Fueston v. Burns and McDonnell Engineering Co., Inc.

• Decision Date: 03 May 1994
• Docket Number: No. WD,WD
• Citation: 877 S.W.2d 631
• Parties: Homer T. FUESTON and Evelyn Fueston, Appellants, v. BURNS AND McDONNELL ENGINEERING COMPANY, INC., Respondents. 47786.
• Court: Missouri Court of Appeals

Page 631

877 S.W.2d 631

Homer T. FUESTON and Evelyn Fueston, Appellants, v. BURNS AND McDONNELL ENGINEERING COMPANY, INC., Respondents.

No. WD 47786.

Missouri Court of Appeals Western District.

May 3, 1994.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 28, 1994.

Scott W. Mach, Kansas City, for appellants.

Jerome V. Bales, Kansas City, for respondents.

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

BRECKENRIDGE, Judge.

Homer T. Fueston and Evelyn Fueston appeal from a summary judgment granted in favor of Burns and McDonnell Engineering Company, Inc., (Burns and McDonnell) in a personal injury action brought by the Fuestons against the engineering company. The trial court granted summary judgment upon finding that no genuine issues of material fact existed and that Burns and McDonnell was entitled to judgment as a matter of law based upon the ten-year statute of repose contained in § 516.097, RSMo 1986. ¹ The Fuestons raise one issue on appeal, contending that the trial court erred in granting summary judgment because genuine issues of material fact existed with respect to (a) what constituted the "improvement" under § 516.097, (b) whether Burns and McDonnell had "completed" the improvement within the ten-year period prior to the accident in accordance with § 516.097, and (c) whether there had been concealment of the alleged defect. The Fuestons maintain that such issues were material to the ultimate determination of the motion for summary judgment submitted by Burns and McDonnell and that the trial court failed to properly consider the evidence in the light most favorable to the Fuestons. The summary judgment is affirmed.

On February 10, 1990, Homer T. Fueston was injured while performing maintenance work on a thirty-five-ton crane in a building of his employer, Armco, Inc., (Armco) known as the "No. 2 Melt Shop." Mr. Fueston asserts that at the time of his injury he was on the trolley of the crane when the crane began to move. He allegedly slipped on grease and oil on the deck of the trolley, and his head became wedged between the top railing of the crane trolley and an overhead support beam. As a result, Mr. Fueston maintains that he sustained massive head injuries.

Mr. Fueston and his wife, Evelyn Fueston, subsequently filed a petition for damages against Victor R. Browning & Co., Inc., the company which manufactured the crane, and Burns and McDonnell, the company which provided engineering services for the design of the No. 2 Melt Shop, including the surrounding structure for the crane. ² The petition for damages consisted of three counts: Count I, Product Liability; Count II, Negligence; and Count III, Loss of Services. The specific claims asserted against Burns and McDonnell included the following:

Count I

4. [T]hat Burns and McDonnell has in the past and continues to this day to supply engineering services to Armco Steel Co. of Kansas City, Missouri, including engineering safety services for the crane which injured plaintiff Homer Fueston.

Count II

12. That defendant Burns and McDonnell is in the business of providing engineering and design work for Armco Steel Co.

13. That defendant Burns and McDonnell has had supervisory authority and responsibility for providing safety and design engineering to Armco Steel Co. in the past and continues to provide such services to the present date.

14. That defendant Burns and McDonnell provided engineering services for the design and placement of the overhead crane identified in Count I and continues to provide safety engineering for the areas of the Armco Steel Co., including the area where plaintiff Homer T. Fueston was injured on February 10, 1990.

15. That defendant Burns and McDonnell was negligent and careless in the following respects, to-wit:

a. In allowing the 35-ton crane involved in plaintiff's accident to be installed without adequate head room between the top railing on the trolley and the overhead support trusses;

b. In failing to provide adequate warnings on the 35-ton crane involved in plaintiff's accident;

c. In failing to advise Armco Steel Co. and employees concerning the safe operation of the crane;

d. In its on-going capacity as a safety consultant in failing to recognize the dangers of the operation of the crane with the small clearance between the top railing of the trolley and the overhead trusses;

e. In failing to recognize and develop corrective actions for the problem of grease and oil collection on the trolley, making a slipping hazard; and

f. In failing to provide crane trollies with low clearance to be identified with warning signs, warning of said low clearance.

Burns and McDonnell filed an answer to the Fuestons' petition in which the company admitted that it had performed engineering services, including design work, for Armco and admitted that it had provided certain engineering services with respect to the No. 2 Melt Shop, but denied all other allegations of fact and conclusions of law contained in paragraphs 4 and 12-15 of the petition. Burns and McDonnell further asserted as an affirmative defense that the Fuestons' claims were barred by the ten-year statute of repose set forth in § 516.097, which provides in part:

1. Any action to recover damages for personal injury, property damage or wrongful death arising out of a defective or unsafe condition of any improvement to real property, including any action for contribution or indemnity for damages sustained on account of the defect or unsafe condition, shall be commenced within ten years of the date on which any such improvement is completed.

2. This section shall only apply to actions against any person whose sole connection with the improvement is performing or furnishing, in whole or in part, the design, planning or construction, including architectural, engineering or construction services, of the improvement. ³

During the initial discovery conducted in this litigation, Burns and McDonnell propounded interrogatories to the Fuestons in which the engineering company asked the Fuestons to identify the persons having knowledge of any allegation contained in paragraphs 4, 13, and 14 of the petition for damages. In response to the interrogatory questions, the Fuestons identified only Alan Niebrugge, an Armco employee. Mr. Niebrugge had been the manager of engineering services for Armco since 1991, the works engineer at Armco from 1984 to 1991, and a senior civil engineer there from 1974 through 1984.

Burns and McDonnell then filed a motion for summary judgment against the Fuestons, alleging that there were no material issues of fact and that it was entitled to summary judgment in its favor on the basis of the ten-year statute of repose contained in § 516.097. In support of its motion, Burns and McDonnell submitted the affidavit of Mr. Niebrugge, as well as the affidavits of John Hoffman and Gerald Sidebottom, two Burns and McDonnell employees who were the project managers responsible for the initial design of the No. 2 Melt Shop and all subsequent expansions or modifications of the melt shop. ⁴

In the statement of facts portion of its suggestions, Burns and McDonnell, citing the affidavits of Messrs. Niebrugge, Hoffman, and Sidebottom, stated that the engineering company "was hired by Armco with respect to the design of the No. 2 Melt Shop, and it provided plans and specifications for it, including the surrounding structure for the 35-ton crane which was involved in the Fueston accident." However, the company noted that the No. 2 Melt Shop, into which the crane was incorporated as a permanent fixture, was completed in early 1977 and began to produce steel billets in April of 1977. Thus, "[t]he plaintiff's accident occurred more than ten (10) years after completion of the improvement known as the No. 2 Melt Shop, which included the 35-ton crane in question."

Burns and McDonnell further stated, with the three affidavits as authority, that the company "has not provided any engineering safety services with respect to the crane ... [or the] No. 2 Melt Shop" and "has not acted as a safety consultant, or an ongoing safety consultant, to Armco at any time in the past." Although the company admitted providing engineering services with respect to unrelated subsequent projects in different areas of the No. 2 Melt Shop since the completion of the melt shop, the company maintained that "the only services relating to the crane in question, or the area where Fueston was injured, were provided at the time of the original construction of the building from 1974 to 1977." According to the affidavits, the crane and the area where Mr. Fueston was injured had not been remodeled or structurally altered since 1977.

The Fuestons filed suggestions opposing Burns and McDonnell's motion for summary judgment, contending that summary judgment would be improper because a genuine issue of material fact existed as to whether the "improvement" known as the No. 2 Melt Shop was "completed" in 1977 as Burns and McDonnell asserted. In their suggestions, the Fuestons admitted that the crane and the area where Mr. Fueston was injured had not been remodeled or structurally altered since 1977, but argued that the No. 2 Melt Shop was not "completed" for purposes of § 516.097 in 1977. Rather, the Fuestons contended that "Burns and McDonnell continued to work on the No. 2 melt shop at Armco Steel, the 'improvement' under the statute, all the way up until 1991." As support for this argument, the Fuestons cited the affidavit of Mr. Fueston, in which he attested in part:

11. Burns and McDonnell's work at Armco was ongoing from 1975 when I began until after I was injured. The No. 2 meltshop was not completed and to this date, all of the work in the No. 2 meltshop is still not complete. Armco Steel has an ongoing contractual relationship with Burns and McDonnell to provide engineering and architectural design services, and the work continues on the No. 2 meltshop, the area where I was...