Jordan v. General Growth Development Corp.

• Citation: 675 S.W.2d 901
• Decision Date: 10 July 1984
• Docket Number: No. WD,WD
• Court: Court of Appeal of Missouri (US)
• Parties: Mardella I. JORDAN and William Jordan, Plaintiffs-Respondents, v. GENERAL GROWTH DEVELOPMENT CORPORATION, Defendant-Appellant. Mardella I. JORDAN and William Jordan, Respondents-Appellants, v. GENERAL GROWTH DEVELOPMENT CORPORATION, Sears, Roebuck & Company, et al., Respondents. 34555.

Page 901

675 S.W.2d 901

Mardella I. JORDAN and William Jordan, Plaintiffs-Respondents, v. GENERAL GROWTH DEVELOPMENT CORPORATION, Defendant-Appellant.

Mardella I. JORDAN and William Jordan, Respondents-Appellants, v. GENERAL GROWTH DEVELOPMENT CORPORATION, Sears, Roebuck &

Company, et al., Respondents.

No. WD 34555.

Missouri Court of Appeals,

Western District.

July 10, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 28, 1984.

Applications to Transfer Denied

Oct. 9, 1984.

Thomas H. Rost, Jefferson City, for respondents-appellants Jordan.

Tweedie Fisher, Jefferson City, for defendant-appellant General Growth Development Corp.

Thomas Christopher Graham, Jefferson City, for respondent Sears, Roebuck & Co.

Kelly Pool, Jefferson City, for respondent Mo. Builders Ser. of Jefferson City, Inc.

Before PRITCHARD, P.J., and SOMERVILLE and KENNEDY, JJ.

KENNEDY, Judge.

Mardella Jordan was an employee of Sears, Roebuck & Company at its retail store in Jefferson City, Missouri. On July 10, 1978, she slipped on a wet spot on the floor and fell, sustaining serious injuries. The wet spot on the floor was caused by a leak in the roof. The leak was traced to an eyebolt to which was attached one of the three guy wires which supported a TV antenna on the roof of the building. The eyebolt ran through a hole in the metal deck of the roof, through a metal plate on the underside of the deck, with a nut on the lower (threaded) end. The upper, the eye end of the bolt extended above the deck through a "pitch pan". The "pitch pan" was a six-inch square bed enclosed on its four sides by a metal border, extending two inches above the level of the surrounding roof. This pan was filled with asphalt. The theory was that when the eyebolt moved, the soft asphalt would settle around the bolt and seal up any leak. The fault in the arrangement in this case, according to plaintiff's expert witness, was that the bolt was not firmly attached both above and below the roof deck in order to prevent or minimize its lateral movement. With only the plate and nut below the deck, the guy wire when attached would be pulled toward the antenna and leave a greater void on the opposing side of the bolt than it would if the bolt were rigid. If the guy wire was attached during cold weather the mastic would not fill in the void.

Defendant General Growth Development Corporation was the general contractor which had built the building. The record does not tell us when the construction was completed, but the roof was being applied during March, 1977, fifteen months before Mrs. Jordan's injury. The corporation had nothing to do with the erection of the antenna. There was no evidence about who erected the antenna or when.

A Sears maintenance man had discovered the leak 30 minutes before the time of Mrs. Jordan's fall, and had mopped it up three or four times. He acknowledged in his testimony that he should have barricaded the spot and it was his negligence that this was not done.

Mardella and her husband, William, brought suit for damages against a number of defendants including General Growth Development Corporation, the building contractor, but the case was finally submitted only against the latter.

Mardella had a verdict for $170,000 actual damages and $300,000 punitive damages. Her husband received a verdict for $10,000 damages.

From the ensuing judgments General Growth Development Corporation has appealed to this court.

We affirm the judgments, both Mardella's and William's, for actual damages in accordance with the verdict, but we reverse Mardella's judgment for punitive damages.

I

Appellant does not challenge the sufficiency of the evidence to prove prima facie that the eyebolt and pitch pan were incorrectly installed, so that a leak was likely to develop. It does, however, challenge the submissibility of the case in that the negligence of the defendant, as it contends, was not the proximate cause of the plaintiff's injuries. Specifically, it claims that Sears' negligence was an intervening cause.

Since appellant's argument is thus narrowly targeted, we are not called upon to discuss the whole subject of proximate cause as it relates to our factual situation, but may confine our discussion to the intervening cause argument. Was the negligent (as we shall assume it was negligent) failure of Sears to barricade, to mop up or to warn of the hazardous wet spot an intervening cause, which cut off the flow of causation from defendant's negligence in its construction of the pitch pan-eyebolt arrangement to plaintiff's injury? We hold it was not.

The legal principle which appellant calls upon, and urges upon us as decisive of this case, is thus stated in Duke v. Missouri Pacific Railroad Company, 303 S.W.2d 613 (Mo.1957), quoting from 65 C.J.S. Negligence § 111(b), notes 44, 45, p. 692:

"Where a second actor has or should have become aware of the existence of a potential danger created by the negligence of an original tort-feasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause."

303 S.W.2d at 617.

The key word in the above quotation from Duke and C.J.S. is "independent" as modifier of "act of negligence". In the next paragraph of the opinion in Duke, continuing to quote from C.J.S. the idea is amplified as "distinct, successive, unrelated".

In order for a third person's negligence to be an intervening cause insulating the original tort-feasor from liability for his negligence, the intervening negligent act or negligent omission must be of a wholly "independent", "distinct", "successive", "unrelated" (to use the words quoted above) character. It may not be one which is itself a foreseeable and natural product of the original negligence. In the case before us, the jury could have found, as it did, that failure of Sears to take precautionary measures to protect against injury from the leak was within the range of natural consequences of the defendant's negligence and that it flowed from that negligence. An illustrative case is Gathright v. Pendegraft, 433 S.W.2d 299, 308 (Mo.1968), cited to us by plaintiff. In that case, plaintiff's decedent was killed by an explosion of a gas furnace in a newly constructed house. Suit was brought against the plumbing contractor. The plumbing contractor had failed to cap an unconnected gas pipe. Some unknown person attempted to connect the gas pipe to the range, and did so negligently. The contractor claimed that the negligence of the person who undertook to make the connection was the intervening cause, and that his original negligence was therefore not the proximate cause of the injury. In rejecting this claim, the court said:

We cannot say as a matter of law that a negligent tampering with the pipe, or a negligent attempt by some third person to do an act which was the duty of Mr. Vaughn [the contractor] to perform and which he negligently did not perform, was the efficient intervening cause and not an act of concurring negligence. Defendant Vaughn was not entitled to a directed verdict on the basis of intervening cause.

433 S.W.2d at 308.

We likewise cannot say as a matter of law that Sears' negligence was an intervening cause so as to sever the causation between defendant's negligence and plaintiff's injury.

II

Defendant complains of plaintiffs' verdict-directing instruction. The instruction is not in MAI. Defendant's specific criticism of the instruction is that the jury was required to find that the defendant "knew, or should have known that the said unsafe condition was thereby created", without giving them a standard (i.e., "in the exercise of ordinary care") by which it could determine whether defendant "should have known" that its eyebolt pitch pan installation created an unsafe condition.

The instruction did, however, require the jury to find that defendant's hypothesized conduct was negligent, and there was an instruction which defined negligence. MAI No. 11.02. This was sufficient, and defendant's point is denied.

III

Defendant complains of a comment interjected by Mr. Rost, plaintiffs' attorney, during the closing argument of Development Corporation's attorney, Mr. Fisher. The following exchange occurred near the beginning of Mr. Fisher's closing jury argument:

First of all, as you have heard, Sears, Roebuck, which is not being sued in this case, had failed to barricade the water on the floor.

Mr. Rost (for plaintiff): Your Honor, I think that is incorrect. There is a claim by Tweedie Fisher's client against Sears, Roebuck in this case.

Mr. Fisher: If your Honor please, that is not proper argument for this jury, and I ask the Court to instruct the jury--

The Court: He's not arguing the case, you are, Mr. Fisher. Go ahead with your argument, sir.

Undoubtedly the comment by plaintiff's attorney was improper. Doster v. Chicago, Milwaukee & St. Paul Railway Company, 158 S.W. 440 (Mo.App.1913); City of Advance v. Maryland Casualty Company, 302 S.W.2d 28, 34 (Mo.1957); Stephenson v. American National Insurance Company, 229 Mo.App. 480, 78 S.W.2d 876, 884, 885 (1935).

There are two reasons which in combination if not separately cause us to hold the incident not to be reversible error.

The first reason is that we are not satisfied that the defendant was prejudiced. If the jury understood from Mr. Rost's remark that defendant would, could or might recover over from Sears all or part of any award to plaintiffs, the remark very well could have been prejudicial, especially since no such claim was pending, and since any such claim would have been unavailing. State ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489 (Mo. banc 1979). But we can scarcely think the jury would have put such a construction upon it. There actually had been a third party claim against Sears in ...