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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 828

## Text

)
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1076%3A3. Public record. Not legal advice.