Lopez v. Three Rivers Electric Cooperative, Inc.

Jones, Penny LOPEZ and Elizabeth

Respondents/Cross-Appellants,

THREE ELECTRIC CO RIVERS INC.,

OPERATIVE, Appel

lant/Cross-Respondent.

No. 82244. SC Missouri,

Supreme Court of

En Banc.

Aug. Virtel,

Ann Buckley, E. James J. St. Louis, Madden, Fisher, P. David Patter- son, Smith, LLP, Sayler Park, & Overland for Appellant/Cross-Respondent. Davis, Jones, Grant L. Thomas C. Timo- Brake, thy L. City, Kansas F. Robert Rit- ter, Lowe, Patrick Hagerty, Jeffrey J. J. Louis, St. for Respondents/Cross-Appel- lants. COVINGTON,

ANN K. Judge. A helicopter crashed after flying into power unmarked fines Osage over the Riv- er, killing all four occupants. This case the wrongful concerns death lawsuits decedents, brought on behalf of two of the George Lopez and Kenney Jones. One upon action is based George the death of widow, Lopez, brought by his Elizabeth Lopez, herself, on behalf of couple’s son, George’s and parents. The second action upon is based Kenney death of Jones, widow, Jonеs, brought by his Penny on behalf of herself and the two couple’s daughters. juryA compensatory awarded damages and additional damages ag- gravating circumstances in favor of the against survivors of the decedents and owner of the fines. The Missouri District, Appeals, Court of Eastern trans- appeal ferred the to this Court because the involves, issues, appeal among other statute, validity of a state section 537.675(2), judgment RSMo 1994. The reversed and the cause remanded. 29, 1994, July On four members of a Army departed United States unit Reserve flight on a training mission a CH-47 helicopter. Chinook The crew included flight engineer George Lopez pilot and Kenney Kenney Jones. had com- Jones mand responsibilities аnd control for the failing to negligent warn Rivers was George Lopez monitored various aircraft. into systems helped danger flying clear the air- pilots potential aircraft and turns, spanned had no direct control of across a location craft on but power lines later, days witnesses the aircraft. Two River. After a two-week Osage on seeing helicopter flight reported trial, negli- found Three Rivers jury River over middle Lopez Jones. The both and gent At approximately ap- altitude of 100 feet. jury both Jones awarded a.m., helicopter proximately 10:15 damages $2,500,000 compensatory into lines owned came contact with $500,000 punitive damages. Cooperative by Three Rivers Elеctric pilot flight engi- also found that (Three Rivers). crashed, helicopter In the comparatively negligent. neer were None of killing all four crew members. George wrongful death action for the helicopter the witnesses observed the take ninety percent Lopez, the assessed prior evasive its collision with action percent ten fault to Three Although lines. the lines were action for the George Lopez. 7,200 energized and carried volts elec- Jones, wrongful Kenney death it is tricity, undisputed that electrical volt- Riv- percent fault to Three eighty assessed age was not a cause of the crash or the Kenney twenty percent and to ers Jones. deaths. judgment accord- The trial court entered at power lines the accident site Lopez a ingly, awarding Elizabeth total span crossed a 939-foot over $2,750,000 a Penny and total Jones suspended River. were at an They angle $2,500,000. The trial also ordered court “H” across the river between two struc- pay to interest prejudgment Rivers vegetation tures. Trees and other ob- damage compensatory on the awards. view of the struc- supporting structed the appealed. three-eighths tures. The lines were it no of an inch in diameter. The lines contends that owed had marking neither devices other warn- duty nor to because the acci- Lopez Jones ings that have might pilots aided detect- dent that оccurred was not foreseeable. 1975, ing them. their Since installation it did Specifically, Three Rivers claims that greenish the lines had turned brown in duty any Lopez not owe to Jones color, blended with the color of not foresee because Three Rivers could background landscape. injury lines cause would pilots. were lines not considered an navigation obstruction to air so as to re-

quire marking negligence, under Federal Aviation Ad- action for (FAA) regulations ministration must establish that defendant plaintiff they were than 200 feet above fewer protect plaintiff had a from duty ground and were not within close level perform injury, defendant failed proximity public airport. to a C.F.R. prox and the duty, dеfendant’s failure (2000). pro- regulations FAA section 77.23 plaintiff. imately injury to the caused fixed-wing flying hibit aircraft from below Co.,Inc., Krause Truck v. U.S. S.W.2d non-congested areas. Id. 500 feet sec- 1990). (Mo. 708, Concepts banc 91.119(b). There no fixed mini- tion is .always duty foreseeability have mum, however, helicopters, which must stated in Missouri law. clearly been fly only persons “without hazard to or question a duty purely a exists is Whether Id. section property on surface.” Havens, 446, law. 758 S.W.2d Aaron 91.119(d). Page 1988); see W. Keeton against brought and Jones suit AND THE OF AL., ET KEETON ON LAW PROSSER (5th 37, at 236 & n. 7 that Three section theory Three Rivers on ToRts ed.1984).1 Under principles of general For purposes of determining law, negligence duty whether a exists a exists, duty whether a this Court has de given situation depends uрon whether a foreseeability fined presence as the risk was foreseeable. In the absence of a some probability or likelihood of harm suf particular relationship recognized by law ficiently serious that ordinary persons to create a duty, the concept of foresee precautions Zuber, would take to avoid it. ability paramount in determining wheth at 55. The existence of a mere duty er a exists. Dairy, Hoover’s Inc. v. possibility is insufficient. Id. “The test is Mid-America Dairymen, 700 S.W.2d not the probabilities, balance of but of the 1985). 431-32 This Court has existence of some probability of sufficient recognized, concept that the of moment to induce the reasonable mind ‍​‌‌‌​‌‌‌‌​‌‌‌​​‌‌​​​​‌​‌‌​​‌​​‌‌​‌‌‌‌​‌​‌‌‌‌‌‌​‌‍to “foreseеability” can have relevance take precautions which would it.” avoid Krause, more than one context. 787 Id. 710. Foreseeability for pur The evidence in supports this case poses of establishing whether a defen a finding that Three Rivers should have dant’s conduct created a duty plaintiff to a foreseen that there existed some probabili depends on whether the defendant should ty of sufficient moment that an injury have foreseen risk in given set of trial, could occur. At Lopez and Jones circumstances. Zuber v. Clarkson Const. presented evidence that Three Rivers was Co., (banc 363 Mo. aware of a similar incident that had oc In this setting, foreseeability is curred in resulting in three fatalities. forward-looking. Taylor v. Dale- A fixed-wing aircraft that had been track (Mo. Freeman Corp., 389 S.W.2d ing the eagles movement of bald along the 1965); Poelstra v. Basin Elec. Power Co Osage River struck Three power Rivers’ (S.D.1996). op., 545 N.W.2d lines at the same location as the accident the context determining proximate cau in States, this case. See Allnutt v. United sation, however, foreseeability refers to (W.D.Mo.1980).2 498 F.Supp. 832 Al whether a defendant could have anticipat though Three Rivers was sued as a result ed a particular chain of events that result accident, the court later dismissed ed in injury or scope the of the risk that Three Rivers from the lawsuit. Three the defendant should have foreseen. See Rivers was also аware of a near at miss Callahan v. Cardinal Glennon Hosp., 863 the same location 1974. Three Rivers S.W.2d 865-66 This obtained notice of the 1974 near miss in type of foreseeability upon hindsight relies deposition the form of a copy testimony to determine precise whether the manner regarding the incident. particular of a injury was a natural and probable consequence of negligent act. Although attorney had advised Three Poelstra, 545 N.W.2d at 827. When it Rivers that it was not required by statute exists, is determined duty that a the con or regulation to mark the wires at the cept foreseeability site, significant is in eval accident the president former and uating the particular reasonableness of a chief exеcutive officer of in- Three Rivers’ risk in light of all the circumstances. See surance company, Harp, Michael testified Davis v. Cessna Corp., 182 Ariz. in the case that present employ- he and his Aircraft 26, 31, 893 P.2d (App.1994). Rivers, ees informed Three gener- at least Inc., Platte-Clay 1. Co-op., exist, Pierce v. duty. Elec. Once these facts are found to it is 1989), should for the court to not determine as a matter of law support give proposition duty. be read to whether the facts the that deter- rise to a mining duty jury. whether a is for exists the cases, jury may charged In some the be with 2. Three Rivers' contention that evidence of determining may give whether facts exist that the 1975 accident should not have been ad- and, turn, finding rise to а forseeability mitted is addressed infra. having un- dangers the ally, about the and Keeton on the PROSSER jury. for 37, at power Osage lines over the River.3 marked Law of ToRTS section orange marker placed Rivers had Three that, if a dispute Three Rivers does not in 1997 on at least one set its balls exists, duty de- duty the nature of the is Osage lines the River down river power on pat- by plaintiffs’ instruction fined the the accident site. from 22.07, addresses MAI which terned after Harp that he discussed licen- duty Mr. also testified a landowner the owed presence military contends, however, with Three Rivers Rivers see. Three flying civilian aircraft at low altitudes trial appeal, on point another River. Osage over Other witnesses by submitting instructions court erred nearly had aircraft testified that seen instruc- numbered 8 under, miss, fly and even lines. to exercise the tions required therefore, knew, Rivers, or should “highest degree care.” aware, in the of reason have been exercise care argues proper standard of at low levels diligence, fly able that aircraft “ordinary care.” should have been over vicinity in the of their fines Instructions numbered 8 read Dairy, Osage River. See Hoover’s follows: 57 Am.Jur.2d (quoting (1971)). Negligence section 54 of plaintiff [Elizabeth On claim compensatory Lopez/Penny for Jones] Hynes, Dr. plaintiffs’ Michael ex wrongful against death damages witness, “norm” pert stated Rivers], you per- must assess a [Three industry after an accident occurs either you if Rivers] of fault centage [Three request to mark fine or to an aeronau believe: FAA study regarding tical from the wheth First, pow- maintained [Three Rivers] er fines should have been River er across the without fines Although pilots marked. accustomed are pilots to warn marker balls thereon seeing poles, wires located between result, pow- their as a existence feet long wires this case were over 900 reasonably safe for er were fines The supporting between the structures. in the persons flying aircraft over were difficult because wires also to see of River; and relatively their small and because diameter greenish brown in the wires had become Second, knеw Rivers] of this [Three color due oxidization. There was addi and knew that such condition condition the testimony supporting tional that struc safe; reasonably was not tures, river, located on the banks of Third, had knew or Rivers] [Three a of not visible from distance one were Rivers], from [Three information which in obstruct mile either direction and were of highest degree the exercise of Together, foregoing ed. evidence am care, have known persons should supports the conclusion that Three ply pilots not discover such as the would of knew or should have known a Rivers or such realize risk condition sufficiently probable pilots risk of harm to harm; and Zuber, a 251 duty. to create S.W.2d use Fourth, failed tо Rivers] Three [Three Whether Rivers breached 56. degree adequately care to duty respect particular highest with to the it; warn question case is a fact accident this on, not, argu- suggests this issue in the point did raise In its relied Three Rivers brief, focusing duty, part no because "no its instead portion had ment required regulation placement of foreseeability statute or upon the accident. these Three Rivers marker balls on wires.”

158

Fifth, such directly Knoll, failure caused or Schlegel new trial. v. 427 S.W.2d 480, directly (Mo.1968); Carter, contributed to cause 485 [George Toburen v. 161, Lopez’s/Kenney (Mo.1954); death. Jones’] Oesterreicher ” 307, (Mo.1938); v. Grupp, 119 S.W.2d The phrase “highest degree care Waldbauer, Borgstede 337 Mo. as used in this instruction means that (banc 1935). degree of very care that a careful person would use under the or same similar prejudiced by Rivers was circumstance. the submission of Instructions Number 8 added). and Number (emphasis 14. The instructions con timely that, fined Three to an specifically objected argument to the use of the care, highest highest degree exercise of the degree of care standard. very person careful would not have appropriate standard of placed warnings on the fines into care question is a of law. Harris v. Nie which properly and Jones flew. If haus, 1993). 857 S.W.2d instructed, would in have been Ordinary care is the correct standard of formed that phrase “ordinary care” care in this case. The circumstances of degree means “that of care than an ordi the accident did not involve the inherently narily person careful would use under dangerous properties electricity. same or similar circumstances.” MAI Where, here, electricity is not agent 11.05. Three Rivers should have been of injury, proper standard of care is argue jury, able to to the under the correct ordinary Platte-Clay care. Pierce v. Elec. instruction, that an ordinarily per careful Inc., Co-op., 769 S.W.2d 771 n. 1 son would not placed warnings have on the law, therefore, As a matter of instructions, therefore, power fines. The objection Rivers’ should have been deprived ability to find that sustained. ordinarily careful person, considering it circumstances, Because was error to submit the all of the would not have standard, highest degree of ques care placed warnings on the fines. Put tion then is case, whether Three Rivers was way, another under the facts of this prejudiced by the jury might submission of Instruc have determined that Preju tions Number Number 14. Three Rivers was not liable it did ordinarily presumed dice is ordinary when a exercise care. The submission of imposes upon party case, instruction a stan the erroneous instructions greater therefore, dard of care required by than that imposed an undue burden on Mudd, law.4 Root v. 656 Three Rivers prejudicially and was errone (Mo.App.1998). presumption rarely ous. See Schneider v. Develop Bi-State (Mo. rebutted. This Court has consistently Agency, ment 447 S.W.2d held that an instruction imposes upon that App.1969); Stewart v. St. Louis Pub. ‍​‌‌‌​‌‌‌‌​‌‌‌​​‌‌​​​​‌​‌‌​​‌​​‌‌​‌‌‌‌​‌​‌‌‌‌‌‌​‌‍cf. Co., a party a standard of care than higher that Serv. (Mo.App.1 934).5 required by prejudicial, requiring law is a Root, Corp.,

4. Fowler v. Park 673 S.W.2d 749 vorable verdict. See 981 S.W.2d at 656. Jones, 1984), Rivers, by Lopez cited Corporation, timely and is Three unlike Park Fowler, distinguishable. specifically objected. ap- In the and because pellant preserve failed to its instructional er- challenge, apply ror Court Although this declined to the necessary holding, not to the presumption prejudice. jury’s compar- of Id. at 757. Fowl- finding Court notes that the er, therefore, merely opportu- supports eliminated the ative fаult further Three Rivers’ con- nity sandbagging. Specifically, prejudi- Fowler tention that the instructional error is sought prevent party a comparative faced with an erro- cial. The fault instruction held waiting Kenney neous "ordinary instruction from without ob- Jones the care” stan- jecting they request though so that could a new trial dard. Even Three Rivers was held to standard, only higher “highest degree in the event the returned an the unfa- of care” procedures, operating and standard that Lopez and Jones contend warning ignored appropriate a have believed that would have could fortiori ordinary care care be- markers. was standard instruction, 6, de- Number cause another “negligent” “negli- or contends

fined the terms Rivers also Three care that an degree “that gence” admitting evi court erred trial person use under ordinarily careful would involving 1975 accident prior dence of the The or similar circumstances.” the same lines power into airplane that flew however, applied could not have jury, accident in this case. at the location issue, to the definition instructions 1975 acci asserts 8 and Number because the Number in time that the dent was remote and too the terms did not contain instructions prior in the accident were circumstances Instead, the “negligence.” or “negligent” similar to the accident sufficiently not at issue contained term instructions court this casе. decision the trial The degree argu- care.” The highest “the prior accident is to allow evidence of therefore, ment, is merit. without Hess reviewed for an abuse discretion. R.R., 479 Chicago, and Jones assert that Three Island & Pac. Lopez also v. Rock (Mo.1972). prejudiced evi Lopez was Whether overly emphasize did not Jones is remote to be material is also dence too degree during of care standard highest discretion. matter of trial court closing argument. Even if references incorrect of care were not standard The trial court did not abuse

numerous, the assertion does not overcome finding that 1975 acci by its discretion presumption prejudice. to the dent is rеlevant determination given an instruction that misstated the in the negligent whether Rivers was law, invoked the and Jones circum instant case. Under certain closing argument. standard in erroneous stances, prior is ad accidents evidence case must be and remanded reversed A trial court admit evi may missible. Id. trial for a new because of the instructional if prior dence of accidents the evidence error. like that oc of an accident of character substantially cir curred the same under Some other issues raised same resulted from the cumstances and are parties likely to recur on retrial. and the cause. Id. Both the accident that its failure to Three Rivers contends fly accident in this case involved aircraft warnings on lines place did not over the River. ing at low altitudes the accident. Three Rivers cause asserts both, flew unmarked the aircraft into prove that the evidence did not that the all lines, killing a crash causing warnings would heeded the decedents have markings The lack of persons on board. appropriate taken action to avoid the both allegedly contributed to warnings or presumption accident. There is a Mis in cases accidents. The evidence both souri, warning will that a be weather, that, clear Co., despite dicated Arnold Ingersoll-Rand heeded. thin relatively saw pilots never remoteness, a accident prior lines. As for the presump Rivers fails to rebut in at issue farther time from accident merely it that because tion when asserts than one close regulations tends to less relevance military have the decedents violated Jones, applied Kenney law re- percent to as the hundred jury did allocate one respect Kenney very reasonably to quires, to Three With could have fault Rivers. Jones, eighty percent allocated percentage greater of fault attributed an even twenty percent Root, to Three to fault Kenney at S.W.2d to Jones. Kenney Jones. Three Rivers been held Had "ordinary standard that the same care” to is, in time. lowed, however, Remoteness but one fаctors that assist iden prior factor. A accident that meets the tifying when submission of such damages requirements similarity, though even re- permissible can be Weighing distilled. mote, may highly be material. against Remote- submission punitive aggrava or ness of goes time to weight ting circumstances damages are circum circumstances, evidence most not to its prior stances which: similar occurrences Bernard, admissibility. See State v. 849 known to the defendant have been infre (Mo. 10, 1993). S.W.2d 19-20 banc In the quent; injurious event was unlikely to case, present where the evidence of the have negligence occurred absent on the earlier accident was of sufficient like char- part of defendant; someone other than the acter, and, occurred under substantially the the defendant did not knowingly vio circumstances, same statute, resulted from the late a regulation, or clear industry cause, same the trial court did not abuse designed standard prevent type its in admitting discretion evidence of the injury that occurred. Stanley- Drabik v. th 1975 accident. Bostitch, Inc., (8 997 F.2d 510-11 Cir.1993); Elpower Sutherland v. Corp., Three Rivers contends that 1285, 1290-91 (8th Cir.1991); 923 F.2d Me trial court in submitting erred instructions naugh Inc., v. Resler Optometry, to the regarding the award of dam (Mo. 1990); S.W.2d 73-74 banc M.C. v. ages for aggravating circumstances be Yeargin, 11 S.W.3d 614-15 (Mo.App. cause the evidence was not sufficient to 1999). support the submission of such instruc tions. in the presented facts case do not required rise to the level submitting an support To a claim for dam instruction based upon aggravating cir- ages circumstances, for aggravating there cumstances. Dairy, Hoover’s In must convincing be clear and evidence in Court noted a example classic of a situa- support Rodriguez of the claim. v. Suzuki tion in which a defendant knew or should Corp., Motor 936 S.W.2d have known that high degree there was a 1996). Specifically, evidence must probability that the defendant’s conduct show that the defendant either knew or - in injury would result an firing individual had reason to know that high there was a a rifle into a moving passenger train. 700 degree of probability that the defendant’s at 435-36. Three Rivers’ conduct conduct would result in injury. Hoover’s neаrly was not so egregious. Three Riv- Dairy, 700 436. The defen ers obtained the advice of counsel that dant’s conduct must be in tantamount regulation indicated no required or statute tentional wrongdoing where the natural Furthermore, markings. Three Riv- probable consequence of the conduct is knowledge only ers had one near acci- injury. Id. at 435. showing, With such a dent in 1974 and one accident in 1975. plaintiff can aggravating recover for cir investigation Three Rivers’ of the 1975 cumstances upon based the defendant’s accident determined that accident involved complete indifference to or conscious disre negligence pilot, a complete defense gard safety for the of othеrs. Alack v. Vic at the time. There was no evidence that Int’l, Tanny either the accident here or accident in 1975 involved the violation of a statute or In negligence the context of a regulation designed prevent the injury case, the “high degree probability addition, that occurred. there has been injury” and indifference or con no “complete industry violation of standard war- scious disregard” standards are somewhat ranting imposition punitive damages ambiguous. From the negligence cases this case. The industry evidence of an which exemplary damages have been disal- standard by Lopez offered and Jones is acci- the report concerning enough Army to States enough specific neither nor clear conference, Lo- During pre-trial for a support punitive damages; the claim dent. con- argued report makes no that the questionnaire pez the advance and Jones objective report of air quantity investigation mention stituted an accident area, or thick height, length, traffic in the inadmissible law. that is under federal stream, wire, ness width or other Rivers of 2254. Three 10 U.S.C. section See questionnaire does not contends, however, relevant data. that the federal statute industry suggest the existence of an stan report that the applicable to this is not punitive of which makes dard the violation exception under to report admissible sum, In 490.220, in this casе. damages appropriate rule. See section hearsay the not Three Riv the did show that evidence RSMo duty or that it knowingly ers violated a properly Rivers did not Three indifferent to or conscious completely trial, At appeal. issue for preserve this ly the others. The disregarded safety of a attempted ‍​‌‌‌​‌‌‌‌​‌‌‌​​‌‌​​​​‌​‌‌​​‌​​‌‌​‌‌‌‌​‌​‌‌‌‌‌‌​‌‍question to wit Three Rivers evidence, finding a supporting while a ness, Art his review Negrette, regarding harm, clearly risk of did not and convinc army The trial court sustained report. the ingly aggrava an instruction for support objections Lopez Negrette’s to and Jones’ ting City circumstances. Kansas v. army At no report. to the references (Mo. Keene 375-76 Corp., time, attempt Threе did Rivers 1993). banc report into evidence. to introduce the itself Because the evidence in this case does did Rivers an offer Nor Three make giving not an instruction support for re Negrette’s testimony regarding proof punitive damages, does not this Court army report to ferring report. reach Three Rivers’ contentions that Rivers, itself is in the record. Three not aggravating circumstances instruction did therefore, preserve appeal not for did accurately not state or that the law admissibility regarding error provi- award violated various constitutional Prelutsky, army v. report. See Wilkerson Similarly, sions. we not reach do 1997). 643, 646-47 943 S.W.2d by Lopez claim cross-appeal brought cross-apрeal, alleges Lopez On

Jones that the trial court should have instructing that the court erred in trial prejudgment awarded interest on their fault the dece against on comparative awards for circumstances. aggravating pre to Lopez. Lopez failed George dent and Lopez Three Rivers assert addition- by her of instructional error serve claims points al that could on retrial occur but confer failing object to at the instruction were preserved. not con- Kohn, ence. See Blackstock tends that the trial court erred award- ing pursu- prejudgment interest to Jones alternative, contends, 408.040.2, in the ant to section RSMo 1994. trial her motion denying court erred asserts 408.040.2 that sеction judgment notwithstanding a the verdict for precludes prejudgment interest because In comparative negligence. on the issue of compensatory damages the amount of the trial, to, for a it is not view the remand new greater to Jones was not equal awarded than, necessary this to decide issue. the amount her demand settle- Because, retrial, possibility ment. on conclusion, duty a Three Rivers had finding exists may, upon with its may aircraft have collided to in an amount negligence, damages awai'd at the across the River power lines case, damages from the this different case. The site of the accident this declines reach this issue. Court jury, howev- instructions submitted er, they required were Rivers contends that trial erroneous higher care apply a standard of admitting court United erred 162 required by

than that law. The case is The great danger of the transmission wires, here, reversed and the cause remanded for a nothing had to do with wheth- energized Instead, new trial. er were or not. they were uniquely dangerous ability their to cause almost certain death LIMBAUGH, HOLSTEIN and to the passengers any aircraft that BENTON, JJ., concur. might danger strike them. This was com- PRICE, C.J., separate dissents pounded because the electrical wires were filed; JJ., opinion WOLFF, WHITE and practically to approaching invisible air- PRICE, opinion concur in C.J. craft, constituting a deadly trap. Three Rivers had knowledge potential оf both the PRICE, Jr., WILLIAM RAY Chief fly of aircraft to into these wires and the Justice, dissenting. great danger of death to such air- I majority dissent from the opinion for craft’s occupants from the 1975 accident following reasons. that resulted in three fatalities. cases, Pennsylvania Two v. Penn- Yoffee I. sylvania Co., Light Power & 385 Pa. (1956), Missouri case law has always Bailey demanded 123 A.2d 636 v. Penn- Co., the highest degree regarding sylvania of care dan Electric Pa.Super. (1991), gerous 598 A.2d 41 relied upon by plain- instrumentalities because of the tiffs, great but not injury e.g., by majority, risk of or death. discussed are (5th ed); directly point. on MAI 11.01 Both involved air Mrad v. Missouri Co., opposed Edison strikes to lines as (Mo.App.1983) S.W.2d 936 to con- (insulation lines); ground tact with lines at and isolation of level. The trial Baily court in Wagstaff v. City Maplewood, succinctly described Yoffe’s (firearms); distinction between air and (Mo.App.1981) ground Lottes v. wires Pessina, way: (Mo.App.1943) S.W.2d 893 (explosives). majority cursorily states court, however, placed the Yoffee inapplicable this standard of care is highest degree of upon care standard injuries because the in this accident did strike, utility where there an air electricity by result from the carried electrocution, strikes, not an because air lines, merely colliding but instead from like carry high probabil- electrocutions a with the line They rely upon itself. a ity of death or injury. serious footnote from Pierce v. Platte-Clay Elec. Bailey, 598 A.2d at 47. Inc.,

Co-op., anаlysis Under traditional of the law of banc1989), distinguishes energized instrumentalities, dangerous I would hold non-energized from lines. highest degree applica- that the of care is Pierce, however, where, here, was a case that prior arose ble air strike fatal injured when a farmer was ground- occurred at the same location alerting the ‍​‌‌‌​‌‌‌‌​‌‌‌​​‌‌​​​​‌​‌‌​​‌​​‌‌​‌‌‌‌​‌​‌‌‌‌‌‌​‌‍level, non-energized “guy utility wire” used to to the life threatening potential of utility stabilize an pole. such a circum- to aircraft its lines because of their location, construction, non-energized stance the wire did particular not have and lack fatally dangerous potential warning. same as an electrical wire within reach from someonе II. ground.

on the “guy Because the wire” expected would not be to electrocute a Even conceding purposes argu- person might who come into contact with give “highest ment it was error to it, instruction, the wire was held not to I pose special degree of care” would not type danger justify that would actual high- damages reverse the verdict for be- er standard of I prejudice care. cause do not believe that re- to that argue able to the in the circumstances of this have been unique suited majority nor- knew aircraft agree I with the that Three Rivers that case. because mally is instructed as to of when at the location low over the river flew by degree requirеd of care than higher lines; Riv- and because Three these law, timely objection, specific after and could see the pilot knew that a not ers found, prejudice presumed might is be lines; and because Mudd, v. by Root Root if an struck the knew that aircraft prejudice ac- (Mo.App.1998). 656 Whether result; and, likely most lines death would exists, taken is not to be tually fact, that in Three Rivers knew but has to be determined granted, occurred very type this of accident had v. Park 673 Corp., court. Fowler the was killing it people; before three 1984). 749, 755 This S.W.2d ordinary person, to be required even as an by carefully considering done the must be short, I do very simply careful. used, language of the instructions as actual case in thе circumstances of this believe the opposed language to instructions made a difference that it would have given, as they should have been to issue jury was to determine the asked evidence received in the case. in negligence of Rivers’ of Three terms case to In this was instructed very “ordinarily person being careful” failed to determine whether very opposed that of a “a careful, as to highest degree high of care. The use Corp., v. person”. careful Fowler Park of “that degree est care was defined as 1984), is degree very person of care that a careful regard. precisely point almost on this would have used under the or similar same illustrates anything, mеrely If this case (5thed.). circumstances.” MAI 11.01 Had utility of instructions questionable jury been instructed determine degrees care cases involv to different of whether Rivers failed to use ordi legal Various com ing special danger. care, care nary ordinary would have been have noted that the trend mentators “that degree defined as of care that an varying tort law is to disclaim modern ordinarily prudent careful person duty describing of care in degrees use under the same or cir would similar See, Kee negligence. Page of W. element (5thed.); cumstances.” MAI 11.05 Camer al., Keeton the Law ton et Prosser and on Small, (Mo. on v. (5th Torts, 34, at ed. section 1987) (“The prevailing rule situa most ordinary The exerсise of care as defined ‘degrees’ care that there are no tions is by our instructions must be “commensu- law; there or a matter negligence, as apprehended.” the dangers rate with to be care, as only amounts of a matter are Thus, necessary Id. the conduct to fulfill fact.”); Harper, Gray, James duty ordinary depends upon care (2d Torts, at ed. Law section 16.13 ordinarily circumstances. An careful (“For 1986) outside part, most least person required to use prudent bailments, accident of the law modern in a greater dangerous care more situation the notion that differ repudiated law has danger- she in a than he or would use less people of care are exacted of degrees ent may argued be ous situation and to an relationships standing different jury. injured party.”). practical little

I see difference between actually made under arguments here III. care” “highest degree instruction Lopez’s cross-ap- I Finally, would rale have made from those would been concerning sufficiency the evi- peal Had “ordinary under an care” instruction. compar- support a submission of been under the “ordi- dence this issue submitted This standard, against George Lopez. Plaintiffs ative fault nary care” still would issue preserved for review and the

majority has seen fit to address a number PUBLICATIONS, MORGAN retrial”, of other “likely issues to recur on INC., al., Appellant, et including the aggravated issue оf dam- ages. SQUIRE PUBLISHERS, INC., Lopez, a flight engineer, was not the al., Respondent. et

pilot in command and had no control of the No. WD 55571. flight. For all relevant purposes, ‍​‌‌‌​‌‌‌‌​‌‌‌​​‌‌​​​​‌​‌‌​​‌​​‌‌​‌‌‌‌​‌​‌‌‌‌‌‌​‌‍he was merely passenger. Missouri Appeals, Court of look to liability

We automobile tort Western District. 305.040, guidance. See Section RSMo April 2000. (the liability of an aircraft owner “shall be determined the rules of law As Aug. Modified land”). applicable to torts on An automo Rehearing Motion for Transfer to and/or bile negligence imputed driver’s is not to a Supreme Court Denied Aug. 2000. passenger, showing joint absent a enter Application prise, for Transfer Denied passenger because the has no con trol over the Oct. 2000. operation. automobile’s Gilliam, (Mo. e.g., Will v. 439 S.W.2d 498

1969) (noting that negligence driver’s could imputed

not be to daughter who was mere

passenger with no control over automo

bile); Am.Jur.2d, see generally 57B Negli

gence section at (discussing

command and requirement control for im Here,

puting liability). there is no evi

dence from which it could be inferred that

Lopez had legal ability or actual regarding flight plan or piloting helicopter.

Any negligence attributed to pilot Jones Further, imputed

cannot be to Lopez. no

evidence was submitted that

negligent as to individual action that

may have caused the accident. unlikely any

Because it is new evidence

concerning presented this issue can be

retrial, I would rule that Three Rivers did

not make a negligence submissible case for

against Lopez.

Case Details

Case Name: Lopez v. Three Rivers Electric Cooperative, Inc.

Court Name: Supreme Court of Missouri

Date Published: Aug 29, 2000

Citation: 26 S.W.3d 151

Docket Number: SC 82244

Court Abbreviation: Mo.