Floyd v. Benson

• Decision Date: 01 July 1988
• Docket Number: No. 15407,15407
• Citation: 753 S.W.2d 945
• Parties: William FLOYD and Sandra Floyd, Plaintiffs-Appellants, v. Dale BENSON, d/b/a Benson Construction Company, Defendant, and Rawlings Sporting Goods Company, Inc., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 945

753 S.W.2d 945

William FLOYD and Sandra Floyd, Plaintiffs-Appellants, v. Dale BENSON, d/b/a Benson Construction Company, Defendant and Rawlings Sporting Goods Company, Inc., Defendant-Respondent.

No. 15407.

Missouri Court of Appeals,

Southern District,

Division Two.

July 1, 1988.

David L. Steelman, Salem, for plaintiffs-appellants.

Kent O. Hyde, William C. Love, Harrison, Tucker, Geisler & Hyde, Springfield, for defendant-respondent.

FLANIGAN, Judge.

Plaintiff William Floyd brought this action against defendants Dale Benson and Rawlings Sporting Goods Company, Inc., a Missouri corporation, ("Rawlings"), seeking damages for personal injuries which Floyd sustained by reason of an incident which occurred on February 11, 1984, on land occupied by Rawlings located in Texas County. At the time of the incident Floyd, an employee of Benson, was working with Benson in excavating a trench on the Rawlings land for the purpose of installing a new sewer. The work was being performed pursuant to a contract between Rawlings and Benson. During the course of the installation Floyd, while working in the trench which Benson had dug with a backhoe, was injured when the bucket of the backhoe "which was in close proximity to [Floyd] was suddenly engaged and the bucket rapidly swung and made contact with [Floyd], resulting in the alleged injuries."

Count III of Floyd's petition sought damages from Rawlings "on the basis that the work which Rawlings hired Benson to do was inherently dangerous and Rawlings failed to see that adequate precautions were taken to provide for the safety of persons such as Floyd." In Count V Floyd alleged that Rawlings was liable to him for his injuries on the basis that Benson's negligence was attributable to Rawlings in that Rawlings had a nondelegable duty to protect third persons from injuries resulting from the inherently dangerous activity which Rawlings hired Benson to do. In separate counts co-plaintiff Sandra Floyd, Floyd's wife, sought damages on her derivative claim.

After the parties had conducted extensive discovery, Rawlings filed a motion for summary judgment. The trial court sustained the motion and entered judgment against plaintiffs and in favor of Rawlings. The parties agree that if the ruling of the trial court was erroneous with respect to Floyd's claims, it was also erroneous with respect to the claims of Sandra Floyd. In accordance with the rule then in effect the trial court designated its judgment as a final judgment for purposes of appeal. Plaintiffs appeal.

It is the position of Floyd that Rawlings was not entitled to a summary judgment and that the trial court erred in granting same. The parties agree that Benson was an independent contractor. Floyd concedes that the general rule is that an employer of an independent contractor is not liable for injury caused to a third person by the tortious act or omission of the independent contractor or his servants. Floyd argues, however, that Rawlings contracted with Benson for work that was inherently dangerous and that Floyd's injuries fall within the "inherently dangerous" exception to the general rule.

It is the position of Rawlings that the trial court properly granted the summary judgment because "the inherently dangerous activity doctrine does not apply to this case." More specifically, Rawlings states that "the activity which caused the damage was not inherently dangerous.... Floyd was not injured because of the collapse of the trench but because he was struck in the head by a negligently operated backhoe. The activity which caused Floyd's injury was not inherently dangerous."

In reviewing the action of the trial court in granting the summary judgment, this court "must scrutinize the record in the light most favorable to the party against whom the motion was filed, according to that party all reasonable inferences which may be drawn from the evidence." Gast v. Ebert, 739 S.W.2d 545, 546 (Mo. banc 1987). Summary judgment is a drastic remedy and is inappropriate unless Rawlings has shown by unassailable proof that it is entitled to judgment as a matter of law. The burden is on Rawlings, as the party moving for summary judgment, to demonstrate there is no genuine issue of fact. A genuine issue of fact exists when there is the slightest doubt about a material fact. Id.; Peer v. MFA Milling Co., 578 S.W.2d 291, 292 (Mo.App. banc 1979). "In negligence cases, summary judgment is generally not as feasible as in other kinds of cases. Blackburn v. Swift, 457 S.W.2d 805, 807 (Mo.1970)." Brown v. Upjohn Co., 655 S.W.2d 758, 760 (Mo.App.1983).

Each side has filed an excellent brief. The statement of facts portion of Floyd's brief was, with certain additions, "adopted and incorporated in its entirety" in Rawlings' brief as respondent.

On January 30, 1984, Benson submitted to Rawlings a written bid to dig a trench and lay a sewer line on Rawlings' property for the sum of $930. The bid recited: "All work to be completed in a workmanlike manner, according to standard practices.... Owner to carry fire, tornado and other necessary insurance. Our workers are fully covered by Workmen's Compensation insurance." On February 3, 1984, Rawlings gave Benson a "purchase order" confirming and accepting his bid. Benson employed Floyd, at $8.00 per hour, to help him perform the job.

On February 10, 1984, Benson and Floyd went to the Rawlings property and Benson used his backhoe to locate the main on the municipal sewer line to which the two men would connect the sewer pipe they were going to lay.

The next day Benson and Floyd returned to the Rawlings property to do the job. Benson determined how the job would be performed. Benson decided not to shore the trench or to slope the sides of the trench to prevent it from collapsing. Benson decided not to dig the entire trench at one time but to dig it in segments approximately six feet in length.

The method used was that Benson would dig a six-foot segment and Floyd would then go into the trench, which was about six feet deep and two feet wide, and lay the pipe. That segment would then be covered by Benson, with the use of the backhoe, and the procedure would be repeated with respect to the next six-foot segment. Benson would not be on the backhoe or operating it while Floyd was in the trench but the backhoe would always be in close proximity to Floyd while he was in the trench and the engine would not be turned off.

Benson testified that if he had shored the trench, he "could just dig the trench, then get in there and work on it," but that "if you don't shore it, you dig a little section and lay the pipe and then dig another little section and lay the pipe." Benson also testified, under questioning by Rawlings' counsel, that although he did not operate the backhoe while Floyd was laying the pipe, he, Benson, was "just sitting there waiting for [Floyd] to get the piece laid he was working on.... [Floyd] would lay this section and [I] would dig and cover it up as we went.... So that is why [I] was still up there close to that open trench because [I] would wait for him to get done and get out and close it in."

This was not the proper procedure for this job. Two experts gave depositions to the effect that the proper procedure would have been for Benson to dig the entire length of trench at one time and shore it or slope the sides in order to prevent a cave-in. If this procedure had been followed, Benson could have moved the backhoe away from the trench and Floyd would not have been required to work close to a backhoe with its engine running.

After Floyd and Benson had laid about 18 to 24 feet of sewer pipe in the trench, Floyd, while standing in the trench, reached out of the trench to get a piece of sewer pipe. At that time the boom and shovel of the backhoe swung around and struck Floyd in the head. Benson may have been climbing onto the backhoe when the boom and shovel struck Floyd. Benson in some manner accidentally activated the boom and shovel, causing it to swing. The machine would not have swung into Floyd's head if the engine had been turned off while Floyd was in the trench.

There was expert testimony that Benson was "grossly neglectful." Depositions of two experts contain testimony to the effect that the work being performed by Benson and Floyd at the time of Floyd's injury was inherently dangerous.

Floyd's expert, Gary Friend, under questioning by Rawlings' counsel, identified a publication of the National Safety Council entitled "Trench Excavation." The document enumerated certain hazards of trench excavation including "being struck by moving equipment."

The general rule is that the employer of an independent contractor is not liable for injury caused to a third person by the tortious act or omission of the independent contractor or his servants. Smith v. Inter-Cty. Telephone Co., 559 S.W.2d 518, 521 (Mo. banc 1977); Hofstetter v. Union Elec. Co., 724 S.W.2d 527, 529-530 (Mo.App.1986). An exception to the general rule exists where the work subcontracted involves a "special or inherent danger to others." Smith v. Inter-Cty. Telephone Co., supra, at 521; Hofstetter v. Union Elec. Co., supra, at 530. Although some states hold otherwise, in Missouri the servant of the independent contractor is within the class of persons entitled to the benefit of the exception. Smith v. Inter-Cty. Telephone Co., supra, at 523; Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617, 626 (1928); Hofstetter v. Union Elec. Co., supra, at 529 (fn. 1).

There is substantial authority for the proposition that the question of whether particular work is "inherently dangerous" is generally a question of fact for the jury. Donovan v. General Motors, 762 F.2d 701, 703 (8th Cir.1985); Schultz & Lindsay Construction Company v. Erickson, 352 F.2d 425, 436 (8th Cir.1965); Caudel v. East Bay Mun. Utility Dist., 165 Cal.App.3d 1, 211 Cal.Rptr. 222, 227 (1985); Castro v. State, 114 Cal.App.3d...