                                            In the
                          Missouri Court of Appeals
                                    Western District

                                                 
 NICK SAVAGE,                                    
                                                    WD79299
                Appellant,                          OPINION FILED:
 v.                                              
                                                    January 17, 2017
 KANSAS CITY POWER & LIGHT                       
 COMPANY,                                        
                                                 
                Respondent.                      
                                                 


                    Appeal from the Circuit Court of Clay County, Missouri
                           The Honorable Larry D. Harman, Judge

                                   Before Division Three:
             Alok Ahuja, P.J., Victor C. Howard, and James Edward Welsh, JJ.

       Nick Savage appeals from the circuit court’s judgment following a jury trial in which the

jury assessed zero percent fault to Kansas City Power and Light (KCP&L) and 100 percent fault

to Savage on Savage’s personal injury claim against KCP&L. Savage contends that the circuit

court erred in submitting KCP&L’s comparative fault instruction to the jury because the

instruction was not supported by substantial evidence and attributed a duty to him that did not

exist. We affirm.

       The evidence established that Savage lived at the corner of NE 45th Street and

Bellefontaine in Kansas City, Missouri, which is within the Northland Service Center of

KCP&L’s electrical grid. On the north side of Savage’s home, a primary, uninsulated distribution
power line (the primary line) runs along 45th Street. The power from this primary line conducts a

high voltage electrical current, too high to go to a house directly. Therefore, the voltage from the

primary line is sent through a transformer that reduces the voltage, which is then ran along

secondary lines. The individual houses in the area get electricity off of secondary lines from

service poles via electrical lines called service drops. For Savage’s house, the service pole is on

the opposite side of the yard from the primary line in the southeast corner of his backyard. The

service drop line runs essentially diagonal across Savage’s yard from the service pole to Savage’s

home.

         On Sunday, August 7, 2011, a strong thunderstorm damaged a large silver maple tree in

Savage’s backyard. The tree sat on the side of the yard closest to 45th Street and close to the

primary line. As a result of the storm, a limb from the tree fell on the service drop line that ran

across Savage’s backyard. The weight of the limb pulled the service drop line down and pulled

the electrical connection off of Savage’s house. Although the weather head connection and

electrical meter were pulled off Savage’s house, the service drop line remained connected. The

loose and damaged service drop line wire was down across Savage’s yard and draped over a

children’s swing set. As a result of the damage, Savage did not have any electrical power in his

house.

         Savage telephoned KCP&L and reported that he had no electrical power in his house and

that the electrical box and the service drop line had been ripped off the back of his house because

of the storm damage. Later that evening, a KCP&L lineman arrived to investigate the

circumstances. The lineman testified that he could not recall working at Savage’s house, but

Savage testified that the lineman left the live service drop line down, told Savage to stay out of

the backyard, and told him that someone would be out in the next couple of days to take care of

                                                  2
things. When Savage inquired who would be responsible for cleaning up the tree and getting the

electrical box and connection back on the house, the lineman told Savage that the homeowner

would be responsible for doing those things.

       The next day, on Monday, August 8, Savage called KCP&L again, reported that the

downed service drop line was making some noises, and asked when KCP&L would be sending

someone out to work on it. KCP&L said that they would send someone out to get it taken care of

and told Savage that he was responsible for taking care of the tree “and getting everything fixed

back the way it should be.”

       On Tuesday, August 9, KCP&L Lineman Gerald Peterson went to Savage’s house to

disconnect the live service drop line. He removed the live service drop line that had been draped

on the swing set and coiled it up and put it at the foot of the service poll. At that point, Peterson

let Savage know that it was safe to work in the backyard. Peterson told Savage that it was his

responsibility “to put the riser and the new meter can [up]” and “to mount the riser up to the

weather head” with the wire to give KCP&L a point of attachment for the service drop. Peterson

informed Savage that, once all of that was done, Savage should call KCP&L and someone would

come back and reconnect his service line to the weather head.

       At trial, Peterson did not deny that he told Savage that he would be responsible for

cleaning up the tree; Peterson merely said he did not remember telling Savage that. Peterson

said that he did not recall any conversations with Savage about his plans for trimming the tree,

but Peterson said nothing was said about Savage climbing and trimming trees. Peterson also said

that he did not have any conversations with Savage telling him that he needed to notify KCP&L

before trimming any tree. Peterson acknowledged that he did not pay attention to how many

broken limbs there were, how many broken tree limbs were in the tree hanging loose, or whether

                                                  3
there were any tree branches growing off the big tree that were still growing over the service

drop area of Savage’s house. Although Peterson said that he could not remember whether there

were any tree limbs hanging over the area where the service drop line would be, Peterson said

that, before attaching the service drop line, “you usually look up and see if there’s anything in the

way,” and, from what he could tell, “it was clear.” Peterson said that, if the point of attachment

had been on Savage’s house, he could have reattached the service drop line at that time. Peterson

also said that he never looked at the branches of tree to see where they were in relationship to the

primary line.

         Later that morning, Savage, with the help of his father, his brother, and a friend, began

cleaning up the backyard. Savage cleaned up the area of the yard under where the service drop

line would be restrung. Savage then took photographs of the area that showed that the yard

beneath where the service drop line would be reconnected had been cleaned up. After cleaning

up the service drop area, Savage decided to trim branches on the tree “that hung over the power

line or where the drop line was supposed to go” and to “clean up all the limbs on [the] house side

of the tree” to eliminate future problems. Savage used a ladder to climb up into the tree and used

a small rope, tied from his belt to a small chain saw, to lift up the chain saw for use in the tree.

After climbing into the tree, Savage climbed onto a large branch closest to the service drop and

his house. Savage cut a couple of branches over the service drop area. He then moved to the

“parent branch” of the tree to cut the “subject limb”1 that resulted in his injuries. The “subject

limb” had not been damaged in the storm. Savage acknowledged that he knew where the

primary line was and knew that the “subject limb” could come into contact with the primary line


        1
          Throughout the trial, the parties referred to the limb that caused Savage’s injuries as the “subject limb.”
For consistency purposes, we will also refer to the limb as the “subject limb.”

                                                           4
when he was cutting it. Savage said, however, that he believed the “subject limb” would only

brush against it. As Savage prepared to cut the “subject limb,” he wrapped his left arm and left

leg around the trunk of the “subject limb” to secure himself, and, with his right foot standing on

the “parent branch” and holding the chain saw above his head, he began cutting the “subject

limb.” Savage took no other precautions to prevent himself from falling out of the tree. When

he cut the “subject limb,” the limb fell onto the high voltage primary line, conducting electricity,

and electrocuting Savage. Savage was rendered unconscious and fell from the tree, falling about

25 feet.

           As a result of the incident, Savage suffered electrical burns to his left arm and left leg,

and he had compression fractures at levels T-10 and T-11, resulting in the severance of his spinal

cord leaving him paralyzed and losing the use of his legs.

           Savage never told Peterson that he intended to prune the tree near the primary line.

According to Peterson’s notes taken after Savage was injured, Peterson stated, “when I left that

morning, nothing was said about the customer cutting trees.” According to Peterson, if KCP&L

had known Savage was going to prune the tree over the primary line, Peterson would have told

Savage to contact a qualified tree service or to contact KCP&L for help.

           At trial, Savage acknowledged that one way to direct a cut branch away from electrical

lines would have been to use a rope to pull it in the direction that you wanted to go. Savage

acknowledged, however, that he did not do that when cutting the “subject limb.” Savage also did

not the cut the branch in a manner that it would tend to fall away from the overhead line.

Savage’s expert acknowledged that Savage did not make a clean cut of the subject limb; rather,

Savage cut the limb so that it hinged and dropped in an arc into the primary line. According to



                                                      5
Savage’s own expert, a clean cut depends on doing an undercut first and then an overcut to

prevent it from hinging.

          Savage filed a petition for damages against KCP&L for personal injuries resulting from

the electrical shock that caused him to fall from the tree. Savage alleged that KCP&L

maintained the primary uninsulated power line adjacent to Savage’s Property; that tree limbs

from Savage’s tree were close to and above the primary line presenting an unreasonable risk of

harm, and that it was reasonably foreseeable that persons would be trimming tree limbs of the

tree in the backyard. Further, Savage alleged that the tree limb came into contact with the

primary line because of KCP&L’s failure to maintain a clearance between the tree limbs and the

primary line. KCP&L alleged in its answer as an affirmative defense that Savage bore the

responsibility for his injuries because he failed to notify KCP&L that he would be performing

work in the trees near the power line.

          A jury trial was held on August 24, 2015, through September 2, 2015. Savage offered

Instruction No. 6, a comparative-fault-modified verdict director instruction setting out

disjunctive allegations of negligence by KCP&L, which was given by the court. Instruction No.

6 read:

                In your verdict, you must assess a percentage of fault to [KCP&L]
          whether or not [Savage] was partly at fault, if you believe:

                 First either

                 [KCP&L] failed to use natural directional pruning to prune the parent
                 branch to the tree trunk, or

                 [KCP&L] failed to prune the subject branch back to the parent branch, or

                 [KCP&L] failed to tell [Savage] that [KCP&L] would do the necessary
                 pruning or removal to clear the service drop, or


                                                 6
               [KCP&L] failed to warn [Savage] not to prune tree limbs in the Silver
               Maple, and

              Second, [KCP&L], in any one or more of the respects submitted in
       paragraph First, was thereby negligent, and

               Third, such negligence directly caused or directly contributed to cause
       damage to [Savage]. The term “negligent” or “negligence” as used in this
       instruction means the failure to use the highest degree of care. The phrase
       “highest degree of care” means that degree of care that a very careful person
       would use under the same or similar circumstances.

       KCP&L offered Instruction Number 7, a comparative fault instruction, which was also

given by the circuit court. Instruction Number 7 said:

               In your verdict, you must assess a percentage of fault to [Savage] whether
       or not [KCP&L] was partly at fault, if you believe

               First, [Savage] either,

                       Failed to notify [KCP&L] of his plan to prune the Silver Maple, or

                       Cut the subject tree branch in such a way that it contacted the
                       primary distribution power line, or

                       Failed to use a rope to keep the cut branch from contacting the
                       power line, or

                       Failed to secure himself to the tree while pruning the subject tree
                       branch, and

              Second, in any one of or more of the respects submitted in paragraph First,
       [Savage] was thereby negligent, and

             Third such negligence directly caused or directly contributed to cause any
       damage [Savage] may have sustained.

                The term “negligent” or “negligence” as used in this instruction means the
       failure to use that degree of care than an ordinarily careful person would use
       under the same or similar circumstances.

Savage objected to the court’s giving Instruction Number 7, arguing that no evidence supported

the proposition that he had a duty or responsibility to notify KCP&L of his plan to prune the tree

                                                 7
and that the submission that he failed to secure himself to the tree while pruning was a roving

commission.

       The jury returned a verdict for KCP&L, finding zero percent fault on the part of KCP&L

and 100 percent fault to Savage. Savage filed a motion for new trial alleging instructional error

based upon the circuit court’s submission of Instruction Number 7 to the jury. The circuit court

denied Savage’s motion for new trial. Savage appeals.

       In his sole point relied on, Savage asserts that the circuit court erred in submitting

KCP&L’s comparative fault instruction, Instruction Number 7, to the jury because the instruction

was not supported by substantial evidence and attributed a duty to him that did not exist.

       Whether a jury was instructed properly is a question of law that we review de novo.

Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 90 (Mo. banc 2010). When reviewing

claims of instructional error, we will reverse a jury verdict on the ground of instructional error if

the error resulted in prejudice that "materially affected the merits of the action." Coomer v.

Kansas City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo. banc 2014).

       We need not address Savage’s contentions that KCP&L’s comparative fault instruction

was not supported by substantial evidence because, even if the instruction was erroneous, Savage

cannot show that the alleged erroneous instruction resulted in prejudice that materially affected

the merits of the action.

       The Missouri Supreme Court has emphatically stated that, where a plaintiff’s verdict

directing instruction requires a jury to assess a percentage of fault to the defendant if the jury

believes certain factual propositions and the jury assesses no fault to the defendant, the jury

verdict assessing no fault to the defendant negates any claim of prejudice to plaintiff in the

giving of a comparative fault instruction, even if the instruction was erroneous. Wilson v.

                                                  8
Shanks, 785 S.W.2d 282, 285 (Mo. banc 1990); Lee v. Mirbaha, 722 S.W.2d 80, 82-84 (Mo. banc

1986); and Barnes v. Tools & Machinery Builders, Inc., 715 S.W.2d 518, 520-22 (Mo. banc

1986). As the Wilson court explained:

        [W]e must assume the jury followed the instructions. Instruction No. 8 required
        some assessment of fault to defendant if the jury found the facts hypothesized to
        be true. The assessment of fault was not dependent upon and made no reference
        to Instruction No. 10. The jury necessarily must have concluded that one of the
        essential propositions was not established when it failed to assess any fault to
        defendant. Absent some assessment of fault to defendant, there was no prejudice
        in giving the contributory fault instruction.

785 S.W.2d at 285.

        All three districts of the Court of Appeals have followed the Missouri Supreme Court’s

directions without exception. See Rouse v. Cuvelier, 363 S.W.3d 406, 413 (Mo. App. W.D. 2012)

(“‘Any error in submitting a comparative fault instruction is harmless when the jury returns a

verdict attributing one hundred percent fault to the complaining party.’”); Marion v. Marcus, 199

S.W.3d 887, 896 (Mo. App. W.D. 2006) (Because the jury returned a verdict in favor of

defendants, “‘the jury was never required to reach the question of apportionment of fault.’

Therefore, although the instruction contained an error, the jury never needed to consider the

erroneous instruction. The error resulted in no prejudice.”); Powderly v. S. Cty. Anesthesia

Assocs., Ltd., 245 S.W.3d 267, 279 (Mo. App. E.D. 2008) (“The absence of any assessment of

fault to Defendants negates any claim of prejudice to Plaintiffs in giving the erroneous

comparative fault instruction.”); and Skinner v. Leggett & Platt, Inc., 325 S.W.3d 520, 525 (Mo.

App. S.D. 2010)2 (“[T]he verdict in this case, finding zero fault in Respondent, negates any

allegation of error in giving a comparative fault instruction.”).


        2
          Savage noted that the Southern District in 1986 was less than enthusiastic following the Missouri Supreme
Court’s mandate when it stated in Bushong v. Marathon Elec. Mfg. Corp., 719 S.W.2d 828 (Mo. App. 1986) that

                                                         9
        Thus, in this case, the comparative fault instruction “did not materially affect the merits

of the action because had the comparative fault instruction not been given, the jury would have

simply rendered a verdict in [KCP&L’s] favor, since they found that [Savage] did not meet his

burden to show that [KCP&L’s] alleged negligence was in any way the cause of the accident.”

Rouse, 363 S.W.3d at 413.

        Savage argues that the rule that the absence of any assessment of fault to a defendant

negates any claim of prejudice to a plaintiff in the giving of the erroneous comparative fault

instruction has become “increasingly generic” and that the rule is not applicable in this case

because the comparative fault instruction directly affects the verdict directing instruction given to

the jury. In support of this contention, Savage relies on Instruction Number 2, which was given

to the jury and instructed the jury that each instruction was “equally binding upon you” and that

the jury “should consider each instruction in light of and in harmony with the other instructions”

and “apply the instructions as a whole to the evidence.” The instruction also stated that the

“order in which the instructions are given is not indication of their relative importance.” Savage

asserts that Instruction Number 2 required the jury to review and consider both Instruction

Number 7 and Instruction Number 6. Savage argues:

        There was no indication or instruction to the jury that if they found for [KCP&L]
        under Instruction No. 6, they could skip over to the verdict form. . . . The way the
        instructions were presented to the jury, in parallel, there was no distinction for
        what order they must be evaluated in—and there was no indication to the jury that
        they did not consider the erroneous Instruction No. 7 and the effect that it had on
        Instruction No. 6.

“under the constraint of the [law], this court reaches the reluctant conclusion that although Instruction No. 7
[(arguing disjunctive theories of negligence on the part of plaintiff)] was not supported by the evidence and was
erroneous, the error was not reversible” when the jury did not otherwise contribute to a general verdict for the
defendant. Id. at 838. Enthusiastic or not, the Bushong court was bound to follow the most recent controlling
decision of the Missouri Supreme Court. Indeed, the decisions of the Missouri Supreme Court are "controlling in all
other courts," and we are constitutionally bound to follow those decisions. Mo. Const. art. 5, § 2; Overlap, Inc. v.
A.G. Edwards & Sons, Inc., 318 S.W.3d 219, 224 n.7 (Mo. App. 2010).

                                                        10
Instruction Number 2, however, is given in all Missouri cases since at least 1980 and would have

been read to juries in every Missouri case, including all the cases that we noted above.

       Savage also argues that he was prejudiced by errors in Instruction No. 7, despite the

jury’s assessment of zero fault to KCP&L, because the wording of Instruction No. 7 diminished

or extinguished KCP&L’s duties as described in Instruction No. 6. In particular, Savage argues

that Instruction No. 7’s statement that he may have been negligent by “[f]ail[ing] to notify

[KCP&L] of his plan to prune the Silver Maple” negated the specification in Instruction No. 6

that KCP&L could be negligent for “fail[ing] to warn plaintiff not to prune tree limbs on the

Silver Maple.” We fail to see the necessary linkage between these aspects of Instruction Nos. 6

and 7. Nothing in the instructions indicates that KCP&L’s duty to warn was contingent on

Savage first having notified the company of his intention to prune the tree. Instead, any duty to

warn could exist independently of Savage’s duty to notify KCP&L of his specific intentions.

Savage cannot establish prejudice from any errors in Instruction No. 7 on the theory that

Instruction No. 7 somehow influenced the jury’s reading of the specifications of negligence in

Instruction No. 6.

       Further, as explained by the Missouri Supreme Court, where a verdict directing

instruction is self-contained, any alleged error in the comparative fault instruction does not

require reversal “because the jury found no basis for liability against the defendant and returned

a general verdict for the defendant under instructions not dependent on” the comparative fault

instruction. Barnes, 715 S.W.2d at 521. In Barnes, the plaintiff claimed that the definition of

“negligence” in the comparative fault instruction had confused the jury and undermined the

verdict directing instruction. Id. The Missouri Supreme Court rejected this argument, noting



                                                 11
that because the verdict directing instruction was self-contained, it could not have been affected

by errors in the comparative fault instruction:

        The plaintiff's problem is that Instruction No. 6 is a full and complete verdict
        director which commands the jury to return a verdict for the plaintiff if it finds the
        four facts there hypothesized. It contains no "tail" referring to erroneous
        Instruction No. 8. The jury returned an unequivocal verdict for the defendant,
        actually writing in the defendant's name as prevailing party. We must assume that
        it followed its instructions and would have assessed a percentage of fault against
        the defendant if it had found that the four hypotheses were established. The jury
        must necessarily have concluded that the plaintiff did not establish at least one of
        these four propositions by proof meeting the required standard.

Id.

        The same is true in this case. The verdict directing instruction did not refer to any other

instructions and certainly not to the comparative fault submission in Instruction Number 7. The

verdict director instructed the jury to find for plaintiff “whether or not plaintiff was partly at

fault.” Thus, like the verdict director in Barnes, Instruction No. 6 was “full and complete” and

stood on its own without any reference to any other instruction.

        The directive that the jury consider KCP&L’s fault independently of any assessment of

fault to Savage is repeated on the verdict form itself. Following MAI 37.07, the verdict form

begins with the following explanatory note:

        Complete the following paragraph by filling in the blanks as required by your
        verdict. If you assess a percentage of fault to any of those listed below, write in a
        percentage not greater than 100%, otherwise write in “zero” next to that name. If
        you assess a percentage of fault to any of those listed below, the total of such
        percentages must be 100%.

The verdict form then indicates that the fault assessed by the jury to all parties must total “zero

OR 100%.” Thus, the verdict form makes clear that the jury could assess zero fault to KCP&L

without considering whether any assessment of fault to Savage was warranted under Instruction

No. 7. We presume the jury followed the instructions and would have assessed a percentage of

                                                  12
fault against KCP&L if it found that Savage had proven one or more elements of his claim. The

jury, however, found for KCP&L by expressly writing in “0%” fault on the verdict form. We,

therefore, conclude that the absence of any assessment of fault to KCP&L would negate any

claim of prejudice to Savage in the giving of the comparative fault instruction, even if the

instruction was erroneous.

       We affirm the circuit court’s judgment.


                                                      /s/ JAMES EDWARD WELSH
                                                      James Edward Welsh, Judge


All concur.




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