J.J.'s Bar & Grill, Inc. v. Time Warner Cable Midwest, LLC
539 S.W.3d 849
Mo. Ct. App.2017Background
- TWC hired Heartland to install fiber using horizontal directional drilling (HDD) near JJ's Restaurant; Heartland struck an MGE high-pressure gas line, causing an explosion that destroyed the restaurant and building and killed an employee.
- Plaintiffs sued MGE, Heartland, USIC (locator), and TWC; plaintiffs settled with MGE and Heartland and proceeded to trial against TWC and USIC.
- Trial theories against TWC included vicarious liability for an independent contractor performing an inherently dangerous activity (MAI 31.15), vicarious liability for work in a public place, and negligence per se under the Right‑of‑Way statute (section 67.1844).
- Jury assigned 98% fault to TWC, 0% to USIC, and 2% to JJ’s; substantial damages were awarded; the court later reduced judgments by undisputed settlement amounts under section 537.060 but refused to reduce for a disputed payment to a third payee.
- TWC appealed (challenging three verdict directors and expert testimony); plaintiffs cross‑appealed the post‑trial reductions. Court affirmed judgment in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HDD in congested urban area is an "inherently dangerous activity" permitting vicarious liability for independent contractor negligence | HDD is inherently dangerous in congested/hard‑surfaced urban areas because blind boring risks striking buried utilities unless special precautions taken | HDD is not inherently dangerous as a matter of law; hitting utilities is not inevitable and severity is irrelevant | Substantial evidence supported submitting the inherently dangerous issue to jury; verdict director properly given under MAI 16.08/31.15 |
| Whether disjunctive acts in MAI 31.15 Paragraph Second were improper collateral negligence (i.e., not "special precautions") | The listed failures were failures to take precautions related to the inherent risk of HDD and thus within contemplated risks | The listed items exceed "special precautions" and improperly impose vicarious liability for operative details | Court held the acts were within the contemplated risks of HDD and MAI 31.15 properly submitted them; not collateral negligence |
| Whether employer is vicariously liable for contractor work in a public place (Instruction No. 6) | Work that makes a public place dangerous supports vicarious liability under Restatement principles and MAI submission | TWC argued Missouri has not recognized Restatement §417 / public‑place exception—so instruction presented an unrecognized theory | Objection not preserved; plain‑error review denied—submission was not manifestly unjust and instruction permitted under existing Restatement‑based Missouri precedent |
| Whether section 67.1844 and related codes support negligence per se (Instruction No. 7) | Section 67.1844 imposes a nondelegable duty to ensure contractors follow applicable safety/construction codes; violation supports negligence per se | TWC argued the statute does not create a private right or negligence‑per‑se basis to impose vicarious liability | Court held §67.1844 establishes a statutory standard of care and supports negligence per se submission limited to violations of applicable safety/construction codes |
| Admissibility of expert Gaw who opined about legal duties and statutory meaning | Expert testimony was needed to explain complex regulatory framework and industry practice | TWC argued Gaw expressed legal conclusions and duties (improper opinion on law) and moved to strike entire testimony | Trial court did not abuse discretion in permitting testimony overall; while portions were legal conclusions, many admissible facts/opinion remained and error (if any) was not shown outcome‑determinative |
| Post‑trial reduction of judgments by prior settlements under §537.060 (cross‑appeal) | Plaintiffs argued reductions were disputed and thus required jury determination before discharge | TWC reduced post‑trial by undisputed settlement amounts and sought additional reduction for a contested payment; disputed items should have been submitted to jury | Court affirmed reductions only for undisputed settlement payments; refused post‑trial reduction for the disputed third‑party payment and held court properly handled disputed vs. undisputed settlements per MAI guidance |
Key Cases Cited
- Ballinger v. Gascosage Elec. Co‑op., 788 S.W.2d 506 (Mo. 1990) (employer vicariously liable for inherently dangerous independent‑contractor work)
- Hatch v. V.P. Fair Found., Inc., 990 S.W.2d 126 (Mo. App. 1999) (inherently dangerous determination is initially legal then factual; jury submission standard)
- Sanders v. Ahmed, 364 S.W.3d 195 (Mo. 2012) (settlement presumption of joint liability and burden to show divisibility under §537.060)
- Payne v. Markeson, 414 S.W.3d 530 (Mo. App. 2013) (post‑trial reduction for undisputed settlements permitted; not always required before jury)
- McGuire v. Kenoma, LLC, 375 S.W.3d 157 (Mo. App. 2012) (procedure for proving setoffs and timing considerations)
- Edgerton v. Morrison, 280 S.W.3d 62 (Mo. 2009) (standard of review for jury instructions—de novo)
- Lowdermilk v. Vescovo Bldg. & Realty Co., 91 S.W.3d 617 (Mo. App. 2003) (elements and analysis for negligence per se)
- Curl v. BNSF Ry. Co., 526 S.W.3d 215 (Mo. App. 2017) (prejudice/outcome‑determinative standard for erroneous admission of evidence)