Kibbons v. Union Elec. Co.

• Decision Date: 28 January 1992
• Docket Number: No. 73778,73778
• Citation: 823 S.W.2d 485
• Parties: Suzanne KIBBONS, individually and as Natural Mother and Guardian of Kevin Kibbons, Angela Kibbons, and Kelly Kibbons, Plaintiffs-Respondents, v. UNION ELECTRIC COMPANY and J.R. Green Properties, Inc., Defendants-Appellants.
• Court: Missouri Supreme Court

Page 485

823 S.W.2d 485

Suzanne KIBBONS, individually and as Natural Mother and Guardian of Kevin Kibbons, Angela Kibbons, and Kelly Kibbons, Plaintiffs-Respondents, v. UNION ELECTRIC COMPANY and J.R. Green Properties, Inc. Defendants-Appellants.

No. 73778.

Supreme Court of Missouri En Banc.

Jan. 28, 1992.

Rehearing Denied Feb. 25, 1992.

Martin J. Toft, Ann E. Buckley, Michael L. Skinner, St. Louis, and Donald R. Morin and Lucy T. Herbers, Clayton, for defendants-appellants.

Steven G. Schumaier, Firmin A. Puricelli, Robert W. Cockerman, Clayton, for plaintiffs-respondents.

ROBERTSON, Chief Justice.

Kevin Kibbons [Kibbons], plaintiffs' decedent, died as a result of electrocution. His surviving spouse and children brought suit against a real estate developer and an electric utility to recover their damages in wrongful death. The trial court entered a judgment against the two defendants severally for $900,000 each. The real estate developer appealed; the electric utility did not.

Approximately six months after the trial court entered its judgment, and while the developer's appeal rested with the court of appeals, plaintiffs filed a motion for relief from the judgment under Rule 74.06(b)(3) claiming that the judgment entered by the trial court was irregular. The trial court sustained the motion and entered judgment against both defendants jointly and severally in the amount of $1,800,000. The utility appealed from the trial court's order sustaining the motion.

The court of appeals held that plaintiffs failed to make a submissible case against the developer and reversed that portion of the judgment. That court further affirmed the modified judgment against the utility and held that the utility must pay the entire judgment under rules of joint and several liability.

We granted transfer to consider the proper judicial course when a jury renders a verdict assigning to and apportioning fault between the plaintiff and two defendants and it is subsequently determined that only a single defendant bears fault under the law. We have jurisdiction. Mo. Const. art. V, § 10. The judgment of the trial court is reversed and the cause remanded with directions.

I.

J.R. Green Properties, Inc. [Green] is a real estate developer and had purchased property in St. Louis County for a development as a residential subdivision. Green's predecessor in title had conveyed an easement over this tract, including Lot 6, to Union Electric [UE] to construct, operate, and maintain utility poles and lines over the property. The grantor of the easement further covenanted that it "will not create or permit any obstruction of any kind or character that will interfere with the successful operation and maintenance of said line or lines for any of the purposes aforesaid." UE installed its poles and lines in 1967. Poles were located at the east and west ends of Lot 6, with lines running between them, including an uninsulated 7200 volt line. Subdivision development began in 1985. The original clearing and grading was completed by the end of June, 1985. In July, 1985, UE linemen noticed that the distance between the power line and the ground on Lot 6 had been reduced as a result of grading activity in the subdivision. UE replaced the west pole on Lot 6 to restore the clearances.

In early 1986, McLaren came on the site to grade lots and excavate basements. On September 3, 1986, one of the McLaren employees drove a dump truck under the power lines on Lot 6 with its bed up. The truck caught the neutral wire, tearing it down, and damaged the primary line, causing a temporary blackout. Kibbons reported the incident to UE. UE repaired the primary line and stapled the neutral line to a pole.

On December 24, 1986, the drive shaft broke on a dump truck owned by Kevin Kibbons and Bill McLaren that was being used by McLaren Construction Company employees at the subdivision site. Kibbons used his high lift tractor to push the truck from the point where it broke down to a place under lines on Lot 6. Kibbons and another employee, Jerry Steele, removed the drive shaft.

On December 26, Kibbons brought a new drive shaft to the site to install on the truck. He told Steele to start the truck, let it warm up and raise the bed. Kibbons went under the truck to begin work on the drive shaft. Steele started the truck and the mechanism to raise the bed and then got out of the truck to help Kibbons. As the truck bed continued to rise, it contacted the 7200 volt line and Kibbons was electrocuted.

At trial plaintiffs submitted their case against both Green and UE. The jury returned a verdict in favor of plaintiffs and assessed plaintiffs' damages at $3,000,000, allocating thirty percent fault to Green thirty percent fault to UE and forty percent fault to decedent.

The trial court entered judgment against Green for $900,000 and against UE for $900,000. Green appeals from that judgment. Six months after judgment, upon plaintiffs' motion for relief from judgment, the trial court entered a corrected judgment against both defendants jointly and severally in the amount of $1,800,000. UE appeals from this order.

II.

Appeal of J.R. Green Properties, Inc.

Green challenges the submission of Instruction 10, the verdict director, and Instruction 14, which submitted aggravating circumstances for wrongful death. This Court finds that the submission of the verdict director was reversible error; we need not, therefore, address the aggravating circumstances instruction.

Plaintiffs' petition alleged that Green was negligent for a) requiring performance of hazardous work in close proximity to electrical wires, b) failing to warn of the dangerous condition of its land, c) increasing the ground level under the electrical wires, and d) creating and maintaining a hazardous condition on its land without adequate warning. However, Instruction 10, which was modeled on MAI 22.03, submitted the liability of Green solely on the theory that Green had breached a duty to warn of or barricade the uninsulated 7200 volt electric wire.

Green argues that the submission of liability by this instruction was prejudicial error. We agree. By granting this particular easement to UE, Green's predecessors in title surrendered the exclusive use and control of the easement property to UE. Gnau v. Union Electric Company, 672 S.W.2d 142, 145 (Mo.App.1984). In the absence of an agreement to the contrary, the owner of the easement is responsible for keeping the property in repair and is liable for any injury resulting from the failure to repair. Id. See also Mispagel v. Missouri Highway and Transportation Commission, 785 S.W.2d 279, 282 (Mo. banc 1990); 28 C.J.S. Easements §§ 72, 94(c) (1941); 1 G. Thompson, Thompson on Real Property § 428 (1980).

A landowner has no duty to maintain or repair, Gnau, 672 S.W.2d at 145; Mispagel, 785 S.W.2d at 282; Annin v. Lake Montowese Dev. Co., Inc., 759 S.W.2d 240, 241-42 (Mo.App.1988), or to warn or barricade dangerous conditions on the easement that are in the sole control of the the holder of the easement. Gnau, 672 S.W.2d at 145; Reyna v. Ayco Development Corp., 788 S.W.2d 722 (Tex.App.1990). This is because the landowner is only liable for those injuries caused by devices placed on the premises by the holder of the easement that are under the landowner's possession and control. Hunt v. Jefferson Arms Apartment Co., 679 S.W.2d 875, 879 (Mo.App.1984). There is no duty even where the landowner has knowledge of the potentially harmful condition. Gnau, 672 S.W.2d at 145, citing Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982).

In Duke Power, a child was injured when she touched a transformer on an easement owned by Duke Power Company on land owned by a housing authority and leased to an individual. The lessee knew the box was unlocked and had notified both the power company and the housing authority. In following the principle that it is control and not ownership which determines liability, the North Carolina Supreme Court held that Duke had the sole duty to keep the transformer safe and that the knowledge of the owner and lessee of the servient estate is "irrelevant to the question of their liability" where they had no control over the transformer. 290 S.E.2d at 598.

In Gnau, supra, the petition alleged that the servient owners were negligent in failing to warn of a 7200 volt power line, in failing to trim a tree growing under the line, and in failing to prevent or eliminate the dangerous condition. 672 S.W.2d at 143. The court identified the key issue as whether the servient owners had a duty to warn or eliminate the dangerous condition. Id. at 144. The court found no duty on the part of the servient landowners and held the duty of the utility to be nondelegable, citing Union Electric Co. v. Pacific Indemnity Co., 422 S.W.2d 87 (Mo.App.1967), which holds that where a duty to warn of an uninsulated wire exists, it is the nondelegable duty of the electric utility that owns and controls the wire. Id. at 92.

Gnau was followed by the Texas Court of Appeals in Reyna v. Ayco Development Corp., 788 S.W.2d 722. In that case a child resident of an apartment complex was severely injured when she wandered into an open electrical switching cabinet located on an electrical easement within the apartment complex. Plaintiffs alleged that the complex was negligent in failing to warn of the dangerous condition of the cabinet and in failing to barricade or maintain restricted access to the cabinet. The easement was similar in scope to the one in issue in this case. Relying on the holdings of Gnau and Green that the duty of care resides in the party who controls the premises, the Texas Court of Appeals held "[a]n owner or occupier who has no control has no duty to warn against the danger or to take any action to relieve the danger." Reyna, 788 S.W.2d at 724.

In this case, as in Gnau and Duke Power, there was no evidence that the servient owner had agreed to inspect or...