author: GLENN A. NORTON, Judge.

text:
    Robert KAPLAN, as trustee of the Robert Kaplan Trust, and Leonard O’Brien d/b/a Cloverleaf Properties, Respondents, v. U.S. BANK, N.A., f/k/a Firstar Bank, N.A., f/k/a Mercantile Bank N.A., and Avanti Marketing Group, Inc. d/b/a Southern Contractors, Appellants.
    No. ED 80671.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 18, 2003.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 27, 2003.
    Case Transferred to Supreme Court July 1, 2003.
    Case Retransferred to Court of Appeals Oct. 28, 2003.
    Original Opinion Reinstated Nov. 10, 2003.

      Thomas P. Rosenfeld, Clayton, MO, Jeffrey R. Curl, Hannibal, MO, for respondents.
    Mark G. Arnold, Clayton, MO, Shirley A. Padmore, Seth G. Gausnell, St. Louis, MO, for appellants.
    Curtis R. Bailey, Swansea, IL, for defendants.
   GLENN A. NORTON, Judge.

This case involves the disposal of contaminated concrete from a remediation site onto plaintiffs’ property. A jury found the Bank and Southern Contractors liable for actual and punitive damages on the plaintiffs’ trespass and negligence claims. The Bank appeals the finding that it could be held vicariously liable for Southern’s conduct under the doctrine of respondeat superior and the finding that it owed a duty to the plaintiffs under the remediation work plan. Southern appeals the damages instruction, the refusal to award all of its attorney fees and the assessment of costs against it. Both defendants appeal the punitive damages awards. We affirm in part and reverse in part.

I. BACKGROUND

Mercantile Bank, now known as U.S. Bank, held a security interest in a site contaminated with high levels of polychlo-rinated biphenyls, or PCBs. The corporation that owned the site defaulted on its loan with the Bank and shut down operations at-the site. At all relevant times thereafter, that corporation existed only as a shell, and the Bank acted as the true owner of-the site. In 1994, the Bank, the shell corporation and the former owners of the site reached an agreement to remediate, under which the Bank was responsible for removing materials with PCB levels of less than 10 parts per million (“ppm”). The former owners drafted a work plan describing the method for completing the remediation. The work plan mandated that the parties adhere to certain procedures to prevent “illegal or inappropriate disposal” of materials. All materials with less than 10 ppm of PCB were to be disposed of at permitted landfills or used on-site as backfill.

By late 1995, only materials with less than 10 ppm of PCB remained on the site. In January 1996, the Bank entered into a contract with Southern to remove and dispose of these and other materials. Under the contract, the Bank had the right to decide which materials would be taken off site and where they would be taken. The Bank decided to remove all materials from the site, including stockpiles of concrete. The parties executed a change order in June, under which Southern was to dispose of PCB-contaminated materials at one of two specified landfills. All clean fill was to- be removed from the site, and the Bank was to be notified of its destination in advance. The stockpiles of concrete were not tested for contamination before they were removed.

Southern was approached by several homeowners who saw the concrete stockpiled at the site and wanted to use it to fill a ditch behind their homes. Southern told them that the concrete was clean. During the summer of 1996, Southern filled the ditch with 5900 tons of concrete removed from the site. Part of the ditch was actually owned by a mobile home park located across the ditch from the homeowners. The owners, Robert Kaplan and Cloverleaf Properties (collectively “the plaintiffs”), had not given Southern permission to dump the concrete on their property.

Southern did not tell the Bank it was taking the concrete to this ditch, and the Bank never asked where the concrete had been taken. The Bank claimed not to have known about the concrete’s disposal until December of 1996 when the plaintiffs discovered that the ditch had been filled and had caused the mobile home park to flood. For the first few months of 1997, Southern and the plaintiffs discussed testing and removal of the concrete. The concrete tested positive for PCBs. That spring, the Bank became involved in the discussions, which by the end of the summer had devolved to the point that the plaintiffs concluded the Bank was never going to agree to their demands for removing the concrete and settling their claims. In November of 1997, the plaintiffs filed suit in federal court, which was voluntarily dismissed, and in October of 1998, this lawsuit was filed.

The plaintiffs asserted claims against Southern and its president for trespass, negligence and ordinance violations. The plaintiffs claimed that the Bank was vicariously liable for Southern’s trespass and negligence under the doctrine of responde-at superior and that the Bank also was directly liable based on its duty under the work plan to properly dispose of the concrete.

After a three week trial, the jury found for the plaintiffs on the trespass and negligence counts and found that the Bank was responsible for Southern’s conduct. The jury found that Southern and its president did not violate any ordinances. The jury assessed 80% of the fault to the Bank and 20% to Southern. The plaintiffs were awarded $650,000 in compensatory damages; $7,000,000 in punitive damages was assessed against the Bank and $225,000 against Southern. The court entered judgment on the verdicts and awarded Southern and its president $1,000 of its attorney fees as the prevailing parties on the ordinance violation claim. The Bank and Southern were ordered to pay all of plaintiffs’ costs.

II. DISCUSSION

A. Liability Issues

1. The Bank’s Vicarious Liability for Southern’s Conduct

In its first point, the Bank claims that the trial court erred by entering judgment on the jury’s verdict against it because the plaintiffs did not make a submissible case of respondeat superior. The Bank claims that it did not have the right to control Southern’s physical conduct and, therefore, cannot be held vicariously liable for Southern’s conduct under the doctrine of respon-deat superior. We agree.

Respondeat superior is inapplicable unless a master-servant relationship exists. Trinity Lutheran Church v. Lipps, 68 S.W.3d 552, 557 (Mo.App. E.D.2001); see also Hougland v. Pulitzer Publishing Co., Inc., 939 S.W.2d 31, 33 (Mo.App. E.D. 1997). If it applies, then the master is liable for damages resulting from the servant’s negligent acts committed within the scope of employment. Lipps, 68 S.W.3d at 557.

A master-servant relationship exists when “the person sought to be charged as master had the right or power to control and direct the physical conduct of the other while working.” Hougland, 939 S.W.2d at 33. “If there is no right to control, there is no liability; ■ those rendering services but retaining control over their • own movements are not servants.” Lee v. Pulitzer Publishing Co., 81 S.W.3d 625, 631 (Mo.App. E.D.2002). A master-servant relationship is not necessarily established because the purported master controls the outcome of the work:

[Stipulations which entitle the employer to exercise a certain measure, of control over the work, but go no further than to enable him to secure that it shall be properly performed, do not affect the quality of contracts which, apart from those stipulations, would be construed as independent.

Williamson v. Southwestern Bell Telephone Co., 265 S.W.2d 354, 358 (Mo.1954). When one contracts to do a piece of work by his own methods and not subject to the control of an employer except as to the result, he is an independent contractor and the employer cannot be held vicariously liable under the doctrine of respondeat superior. See Lipps, 68 S.W.3d at 557 (citing Talley v. Bowen Construction Co., 340 S.W.2d 701 (Mo.1960)).

The master-servant relationship is a question of law for the court when the material facts from which the relationship is to be inferred are not in dispute and lead to only one reasonable conclusion. Johnson v. Bi-State Development Agency, 793 S.W.2d 864, 867 (Mo. banc 1990). The parties’ differing opinions as to the legal effect of documents or actions that determine the relationship do not create an issue of fact for the jury. Hougland, 939 S.W.2d at 33. Here, while the parties obviously dispute the meaning and legal effect of the Bank’s contract with Southern and their conduct thereunder, the underlying material facts are not in dispute.

Under the contract, Southern clearly had control over its physical conduct and performance of the work: “[Southern] shall supervise and direct the work, using [its] best skill and attention, and shall be solely responsible for all means, methods, techniques, sequences and procedures used to complete the work.” Southern was responsible for providing and paying for all labor, materials, equipment and facilities needed to complete the work, including equipment and labor needed to prepare any materials for use as fill. Southern was responsible for paying all taxes and for securing any permits, licenses, or inspections needed to complete the work. Southern was responsible for ensuring that the work complied with applicable laws. Southern was responsible for keeping the work-site clean and for ensuring the safety of others at the site. Southern also agreed to indemnify the Bank. Although the contract required Southern to work during normal working hours and complete the project by a certain date, Southern was responsible, at its own expense, for taking the steps necessary to complete the work on time. Southern agreed to cooperate with the Bank in the development of schedules or plans to minimize interference with other operations on the site. Southern was responsible for maintaining insurance.

The Bank, on the other hand, had limited rights and responsibilities under the contract and no control over Southern’s physical conduct: it had access to the site, could reject non-conforming work and could terminate the contract with notice. The Bank’s control was primarily over the scope of the work. The contract described the scope of the work, in part, as general site reclamation work, which involved the removal and disposal of certain materials. The Bank had the right to approve the reuse of demolished materials on-site and the method for compacting those materials. “All materials resulting from the demolition portion of the above work that is not approved by [the Bank] for use as on[-]site fill shall be removed from the site and properly disposed of by Southern as part of the work under this contract.” The June change order further specified the plan for disposal: all debris was to be crushed, loaded and disposed or installed; materials contaminated with PCBs were to be disposed of at one of two specified locations and were not to be used as fill on-site; and any “clean material” not used for fill was “to be removed from premises.” As to this “clean material,” the Bank was “to be notified in advance of shipment all locations this material is to be shipped to and estimated quantities.” There was consistent testimony that the Bank actually had the right to direct where any material would be taken.

The contract alone leads to only one conclusion: the Bank did not have the right or power to control or direct the physical conduct of Southern in the performance of the work. Nor does the testimony that the Bank actually had control over where the material was to be taken create a master-servant relationship. The control the Bank had over the scope of work, including the right to determine where the material was disposed, amounts to, at best, a right to control the outcome of the work. This control did not extend over the physical conduct of Southern in its performance of this work. Thus, Southern was an independent contractor, not a servant.

Several cases illustrate that this type and amount of control is insufficient to create a master-servant relationship. For example, in Williamson, the phone company entered into a written contract with a tree trimming service to clear a right-of-way. 265 S.W.2d at 356. One of the trimming service workers injured the plaintiff in a car accident, and she sued the phone company. Id. On appeal from the directed verdict in favor of the company, the Supreme Court found that although the company (1) had the power to control and arrange for timber disposal and, allegedly, the power to direct the trimming methods, (2) furnished blueprints and plats specifying the work to be done, and (3) had the right to direct the trimmers to work on certain spots, there was no “fair or reasonably permissible inference” that the company and trimming service had a master-servant relationship. Id. at 360. The company’s control was only to ensure that the work was properly performed. Id. at 358. The Bank’s rights to define the scope of Southern’s removal and disposal work, including where to dispose, no more created a master-servant relationship than did the phone company’s rights to tell the trimmers what, where and how to trim and where to dispose of the trimmings. See also Lipps, 68 S.W.3d at 554 (landowner did not have right to control details of work done by logger hired to fell and dispose of trees).

This case is also similar to cases involving delivery persons. In Collins v. Feldman, for example, a delivery company signed an agreement with a driver, under which he was designated an independent contractor. 991 S.W.2d 718, 719 (Mo.App.E.D.1999). This Court found that, although the company provided the parcels for delivery, required that they be delivered the same day and directed the driver where to leave the parcels, “the operational details were determined by [the driver].” Id. at 720. The company did not have the right or power to control or direct the details of delivery and distribution or any other of the driver’s acts in the performance of the contract. Id. If a delivery driver whose product, destination and location of delivery are controlled by the company is not that company’s servant, then a demolition company like Southern who is told what to remove and where to take it by the Bank is not the Bank’s servant. See also Hougland, 939 S.W.2d at 32-35 (newspaper publisher did not have right to control carrier’s physical conduct in performance of delivering newspapers). Our courts require a much greater degree of control over the work. See, e.g., Muckenthaler v. C.S. Ehinger, 409 S.W.2d 625, 626-27 (Mo.1966) (truck driver’s hours, place of work, route to work, load, manner of loading and unloading were all under employer’s control).

The plaintiffs direct our attention to cases involving hauling, such as Carter v. Wright, 949 S.W.2d 157 (Mo.App.W.D.1997). The facts relevant to the amount of control over the hauler’s operations in Carter were very different than in this case. There, the court found that the contractor, appointed by and vice-president of the construction site owner, “exercised as much control as he could, short of actually riding in the truck” driven by the hauler hired to remove sheetrock from the site. Id. at 161. The contractor chose the place of disposal, made the necessary arrangé-inents, told the driver where to go and how to get there and supervised and worked with the driver during loading of the truck or called in to ensure that the truck was full before leaving the site. Id. The hauler only had control over starting, stopping and guiding the truck. Id. The contractor was “clearly controlling the details of work.” Id.

Here, the converse is true: Southern, not the Bank, had as much control as it could have had over the removal and disposal of materials from this site, short of choosing what to dispose and where to take it. The Bank had no input regarding loading or unloading, did not give Southern directions, did not make the arrangements for disposal and did not clearly control the details of Southern’s work.

In addition, the Restatement (Second) of Agency establishes several factors to consider in determining whether one acts as a servant or an independent contractor. Section 220(2)(a)-(j) (1958); see also Lipps, 68 S.W.3d at 559. As we have already discussed, the Bank exercised little if any control over the details of Southern’s work. See subsection (a). Southern was in the distinct business of demolition and environmental remediation, and there is no evidence that this type of work is normally done under the direction of the Bank. See subsections (b) and (c). Removal and disposal of contaminated waste materials is not part of the Bank’s regular business, which is ongoing. See subsections (h) and (j). We disagree with the plaintiffs that, like the driver hauling sheetrock, there is little or no skill required in the removal and disposal of waste materials from this site. See subsection (d); Carter, 949 S.W.2d at 161. Although the work was done at the Bank’s site, Southern supplied all of its own equipment and labor. See subsection (e). Southern had been engaged as a consultant for the Bank for several years, but was paid by the job, not by the hour. See subsections (f) and (g). Southern alone may have believed that it could act as the Bank’s “agent” when it negotiated a plan to test the concrete after it had been dumped on plaintiffs’ property. But there is no evidence that the parties believed they had created a master-servant relationship that would subject the Bank to liability for Southern’s conduct. See subsection (i). On balance, these factors lead to the conclusion that Southern was not the Bank’s servant.

In sum, the contract and circumstances of this case show that the Bank did not have the right or power to control or direct the physical conduct of Southern in its performance of the work under this contract. The Bank hired Southern to do a job that was outside the Bank’s area of expertise and limited its involvement to ensuring the outcome of that job. Plaintiffs failed to make a submissible case that Southern was the Bank’s servant; therefore, the Bank cannot be held vicariously liable for the trespass or negligence of Southern under the doctrine of respondeat superior.

The Bank’s Point I is granted.

2. The Bank’s Direct Liability for Negligence

In its second point, the Bank contends that the trial court erred by entering judgment on the plaintiffs’ negligence claim because the plaintiffs were not parties to the work plan and, therefore, the Bank owed them no duties thereunder. We disagree. Whether the Bank owed the plaintiffs a duty under the work plan is a question of law. See L.A.C. ex rel. D.C. v. Ward Parkway Shopping Center Co., L.P., 75 S.W.3d 247, 257 (Mo. banc 2002).

A defendant who has contracted with another owes no duty to a plaintiff who is not a party to the contract, nor can a non-party sue for negligent performance of the contract. Fleischer v. Hellmuth, Obata & Kassabaum, Inc., 870 S.W.2d 832, 834 (Mo.App. E.D.1993). This general rule of privity is designed to protect contractual parties from exposure to unlimited liability and to prevent burdening the parties with obligations they have not voluntarily assumed. Westerhold v. Carroll, 419 S.W.2d 73, 77 (Mo.1967). But when application of this rule is not necessary to protect the contractual parties, or when it would produce results contrary to justice and public policy, our courts make exceptions. See generally id. The liability of a contractual party to those not in privity is determined on a case-by-case basis and, when imposed, the limits of that liability must be carefully defined. Id. at 77-78.

The plaintiffs’ negligence claim against the Bank falls under one of the well-recognized exceptions to the privity rule: situations where the alleged negligence involves harm to others. See L.A.C., 75 S.W.3d at 262. When a defendant undertakes to do something that the defendant knew or should have foreseen would harm others or increase the risk of harm to others, the defendant has the duty to exercise reasonable care in the undertaking. See Wolfmeyer v. Otis Elevator Co., 262 S.W.2d 18, 21 (Mo.1953); see also L.A.C., 75 S.W.3d at 262; Restatement (Second) of ToRts section 324A (1965). The proper inquiry is whether the defendant has assumed a duty of reasonable care to prevent foreseeable harm to the plaintiff. L.A.C., 75 S.W.3d at 263. The existence and scope of the duty is determined by the contractual obligations the defendant undertook and the circumstances of the case. Hunt v. Jefferson Arms Apartment Co., 679 S.W.2d 875, 882-83 (Mo.App. E.D.1984); see also L.A.C., 75 S.W.3d at 263.

In L.A.C., the plaintiff was raped at a mall and sued the company who had contracted with the mall’s management to provide mall security. Id. at 263. The Supreme Court found that the contract clearly set out a general duty on the part of the company to provide adequate security for mall patrons. Id. Most importantly, the company was given express authority to detain people “to protect ... mall customers or employees from risk of serious injury” and the company agreed to cooperate with mall management in determining staffing levels “to provide full and adequate security to the mall.” Id. at 251. The Court held that these provisions created a duty on the part of the company to exercise reasonable care to prevent foreseeable harm to mall patrons, including the plaintiff. Id. at 263.

In L.A.C., the majority focused solely on foreseeability and did not, as the dissenting opinion points out, address the liability to which the defendant might be exposed. 75 S.W.3d at 265 (C.J. Limbaugh, dissenting). The dissent believed that Westerhold forbid the Court from imposing a duty because it would subject the company to “unlimited liability to an unlimited number of persons — the many thousands of patrons and employees of the mall.” Id. The majority responded to this charge by quoting Westerhold directly:

“[A] party by entering into a contract may place himself in such a relation toward third persons as to impose upon him an obligation to act in such a way that the third persons will not be damaged. Wolfmeyer v. Otis Elevator Co., 262 S.W.2d 18. In Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752, 758, it was stated that where one under contract with another assumes responsibility for property or instrumentalities and agrees under his contract to do certain things in connection therewith which, if left undone, would likely injure third persons, ‘there seems to be no good reason why [he] should not be held liable to third persons injured thereby for his failure to do that which he agreed to do, which he assumed responsibility for, and which was reasonably necessary to be done for their protection.’ ”

L.A.C., 75 S.W.3d at 266 n. 13 (quoting Westerhold, 419 S.W.2d at 80).

Here, the following provision of the work plan provides the source of the Bank’s duty to properly dispose of the concrete:

Waste segregation and handling procedures will be enforced to preclude mixing or misdirection of materials that could result in illegal or inappropriate disposal of wastes or on-site/off-site use of materials.

All parties to the work plan, including the Bank, undertook to prevent illegal or inappropriate disposals. Under the agreement to remediate, the Bank’s duty was limited to the proper disposal of materials with less than 10 ppm of PCB. The work plan provided that these materials could be used on-site as backfill; as the plaintiffs point out, other provisions suggest that all material with up to 40 ppm of PCB would be disposed of at permitted landfills. It is clear from these provisions that the Bank had a duty to prevent contaminated concrete from being disposed of anywhere other than at a landfill or on the site. This duty included the duty to prevent against disposal on property without the owner’s permission. The harm that could befall property owners from the dumping of contaminated materials without the owners’ permission, including these plaintiffs, was foreseeable.

Although it seems that foreseeability is the only issue to be addressed under L.A.C., we note that the exposure to liability here is limited to owners on whose property these contaminated materials were actually dumped without their permission and that the duty only imposes on the Bank the obligation not to dump contaminated materials on unwilling recipients — something the Bank had no right to contract to do in the work plan anyway. Therefore, none of the reasons for applying the rule of privity exist in this case. See Westerhold, 419 S.W.2d at 77. In fact, we believe that to impose the rule in this case would produce results contrary to justice and public policy. See id.

We have no opinion, and nothing herein should be construed as an opinion, about other duties the Bank may have undertaken in the work plan or because of the circumstances of this remediation project, or about other plaintiffs to whom those duties might be owed. Our holding is limited: the Bank had a duty in this case to these plaintiffs and there was no error in submitting to the jury the plaintiffs’ claim that the Bank was negligent in carrying out that duty.

The Bank’s Point II is denied.

B. Damages Issues

1. Damages Instruction

In its first point, Southern argues that the trial court erred by submitting the following instruction regarding damages:

If you find in favor of plaintiffs, then you must award the plaintiffs such sum as you may find from the evidence to be the reasonable cost of repair of any damage to plaintiffs’ property.

Generally, the measure of damages for tortious injury to property is its diminished value — the difference between the fair market value of the property immediately before and immediately after the injury. See Sheridan v. Sunset Pools of St. Louis, Inc., 750 S.W.2d 639, 641 (Mo.App.E.D.1988); see also MAI 4.02. But when there is evidence that the amount of damage is insignificant, as compared to the value of the property as a whole, and involves only a small part of the property, the “cost of repair” measure is proper and the above instruction is appropriate. See Sheridan, 750 S.W.2d at 641; see also MAI 4.02, Committee Comment (quoting Gulf, M. & O.R. Co. v. Smith-Brennan Pile Co., 223 S.W.2d 100 (Mo. App.1949)). Our Court has explained the rationale behind the different measures:

[WJhere the injury is extensive or permanent the measure of damages is the reduction in the overall value of the property as a whole; in contrast, where the injury is slight when compared with the overall size and value of the realty and the injury can readily be remedied by repair, then the measure of damages is the expense of restoration. The latter method is not inconsistent with the former. This, because in the case of slight injury the cost of repair logically reflects the amount the property was reduced in value.

Smith v. Norman, 586 S.W.2d 84, 85 (Mo. App. E.D.1979) (emphasis added). While diminished value is the preferred measure of damages in tort cases because it restores plaintiffs to the positions they were in had the tort not been committed, the particular facts of each case determine which measure is appropriate. See McLane v. Wal-Mart Stores, Inc., 10 S.W.3d 602, 605-606 (Mo.App. E.D.2000).

Ordinarily, to make that determination, the court would need evidence permitting it to compare diminished value with the cost of repair or, at least, evidence permitting “an inference that the cost of repair is a fraction of the diminished value.” Sheridan, 750 S.W.2d at 641-42; see also MAI 4.02, Committee Comment; see also Flora v. Amega Mobile Home Sales, Inc., 958 S.W.2d 322, 324 (Mo.App. W.D.1998). Southern claims that there was insufficient evidence to make the determination in this case. We disagree.

The cost of cleaning up the contamination on plaintiffs’ property was specifically identified at $636,781.66, and based on the later sale of that property for $6.7 million, the cost of repair was a little more than 10% of the property’s whole value. The damage may have been extensive, but given that it was capable of repair, the damage was not permanent. There was also evidence that immediately after the injury, the plaintiffs’ tenant would only continue in its lease if the plaintiffs paid for cleaning up the contamination and indemnified the tenant forever for all future liability arising from the contamination. These conditions on the lease show the diminished value of the property.

From this evidence, it can be inferred that the cost of repair was either less than or equal to the diminished value. If perpetual indemnity has any value, then that added to the cost of repair amounts to the diminished value. If so, then the cost of repair was the proper measure of damages. See Sheridan, 750 S.W.2d at 641; see also MAI 4.02. If, on the other hand, the value of perpetual indemnity is zero— either because indemnity has no value or because there is no evidence that could establish that value with certainty — then diminished value is demonstrated by just the cost of repair. If so, then the cost of repair logically reflects the amount the property was reduced in value and is the proper measure of damages. See Smith, 586 S.W.2d at 85.

Southern’s Point I is denied.

2. Punitive Damages against Southern

In its second point, Southern claims that the evidence did not support the award of punitive damages on either of the claims against it. We disagree.

Sufficiency of the evidence to warrant a jury award of punitive damages is a question of law, within the reasoned discretion of the trial court. DeLong v. Hilltop Lincoln-Mercury, Inc., 812 S.W.2d 834, 841 (Mo.App. E.D.1991). In reviewing the submissibility of a claim for punitive damages, we view the evidence and all reasonable inferences drawn therefrom in the light most favorably to the plaintiff and disregard all contrary inferences. M.C. v. Yeargin, 11 S.W.3d 604, 614 (Mo.App. E.D. 1999); see also Shady Valley Park & Pool, Inc. v. Fred Weber, Inc., 913 S.W.2d 28, 37 (Mo.App. E.D.1995).

The remedy of punitive damages — imposed as punishment for and deterrence of bad conduct — is “so extraordinary or harsh that it should be applied only sparingly.” Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 110 (Mo. banc 1996). Punitive damages must be proven by clear and convincing evidence. Id. “Submission of a punitive damages claim to the jury warrants special judicial scrutiny because the instructional standards for punitive damages are necessarily general.” Alcorn, v. Union Pacific R.R. Co., 50 S.W.3d 226, 247 (Mo. banc 2001).

In a negligence case, the defendant can be assessed punitive damages if he knew or should have known that his conduct “created a high degree of probability of injury” and “thereby showed complete indifference to or conscious disregard for the rights of others.” Alcorn, 50 S.W.3d at 248. According to the Supreme Court, the jury may find that the mere fact that the injury occurred indicates a “high degree of probability of injury.” Id. Likewise, “[a] defendant’s aggressive defense at trial on either the issue of breach of duty or causation may supply, in the jurors’ minds, the ‘complete indifference’ or ‘conscious disregard’ element.” Id. Thus, to make a submissible case, there must be a judicial determination that the conduct was so egregious that it was “tantamount to intentional wrongdoing” and such that injury is the “natural and probable consequence” of the conduct. Id.

For intentional tort cases, including trespass, “[pjunitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or reckless indifference to the rights of others.” Restatement (Second) of ToRts section 908(2) (1979); Burnett v. Griffith, 769 S.W.2d 780, 789 (Mo. banc 1989). Whether plaintiffs made a submissible case depends on whether a reasonable juror could have found that Southern’s conduct showed complete indifference to or a conscious disregard for the plaintiffs’ rights. See Shady Valley, 913 S.W.2d at 37.

The evidence supported submission of the punitive damages claim against Southern on both the trespass and negligence claims.

As to trespass, a reasonable juror could have concluded that Southern’s reliance on the homeowners’ identification of their property line and their statement that adjoining owners wanted the concrete dumped in the ditch demonstrated Southern’s disregard and indifference to plaintiffs’ rights. This was especially outrageous here because the concrete was contaminated. Moreover, there was conflicting evidence about the timeliness of Southern’s offers to correct the problem and about whether they were made in good faith. Viewing the conflicting evidence favorably to the plaintiffs, a reasonable juror could have concluded that this conduct showed complete indifference to or conscious disregard for the plaintiffs’ rights.

As to negligence, in addition to the above evidence, Southern admits that it knew it was to assume all the material at the site, including the concrete at issue here, contained PCBs. Southern claims that there was evidence of additional testing, some of which was just a visual inspection of the site, that led it to assume that the concrete dumped on plaintiffs’ property contained either less than 10 ppm or was clean. There was also evidence that Southern was aware of the risk of cross-contamination at the site, which Southern knew required additional testing to ensure that previously clean materials had not become contaminated. This knowledge, plus the facts relating to the plaintiffs’ property line and Southern’s conduct in negotiating the clean-up of plaintiffs’ property, demonstrate a pattern of conduct so egregious that it is the equivalent of intentional wrongdoing, of which the plaintiffs’ harm was the natural and probable consequences.

Southern’s Point II is denied.

3. Punitive Damages against the Bank

In its third point, the Bank argues that the claims for punitive damages against it were not sustainable for various reasons. We disagree. Some of the Bank’s arguments are moot in light of our finding that the Bank cannot be vicariously liable for actual or punitive damages- for Southern’s trespass or negligence. Thus, we will address only the contention that there was no evidence to support submission of punitive damages against the Bank for its negligence under the work plan.

As discussed above, to make a submissi-ble case for punitive damages on a negligence claim, the plaintiffs were required to show by clear and convincing evidence that the Bank knew or should have known that its conduct “created a high degree of probability of injury” and “thereby showed complete indifference to or conscious disregard for the rights of others.” Alcorn, 50 S.W.3d at 248. The conduct must be so egregious that it is “tantamount to intentional wrongdoing” and injury is the “natural and probable consequence.” Id.

The evidence supported submission of the punitive damages claim against the Bank on the negligence claim. The conduct at issue here is the Bank’s failure to properly dispose of the concrete under the work plan. The Bank breached that duty by failing to either dispose of this contaminated concrete at a landfill or use it as backfill on-site. The Bank knew that the stockpiled concrete could have been contaminated: it was aware that cross-contamination was a problem at the site and knew that the work plan’s mandate to segregate materials to prevent cross-contamination was not being followed. In fact, the Bank’s consultant at the site sent the Bank photos showing contaminated materials mixed in with clean concrete. After learning of these problems, the Bank reduced the consultant’s role in the project. The consultant was brought back several months later for spot sampling, and he reported to the Bank that Southern was adding contaminated concrete to the stockpiles earmarked for removal. The Bank responded only by having the sod underneath the stockpile tested, but not the stockpiled concrete itself.

When it came time, the Bank chose the least expensive option for disposing of these stockpiles of concrete and the one that required no further testing: it told Southern just to take it off site. The Bank knew or should have known that by sending it off site for disposal at an unknown location without further testing created a high degree of probability of injury— namely, harm to the value of the property on which the contaminated material was disposed. In doing so, the Bank showed complete indifference to and conscious disregard for others’ rights. This conduct was so egregious that it is the equivalent of intentional wrongdoing, of which the plaintiffs’ harm was the natural and probable consequences.

The Bank’s Point III is denied.

In its fourth point, the Bank contends that, even if punitive damages are allowable here, the amount of this award is excessive. This point is also moot in light of our decision to remand for a new trial as to the amount of those damages, which is further explained at the end of this opinion. See section D, infra.

The Bank’s Point IV is moot.

C. Attorney Fees and Costs Issues

1. Attorney Fees

In its third point, Southern contends that the trial court abused its discretion by awarding it only $1,000 of its attorney fees as the prevailing party on the ordinance violation claim. We disagree.

Trial courts are considered experts on attorney fees. Distler v. Reuther Jeep Eagle, 14 S.W.3d 179, 186 (Mo.App.E.D.2000). The amount of attorney fees awarded is within the sound discretion of the trial court, and the award will only be reversed if the trial court arrived at the award arbitrarily or if the award is so unreasonable that it indicates indifference and lack of proper judicial consideration. Id.

Southern argues that when there are multiple counts with a common core of facts, related legal theories and indistinguishable damages, attorney fees need not be allocated to each claim. It cites Brockman v. Soltysiak, 49 S.W.3d 740, 746 (Mo. App. E.D.2001) and Architectural Resources, Inc. v. Rakey, 912 S.W.2d 676, 679-82 (Mo.App.S.D.1995) in support. In Brockman, this Court found no abuse of discretion in a trial court’s award of fees without allocation where the damages sought against the two defendants on different claims — breach of contract and unjust enrichment — were indistinguishable and indivisible. 49 S.W.3d at 746. In Rakey, the Southern District found no abuse of discretion in the trial court’s award of fees based on the combined expenses incurred preparing and presenting evidence that the trial court found to be applicable to all claims. 912 S.W.2d at 679-82.

Even if Southern is correct that it was not required to allocate which of its fees went with which claim, neither of the above cases establish that it is an abuse of discretion for the trial court to award only a portion of fees when there are multiple claims, even if they are related. Here, there was no abuse of discretion in awarding only that portion of Southern’s fees the trial court found attributable to the ordinance claim — the only claim on which Southern prevailed and the only claim for which it was statutorily entitled to fees. First, the damages on the claims were not indistinguishable and indivisible. On the trespass and negligence counts, the plaintiffs sought actual and punitive damages, whereas on the ordinance violation, they sought the statutory civil penalties. Second, it does not appear that the testimony was equally applicable to all counts. For instance, evidence relating to the relationship between Southern and the Bank and the conduct of the parties in negotiating testing and remediation of plaintiffs’ property, which occurred after the acts allegedly constituting ordinance violations, was not applicable to the ordinance claims. Moreover, these theories of liability are not related. The multiple claims in this case were not so intertwined that it was impossible for the trial court, based on the evidence of counsel’s detailed time records and from an evaluation of the evidence at trial, to have allocated a specific amount of fees to just the ordinance violation.

Nor has Southern shown that the amount of fees awarded was so arbitrary as to constitute an abuse of discretion. Southern contends that the trial court should have considered that this matter was important, time-consuming and complex and that Southern prevailed. There is no indication, however, that the trial court did not consider these things in reaching its amount. The court could have found that the importance, amount of time required and complexity of the ordinance claim were slight in comparison to litigating all of the claims. Moreover, Southern lost on all the other claims. In light of these factors, the $1,000 fee award is not so unreasonable as to indicate indifference or a lack of judicial consideration.

Southern’s Point III is denied.

2. Costs

Prevailing parties in civil actions shall recover their costs. Section 514.060 RSMo 2000; see also Rule 77.01. Where a party prevails on some but not all counts in a multiple count petition, however, costs shall be awarded at the discretion of the court. Section 514.090; Hoag v. McBride & Son Inv. Co., Inc., 967 S.W.2d 157, 175 (Mo.App. E.D.1998). As a result of this appeal, the plaintiffs have prevailed on fewer of the major issues than they had at the time the court awarded the plaintiffs all of their costs. While the plaintiffs could still be deemed the “prevailing party,” we believe that the trial court is in the best position to determine how costs should be apportioned in light of this appeal. See Drey v. McNary, 529 S.W.2d 403, 413 (Mo. banc 1975). Thus, we will reverse the award of costs and remand to the trial court for re-assessment of costs. On remand, the trial court is free to award the plaintiffs all of their costs, or only a portion thereof, in its discretion.

Because the issues raised by Southern concerning costs are likely to arise on remand, we will address them here. Items not specifically authorized by statute or agreement are not taxable as costs. Groves v. State Farm Mut. Auto. Ins. Co., 540 S.W.2d 39, 44 (Mo. banc 1976). Southern argues that many of the items taxed as costs were unauthorized or unreasonable. We agree that expenses for “multimedia” — charges for rush videotape duplication, legal photography and courtroom technology consultants — are not specifically authorized as taxable as costs by statute. Nor is there any statutory authority for taxing as costs photocopying expenses. Similarly, when a party is required by statute to secure a transcript, the costs thereof are taxable under section 514.060. See, e.g., Reed v. City of Springfield, 841 S.W.2d 283, 285 (Mo.App. S.D. 1992). But there is no authority for taxing as costs expedited transcripts ordered by a party for its own convenience.

Witness fees, on the other hand, are authorized. See section 491.280. Southern argues that many of the witnesses were duplicative and, therefore, taxing them as costs was unreasonable. We agree with the plaintiffs that the trial court is in the best position to decide the necessity of each witness.

Southern’s Point IV is granted in part and denied in part.

D. Disposition and Instructions on Remand

The verdict against the Bank on the plaintiffs’ trespass claim, based entirely on the doctrine of respondeat superior, and the portion of the verdict finding that the Bank is responsible for Southern’s negligence must be set aside. Naturally, because the trespass verdict against the Bank is set aside, the plaintiffs cannot recover actual or punitive damages from the Bank on that count. See Williams Carver Co. v. Poos Bros., Inc., 778 S.W.2d 684, 686 (Mo.App. W.D.1989).

The jury was given separate punitive damages instructions for each defendant and for each claim, but given only one place on the verdict form to enter an amount of punitive damages for each defendant based on a finding of liability on either trespass or negligence. As a result, we cannot determine from the jury’s verdict what, if any, of the $7 million in punitive damages was based on the Bank’s vicarious liability for trespass and what part, if any, of the award was based on the Bank’s direct liability for negligence. We believe that remanding for a new trial only on the issue of punitive damages for the Bank’s negligence will not work an injustice, and in fact, is in the best interest of justice. See generally Grose v. Nissan North America, Inc., 50 S.W.3d 825, 834 (Mo.App.E.D.2001).

Having found that the cost of repairs was the proper measure of actual damages, and there being no other error alleged as to the amount of actual damages, those damages are fixed at $650,000 on remand. See Kibbons v. Union Electric Co., 823 S.W.2d 485 (Mo. banc.1992); see also McHaffie v. Bunch, 891 S.W.2d 822, 827-28 (Mo. banc 1995). The allocation of fault, based entirely on the direct negligence of each defendant and not challenged on appeal, is also fixed on remand at 80% to the Bank and 20% to Southern.

Having concluded that there is a submis-sible case against the Bank for punitive damages on the direct negligence count, the trial court is directed at the new trial to submit the issue of punitive damages against the Bank on its direct negligence. In all other respects, the trial court has discretion as to what evidence from the first trial is admissible at the new trial, as long as that evidence is consistent with this opinion — namely, that the Bank cannot be held vicariously liable for Southern’s conduct and that the amount of actual damages and allocation of fault are fixed. See Burnett, 769 S.W.2d at 791.

III. CONCLUSION

The judgment against the Bank for trespass is reversed. The award of punitive damages against the Bank is reversed and remanded for a new trial on that issue only, consistent with this opinion. The judgment awarding the plaintiffs their costs is reversed and remanded for reassessment in light of this opinion. The judgment in all other respects is affirmed.

WILLIAM H. CRANDALL, P.J. and SHERRI B. SULLIVAN, J. concurring.

      . The Bank contends that this testimony is improper parol evidence. Whether or not this testimony is considered, however, we agree with the Bank that the doctrine of re-spondeat superior does not apply.

      . The plaintiffs argue that the Bank’s oral motion for a directed verdict did not preserve this issue for appeal. We disagree. Rule 72.01(a) requires that "[a] motion for a directed verdict shall state the specific grounds therefor,” but we will construe a motion liberally if the basis for it is apparent and the record reveals that the trial court was fully aware of the movant’s position. See Frisetla v. Reserve Life Ins. Co. of Dallas, 583 S.W.2d 728, 731-32 (Mo.App. E.D. 1979). Here, the Bank asserted in its oral motion that plaintiffs had only pled the Bank’s failure to comply with statutes, ordinance and regulations and the Bank's negligent hiring of Southern and there was no evidence of either. “So they have failed to show a duty as pleaded.” In response, the plaintiffs asserted that they had also pled the Bank’s failure to supervise, monitor and account for disposal by Southern, of which there was sufficient evidence. The Bank replied that it "had no duty to supervise or do any of the things that [counsel] is talking about. It had no duty at all to do it.” The Bank’s motion was denied, and the plaintiffs submitted the negligence claim based solely on the Bank’s failure to comply with the work plan. The Bank claims that the plaintiffs had not mentioned a duty under the work plan specifically until they submitted jury instructions, and thus, the Bank could not have objected specifically on the ground that there was no such duty under the work plan until the instruction conference, which it did. We believe that the trial court was fully aware of the Bank’s position that it had no duty under the plan. The issue has been preserved.

      . Those arguments are (1) that plaintiffs improperly based their claim for punitive damages on the Bank’s refusal to take responsibility because that responsibility only existed if a master-servant relationship was proven, (2) that plaintiffs did not make a submissible case for punitive damages on the trespass claim because there was substantial evidence that the Bank tried to correct the trespass and (3) that there is no vicarious liability for punitive damages in Missouri without ratification by the principal.

      . The consultant testified that the Bank had tried to prevent him from attending the trial by claiming that the plaintiffs’ subpoena for his testimony was not valid and that, therefore, he did not have to show up for trial.

      . All statutory references are to RSMo 2000.


source: Caselaw Access Project

author: LAWRENCE E. MOONEY, Judge.

license: Public Domain

text:
    Mary DUNCAN, as Personal Representative of the Estate of Gary Duncan and on Behalf of Mary Duncan, the Surviving Spouse of Gary Duncan, Respondent, v. AMERICAN COMMERCIAL BARGE LINE, LLC, Appellant.
    No. ED 82171.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 27, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 28, 2004.

      Raymond L. Massey, John S. Farmer, James W. Erwin, St. Louis, MO, for appellant.

      Nelson G. Wolff, St. Louis, MO, for respondent.
   LAWRENCE E. MOONEY, Judge.

This is an appeal of an admiralty action regarding Gary Duncan, a 48-year-old seaman who died from coronary artery disease that led to an arrhythmia and sudden cardiac death on May 31, 1999, aboard American Commercial Barge Line LLC’s vessel, the “Miss Kae D.” Mary Duncan, as personal representative of the estate and widow of the deceased, sued the defendant under the Jones Act, 46 U.S.C. Section 688, alleging that the defendant was negligent in failing to provide a safe place for Mr. Duncan to work. The plaintiff argued that Mr. Duncan was overworked through the years and deprived of the help and sleep he needed while working aboard the defendant’s vessels. In consequence of these conditions, he suffered from stress and fatigue that caused or contributed to cause his coronary artery disease that ultimately led to his death. After trial, the jury returned a verdict for the plaintiff in the amount of $950,000. The defendant appeals from the trial court’s judgment entered upon that verdict.

Statement of Facts

Viewed in the light most favorable to the jury’s verdict, giving the plaintiff the benefit of all reasonable inferences, the evidence adduced at trial is as follows,

From 1992 to 1996, Mr. Duncan was assigned to work on a number of the defendant’s vessels. Beginning in 1996, he was regularly assigned as chief engineer to the Miss Kae D, a 195-foot long, 9000-horsepower inland river towboat, powered by three large diesel engines. As chief engineer, Mr. Duncan’s duties consisted of maintaining the vessel’s engines and mechanical systems. Mr. Duncan lived and worked on the vessel for approximately 40 consecutive days per trip, and then would be off work for approximately 20 days. However, the defendant often called Mr. Duncan back to work before his 20 days of rest had been completed and he regularly was required to maintain the engine room without assistance for over 40 days at a time.

The defendant’s engineers were required to conduct thorough and frequent inspections, maintenance, and repairs. Maintenance was often required because the engines were operated 24 hows a day, 7 days a week. The failure of an engineer to fulfill all emergency and regularly scheduled engine-room responsibilities could result in damage to the equipment, collision with a bridge, or the sinking of the vessel. Such failure could also result in loss of employment. The testimony at trial was that these working conditions were unsafe and unhealthy.

Testimony at trial also established that a minimum of three regular engine-room people per trip, scheduled on opposite watches, were required to properly maintain the Miss Kae D and to allow its engine crew adequate sleep. Other companies in the barge-towing industry crewed a minimum of two engineers on similar vessels, working opposite schedules, in order to allow for uninterrupted sleep.

The defendant’s company policy stated that its engineers were to be assigned to work 12-hour shifts and that “the engineer has no one to relieve nor is relieved by anyone.” On the Miss Kae D, however, the engineer was expected to interrupt his sleep and rest hours to work numerous additional hours during his “off watch” periods to perform unscheduled work, including responding to engine alarms, taking on fuel, and changing power packs. It was impossible for the engineer to schedule his work, so as to allow for adequate sleep, because the alarms, emergency situations and general work demands were unpredictable and frequent and because the completion of some duties essential for continuous vessel operation required more than six hours of continuous work. Sleeping conditions for the defendant’s engineers were further compromised by the constant loud noise created by the nearby engines. Mr. Duncan’s sleep was also often interrupted or destroyed by the sound of loud alarms in his bedroom, signaling real and false emergencies, which required his immediate mental and physical attention. Extreme fatigue resulted from the excessive hours, inadequate assistance and sleep deprivation. Requests by Mr. Duncan and other engineers for assistance were either unanswered or refused. Instead of providing assistance to the chief engineers, the defendant occasionally would require them to train other employees to work as engineers, which actually created more work with additional stress and responsibilities for chief engineers like Mr. Duncan.

Mr. Duncan was required to work as the only scheduled engineer on the Miss Kae D for 15 consecutive days prior to his death. Mr. Duncan began his last trip on May 23, 1999. On May 31st, the day that he died, Mr. Duncan did not have a trainee engineer on board, but was assisted by second chief engineer Brad Barton, who had gotten on the vessel the previous day. During his last days, Mr. Duncan was prevented from getting enough sleep or any rest because of alarms, mechanical problems, and inadequate assistance to such an extent that he told Mr. Barton that “they’re killing me.” According to Mr. Barton, Mr. Duncan “looked like a zombie.” Mr. Barton testified that Mr. Duncan was under significant stress when Mr. Barton got on the boat the day before Mr. Duncan died. Mr. Duncan’s face was pale white and ghostly. Mr. Duncan confided to Mr. Barton that he had been having significant problems. Mr. Duncan had said he felt terrible, that he had been on the boat by himself for a period of somewhere between eleven and fifteen days, during which time there had been a considerable amount of mechanical trouble with the vessel. He had been working under trying conditions with heat and with broken fans in the emergency room. He felt the need for more help but was not able to get it. In Mr. Barton’s language, Mr. Duncan was absolutely exhausted, he was sick, he had been sick to his stomach the night before, he was sick to his stomach on the day he died.

During the hours preceding his death, Mr. Duncan replaced a several-hundred-pound power pack in a 125-degree engine room that had overheated due to a defective ventilation system. He was in fear of passing out. Mr. Duncan began to feel ill and turned pale due to the work conditions, so he took a break and, about 20 minutes later, suffered a cardiac death.

Medical evidence presented at trial established that Mr. Duncan’s cardiac death resulted from severe coronary artery disease and ventricular arrhythmia, and that the unsafe, unhealthy and excessive working conditions caused significant psychological stresses, such as chronic and acute anxiety, depression, sleep disturbance and inadequate sleep, excessive fatigue and emotional drain, during a period of years prior to his death, which caused him to suffer coronary artery disease and sudden cardiac death.

After hearing all of this evidence, the jury rendered a verdict in favor of the plaintiff.

Points on Appeal

The defendant presents six points on appeal. In its first three points, the defendant contends that the trial court erred in failing to direct a verdict in the defendant’s favor. The- defendant claims this error because (1) Mr. Duncan suffered no physical impact nor was he in the zone of danger of a physical impact in that he died suddenly of a cardiac arrest; (2) Mr. Duncan’s death was not foreseeable in that neither Mr. Duncan nor the defendant knew that Mr. Duncan suffered from coronary artery disease and its symptoms never manifested themselves before his sudden death; and (3) the plaintiffs claim is barred by the three-year statute of limitations in that the plaintiff alléged that Mr. Duncan suffered compensable pain and suffering from work-related stress during the entire seven years he worked for the defendant before his death and thus his survival cause of action for such damages accrued more than three years before this action was filed. In its fourth point on appeal, the defendant claims error due to an instruction allowing the recovery of damages for pain and suffering and for loss of society, allegedly incurred before Mr. Duncan’s death because the estate of a seaman who dies instantaneously can only recover pecuniary losses, and cannot recover for pain and suffering under the circumstances in this case. In its fifth point, the defendant protests that his counsel was prohibited from arguing in closing argument that Mr. Duncan experienced no pain and suffering immediately before his death and thus, under Instruction No. 9, his estate was not entitled to such damages, because counsel was entitled to explain how the law as given in the instructions applies to the facts. In its last point on appeal, the defendant claims error in the denial of its motion to dismiss for lack of venue. Finding no error, we affirm.

Directed-Verdict Issues

We shall first address the three arguments the defendant sets forth in support of the defendant’s alleged entitlement to a directed verdict.

The principal question in reviewing a trial court’s denial of a motion for directed verdict or judgment notwithstanding the verdict (JNOV) is whether or not the plaintiff made a submissible. case. Missouri Dept. of Transp. ex rel. PR Developers, Inc. v. Safeco Ins. Co. of America, 97 S.W.3d 21, 31 (Mo.App. E.D.2002). In order to make a submissible case, substantial evidence is required for each and every fact essential to liability. Id. The issues of whether or not the evidence is substantial and whether or not the inferences drawn are reasonable present questions of law. Id. This court views the evidence in the light most favorable to the jury’s verdict, giving the plaintiff the benefit of all reasonable inferences. Id.

In determining whether the trial court should have directed a verdict [for the moving party] or granted a judgment notwithstanding the verdict, this court must view the evidence in the light most favorable to [the adverse party] giving it the benefit of all reasonable inferences, and ignoring [the moving party’s] contrary evidence except to the extent it aids [the adverse party]. Withdrawing a case from the jury is a drastic measure which should not be taken unless there is no room for reasonable minds to differ on the issues, in the exercise of a fair and impartial judgment. A jury’s verdict must not be set aside unless there is a complete absence of probative facts to support the jury’s verdict.

Sheehan v. Northwestern Mut. Life Ins. Co., 103 S.W.3d 121, 131 (Mo.App. E.D. 2002), quoting Southwestern Bell Yellow Pages v. Robbins, 865 S.W.2d 361, 365-66 (Mo.App. E.D.1993).

The Jones Act, 46 U.S.C. Section 688, affords seamen the same rights and remedies for personal injuries provided to railway workers pursuant to the Federal Employer’s Liability Act (FELA), 45 U.S.C. Section 51 et seq., and incorporates by reference the FELA. Futrell v. Luhr Bros. Inc., 916 S.W.2d 348, 351 (Mo.App. E.D.1996). FELA caselaw is controlling in cases brought under the Jones Act. Id. The FELA is a broad remedial statute that must be liberally construed to further its humanitarian goal of holding railroads and barge companies responsible for the dangers to which their employees are exposed. Urie v. Thompson, 337 U.S. 163, 180, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949).

It is well established that the quantum of evidence required to establish liability in a FELA case is much less than in an ordinary negligence action. Harbin v. Burlington Northern R.R. Co., 921 F.2d 129, 131 (7th Cir.1990). A trial judge must submit a FELA case to the jury when there is even slight evidence of negligence. Id. The test is simply whether the evidence justifies with reason the conclusion that employer negligence played any part, even the slightest, in producing the employee’s injury. Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957).

In its first point, the defendant asserts that the fundamental issue is whether the Jones Act provides a cause of action for a fatal heart attack caused by work-related stress in the absence of any evidence of physical impact or emotional injury caused by being within the “zone of danger” of a physical impact. It does. In Bailey v. Norfolk and Western Ry. Co., 942 S.W.2d 404, 410 (Mo.App. E.D.1997), a railroad employee, Bailey, asserted a claim for coronary artery disease and gastritis caused by the railroad’s negligent failure to provide adequate sleeping facilities. Bailey required heart surgery and was disabled by that condition, and he also had stomach problems. Id. at 407. At trial, the evidence established that Bailey’s physical injuries were partially caused by his hours of work and work-related sleep deprivation over a 28-year career. Id. at 408. The railroad appealed Bailey’s verdict, claiming that the action was barred under the physical impact/zone of danger principles announced three years earlier in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) and subsequent cases because the injury did not result from a physical impact or result from being within a zone of danger. Bailey, 942 S.W.2d at 408. This Court affirmed the jury’s verdict for Bailey, holding that the physical impact/zone of danger test was not a prohibition because that test is only required in a claim for negligent infliction of emotional distress, which was not asserted by Bailey, nor did he merely assert a claim for negligent failure to provide a stress-free work environment. Id. at 411.

This Court distinguished the claim presented in Gottshall, which was for negligent infliction of emotional distress by an employee who had no physical injuries, from Bailey’s, which sought compensation for purely physical heart disease and gastritis injuries. Id. We explained as follows:

Gottshall [ ] does not stand for the proposition that only claims for injuries, physical or otherwise, that are caused by physical impact or the threat of imminent physical harm are cognizable under FELA. The issue in Gottshall [ ] was the proper standard for evaluating claims for negligent infliction of emotional distress that are brought under the [FELA],.. .The Federal common law ‘zone of danger’ test adopted by the Gottshall [ ] Court was designed to limit the scope of recovery for claims of negligent infliction of emotional distress under FELA, and not for all FELA claims. Id. at 408.

The defendant argues that Bailey involved a plaintiff with actual symptoms, thereby putting his employer on notice of a foreseeable injury, and that absent those narrow circumstances involving knowledge of the stress-related illness by the employer and employee, proof of a physical impact remains essential, as is clear from the later decision from the U.S. Supreme Court in Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997).

We disagree. Buckley involves a claim for negligent infliction of emotional distress, as does Gottshall. Bailey and the instant case do not. Buckley’s holding is not contrary to our holding in Bailey. The defendant’s assertion that “[b]oth Gotts-hall and Buckley and their progeny 'establish that both the FELA and the Jones Act require either a physical impact or that the plaintiff (or decedent) be in the zone of danger of a physical impact” is an incorrect statement that fails to limit the holdings of Gottshall and Buckley to claims for negligent infliction of emotional distress. Buckley simply held that “Buckley cannot recover emotional distress damages unless, and until, he manifests symptoms of a disease.” Buckley, 521 U.S. at 427, 117 S.Ct. 2113.

We are also guided by the Supreme Court’s recent decision in Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003). In Ayers, the plaintiff had been diagnosed with asbestosis caused by exposure to asbestos at the workplace. He pursued a claim for damages, including damages for mental anguish, resulting from his fear of developing cancer. The Ayers Court held that the “mental anguish damages resulting from the fear of developing cancer may be recovered under the FELA by a railroad worker suffering from the actionable injury asbestosis caused by work-related exposure to asbestos.” Id. at 141, 123 S.Ct. 1210. The Ayers Court distinguished the plaintiffs ease from those involving merely a claim for negligent infliction of emotional distress without a physical injury, as in Buckley, 521 U.S. at 427, 117 S.Ct. 2113, where there was no claim of physical injury. In Ayers, because the asbestosis constituted a physical injury, it elevated the claim above one that was for mere exposure, as in Buckley, thereby eliminating the need to show an impact/zone of danger. Ayers, 538 U.S. at 146-148, 123 S.Ct. 1210. The Ayers Court explained that its decision was in harmony with Buckley, which “sharply distinguished exposure-only plaintiffs from ‘plaintiffs who suffer from a disease,’ and stated unambiguously, that ‘the common law permits emotional distress recovery for [the latter] category.’ ” Id. at 156, 123 S.Ct. 1210 (quoting Buckley, 521 U.S. at 432, 436, 117 S.Ct. 2113).

Based on the foregoing, we conclude that the Jones Act does not prohibit a cause of action for a fatal heart attack caused by work-related stress in the absence of any evidence of physical impact or emotional injury caused by being within the . “zone of danger” of a physical impact. Point denied.

In its second point, the defendant claims the trial court erred in failing to direct a verdict in the defendant’s favor because Mr. Duncan’s death was not foreseeable in that neither Mr. Duncan nor the defendant knew that Mr. Duncan suffered from coronary artery disease and its symptoms never manifested themselves before his sudden death.

To establish a submissible case under FELA, the plaintiff must show that the railroad had a duty to provide him with a reasonably safe place to work, that the railroad breached its duty of care, that this lack of due care played some part, however slight, in producing the plaintiffs injury and .that the injury was reasonably foreseeable. White v. Union Pacific Railroad Company, 871 S.W.2d 50, 53 (Mo.App. E.D.1993); Bailey, 942 S.W.2d at 411.

The defendant asserts in its brief that “[hjaving never established that [the defendant] had knowledge of Mr. Duncan’s latent coronary artery disease, Plaintiff did not prove the harm was foreseeable. The evidence is undisputed that Mr. Duncan himself had no idea or any reason to know that he had coronary artery disease.” Mr. Duncan’s lack of knowledge of his heart disease or condition is irrelevant to the issue of the defendant’s negligence. Stewart v. Alton and Southern Ry. Co., 849 S.W.2d 119, 125 (Mo.App. E.D.1993). The cases cited by the defendant in support of its contention that the specific injuries suffered must be foreseeable involve claims for negligent assignment. It is the employer’s prior knowledge of an employee’s physical condition that is central to the concept of negligent assignment. See, e.g., White v. Union Pacific Railroad, 871 S.W.2d 50, 53 (Mo.App. E.D.1993). Orn-ease does not involve a claim for negligent assignment and, therefore, these cases are inapposite. Further, the issue of foreseeability is generally a jury question. Id., citing Hertzler v. Burlington Northern Railroad Co., 720 S.W.2d 762, 766 (Mo. App. E.D.1986). Judicial review is limited to the reasonableness of the jury finding. Id. It is knowledge or anticipation of the possibility of harm to the plaintiff, not of the exact nature of the injury that is determinative. Id.

Mr. Duncan was deprived of adequate rest as a result of substandard sleeping and lodging conditions aboard the defendant’s vessel, including erratic work schedules, sleep interruption and deprivation, physical - exertion, and exposure to excessive heat and humidity. The defendant denied Mr. Duncan’s requests for assistance. The working conditions caused Mr. Duncan extraordinary emotional distress that was apparent to his wife and coworkers. Expert testimony established that these working conditions were hazardous to human health and were well known in the field of medicine and science to contribute to the development of coronary artery disease, psychological distress, and sudden cardiac death. Based on the foregoing, the jury could have reasonably concluded that the defendant should reasonably have foreseen that Mr. Duncan could suffer harm from these working conditions. Point denied.

In its third point, the defendant claims the trial court erred in failing to direct a verdict in the defendant’s favor because the plaintiffs claim is barred by the three-year statute of limitations, as set forth in 46 U.S.C. Section 688 (Jones Act, incorporating by reference 45 U.S.C. Section 56 and 46 U.S.C. Section 763a). The defendant argues that Mr. Duncan’s survival cause of action accrued more than three years before this action was filed, because the plaintiff alleged that Mr. Duncan suffered compensable pain and suffering from work-related stress during the entire seven years he worked for the defendant before his death.

We disagree. Mr. Duncan was not aware that he was suffering from coronary artery disease that would lead to his death. There was no evidence that Mr. Duncan should have been aware that he had a compensable injury claim under the Jones Act before his death. A FELA cause of action for an occupational disease accrues when the plaintiff knows or should have known, in the exercise of reasonable diligence, the critical facts of his injury and its cause. Johnson v. Norfolk & Western Ry. Co., 836 S.W.2d 83, 85 (Mo.App. E.D. 1992). Accordingly, neither the plaintiff nor Mr. Duncan had a compensable Jones Act claim until Mr. Duncan died in 1999. Thus, the defendant was not entitled to a directed verdict based on the running of the three-year statute of limitations. Point denied.

Damages Instruction

In its fourth point, the defendant asserts that the trial court erred in giving Instruction No. 9, allowing the recovery of damages for pain and suffering and for loss of society allegedly incurred before Mr. Duncan’s death, because the estate of a seaman who dies instantaneously can only recover pecuniary losses, and cannot recover for pain and suffering under the circumstances here. The form of a jury instruction is a procedural matter, but whether or not a jury was properly instructed is a question of law. Moore ex rel. Moore v. Bi-State Development Agency, 87 S.W.3d 279, 293 (Mo.App. E.D.2002). We first note that the plaintiff made no claim for damages for loss of society or consortium, nor did the instruction seek such damages, and therefore this portion of the deféndant’s point is disregarded.

Here, medical evidence established that unsafe and unhealthy working conditions caused Mr. Duncan’s coronary artery disease, and this injury proved fatal when it later led to his instantaneous death. The defendant complains that Instruction No. 9 allowed the jury to award to the plaintiff damages for Mr. Duncan’s pre-death pain and suffering. Instruction No. 9 provides:

If you find in favor of plaintiff Mary Duncan, then you must award her such sum as you believe will fairly and justly compensate her for any damages you believe she and Gary Duncan sustained and which Mary Duncan is reasonably certain to sustain in the future as a direct result of the fatal injury to Gary Duncan. Any award of future pecuniary damages must be included at present value. Any award you make is not subject to income tax. You must not consider grief or bereavement suffered by reason of the death.

Instruction No. 9 tracks MAI 8.01 verbatim. Note 1 of MAI 8.01’s Notes On Use provides that where the evidence supports the submission of damages to decedent between the time of injury and the time of death, i.e., pain and suffering, his name may be included in the instruction for compensatory damages.

The defendant claims the estate of a seaman who dies instantaneously can only recover pecuniary losses. However, the defendant only supports its argument with cases involving immediate traumatic death. Those who suffer traumatic injury that eventually, but not immediately, causes death, are not precluded from recovering properly pleaded and proven pain-and-suffering damages. See St. Louis, Iron Mountain & Southern Railway Company v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160 (1915); Washington Railway & Electric Company v. Scala, Administratrix Of Scala, 244 U.S. 630, 37 S.Ct. 654, 61 L.Ed. 1360 (1917); New Orleans & Northeastern Railroad Company et al. v. Harris, Administratrix Of Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167 (1918); Gillespie, Administratrix v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964); Philome-na Dooley, Personal Representative Of Estate Of Cecelio Chuapoco, Et Al., Petitioners v. Korean Air Lines Co., Ltd., 524 U.S. 116, 124, 118 S.Ct. 1890, 141 L.Ed.2d 102 (1998). Likewise, chronic illness or injury, such as cancer or coronary artery disease, can certainly produce pain and suffering prior to death, and FELA caselaw does not prohibit recovering pain-and-suffering damages in such cases. See, e.g., Ayers, 538 U.S. 135, 123 S.Ct. 1210, 155 L.Ed.2d 261; Bailey, 942 S.W.2d 404. There was no error in instructing the jury that they could assess pain-and-suffering damages that Gary Duncan sustained as a direct result of his coronary artery disease, even though that injury later caused him to suffer an instantaneous death. Point denied.

Closing Argument

In its fifth point, the defendant asserts that the trial court erred in prohibiting the defendant’s counsel from arguing in closing argument that Mr. Duncan experienced no pain and suffering immediately before his death and thus, under Instruction No. 9, his estate was not entitled to such damages, because counsel was entitled to explain how the law as given in the instructions applies to the facts.

The trial court is accorded broad discretion in ruling on the propriety of closing arguments and will suffer reversal only for an abuse of discretion. Simpson v. Johnson’s Amoco Food Shop, Inc., 36 S.W.3d 775, 777 (Mo.App. E.D.2001).

The defendant argues that it was entitled to explain how the law as given in the instructions applied to the facts. The trial court allowed the defendant to do just that. The trial court specifically allowed the defendant to argue its position that it did not believe the evidence supported a finding of suffering prior to the death. The defendant then argued this position to the jury. However, the defendant’s counsel was not entitled to argue something contrary to the law given in the instructions, i.e., that the jury could only award damages sustained as a result of Mr. Duncan’s death. Such argument is a misstatement of the law, which allows damages resulting from Mr. Duncan’s fatal injury, that is, the coronary artery disease that caused his death. Point denied.

Venue

In its sixth point, the defendant argues that the trial court should have dismissed the plaintiffs action for lack of venue. This point is not preserved for review. In its motion to dismiss for improper venue, the defendant claimed it was a corporation and alleged venue was improper as to it under Section 508.040, the venue statute applicable to corporations. The trial court denied the motion to dismiss based on its analysis of the applicability of Section 508.040. In its point on appeal, the defendant argues that venue was improper as to it under Section 347.069, the venue statute applicable to limited liability companies. The defendant did not raise the issue of improper venue in the trial court on the basis of its alleged status as a limited liability company. The defendant has therefore waived this argument. See Lochhaas v. Burnett, 77 S.W.3d 12, 15 (Mo.App. E.D.2002) (defendant did not raise the issue of improper venue in the court below on the basis of the size and location of certain property). A party is bound on appeal by the theory it pleaded at trial, Erwin v. City of Palmyra, 119 S.W.3d 582, 587 fn. 3 (Mo.App. E.D.2003), and will not be heard on a different theory. Review on appeal is limited to theories advanced properly before the trial court. Heffeman v. Reinhold, 73 S.W.3d 659, 663 (Mo.App. E.D.2002). Point denied.

The judgment of the trial court is affirmed.

CLIFFORD H. AHRENS, P.J., and WILLIAM H. CRANDALL, JR., J., concur.

      ‘. We have renumbered'the points for ease of consideration.

      . Again, we note that FELA caselaw is controlling in cases brought under the Jones Act. Futrell, 916 S.W.2d at 351.

      . MAI 8.01 provides:
      If you find in favor of the plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate (here identify the beneficiaries) for any damages you believe (he, she, they) [and decedent] sustained [and (here identify the beneficiaries) are reasonably certain to' sustain in the future] as a direct result of the fatal injury to (name of decedent). Any award of future pecuniary damages must be included at present value. [Any award you make is not subject to income tax.] ... You must not consider grief or bereavement suffered by reason of the death.


author: PER CURIAM.

text:
    Johnny LITTLE, d/b/a 03 General Contractor, Appellant, v. Brenda PRICE, Respondent.
    No. ED 83029.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 14, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 21, 2004.
    Jack F. 'Allen, Clayton, MO, for Appellant.
    Robert L. Swearingen, UAW Legal Services Plan, St. Ann, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Johnny Little d/b/a Neat 03 General Contractor (Little) appeals from the trial court’s judgment in favor of Brenda Price (Price) on her counterclaim for breach of a home improvement contract in the amount of $9,782. Little contends the trial court erred in entering judgment in favor of Price in the amount of $9,782 because there was not substantial evidence to support the judgment.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. The judgment of the trial court is supported by substantial evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


text:
    Bree OWENS, Appellant, v. UNIFIED INVESTIGATIONS & SCIENCES, INC. and Hurschell Alexander, Respondents.
    No. ED 84537.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 17, 2005.

      Anthony S. Bruning, James C. Leritz (co-counsel), St. Louis, MO, for appellant.
    Cathleen C.A. Wrisberg, St. Louis, MO, for respondents.
   OPINION

GLENN A. NORTON, Judge.

Bree Owens appeals the summary judgment denying her claims for negligence against a fire investigator for fading to preserve evidence. We affirm.

I. BACKGROUND

There was a fire in Owens’s two-story apartment, and the smoke detectors failed to sound an alarm. As a result, Owens was unable to escape from the second floor by going down the interior stairs and had to jump from a second-story window. She sustained serious and permanent injuries. Unified Investigations & Sciences, Inc. (“UIS”) was retained on behalf of the building owner’s insurance company to conduct an investigation on the day of the fire. The UIS service request form was addressed to the insurance company and signed by Hurschell Alexander, the UIS investigator assigned to this investigation. The only requested service was an “origin and cause investigation;” the other options were “scene examination,” “full investigation,” “background investigation” and “other.” The form was furnished to the insurance company as “privileged and confidential” and release to anyone else was solely the insurance company’s responsibility.

At the time of the investigation, Alexander knew that Owens had jumped out of a second-story window and had been seriously injured. Alexander stated that any time he is retained by an insurance company to investigate the origin and cause of a fire, he understands that there is the possibility of litigation and that he may be called as an expert witness. He took photographs of this fire scene and obtained some items of physical evidence, but did not take any statements or interview any witnesses. Nor did he photograph or obtain the smoke detectors, record who manufactured them or investigate whether they sounded an alarm; he did not alter or destroy the smoke detectors either. Alexander stated that, in the performance of this origin and cause investigation for the insurance company, he had no reason to obtain the smoke detectors as evidence. According to Alexander, the defendants were not aware that the investigation was being performed for the benefit of anyone other than the insurance company and had no knowledge or information that Owens or anyone other than the insurance company would rely on this investigation or on the defendants in any respect. About five months after the fire, the apartment building underwent renovation by new owners, and the smoke detectors were removed and discarded.

Owens filed suit against the building owner, alleging negligence relating to the inadequate smoke detectors and electrical system. Alexander was retained as an expert witness for the defense in that case, and Owens hired her own expert to investigate the fire scene.

Owens then filed a separate action against Alexander and UIS, which is the subject of this appeal. In this petition, Owens alleged that Alexander owed her a duty to exercise reasonable care in his fire investigation, including a duty to identify, document and preserve relevant evidence according to widely-accepted fire investigation techniques. Because of Alexander’s failure to preserve the smoke detectors, Owens claimed, she was unable to identify and sue the manufacturers and sellers of those smoke detectors. She alleged that UIS, as Alexander’s employer, was negligent for failing to train and supervise him on proper fire investigation techniques. The defendants filed a motion for summary judgment, arguing that as a matter of law they owed no duty to Owens because she was not a party to the agreement under which they conducted this investigation for the building owner’s insurance company and that Owens could not prove that their conduct proximately caused her inability to identify and sue the smoke detector manufacturers and sellers. Owens admitted that the defendants were retained by the insurance company, but disputed that the investigation was performed for the sole benefit of the insurance company. Rather, she claimed, the defendants owed her a duty under industry standards for fire investigation techniques. The trial court concluded that the defendants had no duty and entered summary judgment in their favor.

II. DISCUSSION

The propriety of summary judgment is a question of law, and our review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for determining the propriety of summary judgment on appeal are no different than those used at the trial level. Id. The party seeking summary judgment must establish an undisputed right to judgment as a matter of law. Id. at 380. UIS and Alexander, as the defending parties, may establish this right by showing (1) facts that negate any one of the elements of the plaintiff’s claim, (2) that the plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of those elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support a properly-pled affirmative defense. Id. at 381. Although we view the record and construe all inferences favorably to the non-movant, facts set forth in support of the summary judgment motion are taken as true unless contradicted by the non-movants response. Id. at 376, 382-83.

In this negligence action, Owens must establish that the defendants had a duty to protect her from injury, that they failed to perform that duty and that this failure proximately caused her injury. See L.A.C. ex rel. D.C. v. Ward Parkway Shopping Center Company, L.P., 75 S.W.3d 247, 257 (Mo. banc 2002). “Whether a duty exists is purely a question of law.” Id.

Generally, a defendant who has contracted with another owes no duty to a plaintiff who is not a party to that agreement, nor can a non-party sue for negligent performance of the contract. Kaplan v. U.S. Bank, N.A., 166 S.W.3d 60, 70, 2003 WL 1204937, Case No. ED80671 *6 (Mo.App.E.D. March 18, 2003) ; Fleischer v. Hellmuth, Obata & Kassabaum, Inc., 870 S.W.2d 832, 834 (Mo.App.E.D.1993). This general rule of privity is designed to protect contractual parties from exposure to unlimited liability and to prevent burdening the parties with obligations they have not voluntarily assumed. Kaplan, 166 S.W.3d at 70, 2003 WL 1204937 at *6; Westerhold v. Carroll, 419 S.W.2d 73, 77 (Mo.1967). “But when application of this rule is not necessary to protect the contractual parties, or when it would produce results contrary to justice and public policy, our courts make exceptions.” Kaplan, 166 S.W.3d at 70, 2003 WL 1204937 at *6. The liability of a contractual party to those not in privity is determined on a case-by-case basis. Id.; see also Westerhold, 419 S.W.2d at 77. The proper inquiry is whether the defendant has assumed a duty of reasonable care to prevent foreseeable harm to the plaintiff. Kaplan, 166 S.W.3d at 70, 2003 WL 1204937 at *6; L.A.C., 75 S.W.3d at 263. The existence and scope of the duty is determined by the contractual obligations the defendant undertook and the circumstances of the ease. Kaplan, 166 S.W.3d at 70, 2003 WL 1204937 at *6; see also L.A.C., 75 S.W.3d at 263.

Owens claims that her inability to identify and sue the manufacturers and sellers of the smoke detectors was a foreseeable consequence of the defendants’ failure to exercise reasonable care in conducting the fire investigation. Owens spends much of her brief discussing the standards of care that have been established by the fire investigation industry and how those standards were breached in this ease. She contends that these industry standards place a duty on all fire investigators to interview witnesses and discover and preserve significant evidence. This argument is misplaced. The industry standards she cites may be relevant to establishing the appropriate standard of care, but they do not answer the question of to whom the duty to act according to that standard of care extends. That question is answered in this case by reference to the circumstances under which this investigation was performed and whether these circumstances tend to show that harm to Owens was foreseeable. Here, the defendants undertook to investigate the origin and cause of this fire for the insurance company. Alexander had no reason to obtain the smoke detectors as evidence for the insurance company, and the defendants were not aware that the investigation was being performed for the benefit of anyone other than the insurance company. They had no reason to believe that Owens or anyone other than the insurance company would rely on this investigation in any respect, much less for the preservation of evidence for her claims against the smoke detector manufacturers and sellers.

Owens points to Alexander’s testimony that, at the time of the investigation, he knew that Owens had been injured and that, any time he is retained to investigate the cause and origin of a fire for an insurance company, he knows that litigation is possible and that he may be called as an expert witness. Alexander’s general understanding that litigation is a possible consequence of every fire he investigates does not translate into a duty to identify and preserve evidence relevant to Owens’s litigation against the smoke detector manufacturers and sellers when there is no indication that, at the time of the investigation, Alexander had any reason to know that Owens might have such claims. Although it is undisputed that the smoke detectors failed, there is no evidence that Alexander knew that at the time of his investigation. It simply was not foreseeable to the defendants at the time of the investigation that Owens would have a claim regarding defective smoke detectors, much less that she would rely on an investigation they were conducting for the building owner’s insurance company for evidence to support those claims.

Owens cites to Kaplan for the proposition that when a defendant undertakes to do something that the defendant knew or should have foreseen would harm others or increase the risk of harm to others, the defendant has a duty to exercise care in that undertaking. 166 S.W.3d at 70, 2003 WL 1204937 at *6. This is a reiteration of the well-recognized exception to the requirement of privity for situations where the negligence involves the safety of others. Id. (citing Wolfmeyer v. Otis Elevator Co., 262 S.W.2d 18, 21 (Mo.1953) and L.A.C., 75 S.W.3d at 262). In Kaplan, the defendant’s agreement to remediate contaminated materials on its property expressly prohibited illegal or inappropriate disposal of those materials'and expressly required disposal only at permitted landfills or on the defendant’s own property. 166 S.W.3d at 71, 2003 WL 1204937 at *7. We concluded that the defendant, therefore, had a duty to prevent disposal on property without that property owner’s permission. Id. “The harm that could befall property owners from the dumping of contaminated' materials without the owners’ permission, including these plaintiffs, was foreseeable.” Id. In L.A.C., the defendant security company’s contract with the shopping mall where the plaintiff was injured expressly provided that security was for mall patrons, and the Court found that the duty of reasonable care to prevent foreseeable harm extended to the plaintiff who was a mall patron. 75 S.W.3d at 251-263. In Wolfmeyer, the defendant contracted with a building owner to maintain the elevators in the building and owed the plaintiff, who resided in the building, a duty to exercise reasonable care in the performance of that contract. 262 S.W.2d at 21. Here, the defendants’ performance of a cause and origin investigation after the fee did not affect the safety of others in the way that disposing of contaminated materials, providing mall security and maintaining elevators does. Moreover, in L.A.C., the security company’s contract expressly provided that security was for mall patrons like the plaintiff, and in Kaplan, the defendant expressly agreed not to do the very act — dispose of the materials inappropriately — that caused the plaintiffs’ injury. Here, there was no express mention in the agreement under which the defendants performed this investigation of Owens, the building occupants, or the preservation of any particular evidence.

Nor is this case like those in which we have imposed a duty despite the lack of privity because the defendant had a reason to expect that the plaintiff would rely on or benefit from the services the defendant performed. In Miller v. Big River Concrete, LLC, the defendant tested concrete at the plaintiffs’ construction site at the request of the concrete supplier. 14 S.W.3d 129, 131 (Mo.App. E.D.2000). The defendant was informed that he was to observe the concrete at the request of a third-party, that the plaintiffs wanted to be there for the testing and that the plaintiffs owned the residence being built. Id. This evidence supported a finding that the defendant knew the results of those tests would be relied on by the plaintiffs and could foresee the harm to them if the results were inaccurate; thus, privity was not required. Id. at 134. In Aluma Kraft Manufacturing Company v. Elmer Fox & Company, a duty was imposed on the defendant accountant towards the plaintiffs despite a lack of privity because the accountant knew that the audit would be used by the plaintiff for its benefit or that the accountant’s client intended to supply the information in the audit to the plaintiffs. 493 S.W.2d 378, 383 (Mo.App.1973). Here, the defendants had no reason to believe that Owens would rely on their investigation for evidence relating to the smoke detectors; nor is there any evidence that the defendants had any reason to believe that the insurance company intended to provide the investigation results to Owens or any of the building’s occupants. The harm here — the inability of Owens to identify and sue the smoke detector manufacturers and sellers — was not foreseeable under these circumstances.

Besides the lack of foreseeability, consideration of the other relevant public policy factors weighs against extending a duty to Owens in this case:

The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.

Westerhold, 419 S.W.2d at 81. As discussed above, this transaction was not intended to benefit or otherwise affect Owens and was understood to be solely for the benefit of the insurance company. The inability to identify and sue the smoke detector manufacturers and sellers is only an injury if Owens would have prevailed in such a suit, and that is far from certain. There is not a close connection between this injury and the defendants’ conduct because the defendants did not destroy the smoke detectors nor do anything to prevent Owens from recovering that evidence herself during the several months between their investigation and the time the building was renovated. Because the defendants did not directly cause Owens’s injury, which she could have prevented herself with more diligence, there is no moral blame attached to the defendants’ conduct nor any preventative benefit to imposing a duty on the defendants in this case.

Finally, application of the rule of privity is necessary in this case to protect the contractual parties. It seems that the number of potential plaintiffs to whom the defendants would owe a duty under these circumstances could be limited to those individuals that the defendants knew had been injured in the fire. Nevertheless, if that knowledge, coupled with a general understanding that litigation may arise from the fire, is enough to impose a duty on the defendants to preserve any particular evidence, then the duty necessarily includes the responsibility to preserve all evidence that might be relevant to the myriad types of claims the injured parties might have. This is not a duty that the defendants voluntarily assumed when they undertook to investigate the origin and cause of this fire for the insurance company.

In sum, when the defendants undertook to perform the cause and origin investigation of this fire for the building owner’s insurance company, they did not assume a duty of reasonable care to preserve evidence for Owens’s lawsuit against the smoke detector manufacturers and sellers because that harm was not foreseeable. There are no public policy reasons to impose a duty, and application of the rule of privity is necessary in this case to protect the defendants from unlimited liability and additional burdens they have not voluntarily assumed. Thus, as a matter of law, the defendants owed no duty to Owens and summary judgment in their favor was proper.

III. CONCLUSION

The judgment is affirmed.

CLIFFORD H. AHRENS, P.J., and NANNETTE A. BAKER, J., concurring.

      . Westlaw correctly indicates that Kaplan was transferred to the Supreme Court on July 1, 2003, but does not include the further subsequent history of that case. The case was retransferred back to this Court without further explanation by order of the Supreme Court on October 28, 2003. This Court then readopted the March 18, 2003 opinion in November of 2003, disposed of further post-opinion matters and issued our mandate in December of 2003. The Kaplan opinion cited herein is, therefore, the final opinion in that case.

      . The Court ultimately concluded, however, that there was no liability because the defendant did not undertake the particular obligation that the plaintiff claimed had been negligently performed.