Baker v. Empire Dist. Elec. Co.

• Decision Date: 16 May 2000
• Citation: 24 S.W.3d 255
• Parties: (Mo.App. S.D. 2000) Deana Baker and William Baker, Plaintiffs-Appellants, v. Empire District Electric Co., Defendant-Respondent. 22968 & 22969 0
• Court: Missouri Court of Appeals

24 S.W.3d 255 (Mo.App. S.D. 2000)

Deana Baker and William Baker, Plaintiffs-Appellants, v. Empire District Electric Co., Defendant-Respondent.

22968 & 22969

Missouri Court of Appeals Southern District

05/16/2000

Appeal From: Circuit Court of Jasper County, Hon. David C. Dally

Counsel for Appellant: Wm. G. McCaffree

Counsel for Respondent: John S. Dolence and Gary C. Lentz

Opinion Summary: None

Crow, P.J., and Shrum, J., concur.

John E. Parrish, Judge

Deana Baker appeals a summary judgment in favor of Empire District Electric Co. (Empire) in an action she brought to recover damages for personal injuries sustained as a result of an automobile accident. The automobile in which Mrs. Baker was a passenger was involved in a collision with another vehicle. The other vehicle struck a utility pole owned by Empire. The pole broke and electrical lines it supported came in contact with the vehicle in which Mrs. Baker was a passenger. That appeal is No. 22968.

William Baker, Deana Baker's husband, was driving the automobile in which Mrs. Baker was a passenger. He appeals a summary judgment in favor of Empire in an action he brought for damages for personal injuries he sustained. His appeal is No. 22969. This court consolidated the two appeals. The summary judgment in each case is affirmed.

Empire filed a motion in this court seeking to strike the brief filed by appellants. The motion points to various violations of Rule 84.04 in appellants' brief. The brief's statement of facts includes argument contrary to requirements of Rule 84.04(c). It does not contain page references to the legal file that makes up the record on appeal as required by Rule 84.04(i). Not all of the points relied on (as well as sub-points under the points) concisely state legal reasons that support the alleged error as required by Rule 84.04(d)(1)(B). In sum, the brief is excruciatingly difficult to work with. This court is reluctant to say the brief does not impede the disposition of the appeals on the merits. However, by the exercise of painstaking patience, this court concludes that the issues about which appellants complain can be sufficiently identified to permit those issues to be addressed on the merits. One should not infer, however, that such violations of Rule 84.04 will be overlooked in the future.¹

The argument portion of appellants' brief is not always limited to the issues stated in the point relied on to which the argument is directed. Questions not identified in a point relied on are considered abandoned. Schmidt v. Warner, 955 S.W.2d 577, 583-84 (Mo.App. 1997). Questions advanced in the argument portion of appellants' brief that were not identified in points relied on will not be addressed. Berger v. Huser, 498 S.W.2d 536, 539 (Mo. 1973); Schmidt v. Warner, supra.

Identical judgments were entered in the case brought by Mrs. Baker and the one brought by her husband. The judgments recite the facts on which they are based:

The undisputed facts necessary for ruling upon [Empire's] Motion[s] for Summary Judgment, are that on the date in question Plaintiff William Baker was operating a motor vehicle on Cedar Road in Jasper County, Missouri. Plaintiff Deana Baker was a passenger in the vehicle being driven by her husband. [Empire] maintained a pole upon which were wires used for conducting electricity. The pole was located off of the northwest corner of the intersection of Cedar Road and County Road 11. In the intersection of Cedar Road and County Road 11 the Baker vehicle collided with another vehicle. The other vehicle struck the pole causing it to fall and the Baker vehicle came to rest in the approximate location where the pole had been located. The pole was located some four to seven feet from the paved portion of the intersection. The Baker vehicle was "energized" by the downed electric lines and both Plaintiffs suffered injuries from the electricity entering their bodies.

Both Plaintiffs claim [Empire] was negligent in the placement of the pole and in failing to properly equip the wires so that they continued to conduct electricity even after the pole was knocked down following the accident. There is in addition a negligence per se claim for violation of the National Electric Safety Code and a count under the theory of Res [sic] ipsa loquitur. All of the claims of both Plaintiffs are negligence claims.

The criteria for testing the propriety of summary judgment on appeal are no different than those employed by the trial court in determining whether to grant a motion for summary judgment initially. Hood-Rich, Inc. v. County of Phelps, 872 S.W.2d 584, 587 (Mo.App. 1994). As explained in Woodfill v. Shelter Mut. Ins. Co., 878 S.W.2d 101 (Mo.App. 1994):

This court's review of a summary judgment "is essentially de novo." ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). However, "[t]he questions for decision on appeal are those stated in the points relied on." In re Matter of Trust of McDonald, 858 S.W.2d 271, 280 (Mo.App.1993).

Id. at 102.

The petitions filed in each case sought recovery on the same theories. Each petition alleged that Empire negligently located and failed to barricade the utility pole that was struck and knocked over (Counts I and III); that Empire negligently installed and maintained the utility pole (Count II and III); that the location of the pole amounted to negligence per se by Empire (Count IV); that Empire failed to exercise the requisite degree of care in locating, constructing and maintaining the utility pole so that it was a public nuisance (Count V); and, alternatively, that Empire was responsible for Mr. Baker's and Mrs. Baker's injuries on the theory of res ipsa loquitur (Count VI).

Empire's motion for summary judgment in each case alleged there was no genuine issue of fact; that:

a. On or about May 22, 1993, there was an automobile collision involving a vehicle driven by Everett J. Kelly and a vehicle driven by William F. Baker at the intersection of Cedar Road and County Road Number 11 in Jasper County, Missouri.

. . .

c. The Baker vehicle failed to stop at the intersection and struck the right rear of the Kelly vehicle.

e.[²] As a result of the collision, the left rear of the Kelly vehicle struck Empire's utility pole, breaking it.

f. Empire's utility pole was off of the paved and improved portion of the roadway.

g. A replacement pole was inserted into the same hole that held the pole broken off in the collision.

h. As a result of the collision, the Baker vehicle slid off the pavement and normally traveled portion of the roadway, and came to rest over the original spot where the utility pole had been standing.

i. As a result of the breaking of the utility pole, Empire's transmission lines came to the ground and plaintiff was electrocuted at the passenger door exit of the Baker vehicle.

j. Plaintiff's cause of action against Empire is based upon allegations of negligence.

[Citations to pleadings, discovery documents and affidavits in support of the summary judgments are omitted.]

Empire asserted that the facts disclosed no duty that was breached; that it was not liable for Mr. Baker's or Mrs. Baker's injuries. Mr. and Mrs. Bakers' responses to Empire's motions denied allegations f, h, i and j.

The trial court held that the actions were based on negligence; that, based on Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W.2d 54 (1928), Empire was not liable. Empire's motion for summary judgment in each case was granted. Judgment was entered for Empire on all counts in each case.

Point I asserts that Clinkenbeard does not apply to the facts of this case. Point I argues that Clinkenbeard applies only to (1) claims by occupants of vehicles that struck poles, (2) claims involving poles located where vehicular use is not invited or expected, (3) claims in which injuries resulted from impacts with poles rather than from escape of high voltage or (4) circumstances in which a utility has no forewarning of a dangerous condition by prior accidents or is not otherwise "charged with actual knowledge of hazards it created."

In Clinkenbeard an automobile driven by the plaintiff collided with a utility pole that was "about three feet" from the paved roadway. 10 S.W.2d at 55. A six to eight-inch curb bordered the paved roadway. The driver sought damages for injuries he sustained in the accident from the utility company that placed and maintained the pole at the location of the accident and from the city of St. Joseph on whose street he had been traveling. He contended the utility company was negligent in placing the pole where it did, in failing to guard the pole and in abandoning the pole; "that the same could and should have been removed or guarded or lighted" so that the public boulevard by which it was located would have been "rendered . . . in a reasonably safe condition for public travel." Id. at 58. The trial court in Clinkenbeard entered a directed verdict in favor of both defendants.³ On appeal the court held that neither the utility company nor the city was negligent because the pole was "entirely and wholly outside of the traveled and improved roadway . . . set aside and designated . . . for ordinary vehicular travel and use of the public." Id. at 62.

Clinkenbeard has been relied on in numerous other cases involving utility poles and negligence claims against the utility companies owning those poles. In Noe v. Pipe Works, Inc., 874 S.W.2d 502 (Mo.App. 1994), a motorcycle ran off a two-lane road to the right as it approached a truck from the rear. The motorcycle crashed into a utility pole severely injuring its rider. The utility pole was 40 to 56 inches from the paved portion of the road. An action was brought on behalf of the rider of the motorcycle against the utility that owned the pole, Union Electric Co., alleging the utility "negligently maintain[ed] the utility pole too close to the road." Id. at 503. Summary...