Rech v. AAA Plumbing Co.

• Decision Date: 23 October 1990
• Docket Number: No. 57429,57429
• Citation: Rech v. AAA Plumbing Co., 798 S.W.2d 194 (Mo. App. 1990)
• Parties: Tom W. RECH, Appellant, v. AAA PLUMBING COMPANY, et al., Respondent.
• Court: Missouri Court of Appeals

Page 194

798 S.W.2d 194

Tom W. RECH, Appellant, v. AAA PLUMBING COMPANY, et al., Respondent.

No. 57429.

Missouri Court of Appeals,

Eastern District,

Division One.

Oct. 23, 1990.

Ruth A. Przybeck, St. Louis, for respondent.

Brian R. Gelber, St. Louis, for appellant.

KAROHL, Judge.

Plaintiff, Tom W. Rech, appeals from trial court judgment notwithstanding the verdict in favor of defendant, T.C. Investment Company, Inc. In the alternative, the court sustained defendant's motion for new trial. The court set aside a jury verdict in favor of Rech for $72,000 on his personal injury claim. This award was subject to a $22,500 reduction due to Rech's settlement with AAA Plumbing Company, a joint-tortfeasor, who is not a party here. We affirm.

Rech sued AAA Plumbing and defendant for personal injuries he allegedly sustained on May 11, 1987. Rech was backing down the sidewalk in front of his home, pulling a hose when he stepped on something, lost his balance and partially fell into a hole. AAA Plumbing cut the hole in order to make a water tap in the subdivision owned by defendant.

Upon slipping and falling, Rech twisted his leg, snapped his knee, hit the lower part of his back on the edge of the hole, hit his head on the dirt and pinned his right leg in the hole. Due to his prior experience with lower back pain and knee problems, Rech did not go to an emergency room. Instead, he made an appointment with Dr. Harlan Hunter, his regular orthopedic doctor. Rech had a seventeen year history of left knee pain attributed to football and motorcycle injuries. Prior to this incident, Rech underwent five surgeries on his left knee and two surgeries on his right knee. Rech testified the last time he saw a doctor for knee problems was in 1982. He also testified he was able to dance and participate in sports the weekend before his fall.

On May 19, 1987, Dr. Hunter examined Rech and found advanced degenerative arthritis in both compartments of the left knee, degenerative arthritis in one compartment of the right knee, as well as tenderness and slight scoliosis of the back. Dr. Hunter noted:

The [patient] and I go back a long way and I know the condition of his knee and the severity of the arthritis. We have talked numerous times, away from the office, about total knee replacement. The [patient] is desiring and requesting that one surgery be done on it and to get on with it. He is tired with this year by year by year of having problems.

Rech continued therapy from May until September in 1987. Rech returned to Dr. Hunter in April 1988. At that time Dr. Hunter described Rech's left knee to have "marked knee crepitiation, gross advanced degenerative arthritis appearing like a 90 year old with popping, catching, grinding, re-occurrent effusion in the knee." Dr. Hunter recommended total knee replacement. Dr. Hunter also noted, "[Patient's] condition has been aggravated by his last episode. He described approximately a year ago after he fell in a hole in the yard. Since this time he has had increasing discomfort in his knee." On May 2, 1988, Rech's left knee was replaced. On March 3, 1989, Rech underwent orthroscopic surgery on his right knee.

Dr. Hunter, the treating physician, did not testify at trial. Neither party presented expert medical testimony. However, Rech introduced medical records and testified on his own behalf in an attempt to prove his injuries were caused by the accident. Defendant read into evidence parts of medical records in order to prove Rech's pre-existing condition necessitated subsequent treatment and surgery.

Defendant in his motion for directed verdict argued Rech did not make a submissible case because he failed to causally link his injuries to the fall. Trial court overruled defendant's motion for directed verdict at the close of all the evidence. The trial court subsequently granted j.n.o.v. Trial court decided Rech did not make a submissible case because he failed to: 1) produce competent evidence that defendant excavated the hole where he fell; 2) produce competent evidence to show defendant's negligence was the proximate cause of his injuries; 3) prove he suffered any damages resulting from defendant's act or omission; and 4) adduce medical expert opinion that his injuries (including the nature, extent and permanency), subsequent treatment and damages were caused by defendant's negligence.

On appeal we will reverse j.n.o.v. for defendant unless the facts and inferences are so strongly against plaintiff as to leave no room for reasonable minds to differ. Holmes v. Gamewell, 712 S.W.2d 34, 35 (Mo.App.1986). Thus, we examine the pleadings and review the evidence in the light most favorable to...