Grosshart v. Kan. City Power & Light Co.

• Decision Date: 13 April 2021
• Docket Number: WD 83672
• Citation: 623 S.W.3d 160
• Court: Missouri Court of Appeals
• Parties: Lona Leann GROSSHART, Appellant, v. KANSAS CITY POWER & LIGHT COMPANY, Respondent.

623 S.W.3d 160

Lona Leann GROSSHART, Appellant,

v.KANSAS CITY POWER & LIGHT COMPANY, Respondent.

WD 83672

Missouri Court of Appeals, Western District.

OPINION FILED: April 13, 2021

John M. Edgar and Matthew J. Limoli, Kansas City, MO, Attorneys for Appellant.

Mark D. Anstoetter, Kathryn A. Larkins, and Brent Dwerlkotte, Kansas City, MO, Attorneys for Respondent.

Before Division Three: Karen King Mitchell, Presiding Judge, and Thomas H. Newton and Anthony Rex Gabbert, Judges

Karen King Mitchell, Presiding Judge

Lona Grosshart appeals from the judgment dismissing, with prejudice, her claims of fraudulent concealment, strict liability, and negligence arising from alleged exposure to heavy metals released by Kansas City Power & Light Company's coal-fired electric power plant near La Cygne, Kansas. Grosshart raises three points on appeal. She argues that the motion court erred in dismissing her claims because (1) the Kansas statute of repose is not substantive and, thus, does not bar her claims; (2) she stated claims for negligence and strict liability in that she adequately alleged facts demonstrating a causal connection between her Missouri exposure to the power plant's environmental releases and her injuries; and (3) she stated a claim for fraudulent concealment in that she adequately alleged that KCP&L owed a duty to inform her that the power plant was releasing heavy metals into the environment.

Finding that dismissal of Grosshart's strict liability and negligence claims arising out of her Kansas exposure at the farm and her fraudulent concealment claim was appropriate, we affirm the motion court's rulings on those claims. Finding that dismissal of Grosshart's strict liability and negligence claims arising from her alleged 2016 Missouri exposure was inappropriate, we reverse the court's ruling on those claims and remand for further proceedings consistent with this opinion.

Background¹

Born in 1966, Grosshart was raised on a family farm near Pleasanton, Kansas, located approximately four miles south-southwest of the power plant. While living on the farm, Grosshart consumed, bathed in, and otherwise used water from a well drilled into a shallow alluvial aquifer below the farm and downstream from the power plant.

Unit I of the power plant began operating in 1973, and Unit II began operating in 1977. Beginning in approximately 1973, KCP&L placed byproducts of the coal-firing process in settling ponds, at least one of which was not designed, constructed, or monitored by a professional engineer. Grosshart alleges that the power plant has been releasing heavy metals into the environment for more than forty years.

Grosshart left the farm in 1986 and subsequently lived in Manhattan, Kansas; Keystone, Colorado; Butler, Missouri; Springfield, Missouri; Branson, Missouri; Hollywood, Florida; New York, New York; and the Los Angeles, California area. After 1986, Grosshart "often returned to visit her father at the [f]arm," but she does not identify when those subsequent visits to the farm occurred or that she was exposed to heavy metals from the power plant during those visits. Grosshart's mother moved to Butler, Missouri, in 1986, and Grosshart often visited her there, too.

Butler's water supply is obtained from sources that include the Marais des Cygnes River and its tributary Miami Creek. The shallow alluvial aquifer below the farm feeds into the Marais des Cygnes River, which continues east into Missouri where it feeds into Miami Creek. Heavy metals from the power plant also are present in Butler's water supply, which is the source of the water Grosshart consumed and used while there.

In 2012, Grosshart's health declined dramatically; she developed debilitating fatigue and other symptoms that left her bedridden and unable to work. She consulted a number of medical professionals, but none were able to provide a comprehensive diagnosis of her condition or identify its cause. In December 2013, Grosshart underwent testing that revealed severe heavy metal toxicity, including a toxic level of cadmium, in her body.

In October 2014, Grosshart obtained soil and well water samples from the farm and submitted them to professional laboratories for analysis. The results showed high levels of many of the same heavy metals that were present in her body.

In February 2016, Grosshart submitted a hair sample for heavy metal testing. The results showed that Grosshart's cadmium level was within normal range. After Grosshart's father died in early 2016, she spent a total of about nine weeks living with her mother in Butler. In June 2016, at the five-week mark of her visit, Grosshart submitted another hair sample for testing. Those results showed that her cadmium level was nearly ten times higher than it had been in February 2016 and more than three times higher than the upper range of the reference interval for cadmium—the level expected to be present in a healthy person. In October 2016, after her nine-week stay in Butler, she submitted a third hair sample for testing. The results of the third test showed that her cadmium level was more than thirty-two times higher than it had been in February 2016 and more than ten times higher than the upper range of the reference interval.

On July 10, 2016, Grosshart's mother spoke with a contractor working at the power plant. He explained that KCP&L knew the power plant emitted heavy metals that settled on the surrounding land and water, but KCP&L did not test for the presence of heavy metals in the environment. The contractor also explained that the heavy metals that settled in the soil on or near the farm or in the aquifer below the farm would have migrated into the Marais des Cygnes River. Grosshart's mother relayed this information to Grosshart who shared it with her doctors.

Following a March 2017 biopsy of her salivary glands, Grosshart was diagnosed with Sjögren's Syndrome, a chronic and incurable autoimmune disease caused by environmental toxicity.² Among other things, Grosshart alleged,

In diagnosing Grosshart with Sjögren's Syndrome in March 2017, Grosshart's doctor expressed the opinion that she developed the disease in response to environmental toxicity, i.e. , her exposure to the heavy metals and related contaminants found at the [f]arm and in Butler, Missouri. This was the first time any medical professional had told Grosshart that her heavy metal toxicity was the direct cause of a recognized medical condition.

.....

Grosshart has ... been exposed to and has ingested and retained heavy metals and other chemical contaminants when drinking and bathing in the water supplied to her mother's home in Butler, Missouri.

Grosshart's doctors believe her elevated cadmium levels are directly related to her time living at the farm and her extended stay in Butler; Grosshart is not aware of any other source of her exposure to cadmium. High levels of cadmium are associated with chronic fatigue, which is one of Grosshart's symptoms.

KCP&L did not inform Grosshart that the power plant was releasing heavy metals into the surrounding environment.

Grosshart filed her initial petition on July 10, 2018, and her amended petition on October 11, 2018, alleging fraudulent concealment (Count I), strict liability (Count II), and negligence (Count III). With respect to each count, Grosshart requested compensatory and punitive damages, costs, and "all other relief the Court deems just and proper."

KCP&L filed a motion to dismiss and suggestions in support, arguing that (1) Kansas substantive law applies and Grosshart's claims are barred by the Kansas statute of repose; (2) Grosshart fails to state a claim for fraudulent concealment because she does not sufficiently allege that KCP&L had a duty to disclose; and (3) Grosshart fails to state claims for strict liability and negligence because she does not sufficiently allege causation with respect to her claimed exposure through the Butler, Missouri, public water supply system.³ Grosshart filed suggestions in opposition, and KCP&L filed a reply. The motion court held a brief hearing⁴ and then issued an order and judgment granting KCP&L's motion for the reasons stated therein and dismissing Grosshart's amended petition with prejudice.

This appeal follows.

Standard of Review

All three points on appeal challenge the propriety of the motion court's dismissal of Grosshart's claims for failure to state a claim on which relief can be granted. "We review ‘the grant of a motion to dismiss de novo and will affirm the dismissal on any meritorious ground stated in the motion.’ " Hill v. Freedman , 608 S.W.3d 650, 654 (Mo. App. W.D. 2020) (quoting Mosby v. Precythe , 570 S.W.3d 635, 637 (Mo. App. W.D. 2019) ).

"A motion to dismiss for failure to state a claim on which relief can be granted is an attack on the plaintiff's pleadings." Id. (quoting R.M.A. by Appleberry v. Blue Springs R-IV Sch. Dist. , 568 S.W.3d 420, 424 (Mo. banc 2019) ). "Such a motion is only a test of the sufficiency of the plaintiff's petition." Id. (quoting R.M.A. , 568 S.W.3d at 424 ). "When considering whether a petition fails to state a claim upon which relief can be granted, [we] must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations favorably to the pleader." Id. (quoting R.M.A. , 568 S.W.3d at 424 ). "The [c]ourt does not weigh the factual allegations to determine whether they are credible or persuasive." Id. (quoting R.M.A. , 568 S.W.3d at 424 ). "Instead, [we] review[ ] the petition to determine if the facts alleged meet the elements of a recognized cause of action...." Id. (quoting R.M.A. , 568 S.W.3d at 424 ). "In order to withstand the motion [to dismiss], the petition must invoke ‘substantive principles of law entitling plaintiff to relief and ... ultimate facts informing the defendant of that which plaintiff will attempt to establish at trial.’ " Id. (quoting State ex rel. Henley v. Bickel , 285 S.W.3d 327, 329-30 (Mo. banc 2009) ). "If the petition...