Lopez, Jones v. Three rivers Electric Cooperative

• Citation: 26 S.W.3d 151
• Parties: (Mo.banc 2000) . Elizabeth Lopez and Penny Jones, Respondents/Cross-Appellants, v. Three Rivers Electric Cooperative, Inc., Appellant/Cross-Respondent. Case Number: SC82244 Supreme Court of Missouri Handdown Date: 0
• Decision Date: 29 August 2000
• Court: Missouri Supreme Court

26 S.W.3d 151 (Mo.banc 2000)

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

Elizabeth Lopez and Penny Jones, Respondents/Cross-Appellants, v. Three Rivers Electric Cooperative, Inc., Appellant/Cross-Respondent.

Case Number: SC82244

Supreme Court of Missouri

Handdown Date: 08/29/2000

Appeal From: Circuit Court of the City of St. Louis, Hon. Patricia L. Cohen

Counsel for Appellant: Ann E. Buckley, James J. Virtel and David P. Madden

Counsel for Respondent: Grant L. Davis, Thomas C. Jones, Timothy L. Brake, Robert F. Ritter, Patrick J. Hagerty and Jeffrey J. Lowe

Opinion Summary:

In July 1994, a helicopter on a United States Army reserve training mission flew into power lines over the Osage River, killing all four occupants. The lines were unmarked and visually obscure but were not considered an obstruction to air navigation so as to require marking under Federal Aviation Administration regulations. Survivors of decedents flight engineer George Lopez and pilot Kenny Jones brought wrongful death actions against the power lines' owner, Three Rivers Electric Cooperative, Inc. The jury found the pilot and flight engineer comparatively negligent, assessed most of the fault to Three Rivers, and awarded the decedents' survivors compensatory damages and damages for aggravating circumstances. Three Rivers appealed.

REVERSED AND REMANDED.

Court en banc holds:

(1) Three Rivers owed a duty to the flight engineer and pilot because it could foresee that the lines would injure aircraft at the site. Three Rivers was aware of a near miss in 1974 and a similar incident in 1975 and, although not required by statute or regulation to mark the wires, knew of dangers of unmarked wires. The evidence supports that Three Rivers knew or should have known of a risk of harm to pilots sufficiently probable to create a duty.

(2) The trial court erred in submitting an instruction that required Three Rivers to exercise the "highest degree of care." Because the accident did not involve the inherently dangerous properties of electricity, the correct standard is "ordinary care." Prejudice is ordinarily presumed when a jury instruction imposes a higher standard than required by law, and Three Rivers was prejudiced by the instructions.

(3) The trial court did not abuse its discretion by finding that the 1975 accident is relevant to the determination of whether Three Rivers was negligent in the instant case. A prior accident that meets the requirements of similarity, even though remote, may be highly material. Remoteness of time goes to the weight of the evidence in most circumstances, not its admissibility.

(4) The facts in this case do not rise to the level for submitting an instruction on aggravating circumstances.

(5) Additional points on appeal were not preserved or are unnecessary to address due to the remand.

Dissenting Opinion summary: (1) The dissenting author would hold that the "highest degree of care" is applicable where, as here, a prior fatal air strike occurred at the same location alerting the utility to the life threatening potential of its power lines because of their particular location, construction, and lack of warning.

(2) Even conceding for purposes of argument that it was error to give the "highest degree of care" instruction, the dissenting author would not reverse the verdict for actual damages because the author does not believe that prejudice resulted in the unique circumstances of this case.

(3) On the flight engineer's cross-appeal concerning the evidence to support a submission of comparative fault, the dissenting author would hold that any pilot negligence cannot be imputed to the flight engineer who was a passenger. No evidence showed the flight engineer was negligent as to any individual action that may have caused the accident.

Opinion Author: Ann K. Covington, Judge

Opinion Vote: REVERSED AND REMANDED. Limbaugh, Holstein and Benton, JJ., concur; Price, C.J., dissents in separate opinion filed; White and Wolff, JJ., concur in opinion of Price, C.J.

Opinion:

A helicopter crashed after flying into unmarked power lines over the Osage River, killing all four occupants. This case concerns the wrongful death lawsuits brought on behalf of two of the decedents, George Lopez and Kenney Jones. One action is based upon the death of George Lopez, brought by his widow, Elizabeth Lopez, on behalf of herself, the couple's son, and George's parents. The second action is based upon the death of Kenney Jones, brought by his widow, Penny Jones, on behalf of herself and the couple's two daughters. A jury awarded compensatory damages and additional damages for aggravating circumstances in favor of the survivors of the decedents and against the owner of the power lines. The Missouri Court of Appeals, Eastern District, transferred the appeal to this Court because the appeal involves, among other issues, the validity of a state statute, section 537.675(2), RSMo 1994. The judgment is reversed and the cause remanded.

On July 29, 1994, four members of a United States Army Reserve unit departed on a flight training mission in a CH-47 Chinook helicopter. The crew included flight engineer George Lopez and pilot Kenney Jones. Kenney Jones had command and control responsibilities for the aircraft. George Lopez monitored various aircraft systems and helped clear the aircraft on turns, but had no direct control of the aircraft. Two days later, witnesses reported seeing the helicopter in flight over the middle of the Osage River at an altitude of approximately 100 feet. At approximately 10:15 a.m., the helicopter came into contact with power lines owned by Three Rivers Electric Cooperative (Three Rivers). The helicopter crashed, killing all four crew members. None of the witnesses observed the helicopter take any evasive action prior to its collision with the power lines. Although the lines were energized and carried 7,200 volts of electricity, it is undisputed that electrical voltage was not a cause of the crash or the deaths.

The power lines at the accident site crossed a 939-foot span over the Osage River. They were suspended at an angle across the river between two "H" structures. Trees and other vegetation obstructed the view of the supporting structures. The power lines were three-eighths of an inch in diameter. The lines had neither marking devices nor other warnings that might have aided pilots in detecting them. Since their installation in 1975, the lines had turned greenish brown in color, and they blended with the color of the background landscape.

The power lines were not considered an obstruction to air navigation so as to require marking under Federal Aviation Administration (FAA) regulations because they were fewer than 200 feet above ground level and were not within close proximity to a public airport. 14 C.F.R. section 77.23 (2000). FAA regulations prohibit fixed-wing aircraft from flying below 500 feet in non-congested areas. Id. section 91.119(b). There is no fixed minimum, however, for helicopters, which must fly only "without hazard to persons or property on the surface." Id. section 91.119(d).

Lopez and Jones brought suit against Three Rivers on the theory that Three Rivers was negligent in failing to warn pilots of the potential danger of flying into power lines that spanned across a location on the Osage River. After a two-week trial, the jury found Three Rivers negligent as to both Lopez and Jones. The jury awarded both Lopez and Jones $2,500,000 in compensatory damages and $500,000 in punitive damages. The jury also found that the pilot and flight engineer were comparatively negligent. In the action for the wrongful death of George Lopez, the jury assessed ninety percent fault to Three Rivers and ten percent to George Lopez. In the action for the wrongful death of Kenney Jones, the jury assessed eighty percent fault to Three Rivers and twenty percent to Kenney Jones. The trial court entered judgment accordingly, awarding Elizabeth Lopez a total of $2,750,000 and Penny Jones a total of $2,500,000. The trial court also ordered Three Rivers to pay prejudgment interest on the compensatory damage awards. Three Rivers appealed.

Three Rivers contends that it owed no duty to Lopez and Jones because the accident that occurred was not foreseeable. Specifically, Three Rivers claims that it did not owe any duty to Lopez and Jones because Three Rivers could not foresee that the power lines would cause injury to pilots.

In any action for negligence, the plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and the defendant's failure proximately caused injury to the plaintiff. Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 710 (Mo. banc 1990). Concepts of duty and foreseeability have not always been clearly stated in Missouri law. Whether a duty exists is purely a question of law. Aaron v. Havens, 758 S.W.2d 446, 447 (Mo. banc 1988); see W. Page Keeton et al., Prosser and Keeton on the Law of Torts section 37, at 236 & n.7 (5th ed. 1984).¹ Under the principles of general negligence law, whether a duty exists in a given situation depends upon whether a risk was foreseeable. In the absence of a particular relationship recognized by law to create a duty, the concept of foreseeability is paramount in determining whether a duty exists. Hoover's Dairy, Inc. v. Mid-America Dairymen, 700 S.W.2d 426, 431-32 (Mo. banc 1985). This Court has recognized, however, that the concept of "foreseeability" can have relevance in more than one context. Krause, 787 S.W.2d at 710. Foreseeability for purposes of establishing whether a defendant's conduct created a duty to a plaintiff depends on whether the defendant should have foreseen a risk in a given set of circumstances. Zuber v. Clarkson Const. Co., 251 S.W.2d 52, 55 (Mo. banc 1952). In this setting, foreseeability is forward-looking. See ...