Hills v. Ozark Border Elec. Co-op., 14059

• Decision Date: 31 March 1986
• Docket Number: No. 14059,14059
• Citation: 710 S.W.2d 338
• Parties: Prod.Liab.Rep. (CCH) P 11,054 Linden HILLS and Patricia Hills, Plaintiffs-Respondents, v. OZARK BORDER ELECTRIC COOPERATIVE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 338

710 S.W.2d 338

Prod.Liab.Rep. (CCH) P 11,054

Linden HILLS and Patricia Hills, Plaintiffs-Respondents, v. OZARK BORDER ELECTRIC COOPERATIVE, Defendant-Appellant.

No. 14059.

Missouri Court of Appeals,

Southern District,

Division Three.

March 31, 1986.

Motion for Rehearing or Transfer

Denied April 16, 1986.

Application to Transfer Denied

June 17, 1986.

Norman L. Chadwick, Poplar Bluff for defendant-appellant.

Daniel T. Moore, Poplar Bluff, for plaintiffs-respondents.

PER CURIAM.

Plaintiffs, Linden Hills and Patricia Hills, contend that a fire at their body shop was caused by defendant furnishing electricity to the shop in a dangerously defective condition in that it fluctuated to high levels of excessive voltage. It is alleged that the condition resulted from the breaking of a line, to which a ground wire had been improperly connected, near defendant's transformer which served plaintiffs' property. Following a jury verdict and judgment in plaintiffs' favor, defendant appeals.

Plaintiffs' claim was submitted to a jury on an instruction which followed MAI 25.04 (1981), "Verdict Directing--Strict Liability--Product Defect." The instruction is set forth below. ¹

Defendant's discursively penned and somewhat overlapping points relied on essentially argue that the theory of strict liability in tort for the sale of a defective and unreasonably dangerous product does not apply to the furnishing of electricity, but even if it does extend "to for-profit utility companies it would not be applicable to a non-profit rural electric cooperative." It is also urged that the trial court erred in overruling defendant's motion for a directed verdict in that "[n]o evidence whatever was adduced that plaintiff[s] sustained damages as a direct result of a defect in any product."

In Keener v. Dayton Electric Manufacturing Co., 445 S.W.2d 362, 364 (Mo.1969), Missouri adopted "the rule of strict liability in tort stated in 2 Restatement, Law of Torts, Second, § 402A" (1965). That rule says that a seller of "any product" is subject to liability, under certain conditions, to a user or consumer if the product was sold "in a defective condition unreasonably dangerous to the user or consumer or to his property." Whether strict liability as described in § 402A can be applied to damage caused by the furnishing of electricity has not been decided in Missouri. ² Intriguing and important as this question is, however, we conclude that it is unnecessary to reach that issue in resolving the present appeal. Instead, our attention need only be directed to the principles that there must be substantial evidence to support each element of a party's cause of action, no fact essential to submissibility can be inferred unless there is a substantial evidentiary basis for it, and a necessary element cannot be based upon speculation, conjecture or guesswork. Tri-Continental Leasing Co. v. Neidhardt, 540 S.W.2d 210, 211 (Mo.App.1976).

Proof that a plaintiff's damages were caused by a defect in the product is an essential element of a plaintiff's case under a product liability theory. Duke v. Gulf & Western Manufacturing Co., 660 S.W.2d 404, 409 (Mo.App.1983). Defendant, the appellant herein who suffered an adverse judgment below, has specifically raised the issue of submissibility as it relates to the element of causation, and we are not prevented from resolving this appeal on that critical issue alone. Cf. Grippe v. Momtazee, 696 S.W.2d 797 (Mo. banc 1985).

To determine if plaintiffs established a submissible question on the disputed factual issues, the evidence and reasonable inferences from that evidence are viewed in a light most favorable to plaintiffs. Wilson v. Missouri-Kansas-Texas Railroad Co., 595 S.W.2d 41, 44 (Mo.App.1980). Following that rule, the facts set out below disregard defendant's evidence, except where it aids plaintiffs. Gibson v. Newhouse, 402 S.W.2d 324, 326 (Mo.1966).

Defendant sells electricity to plaintiffs for their house and body shop. The house is adjacent to the body shop. Defendant's "primary" lines, which include a "neutral" line, approach plaintiffs' premises and carry electricity at 7200 volts. These lines connect to a transformer owned by defendant on, or near, plaintiffs' property. The function of the transformer is to reduce the voltage to "120/220 volts." After passing through the transformer the electricity goes on separate "secondary" lines through meters into the house and body shop.

On the evening of the fire plaintiffs had been at Mr. Hills' mother's house. When they arrived back at the house and body shop at approximately 9:30 p.m., the body shop was on fire. Mrs. Hills attempted to call the fire department from a phone in their house but the phone did not work. Apparently, plaintiffs' neighbor called the fire department.

Between 10:00 and 10:30 p.m., employees of defendant arrived at plaintiffs' property to disconnect the electricity to the body shop. Plaintiff Patricia Hills testified that before defendant's employees arrived, she went back into the house and attempted to turn on the lights in the kitchen. The light bulbs "flashed" and burned out. She said this was the first time she had turned on the lights in the house because when she attempted to use the phone earlier she had not turned on the lights as their vehicle lights were shining into the house.

Defendant's employees disconnected the electricity to the body shop at the transformer. Just before they left, Mrs. Hills returned to the house and turned on the bedroom lights and the light bulbs there also "flashed" and burned out. She tried to stop defendant's employees but "they were already on the road." Defendant's employees were called back and arrived about 3:00 a.m. Plaintiff Linden Hills said when the employees of defendant returned the employees shined a light on the transformer pole and one said, "There's the problem. Neutral wire's down." The wire had broken a few feet from the pole. They then rehooked the neutral and ground wires.

Plaintiff Linden Hills, apparently using a photographic exhibit showing the transformer, part of the pole, and part of the primary neutral line, said that, when he looked up at the pole while standing with defendant's employees, the ground wires were "disconnected, too, because that's where they was connected on is where this come apart." How he contends they were connected cannot be told from his testimony. A hypothetical question later asked by plaintiffs' attorney of an expert witness indicates that Mr. Hills meant that a ground wire from the transformer was attached to the primary neutral line and when the neutral line broke the ground wire was disconnected. The particular hookup as remembered by Hills for purposes of the expert's testimony was described by that expert as not being an "acceptable practice."

According to plaintiff Linden Hills, an odor was discovered in the house the second time plaintiffs went in. What it smelled like was not stated, but he said it caused them to think the house was on fire. Later that night plaintiffs discovered that their furnace and appliances in the house would not work and they eventually had to be repaired. Why the furnace and appliances did not work, what caused the failures, and what repairs were necessary is not in evidence beyond the abstract statement that a motor burnout "usually" indicates over-voltage.

Plaintiffs' expert testimony came from an electrical engineer. He said that if the ground wire of the transformer was connected as plaintiff Linden Hills told him it was, when the primary neutral line broke, the electricity "definitely could" have behaved abnormally. He then described "the occurrence that could have taken place," and offered an opinion that the line breaking "could have caused an over-voltage." An apparent part of plaintiffs' theory of what could have happened, as represented by the engineer's testimony, was that the over-voltage current was diverted to a ground connected to the electrical panel of the body shop and was actually conducted by conduit which was described as "part of the grounding system." It was then stated that the electrified conduit "could possibly become hot enough to start a fire." The expert also stated that "[h]igh over-voltages will cause light bulbs to instantly extinguish and blow." As to the light bulbs, a witness for defendant tended to agree. A detective with the Poplar Bluff Police Department's Arson Unit, who was "also a member of the State Fire Marshal's Office," testified for plaintiffs that the fire at the body shop was caused by electricity.

As plaintiffs state, citing Williams v. Deere & Co., 598 S.W.2d 609 (Mo.App.1980), strict liability in tort does not require impossible standards of proof. The proof must be realistically tailored to the circumstances and the existence of a defect may be inferred from circumstantial evidence with or without the aid of expert evidence. Williams, supra, 598 S.W.2d at 612. Williams states, "[c]ommon experience tells us that some accidents do not ordinarily occur in the absence of a defect and in those situations the inference that a product is defective is permissible."

However, "common experience" does not aid plaintiffs here. It tells us that electrical fires can occur in the absence of excessive voltage and it is of little aid in determining if excessive electrical voltage caused a fire. That an "electrical" fire occurred at plaintiffs' body shop does not establish that it was caused by defendant furnishing electricity in the defective condition claimed by plaintiffs. Other factors such as the electrical wiring in the body shop could have been instrumental in causing the fire. Plaintiffs made no attempt to present evidence that might have eliminated other conditions that could have caused the fire.

We also recognize the rule that "[a]bsolute certainty or positive proof of causation by an expert witness is not required in a products liability case."...