Shady Valley Park & Pool, Inc. v. Fred Weber, Inc.
| Citation | 913 S.W.2d 28 |
| Decision Date | 15 August 1995 |
| Docket Number | 66531,Nos. 66526,s. 66526 |
| Court | Court of Appeal of Missouri (US) |
| Parties | SHADY VALLEY PARK & POOL, INC., Plaintiff/Respondent-Cross/Appellant, v. FRED WEBER, INC., Defendant/Appellant-Cross/Respondent. |
Riethmann and Valentine, Larry D. Valentine, Michael A. Shaughnessy, Jr., St. Louis, for appellant cross-respondent.
Gray & Ritter, P.C., Robert F. Ritter, John G. Simon, Joan M. Galli, St. Louis, for respondent cross-appellant.
Defendant, Fred Weber, Inc., a construction company, appeals from the judgment entered on the jury verdict in the Circuit Court of Jefferson County in favor of Shady Valley Park and Pool, Inc. Shady Valley cross-appeals. Due to the flow of mud and siltation into its lakes from Weber's highway construction project, Shady Valley was forced to close both its wholesale fish hauling and fee fishing businesses. We affirm in all respects.
We review the evidence in the light most favorable to the jury verdict. Steif v. Limpiphiphatn, 814 S.W.2d 695, 695 (Mo.App.E.D.1991). The Missouri Highway and Transportation Commission (MHTC) hired Weber to make improvements to Missouri State Highway 21. The construction project was in two phases. Project 387, Contract 25 (Phase I), which began in September, 1987, involved clearing, excavating and grading the land for a new section of Highway 21. The contract for Phase I contained the special provision regarding Shady Valley:
The Contractors (sic) attention is directed to the Shady Valley Lakes Fishing area located right of approximate Station 270+00.
The lakes in this area are stocked with fish daily, as a result, it will be necessary to take every precaution to insure mud and siltation are kept to a minimum during grading operations.
Project 17b (Phase II), which was immediately to the south of Phase I, involved similar operations. Phase II began in the fall of 1988, while Phase I was still underway. The entire operation took place above Shady Valley's property.
Shady Valley was a family owned and operated business. Gene Lambrich and other members of his family had purchased the property in 1965 and operated a swimming pool. In approximately 1967, they decided to convert the property to a fee fishing area. They dug two lakes on the property, one approximately two acres and one approximately five acres. The lakes were filled by a combination of spring water and rain water. The business consisted primarily of fee fishing and commercial fish hauling, as well as a bait & tackle store. As part of the business, the Lambrichs turned an old swimming pool into fish raceways, which were designed to hold live fish. The six raceways required 500 gallons of water per minute, which was pumped in from the lakes. They used the fish from the raceways to stock the lakes and for the fish hauling business. The raceways enabled Shady Valley to raise several different species of fish; this gave it an advantage over its competition who were only able to raise one species. Quality water was extremely important to the success of both the fee fishing and fish hauling businesses. Before the highway project began, the water quality was good and the lakes were exceptionally clear.
Prior to the start of construction, the land around Shady Valley was covered with trees, brush, grasses and wildflowers. The area had extensive tree cover and a deep vegetative mat consisting of leaves, grass and bushes. This type of covering helped dissipate the energy of precipitation which minimizes soil loss and erosion.
In September, 1987, Weber began Phase I. Weber and its subcontractor, Bloomsdale Grading Company, put their office trailers on Shady Valley's property. Implementing the plans of the MHTC, Weber began clearing and grubbing, i.e. removing the roots and stumps of trees. These operations, which involved stripping the ground to the bare soil, were directly above the Shady Valley lakes. According to Eugene Hofstetter, Weber's Project Superintendent for this construction, the entire right-of-way above Shady Valley was cleared by February or March, 1988.
Phase II of the project began in the fall of 1988. Robert Masselink, an engineer specializing in civil geo-technical engineering, testified that all of the drainage or siltation from the second project travelled through the ditch systems constructed in the first project. In order for the materials from Phase II to get into the lakes, they had to travel through Phase I. Therefore, according to Masselink, the projects overlapped in terms of construction.
Wanda Lambrich, Vice-President and Secretary-Treasurer of Shady Valley, testified that in early 1988 the effects of the construction could be seen. She testified that when it rained, "the lakes would turn to red mud." Wanda further testified that after it would rain, it would take a lot longer for the lakes to clear.
William Witwicky, a customer of Shady Valley since 1972, testified that he noticed the mud and siltation flowing into the small, upper lake in early 1988. He testified that he could see ruts in the mud which were carved out after heavy rains. He stated that he used to comment to his brother that "it wouldn't take long for that lake (the small lake) to fill up." He further testified that the mud and siltation that had flowed into the lake made it a lot shallower and that the lake stayed muddy all of the time. He noticed that the customers dwindled and the fishing slowed and suffered.
Harley Utz, who had fished several times a week at Shady Valley since 1971, testified that he saw mud flowing into both the little and the big lake after the construction started. He further testified that prior to the grading operations, the lakes would clear in a day or two after a very hard rain. After construction began, he stated that the lakes would never clear up and remained muddy and murky. Utz testified that the small lake, which was clearly his favorite, was forced to close in 1989 because it was too shallow due to the mud and silt that had flowed into it.
Patsy Wright, another longtime customer, testified that she used to bring her six children fishing at Shady Valley. When she first began fishing at Shady Valley, the water was clear and the fishing was good. She said that the area was always crowded around both lakes. She testified that as soon as the construction started she noticed that the lakes were significantly muddier. The quality of fishing declined to the point where she was unable to catch anything. She used to be able to see fish in both lakes. After the grading began, she was only able to see the water moving where the fish were. She stated that the big lake never cleared up after construction began. She quit fishing there in 1990.
In an effort to prevent the mud and siltation from flowing into the lakes, Weber took the following steps.
1) installed a siltation fence;
2) placed rock in the creek which fed into the smaller of the two lakes;
3) staked bales of hay in front of a pipe which brought runoff water from the other side of the new highway into the creek;
4) lined the banks of the inlet creek to keep them from washing away;
5) After the grading of Phase I was complete, put down lime, seed, straw mulch and liquid mulch overspray in an effort to prevent further mud and siltation from flowing into the lakes.
Furthermore, at a time when Weber believed that it was not responsible for the damage to Shady Valley's lakes, Weber made two separate proposals to dredge the lakes at a reduced price. In exchange, Weber wanted Shady Valley to indemnify and hold forever harmless Weber and its subcontractors. Shady Valley declined the offers.
As the problems with the mud and siltation worsened, it became increasingly difficult to draw the necessary amount of good quality water to support the businesses. The water from the lakes, when laden with mud, silt and clay could no longer be used to supply water to the raceways. When muddy water was used, it would kill the fish. Due to the difficulties the raceways had holding an inventory, Shady Valley had trouble making on time deliveries of healthy fish to its customers. Eventually, it lost contracts to deliver live fish, including one with the Missouri Department of Conservation to supply fish for hundreds of Missouri lakes. Hofstetter, Weber's Project Superintendent, testified that as the project continued, he noticed that the smaller lake started to fill up with silt. He also noted that customers had dwindled on the small lake. The small lake, the favorite of most of the customers, was closed in July, 1989. When the small lake closed, it was only one to one and one-half feet deep; previously it had ranged in depth from seven to twelve feet. The fishing operation closed in July, 1991 and the entire operation closed its doors in October, 1991.
Prior to the business closing down, Gene Lambrich sought relief from Weber and the MHTC. In April, 1989, Lambrich detailed his concerns regarding the siltation caused by the construction of New Route 21 in a letter directed to the MHTC. On May 2, 1989, Lambrich received a written response from J.T. Yarnell of the MHTC. The letter indicated that the matter had been discussed with Weber and that Weber planned to excavate the upper lake to remove the material that had washed in. In August, 1989, Lambrich received the aforementioned release and indemnity agreement from Weber in which it offered to clean out the small lake for only 75% of actual cost plus 10%. As discussed supra, the agreement required Shady Valley to "indemnify and hold Weber harmless" from any further claims. Shady Valley declined the offer.
On January 4, 1990, Lambrich again wrote the MHTC outlining his problems since the start of...
To continue reading
Request your trial
-
Ingham v. Johnson & Johnson
...economy, and the conflicting interests of the parties. See Bryan , 175 S.W.3d at 720-21 (citing Shady Valley Park & Pool, Inc. v. Fred Weber, Inc. , 913 S.W.2d 28, 36 (Mo. App. E.D. 1995) ). "Th[e]se considerations can and should be taken into account under the authority conferred upon the ......
-
Barnett v. La Societe Anonyme Turbomeca France
...arbitrary and unreasonable to shock a sense of justice, thus indicating a lack of careful consideration. Shady Valley Park & Pool, Inc. v. Weber, Inc. 913 S.W.2d 28, 37 (Mo.App.1995). 3. TRIAL COURT FAILED TO ALLOW TURBOMECA IN ARGUMENT THROUGH INSTRUCTIONS TO ADEQUATELY EXPLAIN TO JURY THE......
-
Westfield v. IPC, Inc.
...should realize that the work done thereunder will make the structure or condition unsafe ...’ ” Shady Valley Park & Pool v. Fred Weber, Inc., 913 S.W.2d 28, 34, n. 1 (Mo.Ct.App.1995) (quoting Restatement (Second) of Torts, Sec. 384, comment f (1965)); see also Constance v. B.B.C. Dev. Co., ......
-
City of Harrisonville v. McCall Serv. Stations
...be held liable for plaintiff's temporary loss of access to a portion of its property. Similarly, in Shady Valley Park & Pool, Inc. v. Fred Weber, Inc., 913 S.W.2d 28 (Mo. App. E.D. 1995), which involved trespass to a lake through the introduction of mud and silt from a highway construction ......