399 S.W.3d 850
Mo. Ct. App.2013Background
- Plaintiffs Janet Winslow Peterson and Linda Winslow Lambright sue PCI and HTI after Tiffany Peterson’s 2007 accident on eastbound US-36 over the Missouri River, where bridge expansion joints were being replaced and traffic control devices warned drivers.
- PCI was the general contractor and HTI the traffic control subcontractor; MHTC owned the highway and approved traffic control plans.
- Tiffany exited the closed work zone lane, drove into a hole created when an expansion joint was removed, causing injuries to three women including Virginia Winslow who died later.
- Prior to trial, Janet and Linda settled with MHTC; suit proceeded against PCI and HTI for negligence and wrongful death.
- Appellants contested that PCI/HTI deviated from the original/modified MHTC traffic control plan; PCI/HTI argued they followed MHTC plans.
- Appellants sought to introduce a hearsay statement attributed to PCI’s foreman via Roger Lambright; trial court sustained the objection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether closing arguments misstated duty of care by following MHTC plans | Winslow claims defendants’ duty was non-delegable and not limited to contract. | PCI/HTI argued they acted as ordinary, prudent persons by following MHTC directives. | Denied; arguments were invited by evidence and fair comment under instructions. |
| Whether the trial court erred by excluding Katz’s statement as hearsay admission | Exclusion prevented PCI from showing notice of inadequate traffic controls. | Katz’s statements were not within scope of his employment and lacked proper foundation. | Denied; exclusion not abuse of discretion; statement not within scope or relevant foundation. |
Key Cases Cited
- Heshion Motors, Inc. v. W. Int’l Hotels, 600 S.W.2d 526 (Mo.App. W.D.1980) (closing arguments; broad latitude but misstatements of law must be restrained)
- Beyerbach v. Girardeau Contractors, Inc., 868 S.W.2d 163 (Mo.App. E.D.1994) (non-delegable duty; contract terms do not immunize from negligence)
- Swindell v. J.A. Tobin Const. Co., 629 S.W.2d 536 (Mo.App. W.D.1981) (non-delegable duty of road contractors)
- Best v. Fred Weber Const. Co., 525 S.W.2d 102 (Mo.App. E.D.1975) (contract duties and non-delegable duty discussion)
- Harlan v. APAC-Missouri, Inc., 360 S.W.3d 826 (Mo.App. W.D.2011) (conflicting doctrine on contractor duty in construction work zones)