Lewis v. BIEGEL
364 S.W.3d 670
Mo. Ct. App.2012Background
- Lewis sued Mary Biegel as defendant ad litem for her deceased husband, Joseph Biegel, for personal injuries from an elevator incident.
- Alterations to the building's elevator in the 1970s–1980s replaced the cable/pulley system with a chain hoist and removed part of the failsafe emergency brake.
- After a 1997 elevator incident, replacements and temporary repairs were done, but the elevator was returned to service with the same design.
- In 1998 Lewis was injured when the chain hoist broke while riding the elevator on the second floor.
- City building code BOCA provisions required reporting elevator accidents; Ordinance 90-17 adopted BOCA provisions and was admitted as Exhibit 61.
- The jury returned Verdict A against Lewis on premises liability and Verdict B in favor of Lewis on failure-to-report, allocating 85% fault to Biegel and 15% to Lewis with $396,841.35 damages; the court entered judgment for $337,315.14 on Verdict B.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Application of landlord immunity to failure-to-report claim | Lewis contends immunity does not bar the reporting duty claim. | Biegel argues landlord immunity bars the claim and that insufficient evidence supports it. | Immunity not controlling; verdict director B submissible; waiver of immunity defense if any |
| Waiver and timeliness of statute-of-limitations defense | Lewis argues the defense was timely and applicable to the new claim. | Biegel asserts the defense was not preserved for appeal. | Defense waived; no reversible error |
| Substantial evidence supporting failure-to-report claim | Evidence showed BOCA duty to report and building owner’s knowledge; lack of reporting proximately caused injury. | Insufficient evidence of city adoption or owner knowledge; proximate cause contested. | Evidence sufficient; submission proper; proximate cause shown |
Key Cases Cited
- McKinney v. H.M.K.G. & C., Inc., 123 S.W.3d 274 (Mo.App.2003) (landlord immunity generally bars premises-liability duties in leased premises)
- Warner v. Fry, 228 S.W.2d 729 (Mo.1950) (premises liability immunity for landlords)
- Graham, 891 S.W.2d 438 (Mo.App.1994) (procedural waiver and preservation rule for appellate review)
- Colley v. Tipton, 657 S.W.2d 268 (Mo.App.1983) (waiver and preservation principles for trial objections)
- Johnson v. Allstate Indem. Co., 278 S.W.3d 228 (Mo.App.2009) (submissibility and objections to instructions)
- U.S. Neurosurgical, Inc. v. Midwest Div.-RMC, LLC, 303 S.W.3d 660 (Mo.App.2010) (standard for submissible case; substantial evidence review)
- Richey v. Philipp, 259 S.W.3d 1 (Mo.App.2008) (proximate cause and jury questions in negligence cases)
- Gathright v. Pendegraft, 433 S.W.2d 299 (Mo.1968) (intervening cause and proximate cause principles)