Lasky v. Union Elec. Co., 79235

Citation936 S.W.2d 797
Decision Date21 January 1997
Docket NumberNo. 79235,79235
PartiesRonald LASKY, Edward Boni, William J. Kusmec, Russell Whitener, Shelly Stanley Harmon, Alan Dwayne Henry, and Vondell Jackson, Respondents, v. UNION ELECTRIC COMPANY, Appellant.
CourtUnited States State Supreme Court of Missouri

Page 797

936 S.W.2d 797
Ronald LASKY, Edward Boni, William J. Kusmec, Russell
Whitener, Shelly Stanley Harmon, Alan Dwayne
Henry, and Vondell Jackson, Respondents,
v.
UNION ELECTRIC COMPANY, Appellant.
No. 79235.
Supreme Court of Missouri,
En Banc.
Jan. 21, 1997.

James J. Virtel, Ann E. Buckley, St. Louis, for Appellant.

Page 798

J.W. Gabriel, Christopher A. Wagner, St. Louis, for Respondent.

Hugh F. Young, Jr., Reston, Robert T. Berendt, Bruce Ryder, St. Louis, Patrick W. Lee, Robert P. Charrow, Washington, for Amicus.

PER CURIAM. 1

This jury-tried personal injury case arises out of a transformer rupture that occurred on April 22, 1984. Plaintiffs 2 are police officers and firefighters who sued defendant Union Electric for personal injuries they sustained when responding to the transformer rupture. Defendant appeals the jury awards of $11,000 to plaintiff Ronald Lasky and $10,000 to each of the other plaintiffs. Defendant asserts the trial court erred in: (1) submitting defective verdict directors to the jury; (2) admitting testimony of plaintiffs' expert witness; (3) allowing plaintiffs' counsel to read the Toxic Substances Control Act to the jury; and (4) denying defendant's motion for directed verdict. We reverse and remand for a new trial.

The facts viewed in the light most favorable to plaintiffs are as follows: On April 22, 1984, a Union Electric underground transformer ruptured, sending warm liquid and steam up though a grate in the sidewalk.

Plaintiff Ronald Lasky, a police officer, was the first to arrive at the scene. He first believed a steam pipe had broken when he saw the black liquid rising like a "geyser" from the sidewalk two stories into the air. Plaintiff Lasky helped Maple Hayes, 3 who had been soaked with the liquid when the transformer ruptured, walk to the corner of the street, away from the liquid. Lasky testified he got "a lot" of liquid on his outer clothing from assisting Maple Hayes. When Union Electric employees arrived at the scene, an employee told Lasky the liquid was "acid and oil."

Approximately one week after the incident Lasky developed a rash on his right arm. He was examined by a police department doctor who treated the rash with a salve. Lasky's rash recurred for approximately one year and, eventually, disappeared. At the time of trial in 1994, Lasky had not seen a doctor for his rash since 1984.

Plaintiff William Kusmec, a St. Louis police officer, was at the scene for approximately 15-20 minutes. Having never had any type of rash before, Kusmec developed a rash ten days after the incident. The rash extended from his abdomen to under his right arm. It occasionally flares up under his right arm, but he has not seen a doctor about the rash since 1984.

Plaintiff Edward Boni, a police officer, was at the scene for approximately one hour, supervising the other officers and determining whether police department procedures were being followed. Boni first noticed a rash on his stomach a month after the incident. After seeing a doctor, Boni applied a cream to the rash for a day or two, and it disappeared. At the time of trial, Boni continued to experience red welts on his chest periodically, every two to three years.

Plaintiff Russell Whitener, a St. Louis police officer, was at the scene for an hour. Whitener first noticed a rash on his chest a week after the incident. He has suffered numerous rashes on his shins and left arm, as well.

Plaintiff Alan Henry, a St. Louis firefighter, described the scene when he arrived as a light mist in the air with steam rising off nearby buildings and moisture 10-20 feet up

Page 799

the sides of the buildings. Henry testified the misting stopped 10-15 minutes after he arrived and that he and his co-workers stayed at the scene for at least two hours. Henry noticed a rash the size of a half dollar on his forearm a year or so after the incident. At the time of trial he still had small blotches that occasionally reappeared.

Plaintiff Shelly Harmon is a St. Louis firefighter who responded to the incident. Harmon has had a few rashes since the incident, the first developing two years after the transformer rupture.

Plaintiff Vondell Jackson, a St. Louis firefighter, was at the scene for two hours. He testified that the liquid got all over his equipment and clothing, but his forehead was the only place it touched his skin. Jackson developed a rash on the back of his right hand and the left side of his back some time after the incident. He also developed the same rash around his eyes and down his face. The rash on his hand and back only lasted about a week, but the rash on his face swelled up and turned dark, requiring treatment and continued medication.

All plaintiffs testified Union Electric employees did not warn them that the transformer cooling fluid contained PCBs. However, Alan Henry was warned by a Union Electric employee to stay out of the "oil." Defendant did not contact the police or fire departments to advise those at the scene of safety procedures for decontamination and clean-up following exposure, even though it advised Barnes Hospital employees on the procedure for decontaminating Ms. Hayes. Plaintiffs testified they knew nothing of PCBs until they saw an article about the incident in a newspaper a few days later. Because they had not been warned, plaintiffs took no extra precautions in cleaning up after the incident.

Defendant's fourth point 4 asserts error by the trial court in submitting instructions numbered 8, 12, 16, 20, 24, 28 and 32, plaintiffs' verdict directors, to the jury. The verdict directors, which are identical except for the name of each plaintiff, state:

Your verdict must be for plaintiff __________ if you believe:

First, defendant knew or by using ordinary care should have known that plaintiff had come into contact with the cooling fluid from defendant's transformer which contained polychlorinate biphenyls (PCBs), and

Second, defendant knew or by using ordinary care should have known that plaintiff's contact with the cooling fluid containing polychlorinated biphenyls (PCBs) presented a risk of bodily harm, and

Third, defendant did not give an adequate warning that the transformer cooling fluid contained polychlorinated biphenyls (PCBs) and of the need and manner to clean the transformer fluid from plaintiff's body and clothes, and

Fourth, defendant was thereby negligent, and

Fifth, as a direct result of said negligence, plaintiff __________ sustained damage.

Defendant argues the verdict directors assumed two disputed ultimate facts and erroneously withheld those issues from the jury. Defendant asserts that the first paragraph of the...

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