Mediq PRN Life Support Services, Inc. v. Abrams
| Decision Date | 13 December 1994 |
| Docket Number | No. 62997,62997 |
| Citation | 899 S.W.2d 101 |
| Court | Missouri Court of Appeals |
| Parties | MEDIQ PRN LIFE SUPPORT SERVICES, INC., Plaintiff/Respondent, v. Lloyd ABRAMS, Richard Rothman, Jeffrey Gitt, Michael Chekoudjian, d/b/a Trade Center Associates, A & R Investments, Inc., and Precision Data Products Co., Inc., Defendants/Appellants. |
Thomas Cicardi DeVoto, Timothy J. Bates, St. Louis, for defendants/appellants.
Anthony F. Vaiana, Clayton, for plaintiff/respondent.
Plaintiff, Mediq PRN Life Support Services (Mediq), filed suit against Lloyd Abrams, Richard Rothman, Jeffrey Gitt and Michael Chekoudjian, d/b/a Trade Center Associates, A & R Investments (A & R), Precision Data Products (Precision Data), GTE Products Corporation (GTE), and Delfin and Suellen Nieva for property damages incurred when the building Mediq and Precision Data occupied was damaged by fire. Initially, Mediq pled a cause of action for property damages based upon common law negligence. Later, Mediq amended its petition to include allegations of negligence per se against Precision Data, Trade Center Associates and A & R for violating the St. Louis County Electrical Code. Mediq claimed the fire was electrical in origin and resulted from the use of an extension cord as permanent branch wiring and the failure to provide sufficient overcurrent protection for the electrical circuit to which the extension cord was connected.
Precision Data filed a crossclaim against Trade Center Associates, A & R, GTE and the Nievas, incorporating Mediq's negligence claims and requesting that fault be apportioned should Mediq prevail. Trade Center Associates and A & R also filed a crossclaim against Precision Data and GTE, incorporating Mediq's negligence claims and requesting indemnification or a distribution of fault should Mediq prevail. Precision Data, Trade Center Associates and A & R later incorporated Mediq's negligence per se claims into their crossclaims.
The case was tried to a jury which returned verdicts in favor of Mediq against Trade Center Associates, A & R and Precision Data for violations of the St. Louis County Electrical Code. The jury found in favor of Precision Data on Mediq's negligence claim, and it returned verdicts in favor of GTE and the Nievas. Prior to jury deliberations, the parties stipulated that Mediq's damages were $72,874.79. Trade Center's damages were found to be $26,976, and Precision Data's damages were found to be $93,000. The jury apportioned fault 30% to A & R, 30% to Trade Center Associates and 40% to Precision Data.
On July 15, 1992, the trial court entered judgment in accord with the jury's verdict, ordering that: (1) Mediq shall recover from Precision Data, Trade Center Associates and A & R, jointly and severally, $72,874.79; (2) Trade Center Associates shall recover from A & R and Precision Data, jointly and severally, $18,883.20, with fault assessed at $8,092.80 to A & R and $10,790.40 to Precision Data; and (3) Precision Data shall recover from Trade Center Associates and A & R, jointly and severally, $55,800, with fault assessed at $27,900 to each defendant. On October 23, 1992, the trial court denied A & R and Trade Center Associates' and Precision Data's motions for a new trial or, in the alternative, for judgment notwithstanding the verdict. Precision Data, A & R Investments and Trade Center Associates appeal arguing that Mediq failed to make submissible cases against them.
In reviewing whether a submissible case has been made, we view the evidence in the light most favorable to plaintiff, giving it the benefit of all favorable inferences and disregarding all evidence contrary to its claim. Adams v. Children's Mercy Hospital, 848 S.W.2d 535, 547 (Mo.App.1993). Furthermore, we will not overturn a jury verdict unless there is a complete absence of probative facts to support it. Nishwitz v. Blosser, 850 S.W.2d 119, 122 (Mo.App.1993); Miller v. Gillespie, 853 S.W.2d 342, 344 (Mo.App.1993). Issues such as the weight of the evidence, credibility of witnesses and resolution of conflicts in the testimony are not subjects of appellate review. Id.
The facts, viewed in the light most favorable to Mediq, are as follows. In 1975, pursuant to a lease, Precision Data began occupying a three-room suite at 358 Brooks Drive in one building of a five-building complex located at the intersection of Interstate 270 and Lindbergh Boulevard in Hazelwood, Missouri. On January 4, 1980, the Nievas bought the complex.
At the end of 1982 or the beginning of 1983, Precision Data purchased a computer and converted one of the rooms in its suite into a computer room. During this time, in response to Precision Data's request, the Nievas installed an additional electrical outlet in the northwest corner of the computer room. Rick Hill, an employee of the Division of Electrical Inspection of the St. Louis County Department of Public Works, testified that he could not find a record showing that a permit was obtained in 1982 or 1983 for the installation of any electrical services at 358 Brooks Drive.
On December 28, 1986, Trade Center Associates purchased the five-building complex. Trade Center Associates conducted a basic inspection of the electrical systems in the complex and found no defects. Trade Center Associates hired A & R to manage the property. 1 In March 1987, Precision Data began occupying the same premises on a month-to-month basis. In August 1987, Mediq began occupying the premises behind and adjacent to Precision Data's suite on a month-to-month basis.
The computer room in Precision Data's suite was approximately 10 feet by 10 feet. A shelf, a refrigerator, a coffee maker and another shelf were located along the south wall. Along the west wall was a file cabinet, a table, a computer and a computer printer. A desk-top attachment was located along the middle of the north wall. A desk was located in the northeast corner immediately adjacent to the desk-top attachment. The computer and printer were plugged into a surge protector which was plugged into the receptacle in the northwest corner. Precision Data also plugged an extension cord into this outlet. Diane Wiesler, a Precision Data employee, testified that the extension cord ran along the northern wall, around the northeast corner and "behind the desk along the east wall." The extension cord provided electrical power to various items on the desk, including a calculator, a telephone answering machine and a fluorescent light. Precision Data used the extension cord for longer than three years prior to the fire. Also, Precision Data stored paper under the desk and under the desk-top attachment, and the walls in the room were lined with paneling made of a wood paper product.
At 8:30 a.m. on April 20, 1988, Wiesler arrived to work before any other Precision Data employees. She entered the computer room and turned on the light on the desk, the coffee maker, the surge protector, the computer and the printer. Facing the west wall as she turned on the surge protector and the computer, Wiesler heard a snap and pop behind her. She turned and looked at her desk but did not see anything unusual. About four or five seconds later, she heard a second pop behind her, and she turned and ran toward the computer. She saw a blue flame traveling up the wall above the receptacle in the northwest corner. She turned off the computer, turned and saw a small flame behind her desk. She ran out of the room to call for emergency assistance. When she returned to the room, the flames were still primarily under her desk but some had started to extend above the desk, burning the paneling on the east wall.
The Hazelwood Fire Department extinguished the fire. During the fire department's investigation, Rick Hill inspected the electrical system in the computer room. Hill determined that much of the branch circuit wiring to which the extension cord was attached did not have proper overcurrent protection. A 30-amp circuit breaker was used to protect the circuit which contained 14-gauge wiring, violating the National Electrical Code (NEC). 2 Hill further found that a flexible cord (extension cord) was used in the same circuit in place of permanent branch wiring in violation of the NEC. 3
Donald Buettner, a fire investigator and one of Mediq's expert witnesses, testified that he examined the fire scene, took some photographs, recovered debris and interviewed Wiesler. Buettner concluded that the fire was electrical and that it originated in the northeast corner behind the desk. The Hazelwood Fire Department removed the desk from the computer room prior to Buettner's investigation, but it did not remove any of the debris along the north wall. Buettner recovered strands of wires from the northeast corner but admitted that he could not identify the particular cord to which the wire fragments were previously attached.
Tony Echols, an electrical engineer, also testified as an expert for Mediq. He examined the remainder of the fluorescent light fixture that was located on the desk and discovered that two metal components within the fixture had melted and fused together. From this evidence, he concluded that a short circuit had occurred within the light fixture.
Echols next examined the wire strands Buettner recovered from the northeast corner. Echols observed that the insulation, which usually surrounds the wire in a cord, had totally burned off. Also, the ends of the strands of wires had melted and fused, indicating that they had been exposed to an electrical arc, a fault which occurs when an electrical current flows between the gap between two wires. Arcing generates sparks and heat reaching several thousand degrees Fahrenheit. This evidence...
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