Court of Appeals of Missouri, Western District, First Division
J.J.'S BAR AND GRILL, INC., D/B/A JJ'S RESTAURANT, ET AL., Appellants-Respondents,
TIME WARNER CABLE MIDWEST, LLC, Respondent-Appellant.
from the Circuit Court of Jackson County, Missouri The
Honorable Robert M. Schieber, Judge.
Before: Cynthia L. Martin, Presiding Judge, James E. Welsh,
Judge and Karen King Mitchell, Judge.
Cynthia L. Martin, Judge.
Warner Cable Midwest, LLC ("TWC") appeals from a
judgment awarding property damages to JJ's Bar and Grill,
Inc. d/b/a JJ's Restaurant ("JJ's
Restaurant") and JJ's Building, LLC ("JJ's
Building"). TWC alleges error in the use of three
verdict directing instructions and in the admission of expert
testimony. JJ's Restaurant and JJ's Building
cross-appeal alleging error in the reduction of their
judgments by the amount of earlier settlements payments.
no reversible error, we affirm.
and Procedural Background
a video services provider authorized to install fiber optic
cable in public rights-of-way by the Missouri Public Service
Commission ("PSC"). In early 2013, TWC undertook to
install underground fiber optic cable to service the Plaza
Vista project at 900 W. 48th Place on the west side of the
Country Club Plaza (the "Polsinelli Offices").
Restaurant operated a restaurant ("JJ's") in a
building owned by JJ's Building. JJ's was located on
the north side of 48th Street, across the street from the
Polsinelli Offices. TWC's fiber optic cable was to be
installed running south under an alley on the east side of
JJ's and then under 48th Street.
entered into an agreement with Heartland Midwest, LLC
("Heartland") to install the underground fiber
optic cable. TWC was aware that Heartland intended to use a
trenchless technology known as horizontal directional
drilling ("HDD") to install the fiber optic cable.
HDD technology utilizes a drill to bore a hole underground
through which utilities can be pulled, without excavating the
notified Missouri One Call of its intent to install the
underground cable. USIC, a utility locating service, marked
buried utilities near the location of the planned
installation, including those of Missouri Gas Energy
("MGE"), Kansas City Power & Light
("KCP&L"), and the City of Kansas City
streetlights. USIC uses color-coded lines of paint to mark
underground utilities. USIC placed a single yellow line
(signifying an underground natural gas line) and a single red
line (signifying an underground electric line) on the paved
surface near the intersection of the alley on the east side
of JJ's and 48th Street.
dug a pothole where the painted locator lines were placed. At
a depth of approximately 22-24 inches, Heartland found two
adjacent black conduits. Heartland concluded that one of the
black conduits was the located electric line, and that the
other was the located gas line.
then began drilling to install TWC's fiber optic cable.
Heartland sat its drill to bore at a depth of approximately
37 inches. Heartland did not dig the pothole to the depth of
the anticipated bore path. Heartland thus did not observe the
bore head cross under the two black conduits exposed by its
pothole. As Heartland bored beneath the two black conduits,
the boring drill struck a 2 inch high pressure natural gas
line owned by MGE.
damage to the gas line caused natural gas to escape. Natural
gas migrated under the asphalt alley and into JJ's, where
it accumulated, ignited, and exploded. One JJ's employee
was killed. Several persons were injured. JJ's and the
building it occupied were destroyed.
3, 2013, JJ's Restaurant and JJ's Building filed suit
against MGE, USIC, Heartland, and TWC. JJ's Restaurant
and JJ's Building subsequently settled with MGE and
Heartland. On July 15, 2015, JJ's Restaurant and JJ's
Building filed a second amended petition against TWC and
USIC. The claims asserted against TWC were for negligence
involving an inherently dangerous activity; negligence
involving work that is dangerous in the absence of special
precautions; negligence involving work performed in a public
place; and negligence per se.
a six week trial, JJ's Restaurant and JJ's Building
tendered proposed verdict directors for their claims against
TWC for negligence involving an inherently dangerous activity
requiring special precautions (Instruction No. 5); for
negligence involving work performed in a public place
(Instruction No. 6); and for negligence per se (Instruction
No. 7). The verdict directors were submitted to the jury over
TWC's objections, as discussed in greater detail,
jury returned a verdict on August 27, 2015 assigning 98%
fault to TWC, 0% fault to USIC, and 2% fault to JJ's
Restaurant. The jury awarded compensatory damages to JJ's
Restaurant in the amount of $3, 500, 000, and to JJ's
Building in the amount of $2, 400, 000. After applying the
comparative fault allocation, the trial court entered
judgment on September 9, 2015 in favor of JJ's Restaurant
in the amount of $3, 430, 000, and in favor of JJ's
Building in the amount of $2, 352, 000. The judgment was
entered "subject to offsets or credits that this court
deems appropriate pursuant to any and all post-trial
September 16, 2015, TWC filed a motion to amend the judgment
pursuant to section 537.060 to reflect reductions for
settlements reached with MGE and Heartland. On October 9,
2015, TWC also filed a motion for judgment notwithstanding
the verdict, or in the alternative for new trial, which was
never ruled on by the trial court. Over JJ's Restaurant
and JJ's Building's objections, the trial court
granted TWC's motion to amend the judgment, in part, to
reflect reduction for settlement payments made by MGE and
Heartland to JJ's Restaurant and JJ's Building. The
trial court denied the motion to amend to the extent it
sought reduction for a settlement payment made to Jimmy
Frantze. The trial court entered an amended judgment on
November 17, 2015, reducing the damages awarded to JJ's
Restaurant to the amount of $1, 492, 000, and to JJ's
Building to the amount of $1, 514, 000
November 30, 2015, TWC filed a second motion to amend the
judgment that was never ruled on by the trial court. TWC
filed a notice of appeal on January 15, 2016, and a second
notice of appeal on March 17, 2016. JJ's Restaurant and
JJ's Building filed a notice of cross-appeal on January
20, 2016, and a second notice of cross-appeal on March 18,
raises four points on appeal. Points One, Two and Three claim
error in the submission of Instructions 5, 6, and 7, the
verdict directors for negligence involving an inherently
dangerous activity requiring special precautions, for
negligence involving work performed in a public place, and
for negligence per se. Point Four claims error in denying
TWC's motion to strike JJ's Restaurant and JJ's
Building's expert witness because the expert intended to
testify about legal conclusions and legal duties.
Restaurant and JJ's Building assert a single point in
their cross-appeal. They claim error in the reduction of
judgments entered in their favor by settlement payments made
to them by MGE and Heartland because the settlement payments
were disputed, requiring TWC to prove the affirmative defense
of reduction before the jury was discharged.
One, Two and Three
first, second, and third points on appeal challenge verdict
directors. "Whether a jury was properly instructed is a
question of law that this Court reviews de
novo." Edgerton v. Morrison, 280
S.W.3d 62, 65 (Mo. banc 2009) (citation omitted).
trial court did not err in submitting Instruction No. 5, the
verdict director for negligence in the performance of
inherently dangerous work without taking special precautions
complains that Instruction No. 5, the verdict director for
negligence based on an inherently dangerous activity, was
legally erroneous because (i) there was no substantial
evidence that HDD work is inherently dangerous, and (ii) the
instruction failed to comply with MAI 31.15 as the
allegations in Paragraph Second were not "special
Substantial evidence supported finding that HDD trenching is
an inherently dangerous activity
first complains that substantial evidence failed to establish
that HDD trenching is an inherently dangerous activity.
Relevant to this complaint, Paragraph First of Instruction
No. 5 provided:
In your verdict, you must assess a percentage of fault to
defendant Time Warner Cable Midwest, LLC, whether or not
plaintiff JJ's Bar & Grill, Inc. d/b/a
JJ's Restaurant was partly at fault, if you believe:
First, performing horizontal directional drilling in the
Country Club Plaza was an inherently dangerous activity
because it was a congested urban area with multiple utilities
and hard surfaces, and . . . .
HDD to be an inherently dangerous activity was an essential
predicate to TWC's vicarious liability for
Heartland's negligence. "Persons are usually held
liable for negligence on the part of those they hire to
accomplish their purposes." Ballinger v.
Gascosage Elec. Co-op., 788 S.W.2d 506, 511 (Mo.
banc 1990) (overruled on unrelated grounds by Zueck v.
Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384
(Mo. banc 1991)). There is an exception to this general rule
"for the hiring of independent contractors responsible
to the employer for the result bargained for, but not subject
to control as to the means of accomplishment."
Id. The independent contractor exception to
vicarious employer liability does not apply, however,
"if the work [an independent contractor is] contracted
for is an 'inherently dangerous activity.'"
For activities of this kind the owner [employer] remains
liable for the torts of the contractor, simply for
commissioning the activity. The liability attaches without
any need for showing that the employer is in any respect
negligent. It is purely vicarious.
Id. It is uncontested that Heartland was TWC's
independent contractor. Thus, TWC was not vicariously liable
at common law for Heartland's negligence unless the work
Heartland was contracted to perform involved an inherently
determination of whether an activity is inherently dangerous,
while initially a question of law, is ultimately a question
of fact." Hatch v. V.P. Fair Foundation, Inc.,
990 S.W.2d 126, 134 (Mo. App. E.D. 1999). "To initially
determine whether an activity is inherently dangerous . . .
the trial judge should begin by ascertaining the nature of
the activity and the manner in which the activity is
ordinarily performed." Id. at 136 (internal
citation omitted). "If after considering these factors
the trial court concludes the activity does not involve some
peculiar risk of harm, then the activity is not inherently
dangerous as a matter of law." Id. "If the
trial court does not so find, then the question should be
submitted to the jury pursuant to MAI
objected to submission of Instruction No. 5 during the jury
instruction conference, arguing that the use of HDD
technology in the Country Club Plaza was not an inherently
dangerous activity as a matter of law. The trial court denied
TWC's objection, and thus concluded that sufficient
evidence permitted submission of the issue to the jury. On
appeal, TWC claims this was error because no substantial
evidence supported a conclusion that HDD work is inherently
instruction given to the jury must be supported by
substantial evidence in the record." Kearby v.
Wichita Southeast Kansas, 240 S.W.3d 175, 180 (Mo. App.
W.D. 2007). "'Substantial evidence is competent
evidence from which a trier of fact can reasonably decide the
case.'" Id. (quoting Mathis v. Jones
Store Co., 952 S.W.2d 360, 366 (Mo. App. W.D. 1997)).
"In determining whether there is substantial evidence to
support the instruction, this court views the evidence and
all reasonable inferences therefrom from the standpoint most
favorable to the party offering the instruction."
Id. To prevail on a no substantial evidence
challenge, TWC must demonstrate that no evidence in the
record tends to prove that HDD underground boring presents a
substantial risk of harm unless adequate precautions are
taken. See Ivie v. Smith, 439 S.W.3d 189, 200 (Mo.
banc 2014) (explaining the no substantial-evidence
challenge). TWC cannot sustain this burden.
16.08 defines "inherently dangerous activity" as:
[A]n activity that necessarily presents a substantial risk of
harm unless adequate precautions are taken. [, but does not
include a risk of harm that is not inherent in or a normal
part of the work to be performed and that is negligently
created solely as a result of the improper manner in which
the work under the contract was performed.]
evidence established that HDD trenchless technology is a less
intrusive means of burying underground cables, as the
technology avoids open trenches and street cuts. As a result,
however, HDD trenchless technology involves "blind
drilling, " as a drill bores underground to create an
unexposed path through which cable can be pulled. By its
nature, HDD trenchless technology thus carries with it the
inherent risk that the drill bore will encounter a buried
object that cannot be seen. It is not the improper manner of
doing HDD work which creates this risk. Rather, it is the
work itself, normally performed, which creates this risk. The
risk exists unless adequate precautions are taken to
insure that preexisting utility lines and cables are located
and avoided by the drill bore.
on the evidence, this risk is heightened when HDD work is
performed in an urban area. There is an increased prevalence
of underground utilities and cables in urban areas. And when
HDD work is performed in an area covered by a hard surface
(such as asphalt or concrete), escaping gas has nowhere to
disperse should a natural gas line be struck, causing gas to
migrate along the underground line and into buildings
serviced by the line.
counters that "the mere performance of HDD in and of
itself does not inevitably lead to harm or injury in the
absence of 'special precautions.'" [TWC's
Brief, p. 23] TWC argues that "even if a contractor
fails to take the routine precaution of having utilities
marked before performing HDD, hitting a facility is not
certain, and some utilities that could be hit present no
immediate danger at all, such as sewer, water or a fiber
optic cable." [TWC's Brief, p. 23-24] This argument
is unpersuasive for two reasons.
it is irrelevant that HDD technology can be performed without
encountering an underground utility even in the absence of
special precautions. "The essence of inherent danger . .
. is the need for special precaution. It is not sufficient
for [a] defendant to show that the work can be done
safely." Ballinger, 788 S.W.2d at 509.
TWC's argument underscores, in fact, that the risk of
encountering underground utilities is inherent to HDD
technology, and is not a risk created by negligence
performance of the work, and is a risk that cannot be avoided
unless adequate precautions are taken.
Hatch, 990 S.W.2d at 137 (holding that trial court
properly instructed jury to determine whether bungee jumping
is inherently dangerous because a "risk of injury from a
fall is a risk that inheres in bungee jumping itself in the
absence of adequate precautions and . . . the risk was not
negligently created solely as a result of the improper manner
[of performing] the work").
TWC's argument improperly suggests that because an
accidental encounter with underground utilities is only
rarely catastrophic, HDD work is not inherently dangerous.
The severity of potential harm is not relevant to determining
whether an activity is inherently dangerous. The Restatement
(Second) of Torts sec. 427 cmt. b (1965) provides:
It is not . . . necessary to the employer's liability
that the work be of a kind which cannot be done without a
risk of harm to others, or that it be of a kind which
involves a high degree of risk of such harm, or that the risk
be one of very serious harm, such as death or serious bodily
injury. . . . It is sufficient that work of any kind involves
a risk, recognizable in advance, of physical harm to others
which is inherent in the work itself, or normally to be
expected in the ordinary course of the usual or prescribed
way of doing it, or that the employer has special reason to
contemplate such a risk under the particular circumstances
under which the work is to be done.
trial court did not err in submitting for the jury's
determination whether HDD work in a congested urban area is
an inherently dangerous activity.
The disjunctive submissions in Paragraph Second of
Instruction No. 5 were authorized by MAI 31.15
next complains that the disjunctive submissions in Paragraph
Second of Instruction No. 5 were not special precautions as
required by MAI 31.15, and were instead allegations of
collateral negligence in the performance of the work
"dressed up as special precautions." [TWC's
Brief, p. 27]
negligence was disjunctively submitted by Paragraph Second of
Instruction No. 5:
while conducting its horizontal directional drilling,
Heartland Midwest either:
i. failed to determine the horizontal and vertical location
of the 2" polyethylene MGE gas main running under the
sidewalk on the north side of 48th Street before engaging in
directional drilling in close proximity to that line; or
ii. failed to recognize that neither of the two black plastic
conduits uncovered and observed by the Heartland Midwest
drilling crew at approximately a 24" depth was a gas
iii. failed to contact MGE or USIC to have them inspect the
two black plastic conduits to determine whether or not one
was the gas main; or
iv. failed to dig below the depth of the planned bore path in
order to visualize the bore head as it safely passed through
the location of the underground facilities; or
v. failed to maintain a minimum vertical separation of three
feet from other facilities that existed in the right-of-way,
including the MGE gas main; or
vi. failed to immediately notify MGE, 911, or the One Call
Notification Center that it had struck the MGE gas main with
its boring device; and
Third, Heartland Midwest, in one or more of the respects
submitted in Paragraph Second, was thereby negligent[.]
does not argue that these disjunctive submissions were
unsupported by substantial evidence. TWC argues only that
these contentions of negligence exceed those for which it
could be vicariously liable because they did not each involve
the failure to take a "special precaution."
TWC's argument reflects a fundamental misapprehension of
is established that the work of an independent contractor
involves an inherently dangerous activity, then the employer
"remains liable for the torts of the contractor."
Ballinger, 788 S.W.2d at 511. The employer's
"liability attaches without any need for showing that
the employer is in any respect negligent." Id.
"[A] person who engages a contractor to do work of an
inherently dangerous character remains subject to an
absolute, nondelegable duty to see that it is performed with
that degree of care which is appropriate to the
circumstances, or in other words, to see that all reasonable
precautions shall be taken during its performance, to the end
that third persons may be effectually protected against
Hatch, 990 S.W.2d at 134-35 (quoting 41 Am.Jur.2d
Independent Contractors sec. 41 (1968)).
an employer "who hires an independent contractor to
perform an inherently dangerous activity . . . is not
vicariously liable for every act of [the] independent
contractor that causes injury to a third party."
Id. at 135. "[I]f the contractor's
negligence is 'collateral, ' the general rule of
landowner non-liability [for the work of an independent
contractor] applies." Id. (citing Nance v.
Leritz, 785 S.W.2d 790, 793 (Mo. App. E.D. 1990);
Restatement (Second) of Torts sec. 426 cmt. a (1965)).
"The Restatement defines collateral negligence as
'negligence which is unusual or abnormal, or foreign to
the normal or contemplated risks of doing the work, as
distinguished from negligence which creates only the normal
or contemplated risk.'" Id. (quoting
Restatement (Second) of Torts sec. 426 cmt. a (1965)).
"[T]he proper focus for the factfinder is whether the
landowner contemplated or should have contemplated the type
of negligence committed by the independent contractor."
Id. at 136 (citing Nance, 785 S.W.2d at
793; Restatement (Second) of Torts sec. 426 cmt. b (1965)).
inquiry, therefore, is not (as TWC suggests) whether the acts
or omissions alleged in the disjunctive in Paragraph Second
each involved the failure to take a "special
precaution." The inquiry is whether the acts or
omissions alleged in the disjunctive in Paragraph Second were
unusual or foreign to the normal contemplated risks of
performing an inherently dangerous activity-in this case, HDD
work. We conclude they were not. The disjunctive submissions
in Paragraph Second each involved normal, contemplated risks
of performing HDD work: failing to assess the presence of
underground utility lines or cables; failing to avoid