Opinion
No. ED74835.
Filed: October 26, 1999.
Appeal from the Circuit Court of the City of St. Louis, Honorable Patricia L. Cohan.
Dorothy White-Coleman, 500 Washington Ave., Suite 1150, St. Louis, MO 63101-2396; James J. Virtel, Ann E. Buckley, One Metropolitan Square, Ste. 2600, St. Louis, MO 63102-2740, for appellant.
Matthew J. Padberg, 1015 Locust, Suite 800, St. Louis, MO 63101; Phillip J. Barkett, Jr., 1100 North Main, P.O. Box 188, Sikeston, MO 63801; Terrance J. Good, 714 Locust, St. Louis, MO 63101; Mark Joseph Cero, 800 Market St., Suite 1635, St. Louis, MO 63101, Anne Butler Schmidt, John Wendler, 103 W. Vandalia, Ste. 225, Edwardsville, IL 62025, for respondent.
Before: Mary K. Hoff, P.J., Gary M. Gaertner, J., and Mary Rhodes Russell, J.
Union Electric Company ("utility") appeals from the judgment entered on a jury verdict in favor of Yvonne Ellis ("plaintiff") on her claim for damages for personal injuries she sustained when a utility pole owned by utility fell onto a car in which she was a passenger. The jury awarded plaintiff $1.4 million in compensatory damages and $4 million in punitive damages. On appeal, utility challenges the submissibility of plaintiff's liability and punitive damages claims, the propriety of plaintiff's verdict-directing instruction, the admissibility of certain testimony, and the amount of damages. We affirm.
On July 14, 1993, plaintiff was a passenger in a car driven by her co-worker on Highway 25 in southeast Missouri. As they traveled south in the rain, a utility pole, later identified as "pole 929," broke and fell onto the car. Another pole, identified as "pole 928," also broke during the incident, but did not come into contact with the car. Pole 929 broke at approximately nine feet above the ground-line, while pole 928 broke at the ground-line. There was evidence pole 928 broke first, pulling down pole 929. However, evidence also existed that the breaking of pole 929 was unrelated to the breaking of pole 928.
As a result of the accident, plaintiff suffered a burst fracture of her fifth cervical vertebra. She underwent surgery in which the remaining vertebrae were fused and stabilized with a metal plate. She is permanently limited in her movements.
Plaintiff sued three defendants in connection with the accident: utility, which owned the pole; Kerr-McGee Chemical, L.L.C. ("Kerr-McGee"), which manufactured the pole; and Osmose Wood Preserving Company ("Osmose"), which inspected the pole at utility's request.
At trial, evidence was adduced that both poles were decayed at their respective breaking points, and that the poles were 26 years old. The evidence also established that the average useful life of a utility pole was approximately 35 years, and that the weakest part of a utility pole was approximately nine feet above the ground-line.
Although utility's inspection cycle was every ten years, during the 26-year usage of the poles, utility had ordered only one documented inspection of poles 928 and 929. This inspection, conducted by Osmose in 1987, consisted of a visual inspection of the entire pole and a thorough examination of the pole at the ground-line, including boring below ground level. Each pole was also sounded, which consisted of hitting the pole with a hammer from the ground-line to as high as the inspector could reach. Evidence was adduced that utility's inspection cycle and method complied with industry standards.
The jury found utility liable on the negligence claim and awarded plaintiff compensatory and punitive damages. The jury found against plaintiff on her claims against the remaining defendants. After the trial court denied utility's Motion for Judgment Notwithstanding the Verdict, Remittitur, or New Trial, it appealed.
Plaintiff's Motion to Dismiss the Appeal for Violations of Rule 84.04(c) and Local Rule 345 is without merit and, therefore, denied.
In its first point, utility argues the trial court erred in refusing to direct a verdict in its favor and in refusing to grant its motion for judgment notwithstanding the verdict ("jnov") because there was no substantial evidence that utility knew or should have known of any decay in poles 928 or 929 or that any act or omission of utility caused or contributed to cause injury to plaintiff.
Plaintiff initially argues utility's first point has not been preserved for review because utility's motion for directed verdict was insufficient.
A motion for jnov is properly preserved only when a sufficient motion for directed verdict has been made at the close of all the evidence. Rule 72.01(b); see Cohn v. Dwyer, 959 S.W.2d 839, 842 (Mo.App. 1997). Where an insufficient motion has been made, a post-verdict motion for jnov is without basis and preserves nothing for review. See Cohn, 959 S.W.2d at 842.
Although Rule 72.01(a) requires that a motion for directed verdict state the basis with some particularity, courts apply a liberal construction to this rule. Baldridge v. Lacks, 883 S.W.2d 947, 953 (Mo.App. 1994). We find utility's motion for directed verdict sufficient and in compliance with the requirements of Rule 72.01(a). The motion states utility is entitled to a directed verdict because none of the elements for a negligence claim have been proven, and then discusses each element in sufficient detail. The motion goes beyond merely stating plaintiff has failed to make a submissible case. Therefore, utility's first point on appeal is preserved for our review.
Turning to the merits of utility's first point, we note that the standard for review of a trial court's denial of motions for directed verdict and jnov is whether the plaintiff has made a submissible case. Brown v. Hamilton Ins. Co., 956 S.W.2d 417, 419 (Mo.App. 1997). An appellate court reviews the evidence and reasonable inferences therefrom in a light most favorable to the jury's verdict, disregarding evidence to the contrary. Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 461 (Mo.banc 1998). An appellate court will reverse a jury's verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury's conclusion. Id. Where reasonable minds can differ on the question before the jury, a court may not disturb the jury's verdict. Feely v. City of St. Louis, 898 S.W.2d 708, 709 (Mo.App. 1995).
In any negligence action, the plaintiff must establish the existence of a duty on the part of the defendant to protect the plaintiff from injury, failure of the defendant to perform that duty, and the plaintiff's injury was proximately caused by the defendant's failure. Seitz, 959 S.W.2d at 463.
Utility does not dispute the existence of a duty on its part to protect plaintiff from injury. Rather, utility maintains plaintiff has not produced substantial evidence of its failure to perform its duty or that its failure proximately caused plaintiff's injury.
See Gnau v. Union Elec. Co., 672 S.W.2d 142, 146 (Mo.App. 1984) ("The law requires those who generate and transmit electricity to use the highest degree of care to prevent injury which can be reasonably anticipated.")
We find plaintiff made a submissible case. There was sufficient evidence from which the jury could have reasonably found utility negligent. Utility did not request inspections at the known weakest point of their poles, the nine-foot level, which is where the decay in pole 929 was found. If utility had inspected at that point, the jury could have reasonably concluded the decay would have been located and the situation remedied. In addition, the jury could have reasonably found that utility's inspection cycle of the poles was inadequate, especially since they were 26 years old and nearing the end of their useful life of 35 years. Utility conducted only one documented inspection. Finally, there was sufficient evidence that utility's negligence proximately caused plaintiff's injury.
Utility argues it complied with industry standards both as to its inspection cycle and method of inspection. However, mere compliance with industry standards is not necessarily enough to prevent a jury from finding that a defendant has breached its duty of care. Washburn v. Grundy Elec. Co-op., 804 S.W.2d 424, 429 (Mo.App. 1991). In determining whether conduct is negligent, customs of others under like circumstances are factors to be taken into account, but are not controlling where a reasonable person would not follow them. Broadview Leasing Co. v. Cape Central Airways, Inc., 539 S.W.2d 553, 562-63 (Mo.App. 1976). "What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not." Id. at 563 (quotingTexas P.R. Co. v. Behmeyer, 23 S.Ct. 622, 623 (1903)). Therefore, the jury was free to conclude that compliance with industry standards did not shield utility from liability, in that the industry standards were not reasonable under the circumstances. Point I is denied.
In its second point, utility argues the trial court erred in entering judgment against it on plaintiff's claim for punitive damages because plaintiff failed to make a submissible case on this issue.
Plaintiff argues utility's second point is not preserved for review due to non-compliance with Rule 84.04(d) and an insufficient motion for directed verdict at the close of all the evidence. We find these contentions to be without merit.
In determining the issue of sufficiency of the evidence to support the submission of punitive damages, the evidence and all inferences therefrom most favorable to the plaintiff's submission are to be considered. J J Home Builders, Inc. v. Hasty, 989 S.W.2d 614, *616 (Mo.App. 1999). For common law punitive damages claims, the evidence must meet the clear and convincing standard of proof. Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 111 (Mo.banc 1996). Clear and convincing evidence is that which tilts the scales in the affirmative when weighed against the evidence in opposition; evidence which clearly convinces the fact finder of the truth of the proposition to be proved. Cook v. Polineni, 967 S.W.2d 687, 690-91 (Mo.App. 1998).
Punitive damages are imposed for the purpose of punishment and deterrence. Rodriguez, 936 S.W.2d at 110; Barnett v. La Societe Anonyme Turbomeca, 963 S.W.2d 639, 659 (Mo.App. 1997);Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 177 (Mo.App. 1997). The remedy is so extraordinary or harsh that it should be applied only sparingly. Rodriguez, 936 S.W.2d at 110.
In a negligence case, punitive damages are awardable only if, at the time of the negligent act, the defendant knew or had reason to know there was a high degree of probability that the action would result in injury. Alack v. Vic Tanny Intern. of Missouri, Inc., 923 S.W.2d 330, 338 (Mo.banc 1996). Punitive damages cannot be collected unless the defendant showed complete indifference to or conscious disregard for the safety of others.Id. at 339. The plaintiff must show conduct on the part of the defendant that is more egregious than that on which the claim of negligence is based. Litchfield v. May Dept. Stores, 845 S.W.2d 596, 599 (Mo.App. 1992).
During the 26-year existence of the poles, utility conducted only one documented inspection, and that inspection was not at the weakest point of the poles. The poles were wood, and it is common knowledge that wood is subject to decay over a period of time. The potential danger from falling utility poles that carry high voltages of electricity is obvious. Osmose did not guarantee its work, and it also informed utility that certain poles might become rejects prior to the next inspection cycle.
Based on this evidence, we find plaintiff made a submissible case for punitive damages. Therefore, the trial court did not err in entering judgment against utility on plaintiff's punitive damages claim. Point II is denied.
In its third point, utility argues the trial court erred in submitting plaintiff's verdict-directing instruction because each element of the disjunctive submission was not supported by substantial evidence.
Plaintiff argues utility's third point is not preserved for review because utility did not comply with the specificity provisions of Rule 70.03. We have reviewed the record and conclude plaintiff's contention is meritless.
Over utility's objection, the trial court submitted Instruction No. 11 which stated:
In your verdict, on the claim of plaintiff for personal injury based on negligence, your verdict must be for plaintiff against defendant Union Electric Company if you believe:
First, either:
defendant Union Electric Company maintained a decayed utility pole, Pole Number 929, near Missouri Route 25 and that this was a condition which represented an unreasonable risk to persons travelling on Missouri Route 25, or
defendant Union Electric Company maintained a decayed utility pole, Pole Number 928, near Missouri Route 25 and that this was a condition which represented an unreasonable risk to persons travelling on Missouri Route 25, and
Second, defendant Union Electric Company knew or, by the exercise of the highest degree of care, should have known of either or both such conditions, as submitted in paragraph First, and
Third, defendant Union Electric Company failed to use the highest degree of care to remedy either or both such conditions, and
Fourth, such failure to remedy either or both such conditions directly caused damage to plaintiff or directly contributed to cause damage to plaintiff.
The phrase "highest degree of care" as used in this instruction means that degree of care that a very careful person would use under the same or similar circumstances.
Utility contends no substantial evidence of each of the elements of plaintiff's case as they pertain to pole 928 was adduced at trial. Therefore, any allegations regarding pole 928 should not have been included in the verdict director.
A verdict director is properly submitted in the disjunctive only when each of its separate parts is supported by evidence.Euton v. Norfolk Western Ry. Co., 936 S.W.2d 146, 152 (Mo.App. 1996). In reviewing the propriety of an instruction, the court must view the evidence in the light most favorable to the submission of that instruction. Kauzlarich v. Atchinson, Topeka, Santa Fe Ry. Co., 910 S.W.2d 254, 258 (Mo.banc 1995). A party is entitled to an instruction upon any theory supported by the evidence. Id.
Sufficient evidence existed that pole 928 was decayed and fell first, pulling down pole 929. Further, there was sufficient evidence the decay in pole 928 could have developed during the six years between the 1987 inspection and the accident, and utility could have discovered the decay if it had conducted a more recent inspection. We have already found that plaintiff made a submissible case as to pole 929. Therefore, each disjunctive part of Instruction No. 11 was supported by evidence. We find the trial court did not err in submitting Instruction No. 11 to the jury. Point III is denied.
In its fourth point, utility argues the trial court erred in admitting certain deposition testimony of a police officer in that such testimony was inadmissible hearsay.
Over utility's objection, the trial court admitted the following deposition testimony of the police officer who investigated the scene of the accident:
Q Do you have any information, based on your investigation, as to what pole broke first or whether they broke simultaneously?
A I was trying to remember, and this is — possibly the first pole had broken — or actually the pole at the top, which would have been the second pole south [pole 928], and the force of that break had caused the third pole [pole 929] to break high, as far as nine feet up.
Q Who told you that?
A I can't remember.
Q Did somebody else tell you that?
A It may have been Mr. Trout when I was examining, but, again, I can't recall where I heard that, other than maybe it was from Mr. Trout, who is the witness there.
Q So that's not any firsthand information?
A No, sir.
Q And you think that Mr. Trout may have told you that?
A Possibly.
Q But somebody told you that?
A I can remember hearing that out at the scene and after discussing with Trooper Rawson, same information, he couldn't remember exactly where, but he could remember that statement being made.
Admission of evidence claimed to be hearsay is reversible error only if the complaining party is prejudiced. City of Rolla v. Armaly, 985 S.W.2d 419, 424 (Mo.App. 1999). Evidence is prejudicial if it tends to lead the jury to decide the case on some basis other than the established propositions in the case.Kennedy v. Milligan, 915 S.W.2d 784, 787 (Mo.App. 1996).
Utility claims the admission of the police officer's testimony was prejudicial because it bolstered Kerr-McGee's expert's testimony on a disputed issue, namely, which pole broke first, and there was no other direct evidence that pole 928 broke first.
Utility's argument that the police officer's testimony improperly bolstered the expert's testimony is misplaced. Improper bolstering occurs when an out-of-court statement of a witness is offered solely to be duplicative or corroborative of trial testimony by that same witness. State v. Ramsey, 864 S.W.2d 320, 329 (Mo.banc 1993). Improper bolstering did occur in the cases cited by utility in its brief. See e.g. Gollwitzer v. Theodoro, 675 S.W.2d 109 (Mo.App. 1984) (plaintiff offered evidence of statements made by plaintiff to third parties); Jones v. Rennie, 690 S.W.2d 164 (Mo.App. 1984) (plaintiff offered evidence of letter written by plaintiff to defendant); Reed v. Sale Memorial Hosp. and Clinic, 698 S.W.2d 931 (Mo.App. 1985) (plaintiff offered evidence of statement made by plaintiff to a third person); Shaw v. Terminal R.R. Ass'n of St. Louis, 344 S.W.2d 32 (Mo. 1961).
The police officer's deposition testimony, however, was not duplicative or corroborative of his trial testimony. Therefore, no improper bolstering occurred.
Absent the police officer's deposition, sufficient admissible evidence existed upon which the jury could have reasonably found for plaintiff. Under the facts and circumstances of this case, utility has failed to show it was prejudiced by the admission of the police officer's deposition. Point IV is denied.
In its final point, utility argues the trial court erred in denying its motion for remitittur of compensatory and punitive damages because the awards were excessive. We first address the issue of compensatory damages.
Generally, the issue of damages is primarily for the jury to decide. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 448 (Mo. banc 1998). Pursuant to section 537.068 RSMo 1994, remitittur is appropriate where, after reviewing the evidence supporting the jury's verdict, the court finds the jury's award excessive because the amount exceeds fair and reasonable compensation for the plaintiff's injuries and damages. Id.
The trial court is given broad discretion in deciding whether remittitur should be ordered. Id. An appellate court will interfere only when the verdict is so excessive it shocks the conscience of the court and convinces the appellate court that both the jury and the trial court abused their discretion. Id. The day is past when Missouri appellate courts engage in close scrutiny of the amounts awarded by juries for personal injuries.Smith v. Kovac, 927 S.W.2d 493, 497 (Mo.App. 1996). We rely on the trial judge, who is in a much better position than we are to assess the verdict. Id.
There is no exact formula for determining whether a verdict is excessive. Each case must be reviewed in light of the following factors: (1) present and future loss of income; (2) medical expenses; (3) the plaintiff's age; (4) the nature and severity of the injuries; (5) economic factors; (6) awards given in similar cases; and (7) the superior opportunity of the trial court and jury to appraise the plaintiff's injuries and other damages. Emery, 976 S.W.2d at 448; Cole v. Goodyear Tire Rubber Co., 967 S.W.2d 176, 187 (Mo.App. 1998).
Plaintiff was only 33 years old at the time of the accident, with a life expectancy of 38 more years. She suffered $40,000 in lost wages. There was evidence the accident caused her to lose a job promotion, and her injuries caused her permanent loss of motion and affected her ability to work. Plaintiff incurred approximately $27,280 in medical expenses, and the need for future medical treatment or surgery could not be ruled out.
As a result of the accident, plaintiff suffered a burst fracture of her cervical vertebra. She underwent surgery in which the remaining vertebrae were fused and stabilized with a metal plate. The plate is susceptible to infection. Plaintiff continues to suffer pain in her neck, and there was testimony she would be in future pain and suffering when arthritis develops.
Evidence existed that continuing pain and loss of motion interfere with plaintiff's daily activities. As a result of the unique way in which the accident occurred, plaintiff suffers from depression, a phobia of storms, and feelings of helplessness.
Based on these facts, we do not find the jury's award of compensatory damages to be excessive. It does not shock the conscience of this court or convince us the jury and the trial court abused their discretion.
Turning to the issue of remittitur of the punitive damages award, we note that awarding punitive damages is peculiarly committed to the jury and the trial court's discretion. Fust v. Francois, 913 S.W.2d 38, 50 (Mo.App. 1995). An appellate court will interfere only in extreme cases. Id. An abuse of discretion is established when the punitive damages award is so disproportionate to the factors relevant to the size of the award that it reveals improper motives or a clear absence of an honest exercise of judgment. Call v. Heard, 925 S.W.2d 840, 849 (Mo. banc 1996).
In reviewing a punitive damages award for excessiveness, due process and reasonableness requirements compel consideration of the degree of reprehensibility of the defendant's conduct, the relationship between the punitive damages award and the harm or potential harm suffered by the plaintiff, and the difference between the award and the civil penalties authorized or imposed in comparable cases. Letz, 975 S.W.2d at 177-78. Missouri courts have also considered the following additional factors: (1) aggravating and mitigating circumstances; (2) the degree of malice or outrageousness of the defendant's conduct; (3) the defendant's character, financial worth, and affluence; (4) the age, health, and character of the injured party; (5) the nature of the injury; (6) awards given and approved in comparable cases; and (7) the superior opportunity for the jury and trial court to appraise the plaintiff's injuries and other damages. Call, 925 S.W.2d at 849;Letz, 975 S.W.2d at 178. The amount of punitive damages must somehow be related to the wrongful act and the actual or potential injury resulting therefrom. Call, 925 S.W.2d at 849; Barnett, 963 S.W.2d at 661.
During the 26-year existence of the utility poles at issue, utility only conducted one documented inspection. The inspection method used did not test the poles at their weakest points, even though other methods were available. This conduct is outrageous in light of the potential for injury from falling utility poles that carry high voltages of electricity along a highway.
The punitive damages award is less than three times the compensatory damages award. Therefore, the award bears a reasonable relationship to the actual damages.
Finally, utility's net worth was established at trial as $4 billion, with a 1996 net income of $291 million. Therefore, the punitive damages award of $4 million is not excessive in light of the dual purposes of punitive damages, punishment and deterrence.
Based on these factors, we do not find the jury's award of punitive damages to be excessive. The award is not so disproportionate to the factors relevant to the size of the award that it reveals improper motives or a clear absence of an honest exercise of judgment. Point V is denied.
The judgment of the trial court is affirmed.