Kramer v. Chase Resorts, Inc., 54572

• Decision Date: 05 September 1989
• Docket Number: No. 54572,54572
• Citation: 777 S.W.2d 647
• Parties: Marie KRAMER, et al., Plaintiffs-Respondents, v. CHASE RESORTS, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 647

777 S.W.2d 647

Marie KRAMER, et al., Plaintiffs-Respondents, v. CHASE RESORTS, INC., Defendant-Appellant.

No. 54572.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 5, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Oct. 4, 1989.

Jim J. Shoemake, Gino F. Battisti, St. Louis, for defendant-appellant.

James E. Hullverson, Stephen H. Ringkamp, St. Louis, for plaintiffs-respondents.

STEPHAN, Judge.

Chase Resorts, Inc., d/b/a Lodge of the Four Seasons and d/b/a Four Seasons Marina, appeals from the judgment entered against it in favor of respondents Marie and William Kramer, husband and wife. Pursuant to jury verdict in their favor, the court awarded Mrs. Kramer $600,000 for her personal injuries, Mr. Kramer $50,000 for his personal injuries and $50,000 for loss of consortium in their negligence action against appellant; Robert Whalen, appellant's employee; and also Robert Ahrens d/b/a Dock Right Dock Company, a dock manufacturer. The Kramers were injured when the snow-laden roof of a boat dock collapsed on them. The boat dock was part of the marina at the Lodge of the Four Seasons owned by Chase Resorts at the Lake of the Ozarks, Missouri. Robert Ahrens, d/b/a Dock Right Dock Company is not a party to this appeal, the jury having found in his favor. Respondents did not submit their case against appellant's employee Robert Whalen. Chase Resorts appeals the trial court's refusal to instruct on comparative fault and the damage award. We reverse and remand the judgment of the trial court.

The Kramers had lived in a condominium at the Lake of the Ozarks since 1982. They leased two slips at a dock owned by appellant. The dock itself was a wooden floating structure. Long wooden or metal platforms called fingers extended about forty feet in length from the dock. These ran alongside the slips for the boats. The fingers normally floated about one foot to one and one-half feet above the water.

On February 26, 1984, a heavy snow fell in the area throughout the day. By five p.m., the snow was deep enough that the Kramers cancelled their plans for dining out with their friends, the Sebastians, because road conditions had deteriorated and become hazardous. Around midnight, the Sebastians, who lived year-round on their boat and maintained a slip at the same dock as the Kramers, called the Kramers to tell them that water was coming over the fingers of the dock and that water was rising around the Kramers' dock box containing various boating and fishing equipment.

Captain Paul Graning, manager of the Four Seasons Marina, also learned around midnight, after telephone calls to him by both the night watchman and hotel operator, that the fingers of the dock were sinking. Within fifteen to thirty minutes, he dressed and arrived at the dock to survey the situation. He encountered the Sebastians at the dock and warned them to get off the dock. He discovered the weight of the snow which had accumulated on the dock roof was causing the fingers to submerge into the water. He immediately left the dock to organize a crew for snow removal.

In the interim, the Kramers had trudged through the snow and arrived at the dock. The water had crept up over the fingers of the dock, about one foot to one and one-half feet above the waterline, according to Mrs. Kramer. Both the Kramers recognized there was a problem with the dock and that the dock was sinking. Their dock box was located about in the middle of the finger and was already sitting in about three or four inches of water. The far ends of the fingers were at least one foot under water.

About five minutes after the Kramers arrival on the dock, its roof collapsed under the weight of the snow. Injuries to Mrs. Kramer's left shoulder and abdomen eventually required surgery. Mr. Kramer sustained less severe injuries than his wife but did sustain a fracture of his twelfth thoracic vertebra.

Appellant's first point contends the trial court erred in refusing its request that the jury be instructed on comparative fault. Appellant states whether a reasonable person would be put on notice that some harm associated with the snow-covered roof might occur was a question for the jury. Appellant asserts the trial court erred in concluding that the Kramers could anticipate the sinking of the dock, but not the collapse of its roof. The main thrust of appellant's argument is that the Kramers' knowledge of the generally dangerous condition of the dock because it was sinking constituted knowledge of the danger actually encountered (a snow-laden dock roof which collapsed), and thus their entry onto the dock warranted submission to the jury of a comparative fault instruction. Appellant argues the evidence established the Kramers failed to use ordinary care for their own safety because they entered onto the dock knowing it to be in distress, knowing it had sustained prior damage and knowing it was sinking under weight of a heavy snow. ¹

This case, tried in 1988, is controlled by the comparative fault doctrine adopted in Gustafson v. Benda, 661 S.W.2d 11 (Mo.banc 1983). Under Gustafson, plaintiff's conduct in negligence cases is to be measured by the definition of fault provided in the Uniform Comparative Fault Act. 661 S.W.2d at 15-16. The act provides in part that "any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant's contributory fault, but does not bar recovery." Unif. Comparative Fault Act § 1(a), 12 U.L.A. at 41. (Supp.1989). The act defines "fault" to include "acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others" and also "unreasonable failure to avoid an injury or to mitigate damages." Unif. Comparative Fault Act § 1(b). "Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault." Id.

"Legal requirements of causal relation" has generated much discussion. The National Conference of Commissioners on Uniform State Laws' Comment to Section 1 of the Uniform Comparative Fault Act states:

For the conduct stigmatized as fault to have any effect under the provision of this Act it must have had an adequate causal relation to the claimant's damage. This includes the rules of both cause in fact and proximate cause.

"Injury attributable to the claimant's contributory fault" refers to the requirement of a causal relation for the particular damage. Thus, negligent failure to fasten a seat belt would diminish recovery only for damages in which the lack of a seat belt restraint played a part, and not, for example, to the damage to the car.

12 U.L.A. at 42 (Supp.1989).

One distinguished scholar on comparative negligence has commented, "[i]n order for plaintiff's negligence to be material and thus subject to comparison with that of defendant, plaintiff's negligence must have been a cause in fact or must have at least contributed to his injury." V.E. Schwartz, Comparative Negligence § 4.1 at 78 (2nd ed. 1986) [hereinafter cited as Schwartz.]

The principle that proximate cause and causation in fact are properly within the jury's domain is long established and well-entrenched within Missouri law. See, e.g., Laughlin v. Kansas City Southern Ry., 275 Mo. 459, 205 S.W. 3, 5 (1918). The Western District has observed that, in order to make a submissible case of contributory fault in the pre-Gustafson sense of contributory negligence, evidence of a causal connection between a plaintiff's alleged negligence and resultant damage was required. Wittmeyer v. Braby, 706 S.W.2d 263, 264 (Mo.App.1986) (citing Heberer v. Duncan, 449 S.W.2d 561, 563 (Mo.banc 1971)). Relying upon Acculog, Inc. v. Peterson, 692 P.2d 728 (Utah 1984), the court in Wittmeyer further observed that the advent of comparative fault has not eliminated this principle. 706 S.W.2d at 265.

With this principle in mind, we examine contributory negligence as it existed before Gustafson for guidance in determining when plaintiffs' actions constitute a degree of fault warranting submission of a comparative fault instruction.

Our Missouri Supreme Court had adopted the two types of contributory negligence enunciated in Restatement (Second) of Torts § 466 (1965). Bledsoe & Northside Supply and Development Co., 429 S.W.2d 727, 732 (Mo.1968); Siteman v. Woodward-Clyde & Associates, Inc., 503 S.W.2d 141, 146 (Mo.App.1973). Section 466 of the Restatement provides:

The plaintiff's contributory negligence may be either (a) an intentional and unreasonable exposure of himself to danger created by the defendant's negligence, of which danger the plaintiff knows or has reason to know, or (b) conduct which, in respect other than those stated in Clause (a), falls short of the standard to which the reasonable man should conform in order to protect himself from harm.

(Emphasis added.)

The question is whether Chase Resorts made a submissible case of the Kramers' contributory fault. There was substantial evidence in this case that the Kramers recognized the floating dock was obviously distressed, with portions of the fingers submerged in water. We believe that the question whether the Kramers' conduct fell short of the standard to which the reasonable man should conform in order to protect himself from harm was properly within the province of the jury to answer. Under comparative fault, the jury is allowed to assess defendant's fault for failure to maintain the premises in a reasonably safe condition and plaintiff's fault in failing to use ordinary care in discovering an obvious danger. Hefele v. National Super Markets, Inc., 748 S.W.2d 800, 802 (Mo.App.1988). The adoption of comparative fault requires the jury be given the responsibility of assessing the relative fault of the parties in tort actions. Patton v. May Department Stores Co., 762 S.W.2d 38, 40 (Mo. banc 1988); Cox v. J.C. Penney Co., 741 S.W.2d...