Weaks v. Rupp

• Decision Date: 14 April 1998
• Docket Number: No. WD,WD
• Citation: 966 S.W.2d 387
• Parties: Shelly WEAKS and Fannie Weaks, Appellant, v. Ronald RUPP, and Marie Rupp, Respondents. 53776.
• Court: Missouri Court of Appeals

Page 387

966 S.W.2d 387

Shelly WEAKS and Fannie Weaks, Appellant, v. Ronald RUPP, and Marie Rupp, Respondents.

No. WD 53776.

Missouri Court of Appeals Western District.

April 14, 1998.

Thomas E. Thompson, Beamer, Slagg & Thompson, L.L.C., Kansas City, for appellant.

Phillip S. Smith, Kansas City, for respondent.

Before ULRICH, C.J., P.J., and LOWENSTEIN and HOWARD, JJ.

ULRICH, Chief Judge, Presiding Judge.

Shelly and Fannie Weaks ("the Weaks") appeal from the judgment of the trial court entered against them in their action for negligence against their landlords, Ronald and Marie Rupp ("the Rupps"). The case was tried before the court without a jury. The Weaks alleged that the Rupps' negligent maintenance of their furnace caused them to suffer carbon monoxide poisoning. The Weaks raise two issues on appeal. They contend that the trial court erred by (1) finding against them where the Rupps breached their duty to use ordinary care to prevent the furnace in the Weaks' apartment from emitting carbon monoxide; and (2) finding against them where the Rupps were liable under the doctrine of res ipsa loquitur. That part of the judgment finding that the Rupps are not liable under a theory of specific negligence is affirmed. That portion of the judgment finding for the Rupps on Plaintiff's theory of res ipsa loquitur is reversed, and the case is remanded for a new trial to determine the Rupps' liability under the doctrine of res ipsa loquitur.

FACTS

Shelly Weaks and her mother, Fannie Weaks, were tenants in an apartment building owned and operated by Ronald and Marie Rupp in January 1994. The Weaks complained to the Rupps in January 1994 that the furnace in their apartment smelled of burnt wires and gas. The Rupps called Ben Baskerville, a repairmen with over forty years experience, to repair the furnace. Mr. Baskerville rewired the furnace, replaced the thermocouple and cleaned the pilot burner assembly. He did not determine what caused the wires to burn and did not work on the flue or heat exchanger. Before he left, Mr. Baskerville lit the pilot light and turned the furnace back on to assure it was properly functioning.

Approximately one week later, on January 8, 1994, Fannie awoke in the night and shouted out that she smelled gas coming from the furnace. When Shelly entered Fannie's room she smelt a distinct odor; when she inhaled she fell forward onto the bed. Fannie was suffering loss of her motor skills, had a severe headache, was nauseous and dizzy and could barely sit on the edge of the bed. Shelly helped Fannie from the home. Before leaving the apartment, the Weaks turned off the furnace. No one in the apartment had touched the furnace since the repairs were made one week earlier.

Shelly contacted the Missouri Gas Energy Company. Galen Frank Winn, an installation and service man employed by the Missouri Gas Energy Company for the previous Fannie and Shelly went to the University of Kansas Medical Center for medical treatment. The University of Kansas Medical Center referred the Weaks to the St. Joseph Hospital for testing. St. Joseph Hospital diagnosed both Shelly and Fannie as having carbon monoxide poisoning. Fannie's initial tests revealed that she had a 30.4% pure carbon monoxide level which is indicative of serious exposure and a significant level of toxicity. At this level of toxicity, there is a progressive deterioration of neurologic function if left untreated. Because of this high level of carbon monoxide, St. Joseph Hospital required Fannie to return on January 9 for further tests. Fannie was hospitalized from January 9 to January 11, 1995. She was subjected to psychological testing, blood work, oxygen levels tests and respiratory tests. Fannie was given two treatments in the hyperbaric chamber which involved Fannie being placed on a stretcher and put inside a pressurized sealed chamber with high flow oxygen for ninety minutes per session. Fannie was upset regarding the hyperbaric chamber treatment because she becomes claustrophobic when placed in tight areas. Fannie's total medical expenses amounted to $1228.04.

eight years, went to the Weaks' home to investigate the gas leak. Mr. Winn relit the furnace and conducted tests to determine whether carbon monoxide was present. Mr. Winn took readings at the flue area and at two vents in the apartment; the instrument detected the presence of one percent carbon monoxide, the highest reading available on his instruments. When Mr. Win examined the furnace, he noted that flames rolled out of the furnace from the combustion chamber toward him when it was fired. The flame roll-out had caused the furnace wires, including the wires installed one week earlier, to burn. Mr. Winn determined that because the furnace registers contained black soot, that the furnace's heat exchanger was probably cracked. Mr. Winn shut off the furnace and explained that until repairs had been made, the furnace should not be operated. The Missouri Gas Energy Company recommends that furnaces be cleaned and serviced once a year. The Rupps had not serviced the furnace in the eight years they had owned the apartment complex.

Shelly was treated and released from St. Joseph Hospital on January 8, 1994. Shelly's medical bill amounted to $143.60. Shelly missed two days work due to her carbon monoxide poisoning and lost $168.00 income.

After Fannie's release from St. Joseph's Hospital, Fannie and Shelly returned to the apartment. Fannie developed psychological problems because she was scared that she would suffer from carbon monoxide poisoning again. Fannie experienced insomnia and recurrent headaches. Shelly also experienced nervousness when sleeping and had headaches. While Shelly's headaches eventually subsided, Fannie continued to suffer from headaches. Shelly and Fannie moved out of the apartment in February because of their fear of carbon monoxide poisoning.

The Weaks filed suit in the Jackson County Circuit Court seeking compensatory and punitive damages. At the bench trial, Robert Nielson, a heating and air conditioning technician employed by Black & Veatch Consulting Engineers for thirteen years, testified. Mr. Nielson stated a simple furnace, like the one located in the Weaks' apartment, burns natural gas to produce heat. Heat is then blown across the heat exchange into the house. The byproducts of combustion are carbon monoxide, carbon dioxide and water vapor. Because carbon monoxide is poisonous and carbon dioxide is a suffocant, regular maintenance of the furnace is recommended. Mr. Nielson testified that the Weaks' furnace had rust on it; the wires were burnt; the draft diverter was rusted and contained black soot; and the flue pipe had tape on it. Mr. Nielson stated that burnt wires indicate a flame roll-out which can be caused by a crack in the heat exchanger, a misaligned burner or a gas valve that open too slowly to let the gas ignite evenly. At the conclusion of the evidence, the court found on behalf of the Rupps. This appeal followed.

STANDARD OF REVIEW

In a court-tried case, appellate review is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The appellate court must uphold the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court erroneously declared or applied the law. Id. at 32. In applying this standard, the appellate court "give[s] the prevailing party the benefit of all favorable evidence and reasonable inferences to be drawn therefrom, disregarding all evidence to the contrary." Lisec v. Coy, 793 S.W.2d 173, 175-76 (Mo.App.1990) (quoting In re Marriage of West, 689 S.W.2d 814, 815 (Mo.App.1985)). Because the trial court made no findings of fact or conclusions of law, all facts are considered on appeal as having been found in accordance with the result reached, and the trial court's judgment will be affirmed if it is correct on any reasonable theory supported by the evidence. MFA Inc. v. Pointer, 869 S.W.2d 109, 111 (Mo.App.1993); Safeco Ins. Co. of America v. Stone & Sons, Inc., 822 S.W.2d 565, 567 (Mo.App.1992).

I. THE RUPPS ARE NOT LIABLE ON THEORY OF SPECIFIC NEGLIGENCE

As their first point on appeal, the Weaks argue that the trial court erred in finding for defendants on their claim that the Rupps are liable in negligence. The Weaks specifically argue that the Rupps had a duty to properly maintain the furnace; the Rupps breached that duty by negligently maintaining the furnace and allowing carbon monoxide fumes to enter the Weaks' apartment; and the Rupps' breach proximately caused them physical harm and emotional distress.

Negligence is the failure to exercise the degree of care which a reasonably prudent and careful person would use under the same or similar circumstances. Jackson v. City of Blue Springs, 904 S.W.2d 322, 329 (Mo.App.1995); Kary v. Missouri Highway & Transp. Comm'n, 687 S.W.2d 692, 693 (Mo.App.1985). The elements of a negligence claim under Missouri law are proof of (1) existence of a duty on the part of the defendant to protect plaintiff from injury, (2) failure of the defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure." Nappier v. Kincade, 666 S.W.2d 858, 860 (Mo.App.1984). Whether a duty exists is a question of law for the court to decide. Strickland v. Taco Bell Corp., 849 S.W.2d 127, 131 (Mo.App.1993).

Whether the Rupps owed a duty to the Weaks is first determined. Under Missouri law, a landlord is legally obligated to maintain in a "reasonably safe condition" those portions of the rental property over which the landlord retains "control." Ashley v. R.D. Columbia Assoc., L.P., 54 F.3d 498, 501 (8 th Cir.1995); Niman v. Plaza House, 471 S.W.2d 207, 210 (Mo. banc 1971); Kilmer v. Browning, 806 S.W.2d 75, 79 (Mo.App.1991). Ordinarily, a landlord retains control of the heating, electrical and plumbing fixtures in a building. Kilmer, 806 S.W.2d at 79; Niman, 471 S.W.2d at 210. Even...