Sheridan v. Sunset Pools of St. Louis, Inc., 52764

• Decision Date: 26 April 1988
• Docket Number: No. 52764,52764
• Parties: John SHERIDAN and Nancy Sheridan, Plaintiff-Respondent, v. SUNSET POOLS OF ST. LOUIS, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 639

750 S.W.2d 639

John SHERIDAN and Nancy Sheridan, Plaintiff-Respondent, v. SUNSET POOLS OF ST. LOUIS, INC., Defendant-Appellant.

No. 52764.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 26, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 25, 1988.

W.W. Sleater, Kirkwood, for defendant-appellant.

Cornelius T. Lane, Jr., St. Louis, for plaintiff-respondent.

KAROHL, Presiding Judge.

Defendant, Sunset Pools of St. Louis, Inc. [Sunset] appeals a judgment of $28,400.30 for plaintiffs, John and Nancy Sheridan, in a court-tried suit alleging negligence in the maintenance of plaintiffs' swimming pool. Sunset contests the submissibility of plaintiffs' case in that no negligence of the defendant was proven to be the proximate cause of the Sheridan's damages.

To resolve the issue of submissibility in a negligence case, we view the evidence and inferences in the light most favorable to plaintiffs and disregard all contrary evidence and inferences. Morgan v. Toomey, 719 S.W.2d 129, 131 (Mo.App.1986). Viewed in this light, the evidence was that in October, 1978 the Sheridans contracted with Sunset to have a swimming pool constructed in their yard. The pool, forty-three feet by nineteen feet, was completed in July, 1979. From 1979 through spring, 1983 Sunset was hired to open and close the pool and to perform all necessary maintenance.

On the morning of April 30, 1983 Sunset employees arrived to prepare the pool for a new season of use. They decided to drain the pool in order to acid wash and clean the surfaces of the pool. During April, the St. Louis area had received over seven inches of rain, with two and one-half inches falling the last three days. While Sunset's employees were draining the pool, the Sheridans pointed out that water was seeping between the coping and deck and around a return pipe of the pool. This seepage indicates a high water table and potential hydrostatic pressure problems.

With a foot of water remaining in the pool, a Sunset employee removed the plug at the well point. After the employee poked a screwdriver into the well point, water began seeping up into the pool. After a few minutes the employee replugged the well point although water was still seeping. Later that afternoon the Sunset employees left the Sheridans' home after placing hoses of running water to refill the pool.

The next morning plaintiffs discovered the pool had lifted several inches out of the ground and rotated sideways. Plaintiff's expert testimony concluded that hydrostatic pressure (water pressure in the ground around the pool) caused the pool damage.

The Sheridans sued Sunset alleging the company and its employees knew or should have known that draining the pool and plugging the well point could cause the pool to lift and turn. Plaintiffs testified they spent $28,400.30 replacing the pool and deck and replanting the yard. The replacement pool is larger than the damaged pool. No evidence of the fair market value of plaintiffs real estate, before and after the incident, was presented.

After the court's entry of judgment for $28,400.30, Sunset appealed on two grounds. First, Sunset challenged the submissibility of the case because no negligence of Sunset was shown to be the proximate cause of the Sheridan's damages. Second, Sunset contends the award of $28,400.30 was excessive because the cost of "repairing" [replacement] was not shown to be supported by evidence of diminution in value.

The burden is on a party-plaintiff to make a submissible case by substantial evidence of probative force and to remove the case from the realm of speculation, conjecture and surmise. Hurlock v. Park Lane Medical Center, Inc., 709 S.W.2d 872, 880 (Mo.App.1985); Zeigenbein v. Thornsberry, 401 S.W.2d 389, 393 (Mo.1966). Substantial evidence is that which, if true, has probative force upon the issues and from which the trier of facts can reasonably decide a case. Id.

Plaintiff's theory of negligence is that they relied on the expertise of Sunset and its employees to clean, drain, fill and maintain their pool in a reasonably workmanlike manner. It is their position that Sunset knew or should have known that draining the pool during a time of high rainfall (and thus increased hydrostatic pressure) might cause damage to their pool. The Sheridans also contend that the replugging of the well point exacerbated the hydrostatic pressure on their pool and caused it to lift out of the ground.

Testimony of the Sheridans' pool expert as well as Sunset's owner and president established that hydrostatic pressure caused the pool to shift and rise out of the ground. The Sheridans' expert...