Koppinger v. Cullen-Schiltz and Associates, CULLEN-SCHILTZ

• Decision Date: 31 March 1975
• Docket Number: Nos. 73-1873,74-1031 and 74-1146,CULLEN-SCHILTZ,s. 73-1873
• Citation: 513 F.2d 901
• Parties: Lynnette D. KOPPINGER, etc., et al., Appellee, v.& ASSOCIATES, etc., et al., Appellants. Lynnette D. KOPPINGER, etc., et al., Appellee, v. Merl GOERDT, etc., et al., Appellants. Lynnette D. KOPPINGER, etc., et al., Appellee, v. IOWA PUBLIC SERVICE CO., etc., et al., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 901

513 F.2d 901

Lynnette D. KOPPINGER, etc., et al., Appellee, v. CULLEN-SCHILTZ & ASSOCIATES, etc., et al., Appellants.

Lynnette D. KOPPINGER, etc., et al., Appellee, v. Merl GOERDT, etc., et al., Appellants.

Lynnette D. KOPPINGER, etc., et al., Appellee, v. IOWA PUBLIC SERVICE CO., etc., et al., Appellants.

Nos. 73-1873, 74-1031 and 74-1146.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 10, 1974.

Decided March 31, 1975.

Rehearing and Rehearing En Banc Denied in Nos. 73-1873,

74-1031, April 22,

1975.

Rehearings Denied April 22, 24, 1975.

John D. Randall, Cedar Rapids, Iowa, for Cullen-Schiltz.

Raymond R. Stefani, Cedar Rapids, Iowa, for Goerdt.

Larry J. Cohrt, Waterloo, Iowa, for Iowa Public Service.

William C. Ball, Waterloo, Iowa, for Koppinger.

Before ROSS and STEPHENSON, Circuit Judges, and SCHATZ, District Judge. ^*

STEPHENSON, Circuit Judge.

This is a diversity tort action arising from a natural gas service line explosion. The appellate agenda consists of a long list of alleged trial court errors in the conduct of the seven-week jury trial. We affirm.

Richard Koppinger died as a result of the natural gas explosion and ensuing fire at 536 East End Avenue, Evansdale, Iowa, on February 14, 1970. Mrs. Koppinger and the two children received burns. Mrs. Koppinger brought this negligence action in the United States District Court for the Northern District of Iowa. ¹ The jury award was against the three corporate defendants, Cullen-Schiltz & Associates ² (CSA). Goerdt Construction Company (Goerdt), and the gas utility company, Iowa Public Service (IPS), in the amount of $990,000 compensatory damages. The jury also returned a verdict of $60,000 exemplary damages against Goerdt and CSA. ³ The jury did not find against the engineers of CSA who were sued in their individual capacities.

CSA was hired by the city of Evansdale, Iowa, for professional engineering services in the design and construction of a proposed city sewer system. CSA contracted with the city to prepare plans and specifications for the sewer system, solicit construction bids, oversee and inspect the sewer construction job.

Goerdt's bid for the construction work was accepted by the city. Goerdt in turn agreed with the utility company, IPS, that IPS would locate all gas lines for Goerdt ahead of the trenching operation. IPS also informed Goerdt that it would conduct the repair work on any gas lines which were accidentally damaged or broken during the sewer construction project. IPS billed Goerdt for the repair work.

In late January 1970 it was discovered that the sewer line in the 500 block of East End Avenue was defective. Goerdt found it necessary to retrench this stretch of sewer line and make repairs. During the retrenching operation Goerdt struck and damaged three gas service lines. IPS was notified. IPS servicemen repaired the lines with Dresser couplings. ⁴ The evidence was that these couplings were used rather than rewelding, as was the usual practice, because IPS could not readily get access to the gas shut-off tee due to the sewer construction.

Goerdt relaid the sewer line, backfilled the trench with an endloader, using the existing material at the site, and compacted the trench by repeatedly running the endloader over the trench.

IPS returned and checked for gas leaks after the trench had been only partially backfilled. No leaks were found. IPS intended to recheck the lines after completion of the backfilling. There was testimony that IPS workmen did not return due to inclement weather and other duties.

After the explosion at 536 East End Avenue, IPS sent a crew to the area. They evacuated the homes and began their investigation. Two of the gaslines which had been previously repaired by IPS were bent down, broken and leaking gas at the Dresser couplings. There was evidence that one of the couplings had a huge chunk of frozen backfill material resting on it.

There was evidence that Goerdt had hastily backfilled the trench and that frozen material was pushed into the trench haphazardly, along with the remaining backfill.

While there was evidence that the procedure followed was not uncommon and that CSA had given Goerdt permission for the procedure, the defendants agree that the gas lines were not properly supported and anchored. Moreover, the procedures followed did not comport with the written contract specifications between the city and Goerdt.

The defendants were by no means defending this lawsuit as a unit. Which of the defendants was liable was hotly contested. There were cross-claims for indemnity.

Against this general backdrop, we turn to the specific allegations of the various defendant-appellants, detailing the pertinent facts as we proceed.

I. INCONSISTENT VERDICTS

The jury returned its verdict against CSA but in favor of the individual engineers who comprised the professional corporation. CSA contends that any negligence on the part of CSA had to stem from the engineers themselves and that verdicts against CSA and in favor of the individual defendants on identical counts are inconsistent. CSA requests a new trial.

The CSA employee-inspector on the job was John Best. He was not charged individually in the complaint. From the evidence in the case, the jury could reasonably find that CSA's duty to the plaintiffs was breached by reason of the poor quality of inspection and supervision afforded by John Best.

CSA was the supervisory engineering firm for the project. Its contract with the city provided for full-time supervision of the sewer construction job. John Best was the man on the job. There was ample evidence from which the jury could find that Best did not fulfill the contract between CSA and the city and improperly allowed careless backfill operations to occur.

The verdicts are not inconsistent. See Fonda v. Northwestern Public Service Co., 138 Neb. 262, 292 N.W. 712, 719 (1940).

II. RES IPSA LOQUITUR

In Iowa the jury may consider negligence under the rule of evidence known as res ipsa loquitur if the plaintiff has shown that:

1) injury is caused by an instrumentality under the exclusive control of defendant, and 2) the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used, the happening of the injury permits but does not compel an inference defendant was negligent (citing cases). Palleson v. Jewell Cooperative Elevator, 219 N.W.2d 8, 13 (Iowa 1974).

The trial court in the instant case instructed the jury pursuant to the res ipsa rule as to all the defendants, saying in part: " * * * if you find (1) plaintiff was injured by an instrumentality under the exclusive control of a defendant or defendants and * * * " (emphasis ours). The jury was also instructed on specific counts of negligence as to each individual defendant. The parties did not request and the court did not submit special interrogatories inquiring of the jury whether their verdict was based upon res ipsa or specific counts of negligence.

Both Goerdt and CSA claim that IPS had exclusive control of the instrumentality causing the injury so that the court erred in applying res ipsa to them. They further argue that the doctrine of res ipsa loquitur is not applicable where multiple defendants are being sued.

The Iowa Supreme Court, as far as our research has disclosed, has not had the opportunity to entertain direct argument on the application of res ipsa to multiple defendants. It has applied the doctrine, without much comment, to situations where multiple defendants have been properly charged as joint tortfeasors or have been in joint control of the instrumentality causing the injury. Pastour v. Kolb Hardware Inc., 173 N.W.2d 116, 126 (Iowa 1969); see Wiles v. Myerly, 210 N.W.2d 619 (Iowa 1973); Frost v. Des Moines Still College of Osteo. & Surg., 248 Iowa 294, 79 N.W.2d 306 (1956). In our view, this is such a case.

We do not agree that IPS was in exclusive control.

The instrumentality in question was escaping gas. The controversy concerned who was responsible for the leak.

There is no evidence or allegation that the Dresser couplings or their installation by IPS was defective. There was evidence that the breakage and leak was caused by the use of large chunks of frozen backfill and lack of support for the gas service lines during the backfilling of the sewer trench. There was evidence too that IPS should have and could have seen to it that the lines were properly supported. IPS did not supervise the backfilling though they had informed Goerdt that they would be responsible for the repair of gas lines.

Goerdt did all of the backfilling. The evidence was strong that Goerdt was careless in the backfilling, used improper frozen backfill, failed to properly compact the backfill, and failed to provide proper anchorage and support to the gas service lines.

CSA was the engineer in charge of the project for the city. It had the authority and duty to supervise and direct Goerdt's operations.

What must be established is control:

at time of the alleged negligent act, provided plaintiff proves there was no change in condition of the instrumentality, and no intervening act, which could reasonably have caused the event resulting in the injury (citing cases).

Palleson, supra. There was no plausible claim that there was any intervening cause for the explosion which occurred shortly after the work was completed.

Joint control of the instrumentality was properly charged. Consequently, the trial court did not abuse its discretion in submitting res ipsa as to all defendants.

We make one final note regarding lack of prejudice to the defendants. The record demonstrates that plaintiff had established submissible counts of individual negligence against all defendants. It is fair to infer that the jury based its verdict on the individual counts since exemplary damages were returned against Goerdt and CSA but not against IPS. Under the circumstances appellants have shown no...