Wilson v. River Market Venture, I, L.P., WD

• Decision Date: 18 May 1999
• Docket Number: No. WD,WD
• Citation: 996 S.W.2d 687
• Parties: Jerry L. WILSON, Appellant, v. RIVER MARKET VENTURE, I, L.P., Recon Development, Inc., Respondents. 55866.
• Court: Missouri Court of Appeals

Page 687

996 S.W.2d 687

Jerry L. WILSON, Appellant, v. RIVER MARKET VENTURE, I, L.P., Recon Development, Inc., Respondents.

No. WD 55866.

Missouri Court of Appeals,

Western District.

May 18, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 29, 1999.

Application for Transfer Denied

Aug. 24, 1999.

Fritz Edmunds, Jr., Overland Park, for appellant.

Bradley C. Nielsen, Larry James Tyrl, Kansas City, for respondents.

Before Presiding Judge ALBERT A. RIEDERER, Judge FOREST W. HANNA and Judge LAURA DENVIR STITH.

LAURA DENVIR STITH, Judge.

Plaintiff/Appellant Jerry Wilson ("Wilson") appeals from a jury verdict finding Defendants/Respondents, River Market Venture, I, L.P. ("River Market") and Recon Development, Inc. ("Recon") zero percent at fault on his claim for personal injuries arising out of his fall into a manhole at a construction job site on which Mr. Wilson was a painting subcontractor. He alleged that the manhole cover was improperly seated on the manhole and that it moved out of position or was out of position when he stepped on it, causing him to fall.

Plaintiff argues on appeal that the trial court erred in submitting an instruction which required the jury to find that Defendant Recon specifically controlled the manhole and its cover in order to find Recon liable for Plaintiff's injuries. We concur that the trial court erred in requiring the jury to specifically find that Recon controlled the manhole and cover; the jury should have been told to determine whether Recon controlled the portion of the premises on which the manhole and cover were located. It is also appellant's burden to show that prejudice resulted from this error, however, and this he failed to do because, based on the limited excerpts of the record filed in this Court, there is no basis on which the jury could have found that Recon controlled the premises but not the manhole, and visa versa. We therefore do not remand for a new trial on this issue.

We also reject Plaintiff's contention that the error as to Defendant Recon was compounded by the nature of the submission as to River Market and requires a new trial as to both defendants. There is nothing in the record to indicate that the error in the instruction submitted against Recon had any effect on the jury's consideration of River Market's liability, which was determined based on the instruction offered by Plaintiff himself.

Plaintiff also argues that the trial court erred in failing to submit his alternative theory that the construction manager for the project, Ryan Molen, was negligent, that he was the agent of either Defendant River Market, or Defendant Recon, and that one of them was thus liable for Plaintiff's injuries. Plaintiff admits he failed to plead an agency theory, but asserts that his pleadings were amended to conform to the evidence of agency. We find that Plaintiff failed to offer any evidence relevant solely to the theory that Mr. Molen was the agent of River Market or Recon, and thus the trial court did not err in failing to find the pleadings amended to conform to the evidence of the alleged agency relationship between Mr. Molen and the Defendants.

Finally, we reject the argument that the trial court erred in failing to grant a continuance in order to give Plaintiff time to secure an expert witness. While it would have been within the court's discretion to grant the continuance, we do not find that the trial court abused its discretion in denying it on the facts presented to it. Judgment affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Recon Development is a construction management firm, and at the time of trial had been in business for five and one-half years. It was hired by River Market to be the general contractor on a construction project regarding a building located in the River Market area owned by River Market and leased to a company called Australian Optical.

The construction of the Australian Optical space occurred in two phases. Phase I was the more extensive project and involved converting a raw space that had not been occupied for some time into a functional area in which Australian Optical could operate. Plaintiff, Mr. Wilson, is a painting contractor doing business as J & K Painting. He performed painting work for Recon during Phase I, without injury.

Following the completion of Phase I, Australian Optical began utilizing the front part of the building, while Recon began Phase 2 in the back part of the building. Phase 2 involved tenant finish activities and upgrading the space for occupancy by Australian Optical. This work included such things as framing, sheet rocking, hanging light fixtures, painting and carpeting. Plaintiff Wilson and his employees were also hired by Recon to work on Phase 2 of the project. As a part of their work, they would carry doors back to the Phase 2 area of the building to paint them. Other subcontractors and delivery people doing business with Australian Optical, as well as Mr. Molen and persons working for Australian Optical, went in and out of the Phase 2 area during construction. The manhole into which Plaintiff ultimately fell was also located inside this back part of the building.

David Pecha is one of Recon's principals and was involved in the construction and renovation of the Australian Optical space. Recon did not supervise the site on a 24-hour basis, and the front portion of the building was leased and occupied by Australian Optical during the time the work was ongoing. Mr. Pecha testified that he was at the job site on the average of every two or three days during construction. He also testified that he had been in the space on many occasions before he began the specific work in question here, including during Phase 1 of the work for River Market. He estimated that, over the preceding year, he had been in and out of the space where the accident occurred some 200 times.

Day-to-day oversight was the responsibility of Ryan Molen of Construction Services, Inc., who had been hired as the job-site foreman. It was Mr. Molen's responsibility to open the job site in the morning and to lock it up at the end of the day, to schedule subcontractors, and to make sure the work was performed in accordance with the project plans. Mr. Molen has worked primarily for Recon over the last three years and has been involved in many jobs for it.

On the morning of the accident, Mr. Molen and Mr. Wilson were walking into the back, or Phase 2, area of the Australian Optical space together, with Mr. Molen entering the building ahead of Mr. Wilson through the side door. Mr. Molen and his brother had hung a lightweight transparent plastic from the ductwork and ceiling in order to keep paint spray from migrating out of the Phase 2 construction area. Mr. Molen testified that, as he entered, he could see through the plastic to where painters were working at the rear of the space. Painters were the only people working at the job-site at the time of the accident. Mr. Molen was looking through one of the slits in the plastic when he heard Mr. Wilson fall. He stopped and turned, and saw Mr. Wilson on the floor with one leg down in the manhole. The manhole was located approximately four feet from the side door of the building through which they had just entered. Mr. Wilson was taken to the hospital for an examination. He apparently suffered severe damage to his right leg.

Mr. Molen testified that he had seen the manhole and cover before Mr. Wilson's accident, but had not given it a detailed inspection. The manhole and cover looked similar to ones Mr. Molen has seen and inspected in the front portion of the Australian Optical space during Phase 1 of the construction project. Mr. Molen stated he never saw anything regarding the manhole in question which caused him to think it was unsafe. Similarly, David Pecha testified he had seen the manhole and cover before the accident, but there was nothing about it which drew his attention. He had seen manholes like the one involved in the accident about 20 other times in buildings in the River Market area and never had any problems with them. He stated that any time he inspected the manhole it was properly covered, and at no time had he ever seen the manhole cover removed before the accident.

Mr. Wilson filed suit against River Market and Recon Development on April 23, 1997, alleging that the manhole was in a dangerous condition in that it was not covered properly. The court scheduled the discovery period for this case to close on March 13, 1998. On December 23, 1997, the attorney for Mr. Wilson issued a discovery request to enter upon the land owned by River Market for the purpose of inspecting and photographing the manhole and surrounding area. River Market objected on the ground that the space was now finished and covered by a carpet, and it did not want its tenant disturbed by rolling back the carpet to see the manhole. The court declined to directly order River Market's tenant to allow the discovery, and instead simply ordered the parties to reach an arrangement under which the premises could be inspected. Mr. Wilson claims River Market delayed arranging the inspection until one week before trial. Eventually, Mr. Wilson paid $100 to the tenant and additional sums to the carpet installer to pull up the carpet so he could inspect the manhole. Plaintiff claims that, prior to the inspection, he had no reason to believe an expert would be needed, because Recon had stated that the manhole's dangers were "open and obvious" in its answers to Plaintiff's interrogatories. Plaintiff claims that, upon inspection, he discovered that the manhole's dangers were not "open and obvious," that it was not the type of manhole commonly known to lay persons, and that an expert would be needed to explain how the manhole cover could become a dangerous condition. Plaintiff filed a motion for continuance to obtain an expert witness. Recon and River Market objected to the continuance and Pla...