contract.” Hatch, 990 S.W.2d at 135 (quoting Restatement (Second) of Torts sec. 427 cmt. d (1965)). Boxing is an activity that is by its very nature, violent and potential injury is an obvious risk. Because injury is clearly a potential risk of the sport, and the sport is of a violent nature itself, this would provide sufficient warning to a landowner of the potential risk of harm or special reason to take certain medical precautions to prevent further injury from a delay in treatment. The negligent failure to have medical monitoring or an ambulance on stand-by is not the type of negligence which would be foreign to the contemplated risk of being injured or knocked unconscious during a boxing match.

Moreover, having medical monitoring and an ambulance on stand-by was provided for or contemplated by the contract between Hartmann Productions and the hotel. Comment a of section 426 of the Restatement (Second) of Torts sets forth the following example:

Thus an employer may hire a contractor to make an excavation, reasonably expecting that the contractor will proceed in the normal and usual manner with bulldozer or with pick and shovel. When the contractor, for his own reasons, decides to use blasting instead, and the blasting is done in a negligent manner, so that it injures the plaintiff, such negligence is “collateral” to the contemplated risk, and the employer is not liable. If, on the other hand, the blasting is provided for or contemplated by the contract, the negligence in the course of the operation is within the risk contemplated, and the employer is responsible for it.

(emphasis added). A specific provision in the contract between the hotel and Hart-mann Productions required the promoter to provide a physician at ringside and to have an ambulance on stand-by at the hotel the night of the boxing match. Furthermore, although adequate medical monitoring was not specifically set out in the contract, the contract language regarding the ambulance and a doctor at ringside demonstrates medical monitoring was contemplated. Hartmann Productions’ failure to provide an ambulance on stand-by or provide medical monitoring was within the risk contemplated and therefore was not collateral negligence.

Finally, there was extensive evidence adduced by Gateway that it had, in fact, taken “adequate precautions” as that term is used in defining an inherently dangerous activity. The issue of adequate precautions, however, was well within the contemplated risk. See e.g. Ballinger v. Gascosage Elec. Co-op., 788 S.W.2d 506 (Mo. banc 1990). The risks inherent in boxing are inextricably connected with the question of adequate precautions. The danger arises from “the very nature of the activity.” Id. at 511-12. Thus the negligence issue submitted to the jury was not collateral negligence but rather direct negligence relating to the activity. The trial court did not err in denying Gateway’s motions for directed verdict or JNOV. Gateway’s first point is denied.

We next consider Gateway’s third point. Gateway argues that the trial court erred in submitting instruction number six, which is found at MAI 16.08. MAI 16.08 reads in its entirety:

The term “inherently dangerous activity” as used in this [these] instructions means an activity that necessarily presents a substantial risk of harm unless adequate precautions are taken. [, but does not include a risk of harm that is not inherent in or a normal part of the work to be performed and that is negligently created solely as a result of the improper manner in which the work under the contract is performed.]

The instruction as given omitted the bracketed portion of the instruction. Gateway claims because the instruction omitted the bracketed portion of MAI 16.08 it incorrectly defined inherently dangerous activity.

The Notes on Use for MAI 16.08 state in part:
2. This bracketed phrase may have some application in some situations. If the law and the evidence support the addition of this bracketed phrase, it should be added to the definition at the request of the defendant. See: Balling-er v. Gascosage Elec. Co-op., 788 S.W.2d 506, 511 (Mo. banc 1990); and Restatement (Second) of Torts, [sec.] 426.

The bracketed portion of MAI 16.08 should only be given when requested by defendant and when collateral negligence is an issue in the case. It is a definition of collateral negligence. See Hatch, 990 S.W.2d at 135. As stated supra, the issue was not collateral negligence, but whether there was any direct negligence. The trial court correctly refused to submit the issue of collateral negligence to the jury. Gateway’s third point is denied.

We next consider Gateway’s seventh point in which Gateway claims that the award of $18.7 million for compensatory damages is excessive. Gateway contends that the trial court erred in denying its motion for new trial because the excessiveness of the verdict and the trial court’s errors in permitting improper argument and erroneously admitting evidence resulted in a verdict that was the result of the jury’s passion, prejudice and bias.

A trial judge may find passion and prejudice from an excessive verdict. Smith v. Wal-Mart Stores, Inc., 967 S.W.2d 198, 208 (Mo.App. E.D.1998) (citation omitted). To be entitled to a new trial based on excessiveness of the verdict, there must be a showing of trial court error. Id. If the verdict is excessive because of the jury’s passion and prejudice, then the judgment is severely prejudiced and can only be addressed through a new trial. Id. The trial court has great discretion in approving a verdict or setting it aside as excessive, and the court’s decision will not be disturbed unless there has been an abuse of discretion by the trial judge or the jury. Id. To show passion and prejudice by the jury, the complaining party cannot direct the appellate court to the size of the verdict alone but rather must show some other error was committed during trial. Id.; Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 657 (Mo.App. W.D.1997). The appellant must first show that the verdict, viewed in the light most favorable to the prevailing party, was glaringly unwarranted. Id.‘Second, appellant must show trial error or misconduct by the prevailing party that was responsible for producing the passion or prejudice.’ ” Id.

The assessment of damages is primarily within the province of the jury. Fust v. Francois 913 S.W.2d 38, 49 (Mo.App. E.D.1995). There is no exact formula to determine whether a verdict for compensatory damages is excessive and each case must be decided on its merits. Barnett, 963 S.W.2d at 657. In determining whether a compensatory damage award is excessive, the court should consider the evidence in the case and the verdict in light of several factors: (1) loss of income, present and future; (2) medical expenses; (3) the plaintiffs age; (4) the nature and extent of the plaintiffs injuries; (5) economic factors; (6) awards given and approved in comparable cases; and (7) the superior opportunity for the jury and trial court to appraise the plaintiffs injuries and other damages. Id.

Here, the jury heard evidence that Maldonado, a young athlete, age 23 at the time of match, who was sound physically and mentally, was severely and permanently injured. After examining Maldonado, Gateway’s own expert found that he had poor speech, trouble with three part commands, poor judgment, loss of vision on the left side, weakness of his right lower face, difficulty moving his tongue, involuntary movement on his left side, loss of feeling on his left side, unstable deficits on his entire left side, loss of motor control, loss of sensory discrimination, and difficulty with abstract thinking, perception, regulation of behavior and concentration. The jury viewed Maldonado’s video deposition and heard testimony from Maldonado’s mother regarding his condition. In denying Gateway’s request for remittitur, the experienced trial judge found “that in light of the nature of plaintiffs injuries, the jury’s verdict is not against the weight of the evidence.” Based upon our review of the record, we defer to the superior opportunity for the jury and trial court to appraise Maldonado’s injuries and other damages. Hatch, 990 S.W.2d at 141. Accordingly, Gateway’s seventh point is denied.

We have reviewed Gateway’s remaining points. In the second point, Gateway argues that the trial court erred in denying Gateway’s request for a withdrawal instruction on punitive damages and in overruling certain objections by Gateway during closing argument. Gateway argues in the fourth point that the trial court erred in submitting the verdict director. In the fifth point, Gateway argues that the trial court erred in denying its request for a withdrawal instruction and in its evidentia-ry rulings on the issue of a case involving Gateway and a kickboxer’s claim of negligence for failing to have an ambulance on-site during a match. Gateway argues in the sixth point that the trial court erred in its evidentiary rulings regarding unadopt-ed changes to Missouri regulations governing boxing matches. We find that a written opinion for these points would have no precedential value. No error of law appears. Those points are denied. Rule 84.16(b).

The judgment of the trial court is affirmed.

CLIFFORD H. AHRENS, Presiding Judge: concurs in part and dissents in part in separate dissenting opinion.

Lawrence E. Mooney, Judge: concurs.

CLIFFORD H. AHRENS, P.J.,

concurring in part and dissenting in part.

I respectfully dissent from the portion of the majority opinion which finds no instructional error. I believe that the trial court’s failure to include in instruction number six the bracketed portion of MAI 16.08 defining collateral negligence was reversible error which requires that this case be remanded for a new trial. I concur with the remainder of the majority opinion.

The issue of whether the risk of injury from a delay in treatment was inherent in the activity of boxing and thus, whether Gateway owed a duty to Maldonado, was clearly in dispute. Gateway requested that the definition of inherently dangerous activity in instruction number six be limited by including the bracketed phrase included in MAI 16.08. Pursuant to the notes on use for 16.08, the phrase should be added if it is supported by the law and the evidence. The requested phrase limits the definition of inherently dangerous activity to exclude “a risk of harm that is not inherent in or a normal part of the work to be performed and that is negligently created solely as a result of the improper manner in which the work under the contract is performed.” (emphasis added).

If the negligence of the independent contractor is “collateral,” the general rule exempting a landowner from liability for injuries to third parties caused by the negligence of an independent contractor applies. Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 134 (Mo.App. E.D.1999). This court in Hatch acknowledged that when requested by the defendant, the bracketed addition to MAI 16.08 defining collateral negligence was properly added to the definition of inherently dangerous activity. Where a risk of harm is not inherent in the activity, no duty arises. A landowner will not be considered liable for negligence that is collateral to the risks created by the activity. Prosser and Kee-ton, The Law of Torts, sec. 71 (5th ed.1984). Where the “performance of the work contracted for in the normal manner contemplated by the contract would involve no expectation of such a risk of harm to the plaintiff, and it is the abnormal departure from usual or contemplated methods by the servants of the contractor which has created the danger,” collateral negligence has occurred. Id.

“In determining whether the evidence was sufficient to support a jury instruction, the evidence is viewed in the light most favorable to the offering party, and we give the offering party the benefit of all favorable inferences.” Shady Valley Park & Pool, Inc. v. Fred Weber, Inc., 913 S.W.2d 28 (Mo.App.1995).

There was evidence at tidal that the risk created was not one inherent in boxing. David Schreiber, M.D., Maldonado’s neurology expert, testified that Maldonado’s permanent brain damage did not result simply from the knockout punch, but rather, the injury was caused by bleeding, pressure and lack of oxygen which occurred over a period of time after the match. Marvin Elam, the referee for the match and a former boxer himself, testified that a risk of injury “goes with the sport.” However, he did not testify that any risk of injury resulting from the failure to have an ambulance on-site or the appropriate medical monitoring was inherent in the sport. Tim Leuckenhoff, the chief investigator for the central investigative unit of the division of professional registration and administrator for the Missouri office of athletics, also testified. He stated that he has witnessed approximately 12,000 fights, and of those roughly 600 to 700 ended in a knockout. However, of the 600 to 700 knockouts only four required additional care or transportation in an ambulance. Maldonado himself testified that he understood a risk of injury, and even brain damage existed in boxing; however, he did not know that the failure to provide appropriate assistance to fighters could cause death. He also testified that he was not aware that boxers could suffer brain damage as he did. He believed boxing was dangerous only to a certain point.

Moreover, the trial court, in its order denying the post-trial motions of the parties, noted that Maldonado’s claim was not based on a risk inherent in boxing, but rather one which was created by negligence in not having medical monitoring or an ambulance at the match. Maldonado’s case was based upon the assertion that the actual knockout punch was not what caused his injury, but rather the delay in medical treatment and failure to monitor Maldonado after the fight caused the brain damage. Throughout the trial, Maldonado presented evidence that the injury was caused by negligence occurring after the boxing match, not by any injury during the fight itself. This evidence and the reasonable inferences therefrom support the addition of the first portion of the bracketed phrase.

There was also evidence that the risk of injury from a delay in treatment was negligently created by Hartmann Productions’ improper departure from the contemplated method of performing the contract with the hotel, which was to have an ambulance on stand-by at the hotel. As noted earlier, where the “performance of the work contracted for in the normal manner contemplated by the contract would involve no expectation of such a risk of harm to the plaintiff, and it is the abnormal departure from usual or contemplated methods by the servants of the contractor which has created the danger,” collateral negligence has occurred. Prosser and Keeton, sec. 71.

The contract provisions required that Hartmann Productions have an ambulance on stand-by at the hotel the night of the match, and Hartmann Productions failed to do so. In the present case, it is a reasonable inference from the evidence that had the work contracted for been performed in the manner contemplated by the contract, the risk of harm resulting from a delay in medical treatment would not be expected. Hartmann Productions’s failure to secure an ambulance for the event was a departure from the contemplated method of performing the work under the contract. As a result of the improper manner in which the contract was performed, an additional risk was created. That very risk is addressed in the second portion of the bracketed addition to MAI 16.08, which states that the definition of an inherently dangerous activity does not include a risk of harm “... that is negligently created solely as a result of the improper manner in which the work under the contract is performed.”

The majority cites Ballinger v. Gascosage Elec. Co-op., 788 S.W.2d 506 (Mo. banc 1990) in support of its opinion that the issue of adequate precautions was within the contemplated risk, and arose from the very nature of the activity. Ballinger is distinguishable. In Ballinger, the plaintiff was injured by electrical shock while stringing new electrical conductors. The defendant in Ballinger requested that additional language be included in the instruction defining inherently dangerous. The language advised the jury that, “[a]n activity is not inherently dangerous where the risk involved does not arise from the very nature of the activity itself but is a risk which could have been prevented by routine precautions of a kind which a careful contractor would be expected to take.” The Missouri Supreme Court determined that the exclusion of this phrase from the instruction was proper because the danger arose from the “very nature of the activity.” Id. at 511-12. In Ballinger, the court found that there was no question that the electrical shock was a danger or risk arising from the very act of working as an electrical construction worker, and therefore the phrase was properly excluded. Here, Maldonado has repeatedly contended, and there was evidence which showed, that his injuries were not caused by the actual activity of boxing itself, but rather from a delay in treatment of his injury. Maldonado presented evidence that the injury was not caused in the performance of the activity itself, as was the injury in Ballinger, Therefore, the Bal-linger reasoning is inapplicable here.

The majority also relies on the example set forth in comment a to section 426 of the Restatement (Second) of Torts that where “blasting is provided for or contemplated by the contract, the negligence in the course of the operation is within the risk contemplated, and the employer is responsible for it.” In that example, blasting was contemplated in the contract, and the negligence occurred in the use of the blasting. In the present case, an ambulance was contemplated in the contract, but the promoter chose instead to use no ambulance. The situation here is analogous instead to the other part of the Restatement example, which states:

Thus an employer may hire a contractor to make an excavation, reasonably expecting that the contractor will proceed in the normal and usual manner with bulldozer or with pick and shovel. When the contractor, for his own reasons, decides to use blasting instead, and the blasting is done in a negligent manner, so that it injures the plaintiff, such negligence is “collateral” to the contemplated risk, and the employer is not hable.

Here, as in the Restatement example, there was evidence that the promoter’s failure to use an ambulance as contemplated, and instead to use no ambulance, was “collateral” to the contemplated risk. As a result, the trial court erroneously failed to include the definition of collateral negligence set out in the bracketed portion of MAI 16.08.

The evidence and the reasonable inferences from the evidence viewed in the light most favorable to Gateway was sufficient to support the addition of the bracketed phase of MAI 16.08 as requested by Gateway. Gateway was limited by the omission of the bracketed portion of the instruction because the focus was shifted from the disputed issue of whether a duty existed, to the issue of breach of duty and whether Gateway took adequate precautions. In only advising the jury of the initial portion of the definition, the trial court assumed the existence of a duty and misdirected the jury on the law. Gateway was denied the opportunity to argue that under the instructions of the court, no duty was owed because the risk of delayed medical treatment was not inherent in boxing. Rather, Gateway was limited to arguing only that adequate precautions, by way of compliance with regulations, were taken. The failure of the trial court to submit this instruction with the requested phrase misstated the law, limited the jury in its determination, and Gateway in its arguments, and therefore, materially affected the merits of the action. For these reasons, I believe that the trial court erred in failing to include the requested portion of the definition of inherently dangerous activity in instruction number six.

Because of the instructional error which materially affected the merits of the action, I would reverse and remand the case for a new trial.

      . The nature of the activity of boxing as inherently dangerous is not at issue in the present appeal.

      . Gateway did not assert either at trial or on appeal, and we do not decide, whether Maldonado’s relationship with either Hartmann Productions or the hotel affects his right to recover under the inherently dangerous activity doctrine.

      .In the first point, Gateway also challenges instruction 6 discussed infra and instruction 7, the verdict director.

      . A portion of the verdict director instructed the jury that its verdict must be for Maldonado if Hartmann Productions’ "either: failed to provide an ambulance on standby during the plaintiff’s boxing match, or Failed to provide medical personnel in plaintiff’s locker room to monitor his condition....”

      . Maldonado claims that Gateway failed to preserve its objection to instruction six and therefore, this issue has not been preserved for appeal. We have reviewed the record and find that it is preserved and therefore consider the issue on the merits.

      . The language defendant requested be added to the definition of inherently dangerous by the defendant in Ballinger was not identical to the portion sanctioned by MAI 16.08 and at issue here. However, the sentiment behind the words is similar. Both phrases advise the jury that risks or danger which are not "inherent in or a normal part of” or included in the “very nature of” the activity are not considered inherently dangerous.

      . I disagree with the majority’s conclusion that the failure to have an ambulance on stand-by was not collateral negligence as a matter of law.