402 S.W.3d 586
Mo. Ct. App.2013Background
- VSI Meter Services contracted with Kansas City to install or retrofit an automated Neptune T-10 water meter at Freight House Lofts and replaced the old meter on Sept. 1, 2009.
- On Oct. 18, 2009, building staff discovered the basement flooded; witnesses and a firefighter/technician observed water shooting from the right flange of the water meter.
- The gasket on the meter had been cut and the flange bolts were loose when inspected; the City later replaced the meter and discarded the gaskets.
- Freight House Lofts sued VSI and the City for negligence; the trial court granted directed verdicts for the City, leaving VSI as the sole defendant at trial.
- The jury returned a verdict for Freight House Lofts for $109,025.31; VSI’s post-trial JNOV motion was denied.
- On appeal VSI raised evidentiary and instruction challenges (excited utterance hearsay, spoliation, comparative fault, expert admissibility) and argued the verdict lacked sufficient proof of standard of care and causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Greathouse’s testimony relaying Adams’s phone statements (excited utterance) | Statements were excited utterances and admissible | Statements lacked indicia of trustworthiness and were hearsay | Admission, even if erroneous, was harmless because cumulative of Eden’s firsthand testimony and written ticket; no reversal |
| Refusal to give comparative fault/apportionment instructions | Freight House Lofts was not shown to be at fault; but if so, instruction needed | VSI argued evidence supported comparative fault and apportionment to City | Court found no substantial evidence Freight House Lofts contributed; City was removed by directed verdict so fault could not be apportioned to it; refusal proper |
| Refusal to give spoliation instruction (gaskets, logs) | Loss/destruction of gaskets and missing logs warranted adverse inference/spoliation instruction | Freight House Lofts lacked control of City property and there was no evidence of intentional destruction | No evidence of intentional spoliation by plaintiff; mere inability to produce documents insufficient; refusal not an abuse of discretion |
| Admissibility of expert Webster’s testimony | Expert’s opinion based on others’ depositions was reliable and explained industry standard | Testimony was speculative, invaded jury role, lacked authoritative standard | Webster admissible under §490.065; reliance on others’ statements goes to weight not admissibility; testimony helped jury |
| Sufficiency of evidence (standard of care, causation) for JNOV | Freight House Lofts presented expert testimony of industry standard and circumstantial evidence linking VSI’s installation to leak | VSI argued no standard articulated and causation not proven | Sufficient evidence: expert described applicable industry standard; circumstantial evidence (cut gasket, loose bolts, no City maintenance record) supported causation; JNOV denial affirmed |
Key Cases Cited
- State v. Kemp, 212 S.W.3d 135 (Mo. banc) (factors for excited utterance admissibility and trustworthiness)
- Saint Louis Univ. v. Geary, 321 S.W.3d 282 (Mo. banc) (improper hearsay admission reversible only if prejudicial; cumulative evidence doctrine)
- McCullough v. Commerce Bank, 349 S.W.3d 389 (Mo. App.) (abuse of discretion standard for refusal of instructions)
- Baldridge v. Dir. of Revenue, 82 S.W.3d 212 (Mo. App.) (spoliation doctrine and requirement of intentional destruction for adverse inference)
- Kivland v. Columbia Orthopaedic Grp., LLP, 331 S.W.3d 299 (Mo. banc) (standards for admissibility of expert testimony under §490.065)
- Hickman v. Branson Ear, Nose & Throat, Inc., 256 S.W.3d 120 (Mo. banc) (expert testimony need not follow formulaic language; substance may satisfy standard-of-care proof)
- Butts v. Express Personnel Servs., 73 S.W.3d 825 (Mo. App.) (elements of negligence and causation principles)