Basta v. Kan. City Power & Light Co.

• Decision Date: 16 December 2014
• Docket Number: WD 77251
• Citation: 456 S.W.3d 447
• Parties: Ronald and Patricia Basta, as heirs at law to Joseph Basta, Respondents, v. Kansas City Power & Light Company, Appellant.
• Court: Missouri Court of Appeals

456 S.W.3d 447

Ronald and Patricia Basta, as heirs at law to Joseph Basta, Respondents

v.Kansas City Power & Light Company, Appellant.

WD 77251

Missouri Court of Appeals, Western District.

OPINION FILED: December 16, 2014

Motion for Rehearing and/or Transfer to Supreme Court Denied January 27, 2015

Application for Transfer Denied March 31, 2015

Michael P. Healy, Lee's Summit, MO, Jill A. Kanatzar, Kansas City, MO, for Respondents.

R. Lawrence Ward, William E. Quirk, and Miriam E.C. Bailey, Kansas City, MO, for Appellant.

Before Division II: Joseph M. Ellis, Presiding Judge, and Mark D. Pfeiffer and Gary D. Witt, Judges

Opinion

Mark D. Pfeiffer, Judge

Kansas City Power & Light Company (“KCP & L”) appeals the Judgment of the Circuit Court of Buchanan County, Missouri (“trial court”), entered on a jury verdict in favor of Ronald and Patricia Basta (“the Bastas”) in their action for the wrongful death of their 31–year–old son, Joseph Basta (“Joey”),¹ resulting from electrocution. We affirm.

Factual and Procedural Background²

Larry and Judy Blankenship hired Mike Rose Roofing to reroof their flat-roofed one-story home that was constructed in 1961. Joey was an experienced roofer; he had worked for Rose on and off for six or seven years and was one of the roofers on the crew for the Blankenship job. On June 17, 2009, Joey was tragically electrocuted while working near a service drop line, which brought electricity into the home through the point at which the service line attached to equipment—called split-bolt connectors—above the roof of the house.

More specifically, Joey and another roofer, Billy Hendrix, were installing a metal and rubber boot around the riser pipe (also called meter mast or service mast), a two-inch galvanized pipe that extends from the meter can through the roof. The riser pipe was topped with a copper

weatherhead, a device to keep rainwater from going down the pipe and into the electrical equipment. At some point during this activity, Joey came into contact with both an uninsulated connector and the weatherhead. The weatherhead served as a direct ground permitting the electric current from the connector to pass through Joey's body, causing ventricular fibrillation and, ultimately, cardiac arrest.

The Bastas ultimately went to trial against one defendant, KCP & L, the supplier of electrical service to the Blankenships' home. The verdict-directing instruction given to the jury stated:

In your verdict you must assess a percentage of fault to defendant whether or not decedent Joey Basta was partly at fault if you believe:

First, plaintiffs are the parents of decedent Joey Basta, and

Second, either

defendant failed to insulate the connectors, or

defendant failed to inspect the connectors, or

defendant failed to maintain the service drop lines 18 inches above the roof, and

Third defendant in any one or more of the respects submitted in paragraph second was thereby negligent, and

Fourth such negligence directly caused or directly contributed to cause the death of Joe[y] Basta.

The term “negligent” or “negligence” as used in this instruction means the failure to use the highest degree of care. The phrase “highest degree of care” means that degree of care that a very careful person would use under the same or similar circumstances.

After a five-day trial, the jury found the total amount of the Bastas' damages to be $2 million. The jury assessed KCP & L as 50% at fault and Joey as 50% at fault. The trial court entered judgment in favor of the Bastas and against KCP & L in the amount of $1 million.

KCP & L filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for a new trial, which the trial court denied. KCP & L timely appealed, asserting three points of error.

Point I

Standard of Review

Initially, we note that the denial of a motion for new trial is not an appealable order. “No appeal lies from an order overruling a motion for a new trial, but the aggrieved party may appeal from a final judgment entered against him.” Walker v. Thompson, 338 S.W.2d 114, 116 (Mo.1960) ; Burbridge v. Union Pac. R.R. Co., 413 S.W.3d 649, 654 (Mo.App.E.D.2013). In its first point relied on, KCP & L asserts that “[t]he trial court prejudicially erred in denying KCP & L's motion for new trial because the jury entered a general verdict and at least one of the three disjunctive submissions in the verdict-directing instruction was not supported by substantial evidence.” We therefore assume that KCP & L's appeal was from the judgment entered by the trial court on the jury's verdict and review the same for “substantial evidence” supporting it.

Analysis

KCP & L asserts that the trial court erred in denying KCP & L's motion for new trial because the jury entered a general verdict on a three-part disjunctive submission and because at least one of the three disjunctive submissions was not supported by substantial evidence. Specifically, KCP & L contends that there was no substantial evidence in the record either: (i) that KCP & L had any duty to maintain the height of the service drop line at eighteen inches above the roof; or (ii) that the height of the service drop line more probably than not actually or proximately caused or contributed to cause Joey's accident.

The Bastas' expert, professional consulting engineer Donald Johnson, testified about his lengthy experience in the industry and opined that KCP & L had a duty to maintain the overhead service drop power line eighteen inches above the roof, a minimum requirement of the National Electric Safety Code (“NESC”). Johnson testified that the NESC contains the minimum standards, including safety standards, for electric utilities across the nation. He opined that there should be a minimum of eighteen inches clearance from the roof to the lowest conductor and that KCP & L breached the standard of care by failing to provide such clearance.

During the course of Johnson's testimony, counsel for KCP & L successfully lodged numerous objections to Johnson's testimony. And, counsel for KCP & L ably cross-examined Johnson, eliciting numerous instances of testimony favorable to KCP & L's defense. In one instance, counsel for KCP & L elicited testimony from Johnson that Johnson did not know which version of the NESC was in effect at the time of the alleged negligent installation and/or repair of the service drop line by KCP & L. But no testimony was ever elicited from Johnson or any other witness that the version in effect in 1994 (the time frame in which the reasonable inferences from the evidence suggest that the service drop line was repaired and/or replaced) was any different in its service drop line height requirements than the version that existed at the time of trial. And Johnson never retracted his opinion that KCP & L had breached the standard of care as to the eighteen-inch clearance; nor did Johnson ever retract his opinion that the NESC supported his opinion. To be sure, KCP & L presented evidence through its expert about the 1961 version of the NESC (the year the home had been constructed); yet, though it presumably possessed the capability to review every version of the NESC from 1961 forward, KCP & L never objected at trial to the foundation of Johnson's expert opinion, nor did it move to strike Johnson's testimony, which was based in large part on the minimum requirements of the NESC.

Though KCP & L's expert claimed the 1961 version of the NESC did not support Johnson's testimony, numerous witnesses testified that the service drop line wiring had been replaced in the years subsequent to the home's construction. Kim Jennings, a master electrician, inspected the wiring and testified that the service drop was not done in the 1960s because the insulation covering the triplex wire in the 1960s was gray; however, he noticed that the insulation covering the triplex wire at the Blankenships' home was bright black. Based upon this evidence and Jennings's knowledge of a severe 1994 ice storm in the area (bolstered by Mr. Blankenship's testimony that, in fact, a severe ice storm in the past had caused a power outage), Jennings opined that the newer shiny black service drop wiring feeding the house “was installed in 1994 when we had a horrible storm in this area that took down virtually 50 percent of the overhead drops in the entire area.”³ Likewise, Johnson opined that the shiny black service drop wire coming from the transformer pole was “a lot newer” than the dull, gray, cracked wires going into the house. Similarly, Albert Cowan, a licensed professional engineer, testified that the service drop wires were not original, had a shiny surface, and “looked fairly new,” while the service wire going into the residence was discolored and showed surface cracking.

Evidence of industry standards is generally admissible as proof of whether or not a duty of care was breached, but they do not establish a legal standard of care. Pierce v. Platte–Clay Elec. Co-op., Inc., 769 S.W.2d 769, 772 (Mo. banc 1989) ; Eagleburger v. Emerson Elec. Co., 794 S.W.2d 210, 231 (Mo.App.S.D.1990). While the NESC does not establish the determinative standard of care, it is relevant evidence for the jury to consider in weighing the issue of breach of due care. Pierce, 769 S.W.2d at 773. Thus, here, irrespective of what version of the NESC was in effect at the relevant time of KCP & L's installation, repair, or replacement of the service drop line, the evidence relating to NESC safety standards relates to the admissibility of Johnson's testimony in this case, not the submissibility of the case to the jury.

KCP & L asserted, for the first time in its post-trial motion and later, on appeal, that Johnson's opinion lacked foundation. If an expert's proffered opinion testimony is challenged based on whether it is supported by a sufficient factual or scientific foundation, the question is one of admissibility, and it must be raised by a timely objection or motion to strike. Sanders v. Ahmed, 364 S.W.3d 195, 209 (Mo. banc...