Nick Savage v. Kansas City Power & Light Company , 2017 Mo. App. LEXIS 31 ( 2017 )

In the
Missouri Court of Appeals
Western District

NICK SAVAGE, 
 WD79299
Appellant,  OPINION FILED:
v. 
 January 17, 2017
KANSAS CITY POWER & LIGHT 
COMPANY, 

Respondent. 

Appeal from the Circuit Court of Clay County, Missouri
The Honorable Larry D. Harman, Judge
Before Division Three:
Alok Ahuja, P.J., Victor C. Howard, and James Edward Welsh, JJ.
Nick Savage appeals from the circuit court’s judgment following a jury trial in which the
jury assessed zero percent fault to Kansas City Power and Light (KCP&L) and 100 percent fault
to Savage on Savage’s personal injury claim against KCP&L. Savage contends that the circuit
court erred in submitting KCP&L’s comparative fault instruction to the jury because the
instruction was not supported by substantial evidence and attributed a duty to him that did not
exist. We affirm.
The evidence established that Savage lived at the corner of NE 45th Street and
Bellefontaine in Kansas City, Missouri, which is within the Northland Service Center of
KCP&L’s electrical grid. On the north side of Savage’s home, a primary, uninsulated distribution
power line (the primary line) runs along 45th Street. The power from this primary line conducts a
high voltage electrical current, too high to go to a house directly. Therefore, the voltage from the
primary line is sent through a transformer that reduces the voltage, which is then ran along
secondary lines. The individual houses in the area get electricity off of secondary lines from
service poles via electrical lines called service drops. For Savage’s house, the service pole is on
the opposite side of the yard from the primary line in the southeast corner of his backyard. The
service drop line runs essentially diagonal across Savage’s yard from the service pole to Savage’s
home.
On Sunday, August 7, 2011, a strong thunderstorm damaged a large silver maple tree in
Savage’s backyard. The tree sat on the side of the yard closest to 45th Street and close to the
primary line. As a result of the storm, a limb from the tree fell on the service drop line that ran
across Savage’s backyard. The weight of the limb pulled the service drop line down and pulled
the electrical connection off of Savage’s house. Although the weather head connection and
electrical meter were pulled off Savage’s house, the service drop line remained connected. The
loose and damaged service drop line wire was down across Savage’s yard and draped over a
children’s swing set. As a result of the damage, Savage did not have any electrical power in his
house.
Savage telephoned KCP&L and reported that he had no electrical power in his house and
that the electrical box and the service drop line had been ripped off the back of his house because
of the storm damage. Later that evening, a KCP&L lineman arrived to investigate the
circumstances. The lineman testified that he could not recall working at Savage’s house, but
Savage testified that the lineman left the live service drop line down, told Savage to stay out of
the backyard, and told him that someone would be out in the next couple of days to take care of
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things. When Savage inquired who would be responsible for cleaning up the tree and getting the
electrical box and connection back on the house, the lineman told Savage that the homeowner
would be responsible for doing those things.
The next day, on Monday, August 8, Savage called KCP&L again, reported that the
downed service drop line was making some noises, and asked when KCP&L would be sending
someone out to work on it. KCP&L said that they would send someone out to get it taken care of
and told Savage that he was responsible for taking care of the tree “and getting everything fixed
back the way it should be.”
On Tuesday, August 9, KCP&L Lineman Gerald Peterson went to Savage’s house to
disconnect the live service drop line. He removed the live service drop line that had been draped
on the swing set and coiled it up and put it at the foot of the service poll. At that point, Peterson
let Savage know that it was safe to work in the backyard. Peterson told Savage that it was his
responsibility “to put the riser and the new meter can [up]” and “to mount the riser up to the
weather head” with the wire to give KCP&L a point of attachment for the service drop. Peterson
informed Savage that, once all of that was done, Savage should call KCP&L and someone would
come back and reconnect his service line to the weather head.
At trial, Peterson did not deny that he told Savage that he would be responsible for
cleaning up the tree; Peterson merely said he did not remember telling Savage that. Peterson
said that he did not recall any conversations with Savage about his plans for trimming the tree,
but Peterson said nothing was said about Savage climbing and trimming trees. Peterson also said
that he did not have any conversations with Savage telling him that he needed to notify KCP&L
before trimming any tree. Peterson acknowledged that he did not pay attention to how many
broken limbs there were, how many broken tree limbs were in the tree hanging loose, or whether
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there were any tree branches growing off the big tree that were still growing over the service
drop area of Savage’s house. Although Peterson said that he could not remember whether there
were any tree limbs hanging over the area where the service drop line would be, Peterson said
that, before attaching the service drop line, “you usually look up and see if there’s anything in the
way,” and, from what he could tell, “it was clear.” Peterson said that, if the point of attachment
had been on Savage’s house, he could have reattached the service drop line at that time. Peterson
also said that he never looked at the branches of tree to see where they were in relationship to the
primary line.
Later that morning, Savage, with the help of his father, his brother, and a friend, began
cleaning up the backyard. Savage cleaned up the area of the yard under where the service drop
line would be restrung. Savage then took photographs of the area that showed that the yard
beneath where the service drop line would be reconnected had been cleaned up. After cleaning
up the service drop area, Savage decided to trim branches on the tree “that hung over the power
line or where the drop line was supposed to go” and to “clean up all the limbs on [the] house side
of the tree” to eliminate future problems. Savage used a ladder to climb up into the tree and used
a small rope, tied from his belt to a small chain saw, to lift up the chain saw for use in the tree.
After climbing into the tree, Savage climbed onto a large branch closest to the service drop and
his house. Savage cut a couple of branches over the service drop area. He then moved to the
“parent branch” of the tree to cut the “subject limb”1 that resulted in his injuries. The “subject
limb” had not been damaged in the storm. Savage acknowledged that he knew where the
primary line was and knew that the “subject limb” could come into contact with the primary line
1
Throughout the trial, the parties referred to the limb that caused Savage’s injuries as the “subject limb.”
For consistency purposes, we will also refer to the limb as the “subject limb.”
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when he was cutting it. Savage said, however, that he believed the “subject limb” would only
brush against it. As Savage prepared to cut the “subject limb,” he wrapped his left arm and left
leg around the trunk of the “subject limb” to secure himself, and, with his right foot standing on
the “parent branch” and holding the chain saw above his head, he began cutting the “subject
limb.” Savage took no other precautions to prevent himself from falling out of the tree. When
he cut the “subject limb,” the limb fell onto the high voltage primary line, conducting electricity,
and electrocuting Savage. Savage was rendered unconscious and fell from the tree, falling about
25 feet.
As a result of the incident, Savage suffered electrical burns to his left arm and left leg,
and he had compression fractures at levels T-10 and T-11, resulting in the severance of his spinal
cord leaving him paralyzed and losing the use of his legs.
Savage never told Peterson that he intended to prune the tree near the primary line.
According to Peterson’s notes taken after Savage was injured, Peterson stated, “when I left that
morning, nothing was said about the customer cutting trees.” According to Peterson, if KCP&L
had known Savage was going to prune the tree over the primary line, Peterson would have told
Savage to contact a qualified tree service or to contact KCP&L for help.
At trial, Savage acknowledged that one way to direct a cut branch away from electrical
lines would have been to use a rope to pull it in the direction that you wanted to go. Savage
acknowledged, however, that he did not do that when cutting the “subject limb.” Savage also did
not the cut the branch in a manner that it would tend to fall away from the overhead line.
Savage’s expert acknowledged that Savage did not make a clean cut of the subject limb; rather,
Savage cut the limb so that it hinged and dropped in an arc into the primary line. According to
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Savage’s own expert, a clean cut depends on doing an undercut first and then an overcut to
prevent it from hinging.
Savage filed a petition for damages against KCP&L for personal injuries resulting from
the electrical shock that caused him to fall from the tree. Savage alleged that KCP&L
maintained the primary uninsulated power line adjacent to Savage’s Property; that tree limbs
from Savage’s tree were close to and above the primary line presenting an unreasonable risk of
harm, and that it was reasonably foreseeable that persons would be trimming tree limbs of the
tree in the backyard. Further, Savage alleged that the tree limb came into contact with the
primary line because of KCP&L’s failure to maintain a clearance between the tree limbs and the
primary line. KCP&L alleged in its answer as an affirmative defense that Savage bore the
responsibility for his injuries because he failed to notify KCP&L that he would be performing
work in the trees near the power line.
A jury trial was held on August 24, 2015, through September 2, 2015. Savage offered
Instruction No. 6, a comparative-fault-modified verdict director instruction setting out
disjunctive allegations of negligence by KCP&L, which was given by the court. Instruction No.
6 read:
In your verdict, you must assess a percentage of fault to [KCP&L]
whether or not [Savage] was partly at fault, if you believe:
First either
[KCP&L] failed to use natural directional pruning to prune the parent
branch to the tree trunk, or
[KCP&L] failed to prune the subject branch back to the parent branch, or
[KCP&L] failed to tell [Savage] that [KCP&L] would do the necessary
pruning or removal to clear the service drop, or
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[KCP&L] failed to warn [Savage] not to prune tree limbs in the Silver
Maple, and
Second, [KCP&L], in any one or more of the respects submitted in
paragraph First, was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause
damage to [Savage]. The term “negligent” or “negligence” as used in this
instruction means the failure to use the highest degree of care. The phrase
“highest degree of care” means that degree of care that a very careful person
would use under the same or similar circumstances.
KCP&L offered Instruction Number 7, a comparative fault instruction, which was also
given by the circuit court. Instruction Number 7 said:
In your verdict, you must assess a percentage of fault to [Savage] whether
or not [KCP&L] was partly at fault, if you believe
First, [Savage] either,
Failed to notify [KCP&L] of his plan to prune the Silver Maple, or
Cut the subject tree branch in such a way that it contacted the
primary distribution power line, or
Failed to use a rope to keep the cut branch from contacting the
power line, or
Failed to secure himself to the tree while pruning the subject tree
branch, and
Second, in any one of or more of the respects submitted in paragraph First,
[Savage] was thereby negligent, and
Third such negligence directly caused or directly contributed to cause any
damage [Savage] may have sustained.
The term “negligent” or “negligence” as used in this instruction means the
failure to use that degree of care than an ordinarily careful person would use
under the same or similar circumstances.
Savage objected to the court’s giving Instruction Number 7, arguing that no evidence supported
the proposition that he had a duty or responsibility to notify KCP&L of his plan to prune the tree
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and that the submission that he failed to secure himself to the tree while pruning was a roving
commission.
The jury returned a verdict for KCP&L, finding zero percent fault on the part of KCP&L
and 100 percent fault to Savage. Savage filed a motion for new trial alleging instructional error
based upon the circuit court’s submission of Instruction Number 7 to the jury. The circuit court
denied Savage’s motion for new trial. Savage appeals.
In his sole point relied on, Savage asserts that the circuit court erred in submitting
KCP&L’s comparative fault instruction, Instruction Number 7, to the jury because the instruction
was not supported by substantial evidence and attributed a duty to him that did not exist.
Whether a jury was instructed properly is a question of law that we review de novo.
Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 90 (Mo. banc 2010). When reviewing
claims of instructional error, we will reverse a jury verdict on the ground of instructional error if
the error resulted in prejudice that "materially affected the merits of the action." Coomer v.
Kansas City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo. banc 2014).
We need not address Savage’s contentions that KCP&L’s comparative fault instruction
was not supported by substantial evidence because, even if the instruction was erroneous, Savage
cannot show that the alleged erroneous instruction resulted in prejudice that materially affected
the merits of the action.
The Missouri Supreme Court has emphatically stated that, where a plaintiff’s verdict
directing instruction requires a jury to assess a percentage of fault to the defendant if the jury
believes certain factual propositions and the jury assesses no fault to the defendant, the jury
verdict assessing no fault to the defendant negates any claim of prejudice to plaintiff in the
giving of a comparative fault instruction, even if the instruction was erroneous. Wilson v.
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Shanks, 785 S.W.2d 282, 285 (Mo. banc 1990); Lee v. Mirbaha, 722 S.W.2d 80, 82-84 (Mo. banc
1986); and Barnes v. Tools & Machinery Builders, Inc., 715 S.W.2d 518, 520-22 (Mo. banc
1986). As the Wilson court explained:
[W]e must assume the jury followed the instructions. Instruction No. 8 required
some assessment of fault to defendant if the jury found the facts hypothesized to
be true. The assessment of fault was not dependent upon and made no reference
to Instruction No. 10. The jury necessarily must have concluded that one of the
essential propositions was not established when it failed to assess any fault to
defendant. Absent some assessment of fault to defendant, there was no prejudice
in giving the contributory fault instruction.
785 S.W.2d at 285.
All three districts of the Court of Appeals have followed the Missouri Supreme Court’s
directions without exception. See Rouse v. Cuvelier, 363 S.W.3d 406, 413 (Mo. App. W.D. 2012)
(“‘Any error in submitting a comparative fault instruction is harmless when the jury returns a
verdict attributing one hundred percent fault to the complaining party.’”); Marion v. Marcus, 199
S.W.3d 887, 896 (Mo. App. W.D. 2006) (Because the jury returned a verdict in favor of
defendants, “‘the jury was never required to reach the question of apportionment of fault.’
Therefore, although the instruction contained an error, the jury never needed to consider the
erroneous instruction. The error resulted in no prejudice.”); Powderly v. S. Cty. Anesthesia
Assocs., Ltd., 245 S.W.3d 267, 279 (Mo. App. E.D. 2008) (“The absence of any assessment of
fault to Defendants negates any claim of prejudice to Plaintiffs in giving the erroneous
comparative fault instruction.”); and Skinner v. Leggett & Platt, Inc., 325 S.W.3d 520, 525 (Mo.
App. S.D. 2010)2 (“[T]he verdict in this case, finding zero fault in Respondent, negates any
allegation of error in giving a comparative fault instruction.”).
2
Savage noted that the Southern District in 1986 was less than enthusiastic following the Missouri Supreme
Court’s mandate when it stated in Bushong v. Marathon Elec. Mfg. Corp., 719 S.W.2d 828 (Mo. App. 1986) that
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Thus, in this case, the comparative fault instruction “did not materially affect the merits
of the action because had the comparative fault instruction not been given, the jury would have
simply rendered a verdict in [KCP&L’s] favor, since they found that [Savage] did not meet his
burden to show that [KCP&L’s] alleged negligence was in any way the cause of the accident.”
Rouse, 363 S.W.3d at 413.
Savage argues that the rule that the absence of any assessment of fault to a defendant
negates any claim of prejudice to a plaintiff in the giving of the erroneous comparative fault
instruction has become “increasingly generic” and that the rule is not applicable in this case
because the comparative fault instruction directly affects the verdict directing instruction given to
the jury. In support of this contention, Savage relies on Instruction Number 2, which was given
to the jury and instructed the jury that each instruction was “equally binding upon you” and that
the jury “should consider each instruction in light of and in harmony with the other instructions”
and “apply the instructions as a whole to the evidence.” The instruction also stated that the
“order in which the instructions are given is not indication of their relative importance.” Savage
asserts that Instruction Number 2 required the jury to review and consider both Instruction
Number 7 and Instruction Number 6. Savage argues:
There was no indication or instruction to the jury that if they found for [KCP&L]
under Instruction No. 6, they could skip over to the verdict form. . . . The way the
instructions were presented to the jury, in parallel, there was no distinction for
what order they must be evaluated in—and there was no indication to the jury that
they did not consider the erroneous Instruction No. 7 and the effect that it had on
Instruction No. 6.
“under the constraint of the [law], this court reaches the reluctant conclusion that although Instruction No. 7
[(arguing disjunctive theories of negligence on the part of plaintiff)] was not supported by the evidence and was
erroneous, the error was not reversible” when the jury did not otherwise contribute to a general verdict for the
defendant. Id. at 838. Enthusiastic or not, the Bushong court was bound to follow the most recent controlling
decision of the Missouri Supreme Court. Indeed, the decisions of the Missouri Supreme Court are "controlling in all
other courts," and we are constitutionally bound to follow those decisions. Mo. Const. art. 5, § 2; Overlap, Inc. v.
A.G. Edwards & Sons, Inc., 318 S.W.3d 219, 224 n.7 (Mo. App. 2010).
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Instruction Number 2, however, is given in all Missouri cases since at least 1980 and would have
been read to juries in every Missouri case, including all the cases that we noted above.
Savage also argues that he was prejudiced by errors in Instruction No. 7, despite the
jury’s assessment of zero fault to KCP&L, because the wording of Instruction No. 7 diminished
or extinguished KCP&L’s duties as described in Instruction No. 6. In particular, Savage argues
that Instruction No. 7’s statement that he may have been negligent by “[f]ail[ing] to notify
[KCP&L] of his plan to prune the Silver Maple” negated the specification in Instruction No. 6
that KCP&L could be negligent for “fail[ing] to warn plaintiff not to prune tree limbs on the
Silver Maple.” We fail to see the necessary linkage between these aspects of Instruction Nos. 6
and 7. Nothing in the instructions indicates that KCP&L’s duty to warn was contingent on
Savage first having notified the company of his intention to prune the tree. Instead, any duty to
warn could exist independently of Savage’s duty to notify KCP&L of his specific intentions.
Savage cannot establish prejudice from any errors in Instruction No. 7 on the theory that
Instruction No. 7 somehow influenced the jury’s reading of the specifications of negligence in
Instruction No. 6.
Further, as explained by the Missouri Supreme Court, where a verdict directing
instruction is self-contained, any alleged error in the comparative fault instruction does not
require reversal “because the jury found no basis for liability against the defendant and returned
a general verdict for the defendant under instructions not dependent on” the comparative fault
instruction. Barnes, 715 S.W.2d at 521. In Barnes, the plaintiff claimed that the definition of
“negligence” in the comparative fault instruction had confused the jury and undermined the
verdict directing instruction. Id. The Missouri Supreme Court rejected this argument, noting
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that because the verdict directing instruction was self-contained, it could not have been affected
by errors in the comparative fault instruction:
The plaintiff's problem is that Instruction No. 6 is a full and complete verdict
director which commands the jury to return a verdict for the plaintiff if it finds the
four facts there hypothesized. It contains no "tail" referring to erroneous
Instruction No. 8. The jury returned an unequivocal verdict for the defendant,
actually writing in the defendant's name as prevailing party. We must assume that
it followed its instructions and would have assessed a percentage of fault against
the defendant if it had found that the four hypotheses were established. The jury
must necessarily have concluded that the plaintiff did not establish at least one of
these four propositions by proof meeting the required standard.
Id.
The same is true in this case. The verdict directing instruction did not refer to any other
instructions and certainly not to the comparative fault submission in Instruction Number 7. The
verdict director instructed the jury to find for plaintiff “whether or not plaintiff was partly at
fault.” Thus, like the verdict director in Barnes, Instruction No. 6 was “full and complete” and
stood on its own without any reference to any other instruction.
The directive that the jury consider KCP&L’s fault independently of any assessment of
fault to Savage is repeated on the verdict form itself. Following MAI 37.07, the verdict form
begins with the following explanatory note:
Complete the following paragraph by filling in the blanks as required by your
verdict. If you assess a percentage of fault to any of those listed below, write in a
percentage not greater than 100%, otherwise write in “zero” next to that name. If
you assess a percentage of fault to any of those listed below, the total of such
percentages must be 100%.
The verdict form then indicates that the fault assessed by the jury to all parties must total “zero
OR 100%.” Thus, the verdict form makes clear that the jury could assess zero fault to KCP&L
without considering whether any assessment of fault to Savage was warranted under Instruction
No. 7. We presume the jury followed the instructions and would have assessed a percentage of
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fault against KCP&L if it found that Savage had proven one or more elements of his claim. The
jury, however, found for KCP&L by expressly writing in “0%” fault on the verdict form. We,
therefore, conclude that the absence of any assessment of fault to KCP&L would negate any
claim of prejudice to Savage in the giving of the comparative fault instruction, even if the
instruction was erroneous.
We affirm the circuit court’s judgment.
/s/ JAMES EDWARD WELSH
James Edward Welsh, Judge
All concur.
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