Appendix — Prayson v. Kansas City Power & Light Co.

)

9 2 = L U 6 0 Sere Court, U.S

No.

Pree n" |

JUN 2 1 1993

IN THE OFFICE OF Tit sa

SUPREME COURT OF THE STATES. -~

October Term, 1992

JAMIE MARIE (BUNGER) PRAYSON,

and JASON DEAN (BUNGER) PRAYSON,

Petitioners,

VS.

KANSAS CITY POWER & LIGHT COMPANY,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

(Volume 2 of 2)

William H. Pickett

Counsel for Petitioner

600 Griffith Building

405 East Thirteenth Street

Kansas City, Missouri 64106

816-221-4343

APPENDIX TABLE OF CONTENTS

Se i vaeincticnniininreriiaseencabtiereunitictadeieshousmnasianensnsoanicaninas i

Appendix Volume I

Opinion of the Missouri Court of

Appeals, Western District....................ccccccccccsssssssssscosscsssessnees 1

Order of the Supreme Court of Missouri

Trial Court’s Order Denying KCP&L’s

Motion for Summary Judgment on the

issue of whether the inherently danger-

Ous activity exception was a valid cause

of action in Missouri (1/10/91)...........0..c.cccccccccscesesseseeececeeeeees 29

Plaintiffs’ Proposed Second Amended

a eaieasMn Abaca arial hia lctlanndnisniidobioensiosdinsinsisarviinescéens 31

Trial Court’s Order Denying Leave to

File Second Amended Petition.................0.0..cccccccccceseseseeseseeees 43

Appendix Volume II

Plaintiffs’ Third Amended Petition...............0..0.0.cccccccccccseseeees 49

Judgment on Jury Verdict (2/13/91)......0..0.ccccccccececcsseseeseseeees 59

Plaintiffs’ Suggestions in Opposition to

the Retroactive Application of Zueck v.

Order Granting Judgment N.O.V. in favor

of KCP&L on the basis of retroactive ap-

SI ons ccncssnsucesassnsssveesessesesesesvesocessesesssesese.e.., 71

Motion to Transfer to Missouri Supreme

SRN htidasddisassinsscsssvpassnicssvesasscaoeeseceveseosoeeeessese: 74

Suggestions in Support of Motion to

Transfer to Supreme Court...0....0.......cccccccccccccecececececeeecseeee. 84

IN THE CIRCUIT COURT OF JACKSON COUNTY,

MISSOURI AT KANSAS CITY

JAMIE MARIE PRAYSON, )

et al., )

)

Plaintiffs, ) No. CV88-1295

) Civil F

VS. ) Division 15

)

KANSAS CITY POWER & )

LIGHT COMPANY, )

)

Defendant. )

THIRD AMENDED PETITION FOR DAMAGES—

WRONGFUL DEATH

(Vicarious Liability)

Ballinger v. Gascosage Electric Cooperative,

788 S.W.2d 506 (Mo. 1990)

(8109)

COME NOW the plaintiffs, Jamie Marie Bunger and

Jason Dean Bunger, by and through their Next Friend and

Mother, Mary Jane Prayson, and for this Third Amended

Petition for Damages against the defendant, state and allege:

1. That plaintiffs are residents of Jackson County,

Missouri.

2. Plaintiffs are the natural children of decedent Larry

Dean Bunger, and, therefore, the proper parties to bring this

suit for wrongful death under §537.080(1) Mo.Rev.Stat., and

Appendix — 49

plaintiffs bring this cause of action on behalf of all other proper

party plaintiffs who are entitled to join by virtue of the laws of

the State of Missouri in this action for the wrongful death of

Larry Dean Bunger.

3. That defendant Kansas City Power & Light

Company is a corporation incorporated under the laws of the

State of Missouri and, was and is, in the business of generating,

transmitting, distributing, and selling electricity to its patrons

throughout portions of the State of Missouri, including Jackson

County, for use as power and lighting purposes, therefore,

transacting business within the State of Missouri and that

defendant has made and is making contracts within the State of

Missouri; that defendant has committed tortious acts in the

State of Missouri; that all of the foregoing acts give rise to the

cause of action alleged by plaintiffs in this petition; and further,

that under §506.150 Mo.Rev.Stat., defendant has submitted

itself to the jurisdiction of this Court.

4. That defendant was the owner of the wires,

transformers and other equipment on a pole located at 9415

Richmond, Kansas City, Jackson County, Missouri, and that

these premises were under the exclusive control of the

defendant by virtue of the work being done there.

Appendix — 50

OO

5. At all times herein mentioned and on or about

January 18, 1985, the plaintiffs’ decedent, Larry Dean Bunger,

was an employee of B & L Electric, Inc. and was acting within

the scope and course of his employment with B & L Electric,

Inc.

6. That prior to January 18, 1985, defendant contracted

with B & L Electric, Inc. for line work including the installing

of lightning arrestors and squirrel proofing of the transformers

on utility power lines.

7. That at all times herein mentioned, the work of

installing lightning arrestors and squirrel proofing of

transformers on utility power lines was an inherently dangerous

activity and involved a substantial risk of damage to the

employees of B & L Electric, Inc., unless special precautions

were taken to guard against such risk; that such inherently

dangerous activities involved in the aforesaid installation of

lightning arrestors and squirrel proofing of transformers on

utility power lines at 9415 Richmond, Kansas City, Missouri,

was reasonably necessary to the performance of the contract

between the aforesaid defendant-owner Kansas City Power &

Light Company and B & L Electric, Inc.

8. That on or about January 18, 1985, at the site of the

utility power line located at 9415 Richmond, Kansas City,

Appendix — 51

Ee

Missouri, plaintiffs’ decedent, Larry Dean Bunger, in the

course and scope of his employment with B & L Electric, Inc.,

was beginning the process of squirrel proofing the transformer

on the utility power line. While thus involved, plaintiffs’

decedent, Larry Dean Bunger, de-energized the transformer by

opening the fuse on the fuse mounting, and while utilizing a

non-insulated wrench with his right hand to loosen a bolt and

pad, the wrench slipped and came in contact with the top of the

fuse mounting which was still energized with electricity.

Because plaintiffs’ decedent, Larry Dean Bunger, was working

in the general vicinity of lethal and dangerous 7,200 volts or

more of electricity at all times while attempting to replace the

wire from the bottom of the cutout to the top of the

transformer, he was in close proximity to said electricity. Due

to the negligent acts and omissions of B & L Electric, Inc. as

specifically set forth herein, plaintiffs’ decedent, Larry Dean

Bunger, was electrocuted when his non-insulated crescent

wrench slipped off of the bottom of the fuse mounting which

was de-energized and made contact with the top of the

energized fuse mounting which was still energized, thereby,

because of its close proximity to the location where he was

working, causing his death when contact with the non-insulated

| ; Appendix — 52

crescent wrench was made with the energized portion of the

top of the fuse mounting.

9. Defendant Kansas City Power & Light Company had

a non-delegable duty to prevent injury to third persons, such as

the decedent Larry Dean Bunger, because of the inherently

dangerous activities to be performed by B & L Electric, Inc. in

accordance with the purchase order between defendant Kansas

City Power & Light Company and B & L Electric, Inc. and that

the negligence of B & L Electric, Inc. is thereby imputed to

defendant Kansas City Power & Light Company.

10. That B & L Electric, Inc. was negligent and careless

in the following respects, to wit:

(a) Negligently failed to supervise and/or monitor the

activities of B & L Electric, Inc. employees to

insure appropriate insulated safety devices such

as rubber gloves or blankets were in use when

working on or around overhead power lines and

equipment that were energized with 7,200 volts

or more;

(b) Negligently failed to supervise and/or monitor the

activities of B & L Electric, Inc. employees to

insure work around energized areas with 7,200

Appendix — 53

(c)

(d)

(¢)

(f)

volts or more was performed in accordance with

applicable safety standards;

Negligently failed to promulgate mandatory

standardized procedures such as de-energizing

the fuse mounting by removing the tap/pelican

from the primary power line when squirrel

proofing transformers;

Negligently failed to supervise and/or monitor

the activities of B & L Electric, Inc. employees to

insure two qualified employees were on a pole

when working on or around energized power

lines and equipment that were energized with

7,200 volts or more;

Negligently failed to supervise and/or monitor the

activities of B & L Electric, Inc. employees to

insure the crew foreman observed and directed

the crew members when working in an energized

area on a pole that was energized with 7,200

volts or more;

Negligently instructed Larry Bunger to begin the

squirrel proofing procedure without removing the

primary line tap/pelican to de-energize the area

around where he was working;

Appendix — 54

(g)

(h)

G)

Negligently supervised Larry Bunger through his

journeyman, Robert Berndt, and foreman, George

Kirkwood, in failing to direct Larry Bunger to de-

energize the area around where he was working

by removing the primary line tap/pelican;

Negligently allowing the squirrel proofing

procedure to oftentimes be participated in by

Larry Bunger, Robert Berndt and George

Kirkwood without de-energizing the area below

the primary line but instead only de-energizing

the area below the bottom of the fuse mounting;

Negligently failing to obtain defendant Kansas

City Power & Light Company safety work rules

pursuant to contract with Kansas City Power &

Light Company and union contract and to enforce

Kansas City Power & Light Company rules for

the work Larry Bunger was doing;

Negligently failed through supervisor, Mike

Kiely, to inform B & L Electric, Inc. employees,

including George Kirkwood, Robert Berndt and

Larry Bunger, that Kansas City Power & Light

Company work and safety rules that made

mandatory the removal of primary line

Appendix — 55

tap/pelican to de-energize the area below the

primary line was to be followed without

deviation on all squirrel proofing work or place

insulating material between the worker and the

energized area.

11. That as a direct and proximate result of the

aforementioned negligence of B & L Electric, Inc. which is

imputed to defendant Kansas City Power & Light Company,

plaintiffs Jamie Marie Bunger and Jason Dean Bunger have

each suffered the following injuries, to wit:

(a) they have lost and will in the future suffer the

loss of pecuniary support of their father; and

(b) they have suffered and will in the future suffer

the loss of services, companionship, comfort,

instruction, guidance, counseling, training, and

support of their father.

12. That as a further direct and proximate result of the

negligence and wrongdoing of B & L Electric, Inc. which is

imputed to defendant, as aforesaid, plaintiffs’ decedent, Larry

Dean Bunger, suffered pain of mind and body, and incurred

expenses for medical care, the exact amount of which is

unknown at this time, and necessary funeral expenses, all to the

Appendix — 56

damage of the plaintiffs, and each of them, pursuant to

§537.090 Mo.Rev.Stat.

13. Plaintiffs further allege under §537.090

Mo.Rev.Stat. that the trier of fact is entitled to consider the

aggravating circumstances in determining the amount of

damages to be allotted to plaintiffs.

WHEREFORE, plaintiffs Jamie Marie Bunger and

Jason Dean Bunger pray for judgment against defendant

Kansas City Power & Light Company in a sum that is fair and

reasonable, taking into account the aggravating circumstances

pertaining to the injuries suffered by Larry Dean Bunger,

which proximately caused his death on January 18, 1985, for

their costs herein incurred and expended, and for such other

and further relief as the Court deems just and proper.

Respectfully submitted,

William H. Pickett #21324

Steve A. Matalone, II #36374

WILLIAM H. PICKETT, P.C.

417 East 13th Street, Suite 400

Kansas City, MO 64106

816/221-4343

Fax #: 816/221-8258

ATTORNEYS FOR PLAINTIFFS

Appendix — 57

I hereby certify that a copy

of the above and foregoing

was hand delivered this 29th

day of January, 1991, to:

Robert P. Gingrich, Esq.

Kansas City Power & Light Company

1330 Baltimore

P. O. Box 418679

Kansas City, MO 64141

ATTORNEYS FOR DEFENDANT

Attorney for Plaintiffs

IN THE CIRCUIT COURT OF JACKSON COUNTY,

MISSOURI AT KANSAS CITY

JAMIE MARIE PRAYSON, )

et al., )

)

Plaintiffs, ) No. CV88-1295

) Civil F

VS. ) Division 15

)

KANSAS CITY POWER & )

LIGHT COMPANY, )

)

Defendant. )

JUDGMENT

Plaintiffs appeared in person and by attorneys, William

Pickett and Steve A. Matalone. Defendant Kansas City Power

& Light appeared by its attorneys, Robert Gingrich and Derek

Woods.

A jury was empanelled and swom. The parties made

their opening arguments. The plaintiffs presented evidence and

rested. Plaintiffs’ motion for directed verdict at the close of

plaintiffs’ evidence was DENIED. Defendant’s motion for

directed verdict at the close of plaintiffs’ evidence was

DENIED.

The defendant presented evidence and rested. Plaintiffs’

motion for directed verdict at the close of all evidence as to

. Appendix — 59

statutory employee was GRANTED. Defendant’s motion for

directed verdict at the close of all evidence was DENIED.

The jury was instructed and closing arguments were

heard. The jury retired to deliberate and returned the following

verdicts:

VERDICT: “On the claim of the survivors of Larry

Bunger for his fatal injury, we, the undersigned jurors assess

percentages of fault as follows: Defendant Kansas City Power

and Light (for the conduct of B & L Electric, Inc. 65%:

Survivors’ Decedent Larry Bunger 35%. Total 100%.

We, the undersigned jurors, find the total amount of

Larry Bunger’s survivors’ damages disregarding any fault on

the part of survivors’ decedent Larry Bunger to be $2 million.

(11 signatures)

The jury was discharged.

A judgment for plaintiffs for $1,300,000 was entered

orally following the verdict on F ebruary 11, 1991.

IT IS THEREFORE ORDERED that judgment be

entered for Plaintiffs Jamie Marie Prayson and Jason Dean

Prayson in the amount of $1,300,000.

Each party shall bear its own cost.

Let execution issue.

Appendix — 60

-

DATE: February 13, 1991

PRESTON DEAN, JUDGE

Copies mailed to:

William Pickett

Robert Gingrich

GLADYS TYREE, Clerk

1

IN THE CIRCUIT COURT OF JACKSON COUNTY,

MISSOURI

AT KANSAS CITY

JAMIE MARIE PRAYSON, )

et al., )

)

Plaintiffs, ) No. CV88-1295

) Civil F

VS. ) Division 15

)

KANSAS CITY POWER & )

LIGHT COMPANY, )

)

Defendant. )

SUGGESTIONS IN OPPOSITION

TO RETROACTIVE APPLICATION

OF ZUECK v. OPPENHEIMER GATEWAY

PROPERTIES, INC., TO THIS CASE

On February 11, 1991, a jury verdict was entered in this

case in favor of Plaintiffs; on the same day, judgment was

entered pursuant to Mo. R. Civ. P. 78.04. On May 3, 1991, the

Supreme Court of Missouri handed down the decision in Zueck

v. Oppenheimer Gateway Properties, Inc., -- S.W.2d -- (Mo.

1991) (en banc), expressly holding that an owner cannot be

held vicariously liable for the injury or death of an employee of

an independent contractor, under the doctrine of inherent

danger, where the injury or death fell within workers’

compensation coverage. The question is whether Zueck is

applicable to this case.

Appendix — 62

Plaintiffs respectfully suggest it is not.

First of all, application of Zueck, resulting in

overturning the jury's verdict in this case, would be a denial of

Plaintiffs' due process rights under Article I, §10 of the

Constitution of the State of Missouri and the Fifth and

Fourteenth Amendments to the Constitution of the United

States. This case was tried under, and with the Court and

counsel relying upon, existing case law, which has

subsequently been overruled by Zueck. But because the verdict

was rendered and judgment entered prior to the Zueck decision

date, Plaintiffs have a vested property right in that judgment. A

taking of that right, first, without just compensation, and

second, without notice, prior to Plaintiffs’ entering into the

time, trouble and expense of litigation, that they would be

deprived of their remedy against Defendant Kansas City Power

& Light Company (hereinafter, "KCP&L"), is a denial of due

process.

The fact situation in this case is analogous to the facts in

Arie v. Intertherm, Inc., 648 S.W.2d 142 (E.D. Mo. App.

1983). In Arie, the plaintiff had obtained a judgment for

punitive damages, and a statute took effect after entry of

judgment prohibiting punitive damages. The Eastern District

held at 159 that the plaintiff had a "vested right” in the punitive

damage award. Although Arie involved the Missouri

constitutional provision banning ex post facto laws,

conceptually the circumstances are similar. Plaintiffs here have

a substantive, vested right in the jury verdict which should not

Appendix — 63

be wiped out by the retroactive application of the elimination

of the theory of vicarious liability involved in this case.

Second, this case was filed under the wrongful death

provisions of §537.080(1), R.S.Mo. 1986. It is suggested that

Zueck can be interpreted to be restricted solely to claims by

those who are employees of the independent contractors, and

not to their survivors. In view of the comparatively recent

amendments to the Wrongful Death Act, ie., 1979, if the

General Assembly had wanted to usurp the rights of the

survivors in this type of factual setting, it would have done so.

But since it is clear that under the law that existed at the time

of the death of Plaintiffs' decedent, he could have sued for

damages had he survived, then it is equally clear that Plaintiffs

herein have a statutory right to proceed with this case. And it

would be a serious denial of due process to retroactively take

away a right granted to Plaintiffs by a clear and unequivocal

Statute.

Third, regardless of whether Zueck is considered a

change of procedural law or substantive law, it has prospective

application only, i.e., to causes of action accruing after May 3,

1991, or at most, limited retroactive application to trials

occurring after that date.

Missouri has adopted the substantive versus the

procedural rule, which provides that if there be a sub-

sequent overruling decision dealing with substantive

principles of law, then the subsequent decision is ret-

roactive in effect...

Appendix — 64

Bethell v. Porter, 595 S.W.2d 369, 375 (W.D. Mo. App. 1980).

The Supreme Court has the authority, even though an

overruling decision deals with substantive principles of law, to

declare that the decision shall have prospective effect only.

Koebel v. Tieman Coal & Material Company, 85 S.W.2d 519,

524 (Mo. 1935); see also, Keltner v. Keltner, 589 §.W.2d 235,

239 (Mo. 1979) (en banc). In making the determination

(prospective or retroactive):

...the decision should be based on the merits of each

individual case [citations omitted]. Generally, it is

considered “undesirable to give retroactive effect to

overruling decisions, except under the most compelling

circumstances.” [Citations omitted].

It has often been held that where particular persons have

acted in justifiable reliance on a subsequently overruled

judicial decision and retroactive application of the

overruling decision would defeat their reliance interests,

such reliance interests should receive adequate

protection, and the overruling decision should be denied

retroactive application in order to prevent such persons

from being subject to unfairness or undue hardship.

Id. at 240.

If the Supreme Court fails to indicate in the decision

creating the new rule whether application of the rule is to be

retrospective or prospective, the determination hinges on the

question of whether the change relates to substantive or

procedural law. State v. Walker, 616 S.W.2d 48, 49 (Mo.

1981) (en banc).

"The distinction between substantive law and

procedural law is that 'substantive law relates to rights

and duties which give rise to a cause of action,’ while

procedural law ‘is the machinery for Carrying on the

suit." [Citations omitted].

Roth v. Roth, 571 S.W.2d 659, 672 (E.D. Mo. App. 1978).

And the Supreme Court has established standards for

determining whether a new rule of law is to be applied

prospectively or retrospectively:

In order to clarify the issues regarding the

operation of judicial decisions, we adopt a three-factor

test to determine whether an overruling decision of this

Court should be given prospective-only effect. First, the

decision in question "must establish a new principle of

law...by overruling clear past precedent...." Chevron Oil

Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30

L.Ed.2d 296 (1971). Second, the Court must determine

whether the purpose and effect of the newly announced

rule will be enhanced or retarded by retrospective

operation. [Citation omitted]. Third, the Court must

balance the interests of those who may be affected by

the change in the law, weighing the degree to which the

parties may have relied upon the old rule and the

hardship that might result to those parties from the

retrospective operation of the new rule against the

possible hardship to those parties who would be denied

the benefit of the new rule. [Citation omitted].

Sumners v. Sumners, 701 S.W.2d 720, 724 (Mo. 1985) (en

banc).

Plaintiffs’ position is: (1) the Zueck decision involves

procedural law, and therefore may only be prospectively

applied; (2) if Zueck is considered as a change in substantive

Appendix — 66

law, then application of the Sumners test precludes retroactive

application.

Plaintiffs do not at this time have any precedent which

suggests that elimination of the doctrine of an owner's vicarious

liability in this factual setting is a question of procedural law.

Plaintiffs do, however, suggest that this is simply a procedural

matter, and not a question of substantive law. Even after

Zueck, plaintiffs (using the word in a general sense, and not

referring to Plaintiffs herein) have not lost a remedy for injury

or death in an owner/independent contractor-inherently

dangerous activity setting. The procedure to be followed now

is solely filing a claim for workers' compensation. What has

been altered by Zueck is the elimination of an alternate or

additional procedure, ie., filing suit in a circuit court. The

Court is not saying in Zueck that an owner has no liability to

the injured employee of the independent contractor, but rather

that the owner's liability has been discharged through payment

of the workers' compensation premiums under the contract with

the independent contractor.

If this change is deemed to be a substantive change in

the law, then under Sumners it should still be applied

prospectively.

Zueck clearly satisfies the threshold test in Sumners for

Prospective application since multiple prior decisions of the

appellate courts have allowed recovery where the injury to, or

death of, the employee of the independent contractor occurred

while the employee was engaged in inherently dangerous

activity. See, e.g. Mallory v. Louisiana Pure Ice & Supply

Appendix — 67

Company, 6 S.W.2d 617 (Mo. 1928) (en banc); Ballinger v.

Gascosage Electric Cooperative, 788 S.W.2d 506 (Mo. 1990)

(en banc).

The second test also suggests that prospective

application is appropriate here, especially when a verdict has

been rendered and a judgment entered prior to Zueck. The

Supreme Court adopted this change to eliminate the doctrine of

the vicarious liability of owners, under which an owner could

be held liable for greater damages to an injured employee of an

independent contractor, than for injuries to one of its own

employees engaged in exactly the same inherently dangerous

work. Prospective operation of the rule to cases in which

injury or death occurs after the date of Zueck, or limited

retroactivity, for those cases where the injury or death occurred

prior to the date of Zueck, but there has been no verdict and

judgment, would enhance the purpose and effect of the rule.

Potential litigants and their counsel could avoid the time,

trouble and expense of a trial where the sole issue was

vicarious liability under the inherently dangerous activity doc-

trine. Erasing jury verdicts which are based on application of

the prior law does nothing to promote the purpose and effect of

the new rule; rather, it only serves to harm the successful

plaintiffs.

The third test is the crucial one in this case, and it is also

satisfied in favor of prospective application of Zueck. Plaintiffs

relied on the prior law in filing their suit. As the Sumners

Court commented, supra, "Reliance ‘bespeaks a voluntary

choice of conduct by the person harmed. It infers that the per-

Annendix — 68

;

7

&

5

:

son exercising it can decide between available alternatives.'

[Citation omitted].”

Plaintiffs here had four choices available to them prior

to the actual filing of this suit: (1) to consider the workers’

compensation award sufficient, and go no further; (2) to file

suit against KCP&L solely on a theory of direct liability; (3) to

file suit against KCP&L solely on a theory of vicarious liability

under the inherently dangerous activity doctrine, or (4) to com-

bine the latter two theories in a single suit. Plaintiffs selected

the fourth option. Had Zueck been handed down prior to the

filing of this suit, Plaintiffs would have had only two options,

and might well have decided not to pursue any claim against

KCP&L.

Attorneys clearly relied on the prior law in advising

their clients in cases of injury or death where there was an

owner/independent contractor relationship, coupled with inher-

ently dangerous activity. Plaintiffs here had alternatives

available to them, and made their choice because that was what

the law allowed at the time they were in the process of making

the decision on whether or not to file suit. It would be a great

and manifest injustice to say that Plaintiffs, who undertook the

time, trouble, stress and expense of litigation, should now be

penalized and have the jury's verdict taken away from them

merely because the rule of law applicable to their theory of

recovery has changed since the jury made its decision and

judgment was entered.

Considering all the elements of Sumners and the

principles stated above, Zueck is not applicable to this case.

Appendix — 69

Defendant KCP&L is not entitled to judgment notwithstanding

the verdict on the basis of Zueck, nor, for all the reasons

previously stated, should KCP&L be granted either a new trial

or a judgment n.o.v.

Respectfully submitted,

WILLIAM H. PICKETT, P.C.

By:

William H. Pickett #21324

Steve A. Matalone II #36374

David T. Greis #23112

400 Interstate Building

417 East Thirteenth Street

Kansas City, Missouri 64106

Telephone: 816-221-4343

Fax: 816-221-8258

Attorneys for Plaintiffs

A copy of the above and foregoing was faxed this 22nd day of

May, 1991, to:

Robert P. Gingrich, Esq.

Kansas City Power & Light Company

1330 Baltimore

P.O. Box 679

Kansas City, Missouri 64141

Attorney for Defendant at fax number 816-556-2787.

David T. Greis

Appendix — 70

IN THE CIRCUIT COURT OF JACKSON COUNTY,

MISSOURI AT KANSAS CITY

| JAMIE MARIE PRAYSON, )

etal., )

)

Plaintiffs, ) No. CV88-1295

Civil F

VS. ) Division 15

)

KANSAS CITY POWER& _—i+)

LIGHT COMPANY. )

)

Defendant. )

Defendant has moved for judgment notwithstanding the

_ verdict or in the alternative for a new trial. The decision of the

Missouri Supreme Court en banc, in Stephen Zueck vy.

_ Oppenheimer Gateway Properties, No. 73226 decided May 3,

_ 1991, requires that judgment notwithstanding the verdict be

| granted for defendant. Zueck overruled Ballinger v. Gascosage

| Electric Cooperative, 788 S.W.2d 506 (Mo. Banc 1990) and

Mallory v. Louisiana Pure Ice and Supply Co., 6 S.W.2d 617

(Mo. Banc 1928). This court relied on Ballinger and Mallory

| to deny defendant’s motion for summary judgment. Without

. those cases the motion for summary judgment would have been

| granted.

Annendiw ._{ 71

'

4

:

4

;

OO ar ei en an een

The decision in Zueck does not state whether it is to be

applied retroactively. When the Court does not state whether

the ruling is to be applied retroactively the question is whether

the ruling is procedural or substantive. If procedural it is

prospective only. If substantive it may be prospective or

retroactive. State v. Walker, 616 S.W.2d 49 (Mo. Banc, 1981)

A substantive ruling relates to the rights and duties

which give rise to a cause of action. A procedural ruling

provides the machinery for carrying out suit. Roth v. Roth, 571

S.W.2d 659. (Mo. App. 1978)

Here the decision is substantive. It completely removes

a particular cause of action. The ruling to achieve its purpose

must be applied retroactively. Retroactive application here is

appropriate under the test of Sumners v. Sumners, 701 S.W.2d

720, 274 (Mo. Banc. 1985).

The fact that plaintiffs brought suit and obtained a

judgment in reliance on the overruled cases does not keep

Zueck from being applied retroactively. Simpson vy. Revco

Drug Centers of Missouri, Inc., 702 S.W.2d 482 (Mo. App.

1985); Shaffer v. Sears Roebuck, 689 S.W.2d 683 (Mo. App.

1985). Therefore the verdict of the jury must be set aside and

judgment GRANTED to defendant. Costs will be taxed to

plaintiff.

Appendix — 72

The other grounds asserted by defendant do not provide

| a basis for relief and except for the decision of Zueck the trial

verdict would remain.

DATE: May 24, 1991

PRESTON DEAN, JUDGE

Copies mailed to:

William Pickett

Robert Gingrich

GLADYS TYREE, Clerk

Appendix — 73

IN THE SUPREME COURT OF MISSOURI

JAMIE MARIE (BUNGER) _)

PRAYSON, )

etal., )

)

Appellants, )

)

vs. ) Supreme CourtNo.

) Court of Appeals,

) Western District

) Circuit Court of Jackson

KANSAS CITY POWER ) County

& LIGHT COMPANY, )

)

Respondent. )

APPLICATION FOR TRANSFER COVER SHEET

Transfer is sought after opinion.

The record on appeal was filed: 1/30/92

The Court of Appeals opinion was filed: 12/22/92

The Motion for Rehearing was filed: 1/6/93

and ruled on: 2/2/93

The Motion for Transfer was filed: 1/6/93

and ruled on: 2/2/93

Appendix — 74

PARTIE THE CASE

PARTY [FILING MOTION]

Jamie Marie Prayson and Jason Dean Prayson (formerly

Bunger), by and through their mother and next friend, Mary

Jane Prayson. [Plaintiffs-Appellants]

ATTORNEY [FOR PARTY FILING MOTION]

William H. Pickett (#21324)

David T. Greis (#23112)

’ William H. Pickett, P.C.

_ 400 Interstate Building

| 417 East Thirteenth Street

Kansas City, Missouri 64106

_ PARTY [OPPOSING MOTION TO TRANSFER]

Kansas City Power & Light Company

ATTORNEY [FOR PARTY OPPOSING TRANSFER]

Robert P. Gingrich

Kansas City Power & Light Company

1201 Walnut Street

Kansas City, Missouri 64106

Appendix — 75

I. ISSUES WHICH THIS COURT SHOULD DECIDE

1. Does Zueck v. Oppenheimer Gateway Properties,

Inc., 809 S.W.2d 384 (Mo. 1991) (en banc), apply to “expert”

land owners as well as the non-expert Owners at issue in

Zueck?

2. Does retroactive application of Zueck deny

Appellants’ due process and equal protection rights by taking

away a $1,300,000 verdict awarded 3 months prior to Zueck?

3. Is the “reliance” test in Sumners v. Sumners, 701

S.W.2d 720 (Mo. 1985) (en banc), limited to conduct prior to

the event which gives rise to the litigation (here, the death of

Mr. Bunger), or does it also apply to post-event conduct, such

as consulting an attorney and deciding whether and how to

proceed with suit, and on what theories?

4. Did the Court of Appeals properly add a

"foreshadowing" criterion to the process of determining the

retroactivity of an overruling decision of this Court, ie., Zueck

was "foreshadowed" by the passage of the Workers’

Compensation Act in 1928, and the adoption by other states of

the Zueck principles, and therefore Appellants could not rely

on the then-current state of the law in determining whether to

proceed with suit against KCPL on the inherently dangerous

activity/vicarious liability theory.

Appendix — 76

>. Does the Keliner v. Keltner, 589 S.W.2d 235,

239 (Mo. 1979) (en banc) limitation on retroactivity to the

nit compelling circumstances continue to have any viability?

6. What weight should an indemnification provision

in the KCPL contract with the independent contractor, be given

in the “balancing” test when determining the retroactivity of

Zueck?

7. Did Zueck actually deal with matters of

procedure, rather than substantive law--and should therefore be

applied prospectively-because it is only a remedy (a tort suit)

which is eliminated for injured independent contractor

employees covered by workers' compensation?

8. Where there is an overruling decision, and

Plaintiffs have already attempted to plead a direct liability

Claim against KCPL, should the case be remanded to permit a

trial on the merits of those claims?

Il. FACTUAL BACKGROUND

This is a wrongful death suit arising out of the death of

Larry Dean Bunger in 1985 from injuries incurred while

"squirrel-proofing” a transformer-owned by KCPL. Appellants

are Mr. Bunger’s minor children. Mr. Bunger worked for an

independent contractor hired by KCPL, and he was covered by

workers’ compensation. The written contract between KCPL

Appendix — 77

and the independent contractor contains an indemnification

clause in favor of KCPL, if KCPL incurs any liabilities arising

out of the performance of the contract.

At the trial level, Plaintiffs sought, and were denied,

leave to file a Second Amended Petition which in Count I

alleged direct or primary liability on the part of KCPL, and

which in Count II alleged vicarious liability, based on Mr.

Bunger's having been engaged in inherently dangerous activity,

on the basis that Count I failed to state a claim for which relief

could be granted. The trial court then permitted filing a Third

Amended Petition containing only the vicarious liability theory.

In February, 1991, the jury entered a $2,000,000 verdict

in favor of Appellants, reduced to $1,300,000 on an assessment

of 35% fault against Mr. Bunger. While KCPL's Motion for

New Trial or for Judgment N.O.V. was pending, this Court

handed down Zueck, and on that basis alone, the trial court

sustained the Motion for Judgment N.O.V.

Ill. THE BASIS FOR TRANSFER

The eight issues identified above provide a broad

spectrum of reasons for this Court to transfer this case.

Both Zueck and Aubuchon v. Hyland, 820 S.W.2d 617

(E.D. Mo. App. 1992) involved non-expert land-owners, the

type of owners expressly identified by the Zueck Court as the

Appendix — 78

basis for its opinion. Here, however, KCPL is unquestionably

an expert owner, with a corporate knowledge and experience of

the installation, use, modification and repair of transformers

and other equipment used to generate and distribute electrical

power, derived from its decades of operation, that results in

KCPL's expertise being at least equal to, if not in all

probability, greater than, that of any independent contractor.

Whether Zueck applies to expert land-owners is a question of

general interest and importance.

The Court of Appeals held that the Sumners "reliance"

test, in the context of determining whether an overruling

decision of this Court should be given retroactive effect,

applies only to conduct prior to the event giving rise to the

litigation. It is thus a question of general importance, relating

to any future overruling decisions in which the Court does not

announce whether the decision is to be applied retroactively,

for lower courts and attorneys to know what the standards are.

The Court of Appeals also added a "foreshadowing"

standard to the process, by holding that if this Court's

overruling decision is “foreshadowed” (here, by the passage of

the workers’ compensation laws 60+ years prior to Zueck, and

the acts of other states), then there can be no “reliance” under

Sumners which would preclude retroactive application of the

Appendix — 79

eile, — — -

, .

—

overruling decision. Whether this is an appropriate addition is

a question of general importance which should be resolved by

this Court, particularly in relation to Trans UCU, Inc. v.

Director of Revenue, 808 S.W.2d 374 (Mo. 1991) (en banc), in

which this Court referred to a sudden change in direction

(there, four years between the initial decision and the

overruling decision) as the basis for a determination of non-

retroactivity.

Whether the Keliner statement that overruling decisions

should be applied retroactively only in the most compelling

circumstances has any continued viability, in the absence of

any discussion of "compelling" reasons for making Zueck

retroactive, is a question of general interest or importance

which should be resolved by this Court.

Whether Zueck actually involved a procedural decision,

rather than a decision of substantive law, is an issue which

should be clarified by this Court. If, as argued by Appellants,

Zueck was a procedural decision because it eliminated a

remedy for a specific group (the remedy of a tort claim for

injured employees of independent contractors who are covered

by workers’ compensation), but did not eliminate the cause of

action, which is still available for others, then should Zueck not

be applied only prospectively?

Appendix — 80

Where there is an overruling decision which is the sole

basis for a judgment n.o.v., and the plaintiffs have previously

sought and been denied leave to file a direct (rather than

vicarious) liability claim against the defendant, if the proposed

count of the petition does state a claim on which relief should

be granted, should the case be remanded for a trial on the

merits of the direct liability claim(s)? Although overruling

decisions by this Court are not necessarily frequent, they do

happen, and thus it is important for this Court to clarify the

policy which should be followed by the Courts of Appeals and

the trial courts in circumstances such as these, i.e., whether

remand is not merely appropriate, but necessary, where the

overruling decision eliminates the theory of recovery on which

the case was tried, but does not eliminate the alternate theories

which the plaintiffs sought to adduce. Cf, Smith v. Inter-

County Telephone Company, 559 S.W.2d 518, 525 (Mo. 1977)

(en banc), and Kaufmann v. Nagle, 807 S.W.2d 19, 95 (Mo.

1991) (en banc).

Last, this case presents an opportunity for the Court to

determine whether it is still possible to state a claim against a

land owner for direct or primary liability, cf., Judge Blackmar’s

concurrence in Zueck, where an employee of an independent

contractor is injured or killed while engaged in inherently

Appendix - 81

dangerous activity being performed for the benefit of the land-

owner. Whether a land-owner who hires an independent

contractor now enjoys absolute immunity from any direct or

vicarious theory of liability, if the injured or killed employee of

the independent contractor is covered by workers’

compensation, is a question of general interest and importance

which should be resolved by this Court.

The decision by the Western District in this case also

appears to conflict with the standards of both Keltner and

Trans UCU, supra, and thus this case merits examination by

this Court.

Appellants incorporate by reference the Suggestions in

Support which accompany this Application for Transfer.

WILLIAM H. PICKETT, P.C.

By:

William H. Pickett #21324

David T. Greis #23112

400 Interstate Building

417 East Thirteenth Street

Kansas City, Missouri 64106

Telephone: 816-221-4343

Fax: 816-221-8258

Attorneys for Appellants

A copy of the above and foregoing

was mailed, postage prepaid, this

16th day of February, 1993, to:

Robert P. Gingrich, Esq.

Law Department

Kansas City Power & Light Company

; 1201 Walnut

Kansas City, Missouri 64106

Attorney for Respondent

Peggy Stevens McGraw, Esq.

Clerk of the Court

Missouri Court of Appeals

1300 Oak Street

Kansas City, Missouri 64106

David T. Greis-

Appendix — 83

i

IN THE SUPREME COURT OF MISSOURI

JAMIE MARIE (BUNGER) _)

PRAYSON, )

et all., )

)

Appellants, )

)

vs. ) Supreme CourtNo. _

) Court of Appeals,

) Western District

) Circuit Court of Jackson

KANSAS CITY POWER ) County

& LIGHT COMPANY, )

)

Respondent. )

SUGGESTIONS IN SUPPORT OF

APPLICATION FOR TRANSFER

SECTION I. THE RETROACTIVITY OF ZUECK

A. Zueck v. Oppenheimer Gateway Industries, Inc.,

809 S.W.2d 384 (Mo. 1991) (en banc) involved the injury of a

painter hired for the renovation of St. Louis' Union Station.

Aubuchon v. Hyland, 820 S.W.2d 617 (E.D. Mo. App. 1992),

which held that Zueck was not retroactive, involved

construction work on a new building. In both cases, the land-

owner who hired the independent contractor whose employee

was later injured, was not itself an expert in the area of work

being performed by the injured worker at the time of the

accident. In sharp contrast to Zueck and Aubuchon, however,

Appendix — 84

co ee

Respondent KCPL is unquestionably an expert in the

installation, use, modification, and repair of high-voltage

power lines, transformers, and other equipment used in the

generation and distribution of electrical power to KCPL's

customers. Zueck focused on protecting a non-expert land-

owner from vicarious liability, as a means of encouraging the

owner to hire experts to perform inherently dangerous work.

Applicationof Zueck to "expert" land-owners, with its attendant

immunity from liability for the negligence of its chosen

independent contractors, creates no incentive to hiring equal or

greater expertise, but rather fosters the ability to select the

cheapest, rather than best-qualified, independent contractor.

This Court should determine whether Zueck applies to expert

land-owners.

B. In Wilkes v. Missouri Highway and

Transportation Commission, 762 $.W.2d 27 (Mo. 1988) (en

banc), this Court held that a statute abrogating sovereign

immunity was procedural, rather than substantive, because the

cause of action still existed, but a remedy was either lacking

because of sovereign immunity, or permitted by a waiver of

sovereign immunity. In Wilkes an impediment to recovery was

removed by the waiver of sovereign immunity; in Zueck an

‘impediment to recovery was imposed. Post-Zueck, a cause of

Appendix — 85

action still exists for person's injured on another's land, but the

remedy of a tort suit now exists only for employees of

independent contractors engaged in inherently dangerous

activity who are not covered by workers' compensation, and for

other persons injured on the owner's land. This Court should

decide whether Zueck announced a procedural change of

course, and thus, under Bethell v. Porter, 595 S.W.2d 369

(W.D. Mo. App. 1980), should be applied prospectively only.

C. Keltner v. Keltner, 589 S.W.2d 235, 239 (Mo.

1979) (en banc), said that an overruling decision should be

found to be retroactive only in the most compelling

circumstances. Is depriving minor children of a $1.3 million

verdict reached three months prior to Zueck a sufficiently

compelling circumstance tojustify retroactive application? In

light of the standards of Sumners v. Sumners, 701 S.W.2d 720

(Mo. 1985) (en banc), does the Keltner holding still have any

viability? This Court should resolve this issue.

D. The Western District held that the "reliance"

portion of the Sumners tests involves only conduct prior to the

event which gives rise to the litigation. Appellants suggest

there is no significant difference between the business

decisions made in 7rans-UCU, Inc. v. Director of Revenue,

808 S.W.2d 374 (Mo. 1991) (en banc) in reliance on existing

Appendix — 86

COO

law and an attomey's advice, and the litigation decisions made

here in reliance on an attorney's advice and on then-existing

law: Mallory v. Louisiana Pure Ice Company, 320 Mo. 95, 6

S.W.2d 617 (1928); Smith v. Inter-County Telephone

Company, 559 S.W.2d 518 (Mo. 1977) (en banc), and

Ballinger v. Gascosage Electric Cooperative, 788 S.W.2d 506

(Mo. 1990) (en banc). In both 7rans-UCU and here, a client

undertook a course of activity and incurred substantial

expenditures in the belief that a particular state of law was in

effect, and after undertaking the activity and incurring the

expense, the state of the law changed. This Court should

determine whether the reliance test in Sumners is limited to

conduct prior to the event which generates the litigation, or

whether it can also include post-event conduct, such as the

process of deciding whether and how to proceed with litigation.

E. This Court should determine the appropriateness

of the Western District's supplement to the Sumners and Trans-

UCU standards for determining the retroactivity of an

overrulingdecision. The Western District essentially has said

that if am overruling decision by this Court was

"foreshadowed," a plaintiff cannot justifiably rely on his

attorney's advice about the existing state of the law. The

Western District said that since Mallory was decided before

Apnnendix — 87

enactment of the workers' compensation law, the passage of

that statute in the late 1920's, plus the adoption by other states

of the Zueck principle of no vicarious liability for the land-

owner for injuries to an independent contractor's employee

engaged in inherently dangerous activity, where the employee

is covered by workers' compensation, "foreshadowed" this

Court's decision in Zueck in 1991. Despite sixty years of either

judicial silence on the principle of a land-owner's vicarious

liability for inherently dangerous work performed by an

independent contractor, or judicial approval of that principle,

this Court's change of direction in Zueck was "foreshadowed,"

and thus there was no "reliance" by Appellants under Sumners.

Are attorneys now to be required to base advice to clients not

on the current state of the law, but on their speculation and

conjecture as to what this Court might do several years in the

future? These are questions which should be resolved by this

Court. -

F. | Where a land-owner has a written contract with

an independent contractor which indemnifies the land-owner

from any costs arising out of the negligence of the contractor,

should that factor be considered in the Sumners evaluation

process, particularly when determining where the burden of the

impact of Zueck should be placed: the minor children whose

Appendix — 88

father is dead,the independent contractor, or the land-owner?

The contractor here negotiated away any statutory immunity it

might have had to a suit by KCPL for contribution or

indemnification. Just as Zueck found that workers’

compensation premiums were included in the contract price

between land-owner and contractor, it necessarily follows that

liability insurance premiums to cover the indemnification were

also included in the KCPL contract here. As between KCPL

and these children, then, the burden for the loss should fall on

KCPL, and KCPL and its contractor can then "fight out" any

legal issues relating to indemnification. The Court should

determine what weight this contract provision should have in

the Sumners balancing process.

SECTION II. KCPL DIRECT LIABILITY

The Western District decision focused solely, and

erroneously, on a premises liability theory in examining

Appellants’ direct liability claims against KCPL, and basically

ignored the other theories offered by Appellants: the safe

workplace doctrine, the retention of possession doctrine, and

the retention of control doctrine. Appellants also argued that

the contract with the independent contractor, with its

specification by KCPL of the safety standards to be applied in

performing the work, made Mr. Bunger, and therefore his

ee

surviving children as well, third-party beneficiaries of that

contract.

The Western District mistakenly determined that the

mere existence of electric power lines was the dangerous

condition on the premises, and then decided, as a matter of

law--and in a comparative fault state--that Mr. Bunger was

aware of the dangersof high voltage lines and therefore

Appellants could not recover. The dangerous condition,

however, was not just the high-voltage lines, but the fact that

the transformer did not have to be totally de-energized before it

could be worked on. (This lack of complete de-energizing

contributed significantly to Mr. Bunger’s death.) Even under a

premises liability theory, the issues of the exact nature of the

dangerous condition, KCPL's knowledge of it, whether KCPL

could have warned the independent contractor of the condition,

and the knowledge of the independent contractor of _ the

condition, are all jury questions. It is not the province of the

Court of Appeals to decide as a matter of law that a jury could

not assess any percentage of fault to KCPL on a direct liability

claim, under any of the theories offered by Appellants. Under

both Smith, supra, and Kaufmann v. Nagle, 807 §.W.2d 91, 95

(Mo. 1991) (en banc), this case should have been remanded for

a trial on Appellants’ direct liability claims.

SECTION HI. CONCLUSION

The specific questions relating to the retroactivity of

Zueck, and the broader questions relating to the standards to be

applied in determining whether an overruling decision of this

Court is retroactive, are questions of general interest and

general importance which should be resolved by this Court, as

should the constitutional arguments relating to retroactivity, the

applicability of Zueck to expert land-owners, and whether

Appellants did state a claim in Count I of their proposed

Second Amended Petition, so that a remand and trial on the

direct or primary liability theory is necessary.

WILLIAM H. PICKETT, P.C.

By:

William H. Pickett #21324

David T. Greis #23112

400 Interstate Building

417 East Thirteenth Street

Kansas City, Missouri 64106

Telephone: 816-221-4343

Fax: 816-221-8258

Attorneys for Appellants

A copy of the above and foregoing

was mailed, postage prepaid, this

16th day of February, 1993, to:

Appendix — 91

Robert P. Gingrich, Esq.

Law Department

Kansas City Power & Light Company

1201 Walnut

Kansas City, Missouri 64106

Attorney for Respondent

Peggy Stevens McGraw, Esq.

Clerk of the Court

Missouri Court of Appeals

1300 Oak Street

Kansas City, Missouri 64106

David T. Greis