Lay v. Schindler Elevator Corp.

• Decision Date: 12 December 2000
• Citation: 37 S.W.3d 310
• Parties: (Mo.App. W.D. 2000) . Johnnie W. Lay, Appellant/Respondent v. Schindler Elevator Corporation, Respondent/Appellant. WD57678 & WD57715 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

37 S.W.3d 310 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Johnnie W. Lay, Appellant/Respondent v. Schindler Elevator Corporation, Respondent/Appellant.

WD57678 & WD57715

Missouri Court of Appeals Western District

Handdown Date: 12/12/2000

Appeal From: Circuit Court of Jackson County, Hon. Donald L. Mason

Counsel for Appellant: Randall L. Rhodes

Counsel for Respondent: Thomas L. Caradonna

Opinion Summary: Johnnie W. Lay was severely injured when a dumbwaiter that he was repairing fell on his head. Lay brought a strict liability claim against Schindler Elevator Corporation and obtained a jury verdict in his favor. The jury assessed one-third fault to Lay and two-thirds fault to Schindler Elevator Corporation. After reducing the amount for fault, Lay's damages amounted to $9,252,500. Thereafter, the trial court granted Schindler Elevator Corporation's request for Judgment Notwithstanding the Verdict. Lay appealed and Schindler Elevator Corporation cross-appealed.

JNOV REVERSED; REMANDED WITH DIRECTIONS TO REINSTATE THE VERDICT.

Opinion Author: Thomas H. Newton, Judge

Opinion Vote: JNOV REVERSED; REMANDED WITH DIRECTIONS TO REINSTATE THE VERDICT. Lowenstein and Stith, JJ., concur.

Opinion:

I. Factual and Procedural Background

A. The Accident

Mr. Johnnie Lay had been employed as an elevator repairman since 1981, and he primarily installed, serviced, and repaired elevators and dumbwaiters¹. On September 30, 1992, Mr. Lay was repairing a dumbwaiter car lodged between two floors at the Hyde Park Nursing Home in Kansas City, Missouri. The nursing home was a three-story structure, and the dumbwaiter was lodged about midway in the shaft. In an attempt to repair the dumbwaiter, Mr. Lay opened the small access panel² where he discovered that all of the cable had unwound from the drum.

The cable needed to be rewound around the drum because it was tangled around all of the equipment in the pit. But Mr. Lay could not reach all of the loose cable in the pit because the cable was wrapped around, under, and behind the various mechanical components on the backside of the pit. The pit had very limited access, and Mr. Lay did not have sufficient clearance to reach into the pit to untangle the cable. Instead, Mr. Lay opened the basement service or hoistway door³ to the shaft.

After untangling the cable, Mr. Lay and his assistant began rewinding the cable on the drum when the loaded dumbwaiter fell eight to ten feet to the bottom of the shaft. The car struck Mr. Lay, and his head was impaled on the equipment in the dumbwaiter pit. His injuries were extensive. The lower half of Mr. Lay's face, including his nose, left eye and jaw, was sheared off and left hanging by skin. Mr. Lay was conscious from the time the accident occurred until he was given anesthetic, which was over an hour after arriving at the hospital. In order to breathe and to control the bleeding, Mr. Lay held his face up against his skull while the doctors worked on him.

Following the accident, Mr. Lay was forced to undergo extensive reconstructive surgery on his face, and subsequently, underwent eight additional surgeries. His face remains disfigured and scarred. He has lost his left eyeball and suffers from palsy on the left side of his face. He has lost his depth perception and most of his ability to hear, smell, and taste. He also sustained damages to his inner ear and suffers from bouts of vertigo. In addition, he suffers from chronic headaches and the left side of his face and lips are completely numb, causing him to drool constantly. Finally, Mr. Lay suffers from recurrent, chronic infections in his face that require him to take antibiotics daily for the rest of his life. When the infections flare up, Mr. Lay must be hospitalized and receive heavy doses of IV antibiotics for days and sometimes weeks. As a result, Mr. Lay is unable to maintain employment.

B. The Dumbwaiter

The Goetz-Niemer Company (Goetz) owned the nursing home where the accident occurred. In 1964 it contacted Allied Elevator Company (Allied) to replace a hand-operated dumbwaiter it had previously used with a mechanical one. Allied purchased the mechanical dumbwaiter from Atlas Elevator Company (Atlas), the manufacturer of the dumbwaiter, and then Allied resold it to Goetz. Allied installed the dumbwaiter in 1964. In 1981, Schindler Elevator Corporation (Schindler) purchased Allied and all of its stock. Allied merged into Schindler, and Schindler agreed to assume all of Allied's liabilities and obligations.⁴ Schindler does not dispute that it is responsible as a successor corporation for Allied's liability.

C. Procedural Background

On March 10, 1995, Mr. Lay filed suit against Atlas, the dumbwaiter manufacturer, and P & G Health Care, Inc., the owner of the nursing home at the time the lawsuit was filed. Mr. Lay amended his petition and added Schindler as another defendant. Subsequently, Mr. Lay settled his claims with Atlas and P & G Health Care, Inc. Schindler moved to dismiss Mr. Lay's claims against it, asserting that section 516.097⁵ barred his claims. The trial court denied Schindler's motion and the case went to trial on May 3, 1999, before the Honorable Donald L. Mason in Jackson County Circuit Court.

Prior to trial, Mr. Lay dismissed his negligence and punitive damages claims against Schindler, but maintained his section 402A strict liability claims for transferring a defective product in the stream of commerce and for failure to warn. Mr. Lay claimed that the dumbwaiter was defective because it lacked a buffer assembly, it lacked a safe and adequate means of access, and it failed to give adequate warnings cautioning repairmen that the dumbwaiter lacked the proper safety equipment. At the close of Mr. Lay's evidence, Schindler filed a motion for directed verdict based on section 516.097. The trial court denied the motion. Again, at the close the evidence, Schindler filed a motion for directed verdict based on its affirmative defense. Mr. Lay also filed a motion for directed verdict; both motions were denied.

Section 516.097 is a statute of repose designed to protect architects, engineers, and builders against tort liability for defective improvements to real property. It requires that all tort actions be brought within a ten-year period upon completion of the improvement with limited exceptions including concealment of the defect. The statute reads as follows:

1. Any action to recover damages for personal injury, property damage or wrongful death arising out of a defective or unsafe condition of any improvement to real property, including any action for contribution or indemnity for damages sustained on account of the defect or unsafe condition, shall be commenced within ten years of the date on which any such improvement is completed.

2. This section shall only apply to actions against any person whose sole connection with the improvement is performing or furnishing, in whole or in part, the design, planning or construction, including architectural, engineering or construction services, of the improvement.

3. If any action is commenced against any person specified by subsection 2, any such person may, within one year of the date of the filing of such an action, notwithstanding the provisions of subsection 1, commence an action or a third party action for contribution or indemnity for damages sustained or claimed in any action because of personal injury, property damage or wrongful death arising out of a defective or unsafe condition of any improvement to real property.

4. This section shall not apply if:(1) An action is barred by another provision of law;

(2) A person conceals any defect or deficiency in the design, planning or construction, including architectural, engineering or construction services, in an improvement for real property, if the defect or deficiency so concealed directly results in the defective or unsafe condition for which the action is brought;

(3) The action is brought against any owner or possessor of real estate or improvements thereon.5. The statute of limitation for buildings completed on August 13, 1976, shall begin to run on August 13, 1976, and shall be for the time specified herein.

Schindler contends that it raised comparative fault as an affirmative defense in its answer to Mr. Lay's First Amended Petition. Mr. Lay filed a pretrial motion in limine to exclude all evidence of comparative fault because Schindler did not plead comparative fault with sufficient supporting facts and references to section 537.765.2. The trial court took the motion under advisement, but after Mr. Lay objected to testimony during trial arguing that it was outside of the pleadings, the trial court ruled that Schindler had failed to properly plead comparative fault as an affirmative defense. Schindler requested leave to file an amended answer to conform to the evidence. The trial court denied Schindler's request to amend due to the prejudicial impact a continuance would cause to Mr. Lay. The trial court ruled that Schindler had ample time to request leave to amend prior to trial and was aware that Mr. Lay objected to the defense because Schindler did not properly plead it.

At the close of the trial, the trial court believed the "door had been opened" on comparative fault, but denied Schindler's request to reopen the evidence to allow testimony on the comparative fault issue. The trial court allowed Schindler to submit jury instructions on comparative fault. The jury allocated one-third fault to Mr. Lay and two-thirds fault to Schindler.

The jury returned a verdict in favor of Mr. Lay and awarded him $15 million. The jury allocated one-third of the fault to Mr. Lay, reducing the award for damages to $9,252,500. Schindler then filed a motion for judgment notwithstanding the verdict (JNOV) and a motion for new trial. The trial court sustained Schindler's motion for JNOV...