Burns v. Black & Veatch Architects, Inc., No. WD

• Decision Date: 09 March 1993
• Docket Number: No. WD
• Citation: 854 S.W.2d 450
• Parties: David BURNS, et al., Appellants, v. BLACK & VEATCH ARCHITECTS, INC., et al., Respondents. 45983.
• Court: Missouri Court of Appeals

Page 450

854 S.W.2d 450

David BURNS, et al., Appellants, v. BLACK & VEATCH ARCHITECTS, INC., et al., Respondents.

No. WD 45983.

Missouri Court of Appeals,

Western District.

March 9, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 27, 1993.

Application to Transfer Denied June 29, 1993.

Don Witt, Platte City, for appellants.

Mark E. Johnson, Elizabeth D. Badger, Christopher D. Schneider, Kansas City, for respondent Black & Veatch Architects, Inc.

Vincent F. O'Flaherty, Kristin L. Altice, Kansas City, for K.C. Testing Lab.

Jerome V. Bales, Steven K. Coffin, Kansas City, for respondents.

Before LOWENSTEIN, C.J., and BERREY and BRECKENRIDGE, JJ.

BERREY, Judge.

David and Alice Burns, appellants herein, filed this action for injuries David received when a trench in which he was working collapsed on him. The original defendants were Black & Veatch Architects, Inc.; School District of North Kansas City; Beutler, Inc. d/b/a George J. Shaw Construction; Kansas City Testing Laboratory, Inc.; and Quamrul Khan. Plaintiffs voluntarily dismissed without prejudice all claims against School District of North Kansas City ("School District") and Quamrul Khan and they are not parties to this appeal. Black & Veatch Architects, Inc. ("Black & Veatch"), Beutler, Inc. d/b/a George J. Shaw Construction ("Shaw Construction") and Kansas City Testing Laboratory, Inc. ("KCTL"), the three remaining defendants, all filed motions for summary judgment which were granted by the trial court. Appellants appeal the granting of summary judgment in favor of all three remaining defendants. We affirm.

In August 1988, Black & Veatch and the School District entered into a contract by which Black & Veatch agreed to perform architectural services for an addition to the Clardy Elementary School. Black & Veatch prepared plans and specifications for the addition. In October 1988, upon recommendation of Black & Veatch, the School District hired KCTL to perform geotechnical services for the project. KCTL performed such services and prepared its site investigation report in 1988.

In March 1989, the School District entered into a contract with Hastings Construction Company ("Hastings") to be the general contractor on the project. Appellant David Burns was an employee of Hastings. Hastings subcontracted with Shaw Construction to perform the excavation portion of the work. The School District also retained KCTL to perform materials testing and special inspection services required by the City of Kansas City, Missouri.

On August 8, 1989, in order to construct a foundation as part of the project, Hastings requested Shaw Construction to excavate two parallel trenches leaving an island of dirt approximately 18 to 24 inches wide between the trenches. The excavated trenches resembled a "U" shape. A wooden bulkhead was placed at the open end of the excavation to allow the concrete to be poured one side at a time. The day after the trenches were excavated, concrete was poured into one side of the excavation. Appellant David Burns was instructed to observe the bulkhead during the pour to assure that it did not move or give way. In order to observe the bulkhead, Burns stepped into the trench that was parallel to the one in which the concrete was being poured. The trenches were approximately three to four feet deep and had not been shored or braced. While the concrete was being poured, the dirt bank separating the two trenches gave way injuring Burns.

On June 11, 1990, appellants filed their amended petition alleging numerous acts of negligence and breach of contract with the School District against all respondents. On October 9, 1991, Black & Veatch filed a motion for summary judgment, which was granted on November 19, 1991. On November 18, 1991, Shaw Construction filed its motion for summary judgment, which was granted on December 17, 1991. On January 8, 1992, KCTL filed its motion for summary judgment, which was granted on January 29, 1992. Appellants' motions to reconsider were denied and this appeal followed.

I.

When determining the appropriateness of summary judgment, this court reviews the entire record in the light most favorable to the party against whom summary judgment was entered. Atlanta Casualty Co. v. Stephens, 825 S.W.2d 330, 332 (Mo.App.1992). Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 74.04(c). It is the movant's burden to show that no genuine issue of material fact exists that would bar granting of the judgment. Earl v. State Farm Mut. Auto. Ins. Co., 820 S.W.2d 623, 624 (Mo.App.1991).

Many of the issues raised herein concern contract construction. Construction of a contract is usually a matter of law. Therefore, in contract cases, summary judgment is proper when the meaning of that portion of the contract in issue is so clear that it may be determined from the four corners of the contract. Schelle v. Mercantile Bancorporation, Inc., 741 S.W.2d 720, 724 (Mo.App.1987).

In addition to the contract allegations, appellants also allege negligence of the respondents. In any negligence action, the plaintiff must first establish that a duty exists by the defendant to protect the plaintiff from the injury suffered. Plaintiff must then establish that the defendant failed to perform the duty and that failure was the proximate cause of plaintiff's injury. Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. banc 1990). Duty is a matter of law to be determined by the court. Ackerman v. Lerwick, 676 S.W.2d 318, 321 (Mo.App.1984). Duty cannot be established by expert opinion of proper procedure. Expert opinion testimony deals only with whether there was a breach of a legally existing duty. Id.

With these principles of law in mind, we consider the trial court's granting of summary judgment to each of the defendants, respondents herein, giving due regard to the role played by each in the performance of the construction contract.

II.

Appellants' Point I alleges three points of error concerning the trial court's granting of summary judgment in favor of respondent Black & Veatch. Appellants first argue that Black & Veatch did specify means and methods for the protection of workers during excavation on the project. Therefore, under the terms of the contract between Black & Veatch and the School District, Black & Veatch was responsible for such means and methods and failed to assume that responsibility. Appellants refer to paragraph 2.6.6 of the contract, which states in pertinent part:

The Architect shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility under the Contract for Construction unless such means or methods have been specified by Architect for the performance of the Work.

(emphasis added).

The underlined portion was added to the standard form of agreement by the parties.

Appellants argue that Black & Veatch did specify means and methods in its Project Manual. Uncontroverted testimony establishes that the Project Manual was forwarded, with the proposed drawings, to all prospective contractors providing them sufficient information to prepare their bids. The paragraphs appellants aver constitute specification of means and methods are found in the section of the Project Manual titled "Excavation, Backfill, and Grading," as follows:

(1) Protect excavations by shoring, bracing, sheet piling, underpinning, or other methods, as required to prevent cave-ins or loose dirt from falling into excavation.

(2) Excavate sub-soil in accordance with lines and levels required for construction of the work, including space for forms, bracing and shoring, and to permit inspection.

(3) Do additional excavation only by written authorization of Architect.

(4) Where temporary unbalanced pressures are liable to develop on walls, erect necessary shoring to counteract imbalance. Leave in place until floor slabs are placed.

Assuming all these paragraphs are relevant to the situation giving rise to Mr. Burns' injuries, this court is not persuaded the language cited constitutes specifying means and methods.

Paragraph 3.3.1. of the General Conditions of the Contract for Construction between Hastings and the School District provides:

The Contractor [Hastings] shall supervise and direct the Work using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless Contract Documents give other specific instructions concerning these matters.

Additionally, paragraph 10.1.1 provides, "Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract." Finally, paragraph 10.2.1 provides, "Contractor shall take reasonable precautions for safety of, and shall provide protection to prevent damage, injury or loss to: (1) employees on the Work and other persons who may be affected thereby...."

The conditions contained in the Project Manual are general conditions, instructing the contractor, in this case Hastings, to provide shoring, bracing, etc. where needed. They do not constitute specific means and methods. The uncontroverted testimony of Steve Neal, Hastings' Superintendent, establishes that the specifications provided by Black & Veatch do not specify means and methods of excavating or protecting the trench in which Burns was injured. The method used by Hastings was one way to construct the foundation. The evidence disclosed that other methods...