Counts v. MK-Ferguson Co.

• Decision Date: 15 December 1988
• Docket Number: MK-FERGUSON,No. 88-1413,88-1413
• Citation: 862 F.2d 1338
• Parties: Prod.Liab.Rep.(CCH)P 12,002 Steven C. COUNTS, Appellant, v.COMPANY, an Ohio Corporation; The Buckeye Cellulose Corporation, an Ohio Corporation; The Procter & Gamble Company, an Ohio Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1338

862 F.2d 1338

Prod.Liab.Rep.(CCH)P 12,002

Steven C. COUNTS, Appellant, v. MK-FERGUSON COMPANY, an Ohio Corporation; The Buckeye

Cellulose Corporation, an Ohio Corporation; The

Procter & Gamble Company, an Ohio

Corporation, Appellees.

No. 88-1413.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 23, 1988.

Decided Dec. 15, 1988.

Phillip J. Barkett, Jr., Sikeston, Mo., for appellant.

Gary Mayes, St. Louis, Mo. and David G. Ott, Clayton, Mo., for appellees.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

WOLLMAN, Circuit Judge.

Steven C. Counts brought this personal injury suit against MK-Ferguson Company (Ferguson), The Buckeye Cellulose Corp. (Buckeye), and The Procter & Gamble Company (P & G) to recover for injuries he received when his leg became entangled in an underground screw auger. The district court ¹ granted the defendants' motion for summary judgment and Counts appealed. For the reasons discussed below, we affirm.

I. Background

Counts was injured on August 3, 1984, while working in a grain storage building owned by his employer, the E.B. Gee Company (Gee). A screw auger running beneath the building's floor was used to remove grain from the building. Grain was introduced into the auger via a series of access holes in the building's floor. Gravity would cause most of the grain to flow unassisted into the access holes. After a certain point in the removal process, however workers would have to enter the building and move the remaining grain to the access holes. Counts was operating a portable sweep auger for this purpose when he slipped on loose grain. His right leg entered an access hole and became entangled in the auger. His leg was injured so severely that it had to be amputated below the knee.

The building in which Counts was working was part of a larger grain storage and refining facility located in Ristine, Missouri (the Ristine facility). On or about December 30, 1946, Buckeye's predecessor in interest bought the Ristine facility from Southeast Oil Mill, Inc. (Southeast). Prior to the sale, Southeast had erected five quonset-hut grain storage buildings, including the one in which Counts was injured. Because not all aspects of the facility's construction were complete, Buckeye contracted with Ferguson to complete the project.

P & G is Buckeye's corporate parent. William Jaques was a member of a P & G engineering group that provided engineering services to P & G and its subsidiaries. Serving in that capacity, Jaques supervised Ferguson's work on the Ristine facility.

The auger access holes were eleven inches by twelve inches. Each was equipped with a steel slide plate, which regulated the flow of grain into the auger tunnel. The slide plate, when not opened completely, also served as safety device by preventing complete exposure of the auger. A removable steel guard grate provided additional safety when placed over the auger access hole. At the time of Counts' accident, the slide plate was completely opened and no guard grates were in place over any of the holes.

The design of the underground auger system was completed prior to the sale of the facility to Buckeye, and a company in Texas manufactured the screw augers. For purposes of this appeal we will assume, as the district court did, that Ferguson installed the screw auger that injured Counts.

The Ristine facility began operations in February of 1947. In 1958, Buckeye sold the facility to Ralston Purina. By 1962 the guard grates were missing, and a Ralston Purina employee who stepped into an access hole severely injured his leg. Ralston Purina thereafter fabricated new guard grates to cover the access holes. The Ristine facility changed hands several more times prior to its acquisition by Gee on February 24, 1982.

Counts prevailed in a workers' compensation suit against Gee and then brought this action against Ferguson, Buckeye, and P & G. Counts seeks recovery under theories of negligent construction, negligent supervision, and strict products liability. The gravamen of his complaint is that the access holes should have been equipped with permanent rather than removable guard grates. The district court entered summary judgment in favor of all the defendants, see Counts v. MK-Ferguson Co., 680 F.Supp. 1343, 1348 (E.D.Mo.1988), and this appeal followed. We affirm.

II. Discussion

Summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). As we recently stated:

[T]he burden on the party moving for summary judgment is only to demonstrate, i.e., "[to] point[ ] out to the District Court," that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted.

City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir.1988) (citations omitted) (brackets in original).

For reversal, Counts first argues that the district court erred in granting Ferguson and P & G summary judgment on the negligence claims. He contends that Ferguson is liable for negligently constructing the underground auger system and that P & G is liable for negligently supervising that construction. Counts' second argument is that both defendants are liable under strict products liability. He asserts that Ferguson supplied and installed a defective auger system and that P & G provided defective engineering and supervisory services. Counts does not pursue any claim against Buckeye on appeal. Although Ferguson and P & G assert several grounds for affirmance of the district court's judgment, we will address only those necessary to the resolution of this case.

A. Negligence

Under Missouri law, "[a]fter the owner accepts a structure, the general rule is that a general contractor is not liable to persons with whom he did not contract." Honey v. Barnes Hosp., 708 S.W.2d 686, 700 (Mo.Ct.App.1986); see Begley v. Adaber Realty & Inv. Co., 358 S.W.2d 785, 791 (Mo.1962); Chubb Group of Ins. Cos. v. C.F. Murphy & Assocs., 656 S.W.2d 766, 775 (Mo.Ct.App.1983). Buckeye accepted the finished Ristine facility in late 1947 or early 1948. Counts' negligence claim therefore must fail unless he can make out an exception to this general rule. He relies on an exception to...