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Hoffman v. Union Electric Co.1/4/2005
Opinion Vote: REVERSED AND REMANDED.
Gaertner, Sr., P.J., concurs.
Sullivan, J., dissents in a separate opinion.
Opinion:
Theodore and Deborah Hoffman appeal the summary judgment denying their claim of negligence against Union Electric Company d/b/a AmerenUE ("UE") for the wrongful death of their daughter. We reverse and remand.
I. BACKGROUND
The Hoffmans' daughter died from injuries sustained when the car she was riding in struck a UE utility pole and overturned. The pole broke, the electric line fell onto the car, and the car caught fire. The pole carried two circuits. UE's regional dispatcher received an alarm regarding one of the circuits, and customers complained that lights were out, indicating an outage on the other circuit. Each of these circuits "locked open" within minutes of the accident, de-energizing the circuits. Once locked open, a circuit is dead until it is manually closed. Lightening striking or contact with a parallel line could also re-energize a deadened line. UE's construction supervisor was notified by the local police dispatcher that there had been an accident, that there were people trapped inside the car and that lines were down. He contacted the UE regional dispatcher, told him that there was accident and headed to the scene. Emergency personnel who had responded to the accident did not know whether or not the line was energized and could not immediately extricate Hoffman from the car or provide medical treatment to her. When the UE employee arrived at the scene, he used a fiberglass stick from one of the fire trucks to remove the line, and emergency personnel extricated Hoffman from the car. Approximately 30 minutes had elapsed by that time.
In their petition, the Hoffmans alleged that UE knew the line was de-energized and had a duty to notify emergency personnel that it was safe to assist Hoffman. UE moved for summary judgment, arguing that it had no duty to encourage emergency personnel to take a risk that its own employees would not take or to provide emergency personnel with information from which they could decide whether to take such risks. It also claimed that the undisputed evidence showed that, even if emergency personnel had been told that the line was dead, they would not have attended to Hoffman before the line was removed. The court granted the motion, and this appeal followed.
II. DISCUSSION
The propriety of summary judgment is a question of law, and our review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp.,854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for determining the propriety of summary judgment on appeal are no different than those used at the trial level. Id. UE, as the defending party, may establish a right to judgment by showing (1) facts that negate any one of the elements of the plaintiff's claim, (2) that the plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of those elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support a properlypled affirmative defense. Id. at 378. Although we view the record and construe all inferences favorably to the non-movant, facts set forth in support of the summary judgment motion are taken as true unless contradicted by the non-movant's response. Id. at 376, 382-83.
A. Duty
In a negligence action, the plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, that the defendant failed to perform that duty and that this f
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