Hansen v. James, WD

• Decision Date: 21 July 1992
• Docket Number: No. WD,WD
• Citation: 847 S.W.2d 476
• Parties: Kirby Dean HANSEN, Respondent, v. Scott A. JAMES, Appellant. 45101.
• Court: Missouri Court of Appeals

Page 476

847 S.W.2d 476

Kirby Dean HANSEN, Respondent, v. Scott A. JAMES, Appellant.

No. WD 45101.

Missouri Court of Appeals Western District.

July 21, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Sept. 1, 1992.

Application for Transfer Sustained Oct. 27, 1992.

Case Retransferred March 23, 1993.

Court of Appeals Opinion Readopted March 26, 1993.

Joseph A. Sherman, Steven F. Coronado, Sherman, Taff & Bangert, P.C., Kansas City, for appellant.

Frank K. Nichols, Pope, Nichols & Hicks, St. Joseph, for respondent.

Before HANNA, P.J., and FENNER and ULRICH, JJ.

ULRICH, Judge.

Scott A. James appeals from the adverse judgment awarding Kirby Dean Hansen $240,000 for injuries Mr. Hansen received when he touched a downed 7,200 volt power line. Judgment followed jury verdict assessing Mr. Hansen's damage at $300,000. The jury assessed eighty percent fault to Mr. James and twenty percent fault to Mr. Hansen. Mr. James argues on appeal that the trial court prejudicially erred when (I) it allowed Mr. Hansen to submit his case to the jury under the doctrine of res ipsa loquitur because, Mr. James contends, evidence failed to establish the second and third elements of the res ipsa loquitur doctrine; (II) the trial court submitted Instruction No. 7, which did not properly define the term "occurrence," thereby misdirecting, misleading, and confusing the jury; (III) the trial court allowed Mr. Hansen to amend his petition to allege general negligence; (IV) the trial court charged the jury with Instruction No. 7, which imposed upon Mr. James a greater standard of care than that required by law; and (V) the trial court refused to grant Mr. James' summary judgment and directed verdict motions because Mr. James' negligent acts were not the proximate cause of Mr. Hansen's injuries; and (VI) the trial court improperly admitted evidence of Mr. James' intoxication. Judgment is affirmed.

The evidence at trial established the following facts. On December 31, 1988, Mr. James attended a New Year's Eve party at a friend's home. While at the party, Mr. James consumed several alcoholic beverages. At approximately 1:00 a.m. on New Year's Day, Mr. James left the party and operated a motor vehicle accompanied by two passengers, James Spalding, the owner of the car, and Denelle Lusk. Approximately one mile from the party, Mr. James lost control of the vehicle, causing the automobile to leave the road, strike and damage a power pole, and proceed down an embankment. One of Mr. James' passengers was thrown from the vehicle. After Mr. James assisted his passengers to safety, he ran back to the party to summon help. Mr. James returned to the accident scene with individuals who assisted him. With the help of friends, Mr. James and his passengers were transported to the emergency room of a hospital located in Maryville, Missouri.

The damaged utility pole supported two electrical lines. One of the lines, a neutral line, was severed and lay on the ground. The second line, an uninsulated power line charged with 7,200 volts of electricity, supported the damaged utility pole and extended across the roadway. The second line was suspended at a height of six feet by the damaged pole and increased in height as it stretched to the next, undamaged utility pole.

Shortly after Mr. James' collision, Kirby Dean Hansen arrived at the New Year's Eve party with a friend, Denny Florea. At the party, Mr. Hansen and Mr. Florea learned of the accident and left the party to inspect the accident scene. Mr. Hansen and Mr. Florea initially drove past the scene without observing the wrecked automobile. However, Mr. Hansen and Mr. Florea ultimately found the accident scene. Mr. Florea testified at trial that the second time he and Mr. Hansen went by the accident scene he observed that "there was a pole knocked down and the lines were down." It was 2:00 a.m. when Mr. Hansen and Mr. Florea initially inspected the accident scene. After Mr. Hansen and Mr. Florea walked around the accident scene, they drove to the hospital in Maryville.

At the hospital, Mr. Hansen conversed with Mr. James and volunteered to return to the scene in order to transport the wrecked vehicle into town. Mr. Hansen and his father are in the business of towing automobiles. After leaving the hospital, Mr. Hansen telephoned his father at approximately 2:30 a.m. and requested that his father assist him in towing the vehicle. Mr. Hansen made arrangements to meet his father at their place of business in Hopkins, Missouri, several miles from the accident scene. When Mr. Hansen, his father, and Mr. Florea arrived at the accident scene, no one else was present. A few minutes later, Deputies Miller and Martin of the Nodaway County Sheriff's Department arrived.

When the deputies arrived at 3:00 a.m., Mr. Hansen, his father, and Mr. Florea were already preparing to tow the wrecked vehicle. The deputies noted the downed power lines and warned those present about them. After asking the deputies for permission to load the vehicle for towing, Mr. Hansen, with the assistance of his father and Mr. Florea, began and completed the loading process for towing the vehicle. Mr. Hansen's father then began to tow the wrecked automobile from the accident scene. At approximately 3:35 a.m., Deputies Miller and Martin noticed that the downed power line wire was shaking and observed Mr. Hansen lying on the ground underneath the wire. The officers, Mr. Hansen's father, and Mr. Florea immediately aided Mr. Hansen. After freeing Mr. Hansen from the power line, an ambulance and the utility company were summoned. Deputy Martin testified about the conversation between himself and Mr. Hansen immediately after Mr. Hansen sustained his injuries. Deputy Martin recalled Mr. Hansen stating that "he had reached up to push the wire out of the way so the truck could pass under it."

As a result of electrical burns sustained by Mr. Hansen when he contacted the wire, Mr. Hansen's dominant right hand and a portion of his arm were amputated. Mr. Hansen also suffered severe burns to his back. Mr. Hansen's medical bills totalled $37,874.94.

The jury's unanimous decision assessed Mr. Hansen's damages at $300,000, and apportioned Mr. Hansen's fault at twenty percent and Mr. James' fault at eighty. Mr. James appeals from the judgment entered pursuant to the jury verdict.

I

Mr. James argues as his first point on appeal that insufficient evidence supports the submissibility of Mr. Hansen's case under the doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur permits a jury to infer from circumstantial evidence that the defendant is negligent without requiring that the plaintiff prove defendant's specific negligence. Trefney v. Nat'l Super Markets, Inc., 803 S.W.2d 119, 121 (Mo.App.1990); see also Marshall Interiors v. Young Men's Christian Ass'n., 787 S.W.2d 329, 331 (Mo.App.1990). The plaintiff must prove the doctrine's three elements: "(1) the incident resulting in injury is of the kind which ordinarily does not occur without someone's negligence; (2) the incident is caused by an instrumentality under the control of the defendant; and (3) the defendant has superior knowledge about the cause of the incident." Trefney, 803 S.W.2d at 121. Mr. James contends that Mr. Hansen failed to prove either the second and third elements of the res ipsa loquitur doctrine.

On appeal, the evidence presented at trial is not reweighed. Strick v. Stutsman, 633 S.W.2d 148, 152 (Mo.App.1982). The appellate court's duty, in res ipsa loquitur cases is "to determine whether certain circumstances warrant an inference where application of the doctrine is sought. Determination of the application of the doctrine is a matter of law left to the exclusive province of our courts and is not a matter left for determination by a jury as a factfinder." Id. Missouri courts have long recognized that "[n]o presumption of liability will be drawn from the fact of an accident and resulting injury. It is the character or nature of the accident, rather than the fact of the accident, which determines the application of the doctrine." Id.

Mr. James contends that the trial court's submission of the case under the doctrine of res ipsa loquitur was erroneous because he did not have control over the power line, the instrumentality which directly caused Mr. Hansen's injuries. In examining the "control" element of res ipsa loquitur, the Eastern District stated the following:

If the plaintiff shows the defendant was in exclusive control of the instrumentality which caused the accident, he has inferentially focused negligence upon defendant. If the plaintiff does not show the defendant's exclusive control of the instrumentality, he still may fix the defendant with responsibility for the negligence by showing the defendant had the right or power to control the instrumentality and the opportunity to exercise it.

Mahan v. Missouri Pacific R. Co., 760 S.W.2d 510, 513 (Mo.App.1988). The record reveals that Mr. Hansen established that Mr. James exclusively controlled or had the right to control the instrumentality which caused the incident which produced Mr. Hansen's injuries.

The incident was caused by the vehicle driven by Mr. James not the downed power line as asserted by Mr. James. Although the electrical circuit from the downed power line flowing through Mr. Hansen resulted in his injuries, the automobile driven by Mr. James created the situation that resulted in Mr. Hansen's injuries. The vehicle was the instrumentality that set in motion the series of events which eventually created the incident. Mr. James had exclusive control over the automobile. He operated the vehicle when it left the roadway and struck the utility pole, thereby creating the dangerous situation which ultimately resulted in the severe injuries suffered by Mr. Hansen. Thus, because Mr. James had exclusive control over the instrumentality which caused the incident, the second element of the...