Heffernan v. Reinhold

• Decision Date: 05 February 2002
• Docket Number: No. ED 79029.,ED 79029.
• Citation: 73 S.W.3d 659
• Parties: Dianna HEFFERNAN, Individually and as Next Friend for Minors, Steven Heffernan and Keith Heffernan, Plaintiffs/Appellants, v. Frederick REINHOLD, Reinhold Development Corp., Mastodon Meadows Homeowners Association, Estate of Gary Rambo, Deceased, and Christopher T. Dawidowski and Kimberly A. Dawidowski, Defendants/Respondents.
• Court: Missouri Court of Appeals

73 S.W.3d 659

Dianna HEFFERNAN, Individually and as Next Friend for Minors, Steven Heffernan and Keith Heffernan, Plaintiffs/Appellants, v. Frederick REINHOLD, Reinhold Development Corp., Mastodon Meadows Homeowners Association, Estate of Gary Rambo, Deceased, and Christopher T. Dawidowski and Kimberly A. Dawidowski, Defendants/Respondents.

No. ED 79029.

Missouri Court of Appeals, Eastern District, Division One.

February 5, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 8, 2002.

Application for Transfer Denied May 28, 2002.

Janet M. Adams, St. Louis, for Appellant.

Randall D. Sherman, Hillsboro, Sam P. Rynearson, David A. Feltz, Christina E. Dubis, Russell F. Watters, (Rambo), St. Louis, David T. Butsch, (Dawidowski), Clayton, for Respondents.

ROBERT G. DOWD, JR., Judge.

Plaintiffs Dianna Heffernan and her children, Steven and Keith, appeal from the trial court's grant of summary judgment to the defendants stemming from Plaintiffs' wrongful death suit. Although Plaintiffs raise several allegations of error as to the granting of summary judgment to each defendant, we find the undisputed facts negate an essential element in each of Plaintiffs' causes of action and all defendants are entitled to judgment as a matter of law. We accordingly affirm.

Statement of Facts

At its heart, this case involves a fatal accident that occurred when Ray Heffernan, Gary Rambo, and Chris Dawidowski attempted to repair a broken sewer pipe, which was causing flooding in Mastodon Meadows subdivision where the three men lived. Initially, the three men used a bobcat to dig down between four and five feet, but failed to uncover the damaged sewer pipe. The men then used a backhoe to continue to dig, and ultimately dug a ditch approximately twelve feet deep and fifteen feet wide before uncovering the broken pipe. The men, however, did not shore the walls of the ditch. Eventually, the ditch walls caved in while the men were working in the hole. Both Ray Heffernan and Gary Rambo were killed as a result, and Chris Dawidowski was injured in the accident.

As a result of the accident, Plaintiffs filed a wrongful death suit against Fredrick Reinhold and Reinhold Development Corporation (collectively "Reinhold"), who installed the subdivision sewer lines and pipes, the Mastodon Meadows Homeowners Association ("MMHA"), the Estate of Gary Rambo ("Rambo"), Chris Dawidowski and his wife, Kimberly, (collectively "the Dawidowskis"), and Patrick and Jeanette Lindsey.¹ Plaintiffs then filed a motion for partial summary judgment against the defendants on the issue of liability. Each of the defendants also filed separate motions for summary judgment against Plaintiffs. The defendants' motions for summary judgment were granted as to each defendant on separate grounds and Plaintiffs' motion for partial summary judgment was denied. This appeal follows.

Standard of Review

Appellate review of a trial court's grant of 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). Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. One way a defending party may establish a right to judgment as a matter of law is by showing undisputed facts that negate any one of the elements of the plaintiff's cause of action. Id. at 381.

At the outset, we make several preliminary observations as to what we are and are not reviewing. First, the record on appeal is extensive, including Plaintiffs' sixteen-count petition, five separate answers from the defendants setting forth numerous affirmative defenses, Plaintiffs' motion for partial summary judgment and the responses thereto, the defendants' separate motions for summary judgment against Plaintiffs and the responses thereto, and the trial court's ruling regarding the summary judgment motions. For purposes of this appeal, however, we are confined to addressing only those issues properly raised in the defendants' motions for summary judgment and the responses thereto. Mothershead v. Greenbriar Country Club, Inc., 994 S.W.2d 80, 85 (Mo.App. E.D.1999). We, thus, may not consider any theories advanced in Plaintiffs' motion for partial summary judgment, as such motion was denied by the trial court and therefore not reviewable. Jones v. Landmark Leasing, Ltd., 957 S.W.2d 369, 373 (Mo.App. E.D.1997). Further, we may not consider any theories advanced by the Plaintiffs for the first time on appeal, but only consider those properly before the trial court. Country Mut. Ins. Co. v. Matney, 25 S.W.3d 651, 654 (Mo.App. W.D.2000).

With these limitations and our standard of review in mind, we find each defendant has set forth undisputed facts that negate an essential element of Plaintiffs' causes of action and summary judgment was therefore appropriate.

Analysis

Claims Against Reinhold

In their petition, Plaintiffs bring several claims against Reinhold, who installed the broken sewer pipe that the three men were attempting to repair at the time of the cave-in. According to Plaintiffs, Reinhold was (1) liable for breach of implied warranty of fitness for a particular purpose, essentially for defective installation of the original sewer pipe; (2) strictly liable for failure to warn of the dangerous condition of the defective pipe; and (3) liable for negligent design and installation of the sewer pipe. In his motion for summary judgment, as to the first count, Reinhold denied that breach of implied warranty of fitness for a particular purpose was applicable because this was not a transaction in goods between a buyer and a seller. As to the negligence and failure-to-warn counts, Reinhold asserted that if there was any negligence in the installation of the pipes, his negligence was not the proximate cause of Ray Heffernan's death. Because we find Reinhold had set forth undisputed facts to negate an essential element of Plaintiffs' causes of action, we find summary judgment appropriate.

In order to establish a case for breach of implied warranty of fitness for a particular purpose, the plaintiff must establish a "seller" at the time of contracting has reason to know any particular purpose for which the "goods" are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods. Section 400.2-315, RSMo 2000. If these elements are met, then there is an implied warranty that goods shall be fit for such purpose. Id.

After our review of the record, we find that the installation of the storm sewer pipe in this situation was not a "transaction in goods." Reinhold installed sewer pipes into Mastodon Meadows in the subdivision's development phase before Ray Heffernan owned his property in Mastodon Meadows. Thus, we are not persuaded that Ray Heffernan was a "buyer" for purposes of Section 400.2-315, RSMo 2000. Given that the sewer pipe installation was not a transaction in goods and Ray Heffernan wasn't a buyer, there was no implied warranty of fitness for a particular purpose. Therefore, summary judgment was properly granted to Reinhold on the warranty count.

With respect to Plaintiffs' negligence theory, in order to overcome summary judgment they must show: (1) the defendant owed a duty of care to the decedent; (2) the defendant breached that duty; (3) the breach was the cause in fact and the proximate cause of his death; and (4) as a result of the breach, the plaintiff suffered damages. Finocchio v. Mahler, 37 S.W.3d 300, 302 (Mo.App. E.D.2000). Further, in order to establish a claim for strict liability for failure to warn, the plaintiff must show the injuries were the direct and proximate result of the defendant's failure to warn. Cole v. Goodyear Tire & Rubber Co., 967 S.W.2d 176, 183 (Mo.App. E.D.1998). We will address these causes of action together because both of them require proximate cause as an essential element.

In order to prove the causal connection necessary to establish negligence, the plaintiff must show both causation in fact and proximate cause. Robinson v. Missouri State Highway and Transp. Com'n, 24 S.W.3d 67, 77 (Mo.App. W.D.2000). A defendant's conduct is the cause in fact of a plaintiff's injuries where the injuries would not have occurred "but for" that conduct. Id. A plaintiff must also show that the defendant's conduct was also the proximate cause of the injuries. Id. Proximate cause is not causation in fact, but is a limitation the law imposes upon the right to recover for the consequences of a negligent act. Id. The requirement of proving proximate cause absolves those actors whom it would be unfair to punish because of the attenuated relation which their conduct bears to the plaintiff's injuries. Id. at 77-78. Thus, proximate cause requires something in addition to a "but for" causation test because the "but for" causation test serves only to exclude items that are not causal in fact; proximate cause will include "items that are causal in fact but that would be unreasonable to base liability upon because they are too far removed from the ultimate injury or damage." Id. at 78.

The test of proximate cause is whether the defendant's negligence is that cause or act of which the injury was the natural and probable consequence. Williams v. Missouri Highway and Transp. Com'n, 16 S.W.3d 605, 611 (Mo App. W.D.2000). Proximate cause, therefore, is determined by looking back, after the occurrence, and examining whether the injury appears to be a reasonable and probable consequence of the conduct. Robinson, 24 S.W.3d at 78.

Further, it is important to note that if two or more persons are guilty of consecutive acts of negligence there is a question as to whether the initial act of negligence was a proximate cause of the injury or whether there was an efficient, intervening cause. Simonian v. Gevers Heating & Air Conditioning, Inc., 957 S.W.2d 472, 475 (Mo.App....