Morrissey v. Welsh Co., 86-1778

• Decision Date: 12 June 1987
• Docket Number: No. 86-1778,86-1778
• Parties: 23 Fed. R. Evid. Serv. 807 Thomas E. MORRISSEY, Individually and as the Father and Personal Representative of the Estate of Jane Morrissey, Deceased, and Mary Josephine Morrissey, Individually, Appellees, v. WELSH COMPANY, a Corporation and Albert D. Welsh, Jr., Appellants. Benedicte MONICAT, Appellee, v. WELSH COMPANY and Albert D. Welsh, Jr., Appellants. Steven A. CRUTCHER, Appellee, v. WELSH COMPANY and Albert D. Welsh, Jr., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1294

821 F.2d 1294

23 Fed. R. Evid. Serv. 807

Thomas E. MORRISSEY, Individually and as the Father and

Personal Representative of the Estate of Jane

Morrissey, Deceased, and Mary Josephine

Morrissey, Individually, Appellees, v. WELSH COMPANY, a Corporation and Albert D. Welsh, Jr., Appellants.

Benedicte MONICAT, Appellee, v. WELSH COMPANY and Albert D. Welsh, Jr., Appellants.

Steven A. CRUTCHER, Appellee, v. WELSH COMPANY and Albert D. Welsh, Jr., Appellants.

No. 86-1778.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 14, 1987.

Decided June 12, 1987.

David M. Duree, St. Louis, Mo., for appellants.

John Dale Stobbs, Alton, Ill. and David G. Dempsey, Clayton, Mo., for appellees.

Before LAY, Chief Judge, HEANEY and ARNOLD, Circuit Judges.

LAY, Chief Judge.

The Welsh Company and Albert D. Welsh (hereinafter referred to collectively as "the Welsh Company"), ¹ defendants in the above-entitled action, appeal from a judgment entered against them upon a jury verdict which found them jointly liable for the wrongful death of Jane Morrissey and for injuries suffered by plaintiffs Benedicte Monicat and Steven Crutcher. A five-story brick wall of a building owned by the Welsh Company collapsed during a thunderstorm and fell on a car in which Morrissey, Monicat, and Crutcher were sitting. The jury found the Welsh Company negligent in its maintenance of the wall causing the wall to collapse. The jury awarded Monicat and Crutcher damages in amounts of $15,000 and $3,000, respectively, for their personal injuries, and $750,000 each in punitive damages. On a wrongful death claim brought by Morrissey's parents, the jury awarded $6,500,000 in damages. The trial court ² denied the defendants' motions for judgment notwithstanding the verdict and, alternatively, for a new trial. Defendants appeal.

Background

On August 5, 1983, at approximately 4:00 p.m., Crutcher, Morrissey, and Monicat were driving north on Interstate Highway 55 heading toward downtown St. Louis, when high winds and heavy rain forced them to pull over to the side of the road. Crutcher was driving, Morrissey was seated immediately to his right, and Monicat was in the passenger seat next to her. Within seconds of when Crutcher stopped the car, the west brick wall of the Welsh building, which at one point is located just nine feet from the edge of I-55, collapsed, crushing the vehicle and trapping the three young people inside. A rescue team eventually freed them. Crutcher and Monicat escaped with relatively minor injuries, but Morrissey died at the scene.

The cause of the wall's collapse was a major issue in the case. Plaintiffs alleged that the wall, which was built between 1890 and 1910, had deteriorated, due to the Welsh Company's failure to properly maintain it, to such an extent that the failure of the wall and the possibility of personal injury was not only reasonably foreseeable, but highly probable. Although the evidence was conflicting as to certain of these allegations, the overall weight of the evidence clearly supported plaintiffs' claims. For example, plaintiffs called Louis Grabow, plant manager of the Welsh facility from 1978 until one year before the accident. As plant manager, Grabow was in charge of building repairs and maintenance. Grabow testified that during his employment, the condition of the masonry in the west wall was "fair to poor." There were a number of cracks in the wall, and bricks and windows fell from the wall on a regular basis. Grabow stated that the wood in the window frames had rotted so badly that the building would lose panes of glass whenever the wind blew, and that in a driving rain, water would come in through the windows and run down the interior walls. He eventually covered the windows with styrofoam and masonite board, which helped with the water problem, but did not prevent it.

Grabow further testified that, on a monthly basis, he sent maintenance crew members out around the building with a forklift and crate to pick up bricks that had fallen from the building. Crew members corroborated this evidence. In 1980, Grabow spoke with his supervisor about the condition of the building and was authorized to get an estimate on the repairs. The estimate for tuckpointing the entire building, replacing the windows with translucent fiberglass panels, and painting was $264,000. The supervisor later told Grabow that since they were planning to sell the building, the company did not want to incur an expenditure of that magnitude. In 1981, a windstorm blew the roof off a structure above an elevator shaft, and at another time, bricks on the north wall buckled and had to be tuckpointed. In 1982, a windowframe fell out of the fifth floor of the west wall during a storm and was replaced by concrete blocks.

John Theiss, a structural engineer retained by the Welsh Company's attorneys immediately after the collapse, was also called by the plaintiffs. Theiss concerned himself only with the remainder of the building and offered no opinion as to the cause of the collapse. Theiss found the north wall to be four inches out of plumb leaning outward. He found portions of the north, south, and east walls to be in very bad condition, with missing mortar and loose bricks. Much of the mortar that remained was powdery and disintegrating. He found the east wall to be "on the verge of collapse that could be triggered by high winds or earth tremor."

Another structural engineer, Edwin Lampitt, was called by plaintiffs. Lampitt testified that he believed the cause of the collapse was poor maintenance of the walls over a long period of time. He testified that the wind from the storm, blowing perpendicular to the wall, triggered the failure. This was about one quarter of the force that the wall should have been expected to withstand. Had the walls been pointed, the arches above the windows repaired, and other obvious repairs made, Lampitt stated that the wall would not have fallen.

Discussion

The core of the Welsh Company's argument is that the damages awarded by the jury were excessive. It attributes the excessiveness of the verdict directly to conduct of plaintiffs' counsel in opening statement closing argument, and during trial, as well as several prejudicial errors committed by the trial court.

Punitive Damages

The Welsh Company alleges that the punitive damage awards of $750,000 each to Crutcher and Monicat, in view of the actual damage awards of $3,000 and $15,000 respectively, were so excessive as to require either a new trial or remittitur. It relies primarily upon the large ratios of punitive to actual damages--two-hundred-fifty to one in Crutcher's case and fifty to one in Monicat's case--arguing that a ratio of three to one would be more justifiable. The Welsh Company claims that the large awards are a direct result of the improper remarks and conduct by plaintiffs during opening statements, closing arguments, and throughout the trial.

Although punitive damages are not ordinarily allowed in negligence actions, such damages may be awarded where the tortfeasor acts with such conscious disregard for the safety of others that the law implies that an injury resulting therefrom was intentionally inflicted. See Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 435 (Mo.1985); Jordan v. General Growth Development Corp., 675 S.W.2d 901, 905 (Mo.App.1984). Missouri has long recognized:

[T]here may be conscious negligence tantamount to intentional wrongdoing, as where the person doing the act or failing to act must be conscious of his conduct, and, though having no specific intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury.

Reel v. Consolidated Investment Co., 236 S.W. 43, 46 (Mo.1921), (quoted in Hoover's Dairy, 700 S.W.2d at 435); Sharp v. Robberson, 495 S.W.2d 394, 397 (Mo.1973). Thus, the wrongful intent normally associated with punitive damage awards, see Stark v. American Bakeries Co., 647 S.W.2d 119, 123 (Mo.1983), may be implied from reckless disregard of another's rights and interests. Beggs v. Universal C.I.T. Credit Corp., 409 S.W.2d 719, 723 (Mo.1966). It is not sufficient that an unreasonable risk of bodily harm be created through the tortfeasor's actions; a high degree of probability that sustained harm will occur is required. Ferren v. Richards Manufacturing Co., 733 F.2d 526, 529 (8th Cir.1984); Hoover's Dairy, 700 S.W.2d at 436; Sharp, 495 S.W.2d at 398.

We reject the Welsh Company's claim that the trial court erred in submitting the issue of punitive damages to the jury. There was ample evidence that the Welsh Company was negligent and that its negligence rose to the level necessary under Missouri law to submit a punitive damages interrogatory to the jury. It is well established that the submission and form of issues to be decided by the jury lie within the sound discretion of the trial court and appellate review is confined to a determination of whether there was an abuse of discretion. E.I. Dupont de Nemours & Co. v. Berkley & Co., 620 F.2d 1247, 1271 (8th Cir.1980). We find no such abuse here.

We do believe, however, that the trial court erred in failing to grant the company's motion for a new trial on the issue of the excessiveness of the punitive damage awards. Ordinarily, under Missouri law the amount of a punitive damage award is a decision which lies wholly within the sound discretion of the jury. Kerr v. First Commodity Corp. of Boston, 735 F.2d 281, 289 (8th Cir.1984); Ogilvie v. Fotomat Corp., 641 F.2d 581, 587 (8th Cir.1981); Beggs, 409 S.W.2d at 724. Whether that award is excessive is a decision which rests in the first instance with the trial court, and generally a denial of a motion for a new trial on that issue will be upset only where the award would result in a plain injustice or a "monstrous or shocking result." Hollins v. Powell, 773 F.2d 191,...