Naes v. Reinhold Development Co., 70513

• Decision Date: 02 September 1997
• Docket Number: No. 70513,70513
• Citation: 950 S.W.2d 681
• Parties: Scott NAES & Carol Naes, Plaintiffs-Respondents, v. REINHOLD DEVELOPMENT COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 681

950 S.W.2d 681

Scott NAES & Carol Naes, Plaintiffs-Respondents, v. REINHOLD DEVELOPMENT COMPANY, Defendant-Appellant.

No. 70513.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 2, 1997.

Ray Dickhaner, Hillsboro, for defendant-appellant.

Thurman, Howald, Weber, Senkel and Norrick, L.L.C., Louis Jerry Weber, Hillsboro, for plaintiffs-respondents.

KAROHL, Judge.

Defendant, Reinhold Development Company, appeals $87,330 judgment for plaintiffs Scott and Carol Naes on their property damage claim. The jury found total damages to plaintiffs' home of $123,000. It apportioned 71% of fault for an earth slide against Reinhold and 29% against plaintiffs. The only claim of error in this appeal involves the apportionment of fault on their claim. Reinhold argues the apportionment of fault on its counterclaim for property damage caused by the earth slide, 57% against the Naes and 43% against Reinhold, should also be applied in the judgment on the Naes' claim for damages. The court entered a judgment of $87,330 for the Naes which is 71% of the total damages. Reinhold argues we should reverse and remand with an order that the court enter an amended judgment of $52,890.

The point on appeal:

THE TRIAL COURT ERRED IN GIVING INSTRUCTION No. 10 AND REFUSING INSTRUCTIONS 10A AND 10B FOR THE REASON THAT DEFENDANT PROVED A SUBMISSIBLE CASE OF FAILURE TO MITIGATE DAMAGES IN THAT PLAINTIFFS ALLOWED OPEN FISSURES ON THEIR PROPERTY TO COLLECT RAIN WATER AND SATURATE THE HILLSIDE, CONTRIBUTING TO THE TOTALITY OF THE DAMAGES, AND SUCH ELEMENT SHOULD HAVE BEEN SUBMITTED TO THE JURY. (Our emphasis).

The trial court submitted a single act of negligence of defendant Reinhold Development Company in the verdict directing instruction on the Naes' claim. The court submitted, and the jury found, Reinhold "withdrew the lateral support of land from Plaintiffs Scott Naes' and Carol Naes' property." The comparative fault instruction submitted a single negligent act of the Naes, that they "allowed a sewer trench on their property to accumulate surface waters." There was evidence to support a finding the Naes' open sewer trench allowed water to saturate the earth on a hillside running downhill from their home. The earth was saturated down to a shale substrate. The removal of lateral support combined with the saturation of earth resting on the shale caused a discernable earth slide on April 23, 1993. The hill gave way gradually. A retaining wall constructed by Reinhold at the bottom of the hill collapsed in 1994. Reinhold filed a counterclaim for damages to the wall. The court submitted a verdict directing instruction on Reinhold's counterclaim which permitted the jury to find the Naes were negligent in either or both of the following (1) "allowed a sewer trench on their property to accumulate surface waters" or, (2) " allowed openings in their yard to accumulate surface waters." The court submitted a comparative fault instruction which repeated Reinhold's single act of negligence, removal of lateral support. On the counterclaim, the jury found total damages of $11,000. It found Reinhold 43% at fault and the Naes, 57% at fault. The judgment on the counterclaim in the amount of $6,270 is final and not part of this appeal.

The question is whether the court erred in refusing Reinhold's comparative fault instruction on the Naes' claim which would have submitted both of the acts of negligence. There is no dispute that the counterclaim instructions were supported by the evidence. Accordingly, there is no dispute that there was evidence to support a finding that the Naes' open sewer trench was causal to the 1993 landslide which damaged their property, and there is no dispute the Naes' conduct in allowing the open sewer trench and not closing openings in their yard on the hillside caused additional surface water to accumulate and caused or contributed to cause Reinhold's damages caused by the 1994 landslide. The dispute pertains to whether there was evidence to support a finding the Naes' failure to deal with the openings, referred to as "scarps," contributed to cause or increase their damages which occurred after the 1993 landslide.

Reinhold argues the instruction error occurred when the court refused to permit the jury to find the Naes' failed to mitigate their damages when they allowed openings in their yard to accumulate additional surface water. It argues that mitigation is an element of fault. In Love v. Park Lane Medical Center, 737 S.W.2d 720 (Mo. banc 1987) the court accepted the definition of "fault" in the Uniform Comparative Fault Act. The Act defines fault to include both acts and omissions and also "unreasonable failure to avoid an injury or to mitigate damages." Id. at 724 (quoting U.C.F.A. Section 1(b) (1977)) (further citations omitted). In contrast with the negligence analysis under the abrogated contributory negligence, the court found "fault also includes avoidable consequences." Love, 737 S.W.2d at 724. Similarly, in Stone v. Duffy Distributors, Inc., 785 S.W.2d 671 (Mo.App.1990) this court found plaintiff...