Parra v. Building Erection Services

• Decision Date: 15 December 1998
• Docket Number: No. WD,WD
• Citation: 982 S.W.2d 278
• Parties: Anthony PARRA, Appellant, v. BUILDING ERECTION SERVICES, Respondent. 54903.
• Court: Missouri Court of Appeals

Page 278

982 S.W.2d 278

Anthony PARRA, Appellant, v. BUILDING ERECTION SERVICES, Respondent.

No. WD 54903.

Missouri Court of Appeals,

Western District.

Dec. 15, 1998.

James D. Scherzer, Kansas City, MO, Michael W. Manners, Independence, MO, for Appellant.

Paul C. Gurney, Overland Park, KS, for Respondent.

Before SPINDEN, P.J., and ULRICH and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

Anthony Parra appeals from the judgment of the circuit court directing a verdict against him at the close of his evidence for failure to make a submissible case on his negligence claim for damages against the respondent, Building Erection Services, for injuries he alleged he received from being struck by a wire rope cable of a crane which was being rented from the respondent by the appellant's employer.

In his sole point on appeal, the appellant claims that the trial court erred in granting the respondent's motion for a directed verdict because he had made a submissible case of negligence. Specifically, he contends that the trial court erroneously declared and applied the law in directing a verdict for the respondent in that in doing so it incorrectly held that to make a submissible case of negligence, he was required, but failed, to adduce expert testimony to establish the "duty/standard of care" owed to him by the respondent.

We reverse and remand.

Facts

The appellant filed suit against the respondent in the Circuit Court of Jackson County alleging that he was injured and sustained damage as a result of the respondent's negligence in failing to secure a cable of a crane rented by the respondent to the appellant's employer. The appellant was injured on October 23, 1990, while working as an ironworker on the construction of the Plaza Steps Building in Kansas City, Missouri. The crane was furnished to the appellant's employer with an operator and mechanic. The mechanic, among other things, supervised the ironworkers, including the appellant, in rigging the crane for use in moving construction materials on site.

The crane assembly consisted of a boom, a jib, and a 1 1/8-inch wire cable connected to a headache ball, which was approximately eighteen inches in diameter and weighed more than 900 pounds. At the bottom of the ball was a hook which was used to lift loads of construction material. The ball was connected to the cable by a device called a beckett which fit inside the ball. The cable ran from the boom through the beckett and back out with extra line called a tail. The tail, ordinarily, was fastened back to the main cable by two clamps which kept it from flying out because of centrifugal force when the headache ball would spin after a heavy load was picked up or released.

In mid-September of 1990, the respondent rented the crane to the appellant's employer. It was first used in the basement of the construction of the Plaza Steps Building. It was later moved up to street level. It had to be disassembled and reassembled by the ironworkers to provide for a longer boom to raise structural steel. To accomplish this task, the respondent assigned its mechanic, Mike Millsap, to supervise the ironworkers, including the appellant. In disassembling the crane, the ironworkers were required to remove the two clamps securing the tail. Because the higher of the two clamps could not be removed in the normal fashion, Mr Millsap instructed the ironworkers to burn it off with a welding torch.

When the crane was reassembled, only one clamp was left to clamp the tail. The appellant told Mr. Millsap that they needed another clamp but that he did not have one and was going to cut off the tail because it was too long. The tail was estimated at sixteen to twenty-four inches. Mr. Millsap instructed him not to cut off the tail, that he would get a clamp the following day. However, one was never provided. As a result the tail was allowed to spin free, except for the period of time when it was taped or wired back.

The appellant was injured on October 23, 1990, when he was guiding a skip box (a basket in which construction materials were placed for moving) from one floor to the next. When the skip box landed on the floor, the headache ball spun, the tail whipped out and struck the appellant in the head, causing him serious injury.

At trial, the appellant did not adduce any expert testimony as to the existence or breach of a duty owed to him by the respondent. The respondent filed a motion for a directed verdict at the close of the appellant's evidence claiming that he had failed to produce any expert testimony establishing a duty to use cable clamps or a standard of care with respect to the use and necessity of cable clamps. The motion was ultimately sustained by the trial court with judgment being entered for the respondent on July 16, 1997. On August 14, 1997, the appellant moved for a new trial which was overruled on September 4, 1997.

This appeal follows.

Standard of Review

In reviewing the trial court's directed verdict for the respondent at the close of the appellant's evidence, we review to determine if the appellant made a submissible case of negligence. Bond v. California Compensation & Fire Co., 963 S.W.2d 692, 695-96 (Mo.App.1998) (citing Rustici v. Weidemeyer, 673 S.W.2d 762, 765 (Mo. banc 1984)). In determining whether the appellant made a submissible case, we are required to view the evidence and all reasonable inferences therefrom in the light most favorable to the appellant's case and disregard all evidence to the contrary. Id. at 696 (citing Mathis v. Jones Store Co., 952 S.W.2d 360, 365 (Mo.App.1997)).

Each and every element which is essential to establishing liability must be supported by substantial evidence from which the trier of fact could reasonably decide the case. Id. (citing Mathis, 952 S.W.2d at 366). A directed verdict is proper if one or more of the elements of a cause of action are not supported by substantial evidence. Mathis, 952 S.W.2d at 366.

A directed verdict is a drastic action and should be granted only if reasonable persons could not differ as to the outcome of the case. Gamble v. Bost, 901 S.W.2d 182, 185 (Mo.App.1995).

[A] presumption is made in favor of reversing the trial court's grant of a directed verdict unless the facts and any inferences from those facts are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to a result.

Friend v. Holman, 888 S.W.2d 369, 371 (Mo.App.1994).

I.

The appellant claims that the trial court erred in granting the respondent's motion for a directed verdict because he had made a submissible case of negligence. Specifically, he contends that the trial court erroneously declared and applied the law in directing a verdict for the respondent in that in doing so it incorrectly held that to make a submissible case of negligence, he was required, but failed, to adduce expert testimony to establish the "duty/standard of care" owed to him by the respondent. We agree.

In order to make a submissible case of negligence against the respondent, the appellant was required to plead and prove: (1) the existence of a duty on the part of the respondent to protect him from injury; (2) a breach of the respondent's duty; and (3) an injury to him directly and proximately resulting from the breach. Bond, 963 S.W.2d at 697. As to these required elements, the trial court, in sustaining the respondent's motion for a directed verdict, found that the appellant had failed to establish the first proof element, the duty/standard of care owed to him by the respondent, in that, in order to establish the same, expert testimony was required and none was adduced. The issue then, initially, is whether the appellant made a submissible case of negligence against the respondent without adducing expert testimony to establish the first proof element of a negligence action, the existence of a duty owed by the respondent to the appellant.

In considering whether a duty exists in a particular case, the court must weigh, inter alia, the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant. Bunker v. Association of Mo. Elec. Coops., 839 S.W.2d 608, 611 (Mo.App.1992). "The common denominator that must be present is the existence of a relationship between the plaintiff and defendant that the law recognizes as the basis of a duty of care." Id. In making this determination, we refer "to the body of statutes, rules, principles and precedents which make up the law." Kopoian v. George W. Miller & Co., 901 S.W.2d 63, 68 (Mo.App.1995). As such, "[a]n analysis of the issue of duty begins with an examination of the source of the duty." Id.

In determining the source of any duty owed by the respondent to the appellant, we logically must first examine the pleaded basis for the appellant's claim of negligence. In this respect, the appellant alleged in his petition that the respondent, as the lessor of the crane, owed him a duty to exercise ordinary care to determine whether it was in fact safe at the time of its delivery to his employer, and if not, to either repair it or warn of the danger. As to the exact danger alleged by the appellant in his petition, there is a disagreement between the parties.

Relying on paragraph 2 of the appellant's petition, the respondent contends that the appellant's sole pleaded specification of negligence was that "the wire rope cable assembly of the crane had an improperly configured end in that it did not have the correct number of clamps/clips securing the cable loop." The appellant contends that he did not limit the alleged negligence of the respondent to the issue of the number of clamps/clips used, but pled negligence on the basis of the respondent's failure to secure properly the cable, which could encompass the issue of the number of clamps used. In this regard, the appellant points to paragraph 4 of his petition where he...