Freight House Lofts Condo Ass'n v. VSI Meter Services, Inc.

402 S.W.3d 586, 2013 WL 3189381, 2013 Mo. App. LEXIS 772
Missouri Court of Appeals·Decided June 25, 2013·No. No. WD 75227·Published·Cited by 23 cases

Opinion

JOSEPH M. ELLIS, Judge.

Appellant VSI Meter Services, Inc. appeals from a judgment entered by the Circuit Court of Jackson County in favor of Respondent Freight House Lofts Condo Association on Respondent’s claim that Appellant’s negligent installation of a water meter at Respondent’s property flooded the basement causing significant water damage to the property stored therein. For the following reasons, the judgment is affirmed.

The evidence, viewed in the light most favorable to the verdict, reflects the following. Appellant entered into a contract with the City of Kansas City, Missouri (“the City”), under which it agreed to install an automated water meter reading system in the basement of Respondent’s property, the Freight House Lofts. The contract specified that Appellant would either retro-fit the existing water meter or replace the existing water meter with a new electronic meter. On September 1, 2009, Appellant replaced the existing water meter in the Freight House Lofts’ basement with a new two-inch Neptune T-10 water meter after attempts to retro-fit the existing water meter were unsuccessful.

On October 18, 2009, Shane Adams, a maintenance technician for Respondent, noticed water draining outside the Freight House Lofts building. He called Mark Greathouse, Respondent’s director of maintenance, to inform him about the water. Greathouse instructed Adams to check the basement. Upon doing so, Adams discovered the basement of the Freight House Lofts had flooded. During a subsequent phone call, Adams told Greathouse that the water was coming from the right flange of the water meter. Greathouse instructed Adams to shut-off the water. The following day, the City inspected and replaced the water meter in Respondent’s basement. The City discarded the gaskets that were in the water meter at the time of the flood.

In 2011, Respondent filed a petition for damages alleging a count of negligence against both Appellant and the City. The case subsequently proceeded to trial. At trial, David Trinastich, a previous employee of Appellant, testified that he installed a new two-inch Neptune T-10 meter in Respondent’s basement after attempting to retro-fit the existing meter. He further testified that he installed the meter using a drop-in gasket that he did not modify or cut in any manner and that the meter was not leaking when he left Respondent’s property on September 1, 2009. A former Freight House Lofts maintenance technician testified that a few weeks after Trinastich installed the new meter, someone she believed to be a City employee came to Respondent’s property to install additional equipment on the meter.

Greathouse, Respondent’s director of maintenance, also testified at trial. He stated that Adams told him over the phone that the water meter was leaking and that Adams believed the gasket had exploded because water was shooting out of the flange on the water meter. Appellant timely objected to Greathouse’s testimony regarding his phone conversations with Adams as impermissible hearsay. The trial court overruled Appellant’s objection and permitted such testimony under the excited utterance exception to the hearsay rule.1

[592] Steve Eden, who works at Century Fire Sprinklers, Inc. also testified at trial. Eden was called to the Freight House Lofts basement soon after Adams discovered the basement had flooded to determine whether the backflow preventer had caused the leak. Eden testified that, upon arrival, he turned the water back on to determine the source of the water leak. When he did so, water began shooting out of the flange on the right side of the water meter. Eden also testified that he noticed a gasket sticking out between the water meter’s flanges and, when he went to inspect the gasket, he noticed the nuts and bolts holding the flanges in place were not very tight. Once Eden removed the gasket, he observed that the ends of the gasket had been cut.

Williams White, an area superintendent for the Kansas City Water Department, likewise testified that he noticed that the gaskets had been cut when he arrived to inspect the meter the day after the flood. He further testified that no record existed of City employees performing any kind of maintenance on Respondent’s water meter between September 1, 2009, when Appellant installed the meter, and October 18, 2009, when the basement flooded.

Robert Webster, a professional engineer who had fifteen years of experience in the plumbing industry, provided expert testimony on Respondent’s behalf. He testified about torque loss, which he explained occurs when the bolts holding the flanges together begin to expand and the joint starts to leak. He then opined that installing a water meter with a cut gasket and loose bolts falls below the standard of care in the industry for installing a Neptune T-10 water meter. The trial court overruled Appellant’s timely objection to Webster’s expert testimony.

Following the close of evidence, the trial court granted the City’s motions for directed verdict and, thus, effectively dismissed the City from the case. Hence, the jury was instructed only as to the negligence count against Appellant. Additionally, the trial court refused to submit Appellant’s proposed comparative fault and spoliation instructions to the jury.

Ultimately, the jury returned a $109,025.31 verdict in favor of Respondent. The trial court entered its judgment accordingly and denied Appellant’s subsequent motion for judgment notwithstanding the verdict (“JNOV”). Appellant now raises five points of error on appeal.

In its first point, Appellant contends that the trial court erred in admitting Greathouse’s testimony regarding his phone conversations with Adams under the excited utterance exception to the hearsay rule. In determining whether a statement constitutes an excited utterance, courts must consider “(1) the time between the startling event and the declaration, (2) whether the declaration is in response to a question, (3) whether the declaration is self-serving, and (4) the declarant’s physical and mental condition at the time of the declaration.” State v. Kemp, 212 S.W.3d 135, 146 (Mo. banc 2007). “The essential test for admissibility of a spontaneous statement or excited utterance is neither the time nor place of its utterance but whether it was made under such circumstances as to indicate it is trustworthy.” Id. (internal quotation omitted).

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Freight House Lofts Condo Ass'n v. VSI Meter Services, Inc., 402 S.W.3d 586, 2013 WL 3189381, 2013 Mo. App. LEXIS 772 (Mo. Ct. App. 2013).

402 S.W.3d 586 (Freight House Lofts Condo Ass'n v. VSI Meter Services, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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