Housel v. HD Dev. of Md., Inc.
| Decision Date | 21 July 2016 |
| Docket Number | Case No. 3:14-cv-05084-MDH |
| Citation | 196 F.Supp.3d 1039 |
| Parties | Edie HOUSEL, Plaintiff, v. HD DEVELOPMENT OF MARYLAND, INC., and Home Depot U.S.A., Inc., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Cory James Kalm, Katrina R. Richards, Hershewe Law Firm, Joplin, MO, for Plaintiff.
Sean W. Fleming, Law Offices of Arthur K. Smith, Arthur K. Smith, Allen, TX, Michael D. Mayes, Rouse & Cary, St. Louis, MO, C. Bradley Tuck, Evans & Dixon, Springfield, MO, for Defendants.
Before the Court is Defendants' Motion for Summary Judgment (Doc. 42). Upon careful review of the issues raised and arguments provided, the Court hereby GRANTS Defendants' motion and enters judgment in favor of Defendants and against Plaintiff on all remaining claims.
Plaintiff commenced the present action in state court seeking compensation for the alleged wrongful death of her family members who perished in the Joplin tornado of May 22, 2011. The petition alleges that Plaintiff's husband and two minor children sought refuge inside the Joplin Home Depot store and that "Plaintiff's decedents were directed to the training room in the back of the building ... but before they could reach the area, the large unsupported wall panels collapsed on top of them" and "Plaintiff's decedents were killed as a result of injuries sustained during the tornado." Plaintiff brought the action against Home Depot U.S.A., Inc. d/b/a Home Depot and HD Development of Maryland, Inc. (collectively, "Home Depot") as the alleged owner/operator of the Joplin Home Depot store and against Casco Diversified Corporation ("Casco") as the alleged architect/builder of the Joplin Home Depot store.
Home Depot removed the case to federal district court on the basis of diversity jurisdiction and fraudulent joinder. Home Depot argued that in-state defendant Casco was fraudulently joined because Plaintiff's claims against Casco were barred as a matter of law by Missouri's ten-year statute of repose for tort actions against architects and builders arising from defective improvements to real property. See generally Mo. Rev. Stat. § 516.097 (). The Court agreed and dismissed Plaintiff's claims against Casco.
Home Depot's summary judgment motion now argues that summary judgment is appropriate because: (1) the Act of God defense relieves Home Depot of liability, (2) Home Depot is not liable for the acts of CASCO and Home Depot had no knowledge of any of the alleged defects in its building, (3) there is insufficient evidence to allow a reasonable fact-finder to conclude that any act or omission on the part of Home Depot was a proximate cause of the decedents' deaths, (4) there is insufficient evidence beyond mere surmise or conjecture to show that decedents would have escaped the harm caused by the tornado. Plaintiff counters that the Act of God defense does not apply where there is a negligent actor and, here, Home Depot was a negligent actor because Home Depot "breached [its] duty of care in designing and constructing the Joplin Home Depot building" because "the building failed to meet minimum design standards and Defendants failed to inspect the roof structure's welds." Plaintiff argues Home Depot's negligence caused the decedents' deaths because the building "failed prematurely during the tornado at the exact location of design weakness and missing inspections" and "[i]f the roof diaphragm and walls had lasted longer, Rusty and the children would have had time to get to a survivable area."
After Defendant's motion was fully briefed, the Court allowed an additional period of discovery. The Court held oral arguments on the motion and gave the parties an opportunity to submit post-hearing briefs. The issues are now fully briefed and Defendants' motion for summary judgment is ripe for review.
Summary judgment is proper where, viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Reich v. ConAgra, Inc. , 987 F.2d 1357, 1359 (8th Cir.1993). "Where there is no dispute of material fact and reasonable fact finders could not find in favor of the nonmoving party, summary judgment is appropriate." Quinn v. St. Louis County , 653 F.3d 745, 750 (8th Cir.2011). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets the initial step, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To satisfy this burden, the nonmoving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Defendants' motion for summary judgment turns on two disputed issues: (1) whether there is sufficient evidence to show that Home Depot breached a legal duty owed to the decedents, and (2) whether there is sufficient evidence to show that any breach by Home Depot caused the decedents' deaths.1 Upon review of the evidence and arguments provided, the Court finds Plaintiff failed to present sufficient evidence to allow a reasonable fact-finder to conclude that Home Depot breached a duty that caused the decedents' deaths.
On Sunday, May 22, 2011, a catastrophic multiple-vex EF-5 tornado with maximum winds speeds over 200 miles per hour struck Joplin, Missouri. The tornado reached a width of nearly three-fourths of a mile during its 22-mile path through the southern part of the city. The Joplin tornado resulted in 161 fatalities, injured more than 1,150 others, caused catastrophic damage to more than 8,000 homes, 500 commercial properties, and 18,000 vehicles, and caused nearly $3 billion in damage. The Joplin tornado is considered the deadliest tornado to hit the United States since 1947, it is ranked seventh among the deadliest tornadoes in United States history, and it is considered the single costliest tornado in United States history.2
According to an article in the Natural Hazards Observer, "[o]ne unique aspect of the Joplin tornado was the broad range of building systems it affected." The article explained that "[w]hile most buildings damaged by tornadoes are typically low-rise, marginally or non-engineered buildings like manufactured homes, the Joplin tornado damaged non-engineered and engineered buildings alike." Both the Natural Hazards Observer article and a FEMA Mitigation Assessment Team (MAT) report observed that building code requirements do not require a building to withstand extreme wind events such as an EF-4 or EF-5 tornado. The MAT report stated that even buildings designed and constructed in accordance with applicable building codes in Joplin "experienced failure of the building envelope and structural systems when loaded beyond code parameters."
On May 22, 2011, Edie Housel ate dinner at McAllister's Deli on Rangeline Road in Joplin, Missouri with her husband, Russell Howard, and their two children, Harli Howard, age five, and Hayze Howard, age nineteen months. After they were finished eating, Edie headed to Freeman Hospital, where she was scheduled to work the night shift as a nurse. Edie and Russell spoke on their cell phones at 5:43 p.m. as the tornado sirens were going off. Russell told Edie that he was going inside the Joplin Home Depot store with the children. Russell's truck was found under the canopy in front of the lumbar entrance of the Joplin Home Depot store. The bodies of Russell and his two children were later found under the west wall panel in the southwest corner of the Joplin Home Depot store. Steve Cope testified that he saw the decedents' bodies after the storm passed and the bodies were located at the base of the west wall, just inside the store, in a crouched position. He testified that the decedents' bodies were found near the same vicinity as the body of Dean Wells, a Home Depot Employee, who was located approximately 20 to 30 feet east of the decedents' bodies, closer to the back of the store.
As the tornado watches and warnings progressed on May 22, 2011, employees at the Joplin Home Depot store met and monitored the developing weather conditions. When the tornado sirens went off for the first time, the Home Depot store manager sent a page over the intercom for associates and customers to be aware that a weather event was happening. The Home Depot management team conducted a sweep of the building to ensure that all customers were aware that they needed to move to the back of the building to the training room. The management team members then posted to assigned areas of the store to maintain visualization and secure the entrances. Individuals from the area surrounding the store attempted to take refuge inside the Joplin Home Depot store up to the time the tornado struck.
When the weather appeared to worsen, and shortly after the second tornado siren sounded, the store manager sent another page for all associates to go back to the training room and to ensure that all customers were back in the training room. The store manager testified that a short time later he saw a spark at the front entrance, the power went out, and the front glass doors blew in. At that time, the store manager was standing near the registers at the front entrance to the store and he immediately turned and ran in the dark straight to the...
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