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Basta v. Kansas City Power & Light Co.

Court of Appeals of Missouri, Western District, Second Division

December 16, 2014

RONALD and PATRICIA BASTA, as heirs at law to JOSEPH BASTA, Respondents,
v.
KANSAS CITY POWER & LIGHT COMPANY, Appellant

Page 448

[Copyrighted Material Omitted]

Page 449

Appeal from the Circuit Court of Buchanan County, Missouri. The Honorable Weldon C. Judah, Judge.

For Respondents: Michael P. Healy, Lee's Summit, MO; Jill A. Kanatzar, Kansas City, MO.

For Appellant: R. Lawrence Ward, William E. Quirk, and Miriam E. C. Bailey, Kansas City, MO.

Before Division II: Joseph M. Ellis, Presiding Judge, and Mark D. Pfeiffer and Gary D. Witt, Judges. Joseph M. Ellis, Presiding Judge, and Gary D. Witt, Judge, concur.

OPINION

Page 450

Mark D. Pfeiffer, Judge

Kansas City Power & Light Company (" KCP& L" ) appeals the Judgment of the Circuit Court of Buchanan County, Missouri (" trial court" ), entered on a jury verdict in favor of Ronald and Patricia Basta (" the Bastas" ) in their action for the wrongful death of their 31-year-old son, Joseph Basta (" Joey" ),[1] resulting from electrocution. We affirm.

Factual and Procedural Background[2]

Larry and Judy Blankenship hired Mike Rose Roofing to reroof their flat-roofed one-story home that was constructed in 1961. Joey was an experienced roofer; he had worked for Rose on and off for six or seven years and was one of the roofers on the crew for the Blankenship job. On June 17, 2009, Joey was tragically electrocuted while working near a service drop line, which brought electricity into the home through the point at which the service line attached to equipment--called split-bolt connectors--above the roof of the house.

More specifically, Joey and another roofer, Billy Hendrix, were installing a metal

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and rubber boot around the riser pipe (also called meter mast or service mast), a two-inch galvanized pipe that extends from the meter can through the roof. The riser pipe was topped with a copper weatherhead, a device to keep rainwater from going down the pipe and into the electrical equipment. At some point during this activity, Joey came into contact with both an uninsulated connector and the weatherhead. The weatherhead served as a direct ground permitting the electric current from the connector to pass through Joey's body, causing ventricular fibrillation and, ultimately, cardiac arrest.

The Bastas ultimately went to trial against one defendant, KCP& L, the supplier of electrical service to the Blankenships' home. The verdict-directing instruction given to the jury stated:

In your verdict you must assess a percentage of fault to defendant whether or not decedent Joey Basta was partly at fault if you believe:
First, plaintiffs are the parents of decedent Joey Basta, and
Second, either
defendant failed to insulate the connectors, or
defendant failed to inspect the connectors, or
defendant failed to maintain the service drop lines 18 inches above the roof, and
Third defendant in any one or more of the respects submitted in paragraph second was thereby negligent, and
Fourth such negligence directly caused or directly contributed to cause the death of Joe[y] Basta.
The term " negligent" or " negligence" as used in this instruction means the failure to use the highest degree of care. The phrase " highest degree of care" means that degree of care that a very careful person would use under the same or similar circumstances.

After a five-day trial, the jury found the total amount of the Bastas' damages to be $2 million. The jury assessed KCP& L as 50% at fault and Joey as 50% at fault. The trial court entered judgment in favor of the Bastas and against KCP& L in the amount of $1 million.

KCP& L filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for a new trial, which the trial court denied. KCP& L timely appealed, asserting three points of error.

Point I

Standard of Review

Initially, we note that the denial of a motion for new trial is not an appealable order. " No appeal lies from an order overruling a motion for a new trial, but the aggrieved party may appeal from a final judgment entered against him." Walker v. Thompson, 338 S.W.2d 114, 116 (Mo. 1960); Burbridge v. Union Pac. R.R. Co., 413 S.W.3d 649, 654 (Mo. App. E.D. 2013). In its first point relied on, KCP& L asserts that " [t]he trial court prejudicially erred in denying KCP& L's motion for new trial because the jury entered a general verdict and at least one of the three disjunctive submissions in the verdict-directing instruction was not supported by substantial evidence." We therefore assume that KCP& L's appeal was from the judgment entered by the trial court on the jury's verdict and review the same for " substantial evidence" supporting it.

Analysis

KCP& L asserts that the trial court erred in denying KCP& L's motion for new trial because the jury entered a general verdict on a three-part disjunctive submission and because at least one of the

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three disjunctive submissions was not supported by substantial evidence. Specifically, KCP& L contends that there was no substantial evidence in the record either: (i) that KCP& L had any duty to maintain the height of the service drop line at eighteen inches above the roof; or (ii) that the height of the service drop line more ...


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