J.J.'s Bar & Grill, Inc. v. Time Warner Cable Midwest, LLC

• Decision Date: 21 November 2017
• Docket Number: WD 79341,C/w WD 79357, WD 79503 and WD 79519
• Citation: J.J.'s Bar & Grill, Inc. v. Time Warner Cable Midwest, LLC, 539 S.W.3d 849 (Mo. App. 2017)
• Parties: J.J.'S BAR AND GRILL, INC., d/b/a JJ's Restaurant, et al., Appellants-Respondents, v. TIME WARNER CABLE MIDWEST, LLC, Respondent-Appellant.
• Court: Missouri Court of Appeals

539 S.W.3d 849

J.J.'S BAR AND GRILL, INC., d/b/a JJ's Restaurant, et al., Appellants-Respondents,

v.TIME WARNER CABLE MIDWEST, LLC, Respondent-Appellant.

WD 79341

C/w WD 79357, WD 79503 and WD 79519

Missouri Court of Appeals, Western District.

OPINION FILED: November 21, 2017 Motion for Rehearing and/or Transfer to Supreme Court Denied December 14, 2017

Steven G. Emerson and Thomas H. Davis, Kansas City, MO, for appellants-respondents.

Frederick K. Starrett, Leawood, KS, for respondent-appellant.

Before Division One: Cynthia L. Martin, Presiding Judge, James E. Welsh, Judge and Karen King Mitchell, Judge

Cynthia L. Martin, Judge

Time Warner Cable Midwest, LLC ("TWC") appeals from a judgment awarding property damages to JJ's Bar and Grill, Inc. d/b/a JJ's Restaurant ("JJ's Restaurant") and JJ's Building, LLC ("JJ's Building"). TWC alleges error in the use of three verdict directing instructions and in the admission of expert testimony. JJ's Restaurant and JJ's Building cross-appeal alleging error in the reduction of their judgments by the amount of earlier settlements payments.

Finding no reversible error, we affirm.

Factual and Procedural Background¹

TWC is a video services provider authorized to install fiber optic cable in public rights-of-way by the Missouri Public Service Commission ("PSC"). In early 2013, TWC undertook to install underground fiber optic cable to service the Plaza Vista project at 900 W. 48th Place on the west side of the Country Club Plaza (the "Polsinelli Offices").

JJ's Restaurant operated a restaurant ("JJ's") in a building owned by JJ's Building. JJ's was located on the north side of 48th Street, across the street from the Polsinelli Offices. TWC's fiber optic cable was to be installed running south under an alley on the east side of JJ's and then under 48th Street.

TWC entered into an agreement with Heartland Midwest, LLC ("Heartland") to install the underground fiber optic cable. TWC was aware that Heartland intended to use a trenchless technology known as horizontal directional drilling ("HDD") to install the fiber optic cable. HDD technology utilizes a drill to bore a hole underground through which utilities can be pulled, without excavating the surface.

Heartland notified Missouri One Call² of its intent to install the underground cable. USIC, a utility locating service, marked buried utilities near the location of the planned installation, including those of Missouri Gas Energy ("MGE"), Kansas City Power & Light ("KCP&L"), and the City of Kansas City streetlights. USIC uses color-coded lines of paint to mark underground utilities. USIC placed a single yellow line (signifying an underground natural gas line) and a single red line (signifying an underground electric line) on the paved surface near the intersection of the alley on the east side of JJ's and 48th Street.

Heartland dug a pothole where the painted locator lines were placed. At a depth of approximately 22-24 inches, Heartland found two adjacent black conduits. Heartland concluded that one of the black conduits was the located electric line, and that the other was the located gas line.

Heartland then began drilling to install TWC's fiber optic cable. Heartland sat its drill to bore at a depth of approximately 37 inches. Heartland did not dig the pothole to the depth of the anticipated bore path. Heartland thus did not observe the bore head cross under the two black conduits exposed by its pothole. As Heartland bored beneath the two black conduits, the boring drill struck a 2 inch high pressure natural gas line owned by MGE.

The damage to the gas line caused natural gas to escape. Natural gas migrated under the asphalt alley and into JJ's, where it accumulated, ignited, and exploded. One JJ's employee was killed. Several persons were injured. JJ's and the building it occupied were destroyed.

On May 3, 2013, JJ's Restaurant and JJ's Building filed suit against MGE, USIC, Heartland, and TWC. JJ's Restaurant and JJ's Building subsequently settled with MGE and Heartland. On July 15, 2015, JJ's Restaurant and JJ's Building filed a second amended petition against TWC and USIC. The claims asserted against TWC were for negligence involving an inherently dangerous activity; negligence involving work that is dangerous in the absence of special precautions; negligence involving work performed in a public place; and negligence per se.

Following a six week trial, JJ's Restaurant and JJ's Building tendered proposed verdict directors for their claims against TWC for negligence involving an inherently dangerous activity requiring special precautions (Instruction No. 5); for negligence involving work performed in a public place (Instruction No. 6); and for negligence per se (Instruction No. 7). The verdict directors were submitted to the jury over TWC's objections, as discussed in greater detail, infra.

The jury returned a verdict on August 27, 2015 assigning 98% fault to TWC, 0% fault to USIC, and 2% fault to JJ's Restaurant. The jury awarded compensatory damages to JJ's Restaurant in the amount of $3,500,000, and to JJ's Building in the amount of $2,400,000. After applying the comparative fault allocation, the trial court entered judgment on September 9, 2015 in favor of JJ's Restaurant in the amount of $3,430,000, and in favor of JJ's Building in the amount of $2,352,000.³ The judgment was entered "subject to offsets or credits that this court deems appropriate pursuant to any and all post-trial motions."

On September 16, 2015, TWC filed a motion to amend the judgment pursuant to section 537.060⁴ to reflect reductions for settlements reached with MGE and Heartland. On October 9, 2015, TWC also filed a motion for judgment notwithstanding the verdict, or in the alternative for new trial, which was never ruled on by the trial court. Over JJ's Restaurant and JJ's Building's objections, the trial court granted TWC's motion to amend the judgment, in part, to reflect reduction for settlement payments made by MGE and Heartland to JJ's Restaurant and JJ's Building. The trial court denied the motion to amend to the extent it sought reduction for a settlement payment made to Jimmy Frantze. The trial court entered an amended judgment on November 17, 2015, reducing the damages awarded to JJ's Restaurant to the amount of $1,492,000, and to JJ's Building to the amount of $1,514,000 ("Judgment").

On November 30, 2015, TWC filed a second motion to amend the judgment that was never ruled on by the trial court. TWC filed a notice of appeal on January 15, 2016, and a second notice of appeal on March 17, 2016. JJ's Restaurant and JJ's Building filed a notice of cross-appeal on January 20, 2016, and a second notice of cross-appeal on March 18, 2016.

Analysis

TWC raises four points on appeal. Points One, Two and Three claim error in the submission of Instructions 5, 6, and 7, the verdict directors for negligence involving an inherently dangerous activity requiring special precautions, for negligence involving work performed in a public place, and for negligence per se. Point Four claims error in denying TWC's motion to strike JJ's Restaurant and JJ's Building's expert witness because the expert intended to testify about legal conclusions and legal duties.

JJ's Restaurant and JJ's Building assert a single point in their cross-appeal. They claim error in the reduction of judgments entered in their favor by settlement payments made to them by MGE and Heartland because the settlement payments were disputed, requiring TWC to prove the affirmative defense of reduction before the jury was discharged.

Points One, Two and Three

TWC's first, second, and third points on appeal challenge verdict directors. "Whether a jury was properly instructed is a question of law that this Court reviews de novo. " Edgerton v. Morrison , 280 S.W.3d 62, 65 (Mo. banc 2009) (citation omitted).

The trial court did not err in submitting Instruction No. 5, the verdict director for negligence in the performance of inherently dangerous work without taking special precautions (Point One)

TWC complains that Instruction No. 5, the verdict director for negligence based on an inherently dangerous activity, was legally erroneous because (i) there was no substantial evidence that HDD work is inherently dangerous, and (ii) the instruction failed to comply with MAI 31.15 as the allegations in Paragraph Second were not "special precautions."

(i) Substantial evidence supported finding that HDD trenching is an inherently dangerous activity

TWC first complains that substantial evidence failed to establish that HDD trenching is an inherently dangerous activity. Relevant to this complaint, Paragraph First of Instruction No. 5 provided:

In your verdict, you must assess a percentage of fault to defendant Time Warner Cable Midwest, LLC, whether or not plaintiff JJ's Bar & Grill, Inc. d/b/a JJ's Restaurant was partly at fault, if you believe:

First, performing horizontal directional drilling in the Country Club Plaza was an inherently dangerous activity because it was a congested urban area with multiple utilities and hard surfaces, and....

Finding HDD to be an inherently dangerous activity was an essential predicate to TWC's vicarious liability for Heartland's negligence. "Persons are usually held liable for negligence on the part of those they hire to accomplish their purposes." Ballinger v. Gascosage Elec. Co-op. , 788 S.W.2d 506, 511 (Mo. banc 1990) (overruled on unrelated grounds by Zueck v. Oppenheimer Gateway Properties, Inc. , 809 S.W.2d 384 (Mo. banc 1991) ). There is an exception to this general rule "for the hiring of independent contractors responsible to the employer for the result bargained for, but not subject to control as to the means of accomplishment." Id. The independent contractor exception to vicarious employer liability does not apply, however, "if the work [an independent contractor is] contracted for is an 'inherently dangerous activity.' " Id.

For activities of this kind the owner [employer] remains liable for

...