Opinion
No. WD 60093 (Consolidated with WD 60125)
December 24, 2002
Appeal from the Circuit Court of Jackson County, Missouri, The Honorable Lee E. Wells, Judge.
Candis Young, Kansas City, MO, for Respondent-Appellant.
Douglas N. Ghertner and John M. Graham, Jr., Kansas City, MO, Attorneys for Appellant-Respondent.
Before: Ulrich, P.J., and Spinden and Smith, JJ.
Construction Design, Inc. (CDI), appeals from the trial court's judgment for the respondent, William Gomez, in the remitted amount of $2,760,000 on a jury verdict awarding him $3,760,000 in compensatory damages for injuries he suffered from a fall at the ADM Soybean Processing Plant in North Kansas City, Missouri. At the time of the fall, Gomez was working, as a "pipefitter helper," for TMS, Inc. (TMS), a general maintenance contractor, hired to make repairs and modifications to and perform maintenance on various pipes in the extraction operation of the plant. At the same time that TMS employees were working at the plant, employees of CDI, which is also a general maintenance contractor, were working at the plant, removing a heat exchanger that was to be overhauled at CDI's facilities. In his petition for damages, Gomez alleged that, in lifting the heat exchanger, CDI committed several specific acts of negligence, which resulted in the heat exchanger dislodging a section of floor grating, creating a hole through which Gomez fell. Gomez cross-appeals the judgment with respect to the trial court's remittitur of the jury's award of damages.
CDI raises five points, two of which, Points I and V, are dispositive of its appeal. In Point I, it claims that the trial court erred in overruling its motion for new trial and entering judgment for Gomez in the remitted amount of $2,760,000 because the trial court's order of May 24, 2001, granting CDI a new trial, conditioned on Gomez' not accepting, in writing, the court's proposed remittitur by 4:30 p.m. on May 25, 2001, became final and binding on the court in that Gomez' purported faxed acceptance of May 25, on which the trial court relied in ultimately denying CDI's motion for new trial and in entering judgment for Gomez on May 31, 2001, was not authorized by the Local Circuit Court Rules of Jackson County, as required by Supreme Court Rule 43.02, rendering it null and void ab initio. In Point V, CDI claims that the trial court plainly erred in submitting Gomez' case on a verdict director, Instruction No. 7, patterned after MAI 31.02(3) [1997 Revision] Verdict Directing — Res Ipsa Loquitur — General, because the instruction failed to hypothesize the required elements of res ipsa loquitur and the evidence did not support the giving of the instruction in that it did not hypothesize that CDI controlled the area where the accident occurred at the time of the appellant's fall and there was no evidence supporting such a finding.
All rule references are to Missouri Rules of Civil Procedure (2002), unless otherwise indicated.
Gomez raises three points in his cross-appeal. In Point I, he claims that the trial court erred in granting CDI's motion for remittitur because the jury's award of $3,760,000 was not excessive. In Point II, he claims that the trial court erred in granting CDI's motion for remittitur because CDI had unclean hands and was, therefore, not entitled to the equitable relief of remittitur. In Point III, he claims that the trial court erred by failing to "find" that CDI's insurance carrier, Liberty Mutual Insurance Company, committed the tort of bad faith refusal to settle a claim.
We note that CDI filed with this court: (1) a motion to strike the portion of Gomez' brief on appeal claiming CDI obtained remittitur with unclean hands, and to strike Points II and III of Gomez' brief on cross-appeal; and (2) a motion to strike Points II and III of Gomez' reply brief on cross-appeal, on the ground that the issues presented therein, involving Gomez' claims of CDI's alleged unclean hands and Liberty Mutual Insurance Company's alleged bad faith refusal to settle a claim, were never presented to the trial court. Both motions were taken with the case, and are denied as being moot.
We reverse and remand.
Facts
On May 2, 1994, the ADM plant located in North Kansas City, Missouri, was shut down for general maintenance and cleaning by various contractors who had been hired to service the facility. Gomez was employed by TMS, which was hired to make repairs and modifications to and perform maintenance on various pipes in the extraction operation of the plant. Its responsibilities included the building of a scaffold needed to perform work on pipes located above the floor. Gomez was helping to build the scaffold by carrying wood planks used for the flooring of the structure.
CDI was hired to remove a one-ton heat exchanger from the plant for maintenance, and was working at the same time and in the same area of the plant as TMS and Gomez. On the day of the accident, CDI employees Kevin McDowell and Paul Hamilton were using chains attached to a pulley to lift the heat exchanger off the metal floor grating on which it rested. During the process, a flange on the bottom part of the exchanger got hooked on a section of the metal floor grating, dislodging a section of the grating and creating a hole that opened to the next floor down.
Gomez, who was unaware of the missing section of the grating, fell while carrying planks for the scaffolding. He was taken by ambulance to the North Kansas City Hospital with very serious injuries, including blunt head trauma, a comminuted fracture dislocation of the left wrist, a depressed left malar complex fracture, facial lacerations, injury to the temporomandibular joint, and carpal tunnel decompression.
On July 23, 1998, Gomez filed a petition in the Circuit Court of Jackson County, seeking damages from CDI for his injuries. The petition alleged specific acts of negligence which Gomez claimed were the direct and proximate cause of his injuries. Gomez' case proceeded to a jury trial on March 5, 2001. The only evidence presented by Gomez, which made any mention of CDI's work activities at the ADM plant on the day of the accident, was the testimony of two of his TMS co-workers, Glen Frost and Wayne Fry. Gomez' counsel showed the jury a videotape of the accident scene and asked Frost to comment on the equipment that was being used, specifically the pulley that was used to lift the heat exchanger:
Q. Is that the pulley they were using to lift with?
A. See, this wasn't our part.
Q. That's CDI's part?
A. Right.
CDI and its employees were again mentioned in the following exchange during the direct examination of Frost:
Q. Had you had any contact with CDI who was working on the vessel next to you?
A. No, I hadn't.
Q. Were you aware that they were there?
A. No, I wasn't.
Q. They were simply in the area but you weren't —
A. They was in the area; I didn't have a clue what they was doing.
Q. On the date of the accident did CDI talk to you about what they were doing?
A. They did not talk to me whatsoever.
Q. Had they told you that they were lifting this vessel, would you have done anything different?
[CDI'S COUNSEL]: Your Honor, I object, that calls for speculation.
THE COURT: Overruled. You may answer.
A. Yes, I would.
Q. What would you have done, sir?
A. I would have went and looked at what they had and if I needed to get my people out of the way until they got this job finished, I would have done it.
During the direct examination of Fry, Gomez' counsel showed him a photograph of the heat exchanger and asked him to identify it. The following exchange occurred:
A. I believe that was the exchanger they was attempting to remove.
Q. When you say "they," do you mean CDI?
A. No, Ma'am. Well, I don't know what the name of the other company was. It was another company, but it wasn't our group.
Q. The group that was working next to you?
A. Yes, Ma'am.
At the close of Gomez' case, CDI's counsel made an oral motion for a directed verdict, stating:
This is not a case where we were an owner of property, we are a subcontractor working on site. I don't think there's been any evidence presented by plaintiff that, number one, we owed a duty, or number two, that it was breached. I mean there was never any sort of, like accident reconstructionist that came in and talked about what our responsibilities would be. The only people that testified about the accident, with the exception of Mr. Gomez, who can't remember anything, are the two people, one of which had no idea what CDI was doing and the other had his back turned.
So on that basis I don't think they've established any evidence, which she's required to do, to establish either a duty or a breach.
THE COURT: Well, I think she has. My recollection of the testimony is that according to one witness he was either standing on or getting ready to step on the grate when it was pulled out from underneath him and he fell through. Nothing was done by your client's employees to warn this person and it's that simple.
[CDI'S COUNSEL]: Just for the record, judge, I think before you get to that, as far as the breach, I don't think she presented any evidence that said we actually had control or responsibility, and liability is what has to be established.
[GOMEZ' COUNSEL]: I believe the control was established by the witness who indicated he was standing there in the area, that they were working in that area, that they were the ones who pulled the floor out, which indicates controlling of the area.
THE COURT: I think that's right.
CDI's motion was denied. CDI then proceeded with the presentation of its case. As part of its case, CDI called as witnesses Kevin McDowell and Paul Hamilton, the two CDI employees who were involved in lifting the heat exchanger. On cross-examination, Hamilton testified that the individual sections of grating which made up the kind of flooring at the ADM plant are often fastened in place with clips, but the section of grating that got dislodged by the heat exchanger did not have any clips. Hamilton also acknowledged that he did not look to see if this section of grating was held in place, testifying:
Q. And you never tested the grating or the clips?
A. No, it didn't have any clips. I thought it was welded.
Q. You never tested?
A. No.
Q. You never looked to see?
A. (Gestures.)
Q. No?
A. Yeah.
Q. You did not look to see?
A. No, I didn't.
McDowell, during his cross-examination, concurred that the grating had not been checked to see if it was fastened in place:
Q. And before you began to lift you were sure this piece of equipment was ready to be lifted?
A. Yes, we had it rigged up to be lifted, yes.
Q. But you didn't do any examination of the grating before you lifted, did you?
A. No, that's — you know.
Q. You didn't do it.
A. It should have been put down.
Q. Someone should have checked the grate to go see if it was held down?
A. It shouldn't have been just been laid in there.
Q. Right. Someone should have checked.
A. Right.
At the close of all the evidence, CDI made another oral motion for a directed verdict, which was overruled by the trial court.
At the instruction conference, Gomez' attorney submitted the following verdict director, which the trial court referred to as being "patterned on MAI 31.02(3):"
In your verdict you must assess a percentage of fault to defendant, whether or not plaintiff was partly at fault, if you believe:
First, the floor grate was dislodged from its supports by employees of the defendant, and
Second, the floor grate fell while plaintiff was standing on it or as he approached it, and
Third, the collapse of the floor grate and plaintiff's fall were directly caused by defendant's negligence, and
Fourth, as a direct result of such negligence, plaintiff sustained damage.
That instruction was marked Instruction No. 7 and was the instruction on which Gomez' case was submitted. After deliberating, the jury returned a verdict in favor of Gomez, awarding him $3,760,000 in compensatory damages. On April 6, 2001, CDI filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for a new trial or for remittitur. The motions were heard on May 11, 2001. The trial court entered an order on May 24, 2001, disposing of the motions, which read:
Defendant's Motion for Judgment Notwithstanding the Verdict is OVERRULED. Defendant's Motion for a New Trial or, in the Alternative, for Remittitur is SUSTAINED. The Court finds that the jury's award in the sum of three million seven hundred sixty thousand dollars ($3,760,000) in compensatory damages against defendant is excessive. In accordance with Section 537.068 the court finds that the jury's award exceeds fair and reasonable compensation for plaintiff's damages and that the interests of justice will best be served by an order of remittitur. Accordingly, the court hereby remits the sum of one million dollars ($1,000,000) from the judgment for compensatory damages. The court's decision to remit is conditional upon plaintiff's acceptance of a new judgment in the amount of two million seven hundred sixty thousand dollars ($2,760,000) for compensatory damages or a new trial will be ordered. If plaintiff is satisfied with the aforesaid new judgment, then so shall the court be satisfied. Plaintiff shall have up to and including 4:30 P.M. on Friday, May 25, 2001 to file a written acceptance of the remitted amount. If a written acceptance is so filed, defendant's motion for new trial is overruled and new judgment in the amount of two million seven hundred sixty thousand dollars ($2,760,000) rendered.
On May 25, 2001, Gomez' counsel faxed an acceptance of the remittitur to the trial court and to CDI's counsel, the hard copy of which was not filed with the trial court until May 31, 2001. On that date, the trial court entered an order and amended judgment denying CDI's motion for a new trial and awarding Gomez $2,760,000 "pursuant to [Gomez'] Acceptance of Remittitur filed on May 25, 2001."
CDI filed its notice of appeal on June 7, 2001, and Gomez filed his notice of cross-appeal on June 25, 2001.
CDI's Appeal I.
In Point I, CDI claims that the trial court erred in overruling its motion for new trial and entering judgment for the respondent in the remitted amount of $2,760,000 because the trial court's order of May 24, 2001, granting CDI a new trial, conditioned on Gomez' not accepting, in writing, the court's proposed remittitur by 4:30 p.m. on May 25, 2001, became final and binding on the court in that Gomez' purported faxed acceptance of May 25, on which the trial court relied in ultimately denying CDI's motion for new trial and in entering judgment for Gomez on May 31, 2001, was not authorized by the Local Circuit Court Rules of Jackson County, as required by Supreme Court Rule 43.02, rendering it null and void ab initio. Specifically, CDI contends that Gomez' faxed filing of the acceptance of the remittitur was without legal effect such that the trial court's May 24 order, conditionally granting it a new trial, became, by default, the final judgment of the court, which the court was powerless to amend and from which no timely appeal was filed, depriving this court of any jurisdiction, except to dismiss and remand for a new trial.
In claiming as it does in this point, CDI is necessarily contending that the trial court, in relying on Gomez' faxed acceptance to deny CDI a new trial, erroneously declared and applied the dictates of Rule 43.02 as to the manner of filing pleadings and other papers with the trial court. In that regard, CDI is essentially contending that the rule should be read as prohibiting the fax filing of any document or paper with the court, which is not expressly authorized by local circuit court rule. While Gomez does not dispute the fact that the Local Circuit Court Rules of Jackson County do not expressly authorize by fax the filing in question, he contends that the law does not prescribe a mandatory method of acceptance of a proposed remittitur such that it was within the discretion of the trial court to determine the validity of his acceptance of the proposed remittitur in this case. Thus, to resolve the issue in this point, we are called upon to interpret Rule 43.02.
In interpreting Supreme Court rules, we are to apply the same rules used for interpreting state statutes. State ex rel. Streeter v. Mauer , 985 S.W.2d 954, 956-57 (Mo.App. 1999). Hence, in interpreting Rule 43.02, we are to ascertain the intent of the Supreme Court, giving the words used their plain and ordinary meaning. Id. at 957. Where the legislative intent is made evident from the plain and ordinary meaning of the language used, we are without authority to read into the rule a contrary intent. Pavlica v. Dir. of Revenue , 71 S.W.3d 186, 189 (Mo.App. 2002). Where the language of the rule is clear, this court must give effect to the language as written. Mo. Nat'l Educ. Ass'n v. Mo. State Bd. of Educ. , 34 S.W.3d 266, 279 (Mo.App. 2000).
In claiming that Gomez' faxed filing of his acceptance of the proposed remittitur was void in that no local circuit court rule authorized such a filing, as required by Rule 43.02, CDI relies on paragraph (c) of the rule, which reads:
Filing With the Court — Facsimile Transmission. By local court rule, a court, in cooperation with the office of the clerk of the court, may authorize the filing by facsimile transmission of such motions, applications, orders, warrants, pleadings and the like as may be deemed desirable. If filing by facsimile transmission is authorized by local rule, any pleading or other paper so filed shall have the same effect as the filing of an original document, even though it may be required to be verified or submitted by affidavit. A facsimile signature shall have the same effect as an original signature. The person filing a pleading or other paper by facsimile transmission shall retain the original and make it available upon order of the court.
While this portion of the rule does not expressly prohibit the fax filing of "motions, applications, orders, warrants, pleadings and the like" not authorized by local circuit court rule, an argument could be made for such an interpretation in that why else would the Supreme Court see fit to expressly provide in the rule for the authorization of such filings by local circuit court rule if it did not intend to prohibit other such filings by fax not so authorized. Ultimately, however, whether such an argument could or could not be made in reading paragraph (c) in isolation is not important, in that to understand paragraph (c), it must be read in conjunction with paragraph (b). City of Springfield v. Coffman , 979 S.W.2d 212, 214 (Mo.App. 1998) (stating that a subsection of a statute should not be read in isolation from the context of the whole statute) . Rule 43.02(b) reads:
Filing With the Court — Defined. The filing of pleadings and other papers with the court as required by Rules 41 through 101 shall be made by filing them with the clerk of the court, except that a judge may permit the papers to be filed with the judge, who shall note thereon the filing date and forthwith transmit them to the office of the clerk.
(Emphasis added.) Giving the language of this paragraph its plain and ordinary meaning, it is clear that it prescribes the mandatory manner of filing of any filing required by the rules of civil procedure, Rules 41 through 101, to be filed "with the court." Thus, reading paragraph (c) in conjunction with paragraph (b), it becomes crystal clear that the Supreme Court intended for paragraph (c) to be an exception to paragraph (b). In other words, the Court intended that all filings "with the court," as required by Rules 41 through 101, were to be accomplished by physically filing a copy of the pleading or paper with the clerk of the court or judge, except that such required filings could also be done by facsimile transmission, if permitted by local circuit court rule. Contrary to the assertion of the appellant, Rule 43.02(c) was never intended to apply to filings not required by the rules of civil procedure. Hence, given the fact that there is no dispute that the acceptance of remittitur is not a required filing under Rules 41 through 101, the provisions of Rule 43.02(c) do not apply thereto such that the trial court here was free to dictate the manner of the respondent's acceptance in any reasonable fashion, including a timely filing by fax.
Having determined that the fax filing of the respondent's acceptance of remittitur was both proper and timely, the trial court's order of May 24 did not become a final judgment, for purposes of this appeal, with respect to the issue of whether to grant the appellant a new trial such that it was within the court's jurisdiction to enter its order of May 31 denying the appellant's motion for new trial and to enter judgment for the respondent in the remitted amount. Hence, this court's jurisdiction would not be limited to dismissing and remanding with directions for the trial court to conduct a new trial, as claimed by the appellant in this point.
Point denied.
Having determined in Point I that we have jurisdiction to hear the merits of this appeal, we now turn to CDI's remaining points. In that regard, because we find CDI's Point V to be dispositive, we address it alone.
II.
In Point V, CDI claims that the trial court plainly erred in submitting Gomez' case on a verdict director, Instruction No. 7, patterned after MAI 31.02(3) [1997 Revision] Verdict Directing — Res Ipsa Loquitur — General, because the instruction failed to hypothesize the required elements of res ipsa loquitur and the evidence did not support the giving of the instruction in that it did not hypothesize that CDI controlled the area where the accident occurred at the time of the appellant's fall and there was no evidence supporting such a finding.
Pursuant to Rule 70.03, to preserve instructional error for appellate review in a civil case, the appellant must object to the instruction prior to the jury's retiring to consider its verdict and, in addition, must raise the objection in a motion for new trial, in accordance with Rule 78.07. CDI concedes that it failed to comply with the rule in both respects and, thus, seeks plain error review, under Rule 84.13(c), which reads: "Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom."
The plain error rule should be used sparingly and does not justify a review of every trial error that has not been properly preserved for appellate review. Messina v. Prather , 42 S.W.3d 753, 763 (Mo.App. 2001) . In determining whether to exercise its discretion to provide plain error review, the appellate court looks to determine whether on the face of the appellant's claim substantial grounds exist for believing that the trial court committed a "plain" error, which resulted in manifest injustice or a miscarriage of justice. Bedwell v. Bedwell , 51 S.W.3d 39, 43 (Mo.App. 2001). "Plain" error for purposes of Rule 84.13(c) is error that is evident, obvious and clear. Id . If the court chooses to exercise its discretion to conduct plain error review, the process involves two steps. First, the court must determine whether the trial court committed error, affecting substantial rights, that was evident, obvious and clear. State v. Hibler , 21 S.W.3d 87, 96 (Mo.App. 2000). As in the case of regular error, not every evident, obvious and clear error requires reversal. In the case of regular error, to be reversible, the error must have prejudiced the appellant. Coats v. Hickman , 11 S.W.3d 798, 807 (Mo.App. 1999). Likewise, in the case of obvious error, the error must have prejudiced the appellant, except that such prejudice must rise to the level of manifest injustice or a miscarriage of justice. Slankard v. Thomas , 912 S.W.2d 619, 628 (Mo.App. 1995).
Although in the context of a criminal case, this court has previously stated, with respect to plain error review of instructional error:
Plain error for purposes of instructional error 'results when the trial court has so misdirected or failed to instruct the jury that it is apparent to the appellate court that the instructional error affected the jury's verdict.' Applying this standard, we would be more likely to reverse where the erroneous instruction 'did not merely allow a wrong word or some other ambiguity to exist, [but] excused the State from its burden of proof on [a] contested element of the crime.' Our appellate courts have found plain error where a verdict director effectively omits an essential element of the offense and the evidence fails to establish the omitted element beyond serious dispute.
State v. Harney , 51 S.W.3d 519, 535-36 (Mo.App. 2001) (citations omitted). There is no logical reason for not applying that same standard in a civil case such as ours. In light of this standard, we choose to exercise our discretion and review for plain error inasmuch as it is clear to us that on the face of CDI's claim that substantial grounds exist here to believe that the trial court committed obvious instructional error affecting the civil due process rights of CDI in submitting Gomez' case to the jury, which resulted in manifest injustice and a miscarriage of justice to CDI in that the verdict director submitted relieved Gomez of proving an essential element of his case.
Gomez' case was submitted on his verdict director, Instruction No. 7, which read:
In your verdict you must assess a percentage of fault to defendant, whether or not plaintiff was partly at fault, if you believe:
First, the floor grate was dislodged from its supports by employees of the defendant, and
Second, the floor grate fell while plaintiff was standing on it or as he approached it, and
Third, the collapse of the floor grate and plaintiff's fall were directly caused by defendant's negligence, and
Fourth, as a direct result of such negligence, plaintiff sustained damage.
As to that instruction at the instruction conference, the trial court stated: "Next we have Instruction Numbered 7, patterned on MAI 31.02(3). This is the verdict director instruction from the plaintiff." MAI 31.02(3) [1997 Revision] is the mandatory patterned instruction for submitting cases on " res ipsa loquitur general." It reads:
Your verdict must be for plaintiff if you believe:
First, defendant ( here describe defendant's control, right to control, or management of the instrumentality involved), and
Second, ( here describe the occurrence, event or incident, which is alleged to be the type that does not ordinarily happen when those in charge use due care), and
Third, from the fact of such occurrence and the reasonable inferences therefrom, such occurrence was directly caused by defendant's negligence, and
Fourth, as a direct result of such negligence, plaintiff sustained damage.
For the reasons discussed, infra, it was plain error for the trial court to submit on the doctrine of res ipsa loquitur, rather than specific negligence.
The doctrine of res ipsa loquitur:
is a rule of evidence that allows, but does not compel, a jury to infer from circumstantial evidence that the plaintiff's injury resulted from some negligent act of the defendant without requiring the plaintiff to prove specific negligence. The doctrine aids an injured party who is uncertain as to the exact cause of his or her injury. [T]he doctrine relieves a plaintiff of proving specific negligence and creates a rebuttable inference of general negligence which gets the plaintiff to the jury where the defendant may rebut the inference.
Guffey v. Integrated Health Servs. , 1 S.W.3d 509, 514 (Mo.App. 1999) (citations omitted) . For the doctrine of res ipsa loquitur to apply, the plaintiff must show:
(1) the incident causing the injury is of the kind that does not ordinarily occur in the absence of negligence; (2) the instrumentality causing the injury is under the control of the defendant; and (3) the defendant has superior knowledge as to the cause of the injury.
Id . "Res ipsa loquitur is incompatible with proof of specific negligence." Hale v. Am. Family Mut. Ins. Co. , 927 S.W.2d 522, 525 (Mo.App. 1996) (citing Bonnot v. City of Jefferson City , 791 S.W.2d 766, 769 (Mo.App. 1990)) . A plaintiff may not submit under res ipsa loquitur if the plaintiff either: (1) pleads specific negligence only; or (2) pleads general negligence ( res ipsa loquitur) only or in the alternative to specific negligence, and proves the real and precise cause of the injury. City of Kennett v. Akers , 564 S.W.2d 41, 48-49 (Mo. banc 1978); see also Guffey , 1 S.W.3d at 514 n. 2 (noting that in some cases the rule has been incorrectly stated as prohibiting the pleading of res ipsa loquitur and specific negligence in the alternative) . A review of the respondent's pleadings and proof in this case reveal that his case was pled on specific negligence only and that his proof at trial was in conformity therewith such that it should have been obvious to the trial court that it was error to submit the respondent's case on res ipsa loquitur. Bond v. Cal. Comp. Fire Co. , 963 S.W.2d 692, 698-99 (Mo.App. 1998); Guffey , 1 S.W.3d at 514.
Gomez' petition for damages alleged specific acts of negligence on the part of CDI, including a failure to inspect the grating, a failure to properly secure the grating during the removal of the heat exchanger, and a failure to give timely warnings of the dislodged grating. The petition made no mention of res ipsa loquitur, nor did it allege facts which, if true, would invoke the doctrine, which requires that: (1) the incident resulting in injury is the kind which ordinarily does not occur without someone's negligence; (2) the incident is caused by an instrumentality under the control of the defendant; and (3) the defendant has superior knowledge about the cause of the incident. Roebuck v. Valentine-Radford , Inc. , 956 S.W.2d 329, 334 (Mo.App. 1997).
As to his proof at trial, Gomez elicited testimony in support of his allegations of specific negligence. In that regard, he called Glen Frost, Gomez' TMS supervisor on the ADM job, who testified that the CDI workers did not advise him in advance of how they were going to remove the heat exchanger, and that, if they had, he would have removed his workers from harm's way, if necessary. In addition, on cross-examination, Gomez' counsel elicited testimony from CDI's witnesses which pointed to a failure to determine if the floor grating was secured before lifting the heat exchanger as the specific act of negligence responsible for Gomez' injury. Both Hamilton and McDowell acknowledged that they did not examine the grating before lifting the heat exchanger, and McDowell agreed that someone should have checked the grate to see if it was secured.
Gomez' closing argument would also indicate that the case was tried on a theory of specific negligence. In the argument, Gomez' counsel pointed to a number of specific omissions on the part of CDI employees which she urged constituted negligence. The omissions argued included not only the fact that, before the heat exchanger was lifted, neither McDowell nor Hamilton checked the grating to see if it was secured, but also that they did not inform other nearby workers of their plans, and that, when the grate was dislodged, neither of them immediately shouted a warning to the other workers in the area.
In holding as we do, we are aware that there are some Eastern District cases, specifically Redfield v. Beverly Health Rehab. Serv., Inc. , 42 S.W.3d 703, 714 (Mo.App. 2001) and Calvin v. Jewish Hosp. of St. Louis , 746 S.W.2d 602, 607 (Mo.App. 1988), which contain language to the effect that a plaintiff "is not precluded from submitting his case under the res ipsa loquitur doctrine merely because the evidence shows the occurrence could have been caused by any one of several different acts of specific negligence." (Emphasis added.) However, we interpret this rule as referring to situations where the plaintiff could not know which of the possible acts actually caused the injury, and that is clearly not the case here, where Gomez presented evidence of multiple causes. We are bound by the pronouncements of the Missouri Supreme Court, and pursuant to Akers , Gomez proved the real and precise causes of the injury, and therefore could not submit under res ipsa loquitur.
Because Gomez' pleadings, evidence and closing argument clearly demonstrate that the case was pled and tried solely on a theory of specific negligence, the doctrine of res ipsa loquitur was unavailable to him. Balke v. Cent. Mo. Elec. Co-op , 966 S.W.2d 15, 26-27 (Mo.App. 1997). Thus, it was clear, evident, and obvious error for the trial court to submit a res ipsa loquitur instruction.
Having determined that it was obvious error for the trial court to submit the respondent's case on res ipsa loquitur, we now turn to the issue of whether such error resulted in manifest injustice or a miscarriage of justice to the appellant warranting reversal and a remand for a new trial.
In instructing Gomez' case on res ipsa loquitur, the jury was never asked to deliberate on whether the appellant's alleged acts of negligence were, in fact, negligent. The only reference to negligence in the appellant's verdict director, Instruction No. 7, was in the third paragraph, which instructs the jury to assess a percentage of fault to the defendant if they believe that "the collapse of the floor grate and plaintiff's fall were directly caused by defendant's negligence." This paragraph assumes negligence and simply asks the jury to determine whether the assumed negligence was the direct and proximate cause of the respondent's alleged injuries and damages. Thus, in instructing the jury under the doctrine of res ipsa loquitur, the trial court relieved Gomez of his duty of proving an essential element of his case, which was that the alleged acts or omissions of CDI were negligent. In that regard, it should be noted that the omitted element goes to the very heart and essence of Gomez' action against CDI, as it would in any negligence action, namely, was CDI negligent and therefore, liable to Gomez in damages for his injuries.
A plaintiff's verdict-directing instruction must require the jury to find all elements necessary to the plaintiff's case, except those unmistakably conceded by both parties. Karnes v. Ray , 809 S.W.2d 738, 741 (Mo.App. 1991). The trial court's failure to instruct the jury in this case on the requisite proof elements of Gomez' claim of specific negligence, specifically on the issue of whether the alleged acts or omissions of CDI were negligent, was clear and obvious error that resulted in Gomez' being relieved of proving an essential element of his claim, which was in serious dispute at trial. Due process required Gomez to prove each element of his cause of action by a preponderance of the evidence, and relieving him of that due process requirement constituted manifest injustice and a miscarriage of justice. State v. Crenshaw , 59 S.W.3d 45, 49 (Mo.App. 2001). A verdict director which fails to require the jury to find the necessary elements in order to return a verdict for the plaintiff constitutes plain error. Haynam v. Laclede Elec. Co-op., Inc. , 827 S.W.2d 200, 204 n. 2 (Mo. banc 1992). Because of obvious error in the verdict-directing instruction resulting in a manifest injustice, we reverse the judgment of the trial court, and remand the cause for a new trial.
Gomez' Cross-Appeal
As noted, supra, Gomez raises three points on his cross-appeal. His first two points, which claim that the trial court erred in granting CDI's motion for remittitur, are rendered moot by our decision to reverse and remand for a new trial. Cacioppo v. Southwestern Bell Tel. Co. , 550 S.W.2d 919, 926 (Mo.App. 1977). As to his third point, he claims that the trial court erred by failing to find that CDI's insurance carrier, Liberty Mutual Insurance Company, committed the tort of bad faith refusal to settle a claim. Liberty Mutual Insurance Company was not named as a party in Gomez' petition. We will not consider a matter which is neither pleaded, nor presented to the trial court in any way, and upon which no evidence was presented. Taylor v. Goldammer , 944 S.W.2d 216, 219 (Mo.App. 1997).
Conclusion
The judgment of the Circuit Court of Jackson County is reversed and the cause is remanded for a new trial.
Ulrich, P.J., and Spinden, J., concur.