English v. Empire Dist. Elec. Co. Inc.

• Decision Date: 23 April 2007
• Docket Number: No. 27411.,27411.
• Parties: Ed ENGLISH, Plaintiff-Respondent, v. EMPIRE DISTRICT ELECTRIC COMPANY, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

220 S.W.3d 849

Ed ENGLISH, Plaintiff-Respondent, v. EMPIRE DISTRICT ELECTRIC COMPANY, INC., Defendant-Appellant.

No. 27411.

Missouri Court of Appeals, Southern District, Division One.

April 23, 2007.

Thomas C. Walsh, St. Louis, John S. Dolence, Joplin, for Appellant.

Michelle Boehm O'Neal, Alison Hershewe, Joplin, for Respondent.

NANCY STEFFEN RAHMEYER, Presiding Judge.

Empire District Electric Company, Inc. ("Appellant") appeals from a judgment rendered against it for actual and punitive damages as a result of an accident, which occurred on October 11, 1995, on a construction site in Webb City, Missouri. Ed English ("English") was electrocuted and suffered significant injuries when he came in contact with two energized lines hung by Appellant. Appellant brings three points on appeal: (1) quarreling with a claimed evidentiary ruling; (2) claiming error in the refusal to submit a jury instruction; and (3) challenging the award of prejudgment interest. We affirm the judgment awarding damages; however, we reverse the award of prejudgment interest.

FACTS

Because Appellant does not challenge the sufficiency of the evidence, we state the facts in the light most favorable to the judgment. English was one of two workers injured when the scaffolding he was holding inadvertently contacted an energized 69,000 volt power line, owned and maintained by Appellant, at the Ramey's Supermarket in Webb City, Missouri. Appellant has been in the business of producing, transporting, and selling electrical power in southern Missouri since the early 1900's and has long known that unplanned and accidental contact with energized wires and electrocutions often occur at construction sites because many people believe that electrical lines are insulated when, in fact, they are not.

The evidence indicated that in the ten-year period before this incident, Appellant acknowledged numerous accidental contacts with its electrical lines, including contacts causing six deaths and ten serious injuries, as well as thirty-two power line "hits" and three hundred thirty "close calls." Almost all of these accidental contacts or "hits" occurred at construction sites. Appellant's Director of Commercial Operations had investigated more than ten accident scenes involving the same kind of electrical hits. There was also testimony from Appellant's Director of Engineering and corporate representative that one such accident, also involving a forklift, occurred less than two months before English's incident.

The jury heard evidence that, unlike other hazards, electricity is an invisible and undetectable danger. Human factors studies have born out that power lines are difficult to see as, depending upon sky and lighting conditions, power lines are known to fade into the background and become less visible to those on the ground nearby. There are three recognized measures that can be implemented to protect against the hazard of accidental contact: eliminate the hazard, guard against the hazard, or warn of it.

There was testimony that Appellant knew that serious injuries and deaths often occur during accidental contact because workers often have trouble judging their distance to overhead power lines, even when they are trying to be careful. That knowledge came from various sources including government bulletins from the National Institute for Occupational Safety and Health ("NIOSH"). The bulletins reminded Appellant that many contractors and construction workers were unaware and may not understand the danger of contacting uninsulated power lines with scaffolding, cranes and other construction equipment. NIOSH recommended that information be given to contractors regarding these dangers and even urged electric utility companies to distribute NIOSH's recommendations on the hazards of working around energized lines.

Appellant received overall site plans from the architect before construction on the supermarket began. The architect asked Appellant if a pole could be moved ten feet to accommodate the parking lot and driveway construction, which would cause the site elevation to rise approximately three feet on the architectural drawings. Appellant acknowledged that this type of increase in site elevation was not uncommon based on its own experience selling electricity at construction sites. Appellant did not raise, move, or de-energize the lines during the construction project.

English's claim was premised on Appellant's failure to eliminate, guard or warn of the risk of accidental contact with its energized lines despite actual knowledge of the construction and tall equipment being used. Appellant did not move for a directed verdict at the close of all the evidence, nor do they contend in this appeal, that English failed to prove a submissible case.

POINT I

Appellant contends in Point I that the trial court "abused its discretion in refusing to permit [Appellant] to adduce evidence of [English's] blood alcohol content because such evidence was relevant to the pleaded issue of [English's] responsibility for the accident." To support its point, Appellant apparently relies upon pretrial rulings of the trial court for its proposition because it fails to direct this Court to any specific testimony that was refused by the trial court. Instead, it cites to a discussion during a pretrial conference prior to voir dire between English's counsel ("Counsel") and the court for the proposition that "[i]t was undisputed that emergency room personnel who treated [English] after his accident performed a procedure that revealed his blood still contained .05% alcohol."

Appellant is incorrect in its factual and legal analysis. The nature and results of any "procedure," as well as the relevance of the evidence, were disputed. Counsel stated that any testing was done incorrectly and further noted that there was no medical testimony that English's consumption of alcohol had anything to do with the injury. What is undisputed is that Appellant did not plead or claim that consumption of alcohol by English caused or contributed to cause the accident. It is also undisputed that no specific testimony or offer of proof was introduced at trial. Appellant argued to the court at the pretrial conference that the jury should consider whether evidence of alcohol consumption impacted English. The trial court judge stated he would revisit the issue at a later time, but for the purposes of voir dire and opening statement he did not want any references made to the actual test results.

The only other discussion cited by Appellant concerning alcohol consumption by English occurred during a consideration of Counsel's pretrial motions. Again, in this appeal Appellant cites to a discussion between Counsel and the court concerning the purported blood alcohol test. After a discussion of several pretrial motions, the trial court indicated, "Unless [Appellant] can show that they've got somebody that says that [English] was somehow impaired by that, that's not coming in." The court indicated it would allow other testimony concerning English's alcohol consumption.

Although Appellant for the first time in its reply brief admits that it failed to make an offer of proof, it contends that English is seeking to avoid meaningful scrutiny of those points by invocation of "procedural technicalities." Appellant fails to understand that we are courts of review. In re Marriage of Parmenter, 81 S.W.3d 234, 240 (Mo.App. S.D.2002) ("Appellate courts are merely courts of review for trial court errors, and there can be no review of a legal proposition which was not presented to or expressly decided by the trial court."). We review for trial court error. One of the reasons we limit our review of a ruling on a motion in limine is because the trial court can and should consider the admissibility of the evidence adduced at trial. State v. Norville, 23 S.W.3d 673, 685 (Mo.App. S.D.2000). Only then can the trial court evaluate the logical and legal relevance of the evidence. See Id. ("[A] trial judge should be given an opportunity to reconsider his prior ruling [on a motion in limine] against the backdrop of the evidence adduced at trial.").

To be clear then, Appellant is claiming error in a pretrial ruling on a motion in limine. Although Appellant states, "the trial court abused its discretion," the correct standard is that the trial court "clearly erred" or committed "plain error" in its ruling because a ruling on a motion in limine "`is merely a preliminary expression of the court's opinion as to the admissibility of the evidence.'" Portis v. Greenhaw, 38 S.W.3d 436, 447 (Mo.App. W.D.2001) (quoting Evans v. Wal-Mart Stores, Inc., 976 S.W.2d 582, 584 (Mo.App. E.D.1998)). "[T]he court can change its ruling anytime during the trial if presented with proper circumstances." Id. It is incumbent upon the party seeking to preserve the excluded evidence for purposes of appeal to make an offer of proof at trial demonstrating why the evidence is relevant and admissible. Id. Without a specific and definite offer of proof, appellate courts will not generally review excluded evidence except for plain error. Frank v. Environmental Sanitation Mgmt., Inc., 687 S.W.2d 876, 883 (Mo. banc 1985).

Plain error review is used only rarely in civil cases "where the error affected substantial rights and a manifest injustice or miscarriage of justice resulted therefrom." Ruzicka v. Ryder Student Transp. Services, Inc., 145 S.W.3d 1, 15 (Mo.App. S.D.2004). "[N]ot all error, even if prejudicial, is plain error." In re Estate of Werner, 133 S.W.3d 108, 111 (Mo.App. W.D.2004). Plain error review requires this Court to examine the matter on its face, and proceed with review only if the court discerns a substantial ground for believing that manifest injustice or a miscarriage of justice has resulted. Id. If the claim is not facially established, the court should decline to exercise its discretionary review. Id.

Appellant argues that the substance...