360 S.W.3d 826
Mo. Ct. App.2011Background
- Harlan sustained significant injuries when a motorcycle lost control passing a tractor-trailer in an active construction zone on I-70 in Lafayette County.
- APAC-Missouri, Inc. (APAC) contracted with MHTC to resurface the highway and perform the work per MHTC plans and specifications.
- The trial record shows uneven pavement between lanes, creating a dangerous condition during cold milling with a 1¾-inch height difference.
- The jury allocated fault: MHTC 70%, APAC 25%, Harlan 5%; damages were $1,000,000, resulting in judgments of $700,000 against MHTC and $250,000 against APAC.
- APAC challenged the verdict on three grounds: (1) denial of directed verdict/JNOV based on following MHTC’s pattern; (2) insufficient proof of proximate cause; (3) miscalculation of fault compared to Harlan’s 5% fault.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether APAC committed negligence by failing to warn of uneven lanes. | Harlan | APAC followed MHTC plans and had no knowledge of danger | Point denied |
| Whether APAC’s evidence supports proximate cause given lack of unilateral authority to set warnings. | Harlan | MHTC signs could have been requested; APAC could seek approval | Point denied |
| Whether the verdict should be reduced for Harlan’s 5% fault or misapplied fault allocation. | Harlan | Award appropriately allocated by percentage of fault | Point denied |
Key Cases Cited
- Beyerbach v. Girardeau Contractors, Inc., 868 S.W.2d 163 (Mo.App.W.D.1994) (master/servant doctrine; liability where actions contravene directives or are dangerous)
- Casey v. Florence Const. Co., 939 S.W.2d 36 (Mo.App.W.D.1997) (evidence creating issue whether contractor knew or should have known of dangerous conditions)
- Dick v. Scott Const. Co., 539 S.W.2d 688 (Mo.App.E.D.1976) (contractor’s liability independent of contract with public authority)
- Swindell v. J.A. Tobin Const. Co., 629 S.W.2d 536 (Mo.App.W.D.1981) (highway contractor duty to exercise reasonable care for public safety)
- Best v. Fred Weber Const. Co., 525 S.W.2d 102 (Mo.App.E.D.1975) (contractor liability for safety independent of governmental duties)
- Joshmer v. Fred Weber Contractors, Inc., 294 S.W.2d 576 (Mo.App.E.D.1956) (tor-tious breach of duty by contractor for public safety)
- Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81 (Mo. Banc 2010) (standard for directed verdict/JNOV (review closely resembles sufficiency))
- Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454 (Mo. Banc 2006) (sufficiency review in light of evidence favorable to jury)