Gray v. Builders Square, Inc.

943 S.W.2d 858, 1997 Mo. App. LEXIS 703, 1997 WL 191801
CourtMissouri Court of Appeals
DecidedApril 22, 1997
DocketNo. WD 52611
StatusPublished
Cited by2 cases

This text of 943 S.W.2d 858 (Gray v. Builders Square, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gray v. Builders Square, Inc., 943 S.W.2d 858, 1997 Mo. App. LEXIS 703, 1997 WL 191801 (Mo. Ct. App. 1997).

Opinion

HANNA, Presiding Judge.

The defendant, Builders Square, appeals from a jury verdict finding it negligent in the installation of a privacy fence for the plaintiff, James D. Gray. The jury found that the defendant’s negligence had reduced the value of the plaintiffs house in the amount of $24,-000. The jury assessed plaintiffs comparative fault at twenty-five percent, and the court entered judgment in plaintiffs favor for $18,000. On appeal, the defendant challenges the sufficiency of the evidence to sustain the verdict and the trial court’s instruction to the jury on agency.

In July 1991, the plaintiff purchased a privacy fence from Builders Square which subsequently was installed by an independent contractor who had contracted with Installed Sales, a division of Builders Square. On December 12, 1993, the plaintiffs hot water heater went out, and the person who replaced it found that the crawl space under the plaintiffs house had standing water. It was discovered that the sewer line in the plaintiffs yard was filled to the top. The plaintiff called Mr. Wilson of Agape Plumbing, who tried to snake out the sewer line but found that it was blocked by a fence post which was part of the privacy fence installed in 1991. The next day Builders Square removed the post and cement, and Wilson repaired the damaged pipe. At the time of repair, Wilson saw a small hole in the crawl space under the plaintiffs house that was partially full of water. A few days later he pumped out the crawl space. Most of what he removed was water. Normally, if the sewage is excessive, Wilson applies dehydrated lime to Mil the bacteria. In this case, there was not much sewage, so he used Pine-Sol to disinfect the area. Wilson testified that once the sewer line is repaired and the cleanup is done, in cases like this, the problem is resolved.

The plaintiff smelled odors and found what appeared to be mold or fungus spots on the [860]*860walls of Ms house between 1991 and 1993. He also complained that during this time his plaster walls cracked. Further, the plaintiff testified that the mold spots on the wall and the cracking plaster continued to the time of trial, December 31, 1996, and that the odors still existed, although not as noticeably. It is this latter evidence that is dispositive of this appeal.

The plaintiff contends that his house was diminished in value because of odors, mold spots, and cracking plaster.1 The defendant maintains that the trial court erred in denying its motion for directed verdict and motion for judgment notwithstanding the verdict because there was insufficient evidence that the water under the plaintiffs house caused the mold, odors and cracking plaster. It argues that in tMs case, proof of the causal connection can only be established by expert testimony.

On appeal from a jury trial, we consider the evidence in the light most favorable to the verdict below. Swope v. Emerson Elec. Mfg. Co., 303 S.W.2d 35, 37 (Mo.1957), cert. denied, 355 U.S. 894, 78 S.Ct. 268, 2 L.Ed.2d 192 (1957). If a plaintiff fails to adduce substantial evidence supporting each element of Ms claim, then the case should not have been submitted to the jury. Delisi v. St. Luke’s Episcopal-Presbyterian Hosp., Inc., 701 S.W.2d 170, 173 (Mo.App.1985).

Actionable negligence requires proof of a causal connection between the conduct of the defendant and the resulting injury to the plaintiff. Mediq PBN Life Support Serv., Inc. v. Abrams, 899 S.W.2d 101, 107 (Mo.App.1994). The plaintiff is required to present substantial evidence from which a jury could conclude that the damage to the house resulted from the blocked sewer pipe. See Kircher v. Purina Mills, Inc., 775 S.W.2d 115, 117 (Mo. banc 1989).

The plamtiff alone provided the testimony that the odors, cracking plaster, and brown mold spots were caused by the sewer blockage, and that he first became aware of the problem sometime between 1991 and 1993. The operative facts supporting the causal connection are that the onset of the damage was in close proximity to the negligent act and that the sewer water standing under the house caused molds and created unpleasant odors. However, in December 1993 the crawl space was cleaned out and disinfected, resolving the apparent cause of the problem. There was no other evidence supporting the connection between the defendant’s negligence and the damages after the sewer line was repaired and the crawl space cleaned out. We are left without any evidence connecting the damages that continued past the clean-up and repairs in December 1993.

Proof of a fact, which is essential to submitting an action, may not rest on speculation or conjecture, W & S Investment Co., Inc. v. Mushrush, 669 S.W.2d 601, 604 (Mo.App.1984), and without minimum proof that “but for” the sewer line blockage, the odors and mold would not have occurred, the jury was left to speculate as to the cause of the damages. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 862 (Mo. banc 1993). Proximate cause requires at a minimum that the defendant’s negligence was the cause of the plaintiffs damages. Id. at 862. However, proximate cause also requires that the plaintiffs damages are a “reasonable and probable consequence” of the defendant’s negligence. Id. at 865.

The plaintiffs evidence must support the proposition that the damages that continued from the date of the cleanup for over two years to the date of the trial, were the reasonable and probable consequence of the sewer line blockage. There was substantial and uncontradicted evidence that the cause of the problem was resolved in December 1993, when the crawl space was pumped out [861]*861and disinfected.2 The sufficiency of the plaintiffs evidence to support the causal connection between the sewer blockage and damage existing to the time of the cleanup is questionable. However, there was no evidence linkage between the injuries and the damages occurring after the cleanup, and thus there was no basis for submission of any of those damages to the jury. Because there was no evidence, let alone competent and substantial evidence, the jury was left to speculate as to the cause of the problems that continued for over two years after the sewer line had been repaired. The plaintiffs evidence was lacking in that the plaintiff failed to present sufficient evidence linking the problems in his house after the repairs to the sewer blockage.3

In the defendant’s second point, it argues that the trial court erred in denying its motion for directed verdict and motion for judgment notwithstanding the verdict because there was not sufficient evidence to support the jury instruction regarding apparent agency between the defendant and its independent contractor.

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Bluebook (online)
943 S.W.2d 858, 1997 Mo. App. LEXIS 703, 1997 WL 191801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-builders-square-inc-moctapp-1997.