Lane v. G & M Statuary, Inc.

156 S.W.3d 498, 2005 Mo. App. LEXIS 324, 2005 WL 459063
CourtMissouri Court of Appeals
DecidedFebruary 28, 2005
DocketNos. 26242, 26244
StatusPublished
Cited by1 cases

This text of 156 S.W.3d 498 (Lane v. G & M Statuary, 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
Lane v. G & M Statuary, Inc., 156 S.W.3d 498, 2005 Mo. App. LEXIS 324, 2005 WL 459063 (Mo. Ct. App. 2005).

Opinion

NANCY STEFFEN RAHMEYER, Judge.

Earl F. Lane (“Lane”) claimed an injury from a lightning strike or lightning current while he was employed by G & M Statuary, Inc. (“G & M”). The Commission awarded permanent partial disability benefits, six weeks of temporary total disability and future medical care. Both parties appeal. We affirm.

Lane appeals the finding of permanent partial disability because he claims the award was inconsistent with the testimony that he requires further psychological care that potentially could change the extent of his permanent disability. Lane also finds error in the award of only six weeks temporary total disability because he maintains that the evidence indicated that he was unable to work from four days after the accident through the date of the hearing, over three years later.1

G & M, on the other hand, challenges any award. In its first two points, G & M uses the defense that a lightning strike is an act of God and thus, not compensable unless Lane was able to show that he was at a greater risk to a lightning strike or electrical current than the general public. First, G & M contends there was no factual finding by the Commission that Lane’s employment subjected him to a greater risk to lightning strike or electrical current, direct or indirect, than that to which the general public in the same vicinity would be exposed and, second, there was no substantial or competent evidence that Lane’s employment subjected him to the necessary greater risk than the general public. G & M’s third point is that substantial evidence does not support the Commission’s finding that an injury occurred at all to Lane from a lightning or electrical current.

For ease of discussion of the facts, we shall begin with G & M’s claim that substantial evidence does not support Lane’s claim that he was injured by lightning or electrical current. The Commission found that Lane met his burden of proving that a sudden, unexpected event occurred on June 10, 1999, which was a lightning strike or electrical current and which instantly struck Lane in the course and scope of employment.2 When review[502]*502ing the Commission’s factual findings, we determine whether the factual findings are supported by substantial evidence after considering all the evidence in the light most favorable to the Commission’s award. Smith v. Tiger Coaches, Inc., 73 S.W.3d 756, 761 (Mo.App. E.D.2002). The testimony supporting a finding that there was a lightning strike or electrical current which injured Lane during the course and scope of his employment, includes the testimony of Lane, Dennis Rantz (“Rantz”), Jason Burtless (“Burtless”) and Steve Myers (“Myers”).

Lane testified that he was holding a metal hoe and standing on a wet concrete floor, approximately two feet from an open doorway in a metal building. It was a common occurrence to have water on the ground because water was used as an ingredient to pour into the concrete mixer and also to wash the mixer off in the mid-afternoon. Lane testified that he did not see or hear the lightning strike, but felt a jolt before being thrown onto bags of concrete stacked against the wall behind him. He also testified that Rantz laughed and told Lane he “lit up like a Christmas tree” when the lightning struck him.

While Rantz admitted laughing at Lane, he testified that he only laughed because he thought the thunder had scared Lane and he further denied ever making a statement about Lane being hit by lightning or lighting up like a Christmas tree. Rantz testified that he was looking directly. at Lane when the event occurred. There was a loud clap of thunder, then Rantz saw the metal hoe fly out of Lane’s hands and a look of shock on Lane’s face. Immediately after the incident, Lane appeared frightened and sat on the concrete bags for several minutes. Lane’s whole body shook as if he had the chills. Rantz denies that Lane was hit by lightning; however, following the incident, Rantz gave a report to his wife, Robyn, who writes the report for administration of workers’ compensation claims for G & M, which indicated that Lane had been struck by lightning.3

Burtless, Lane’s son-in-law and a seven-year G & M employee, testified that he saw both Lane and Rantz after the incident. He stated Rantz told him that he thought Lane had been hit by lightning and that Lane had a little blue aura surrounding him. Burtless testified that Lane looked very dazed. Likewise, immediately following the incident, Myers, another employee of G & M, testified that he had heard someone say that Lane was struck by lightning. Rantz admitted he could have been the one to state that Lane was struck by lightning, but not that he saw Lane hit by lightning.

After the incident, Lane rested for approximately twenty minutes, but refused any medical treatment and finished his shift. Lane reported to work and did “light duty” activities on the next day, but he began to feel stiff and sore after the following weekend. Lane could not get out of bed on Monday and complained about the symptoms that are the subject of the claim for permanent partial disability. The testimony of the events that occurred on and after June 10, 1999, supports a finding that Lane was injured by a sudden unexpected event, which was a lightning strike or electrical current, in the course [503]*503and scope of his employment. G & M’s Point III is denied.4

We next turn to G & M’s first two points that the award was caused by an act of God and is, therefore, not com-pensable. An act of God had been defined as an occurrence due to natural causes against which ordinary skill and foresight is not expected to provide. Corrington v. Kalicak, 319 S.W.2d 888, 892 (Mo.App.1959). An injury or death caused by an act of God is not compensable in a workmen’s compensation case unless it is shown that the character of the employment subjected the employee to hazards from the causative natural force greater than those to which the general public in the same vicinity is exposed. Reich v. A. Reich & Sons Gardens, Inc., 485 S.W.2d 133, 135-36 (Mo.App.1972).

Even though lightning falls within the category of an act of God, in certain conditions it may be considered an accident arising out of and in the course of the employment as required by the Workers’ Compensation Act. Felden v. Horton & Coleman, Inc., 234 Mo.App. 421, 135 S.W.2d 1115, 1117 (1939). In order to assert an “Act of God” defense, the human actor must have exercised due care prior to the intervention of the super-human cause. Arthur v. Royse, 574 S.W.2d 22, 23 (Mo.App.1978). This defense is only available where the event is so extraordinary that “ ‘the history of climatic variations in the locality affords no reasonable warning of their coming’ ” and the event is not humanized by the participation of man. McCutcheon v. Tri-County Group XV, Inc., 920 S.W.2d 627, 632 n. 2 (Mo.App. S.D.1996) (quoting Corrington v. Kalicak,

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Bluebook (online)
156 S.W.3d 498, 2005 Mo. App. LEXIS 324, 2005 WL 459063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lane-v-g-m-statuary-inc-moctapp-2005.