Horner v. Hammons

• Citation: 916 S.W.2d 810
• Decision Date: 19 December 1995
• Docket Number: Nos. WD,s. WD
• Parties: Shelby K. and Catherine L. HORNER, Appellants, v. John Q. HAMMONS d/b/a John Q. Hammons Industries and Wilma Tweedy, Respondents. Elton SCOTT and Debra Jean Mayse, Appellants, v. John Q. HAMMONS d/b/a John Q. Hammons Industries and Wilma Tweedy, Respondents. 50401, WD 50402.
• Court: Missouri Court of Appeals

Page 810

916 S.W.2d 810

Shelby K. and Catherine L. HORNER, Appellants, v. John Q. HAMMONS d/b/a John Q. Hammons Industries and Wilma

Tweedy, Respondents.

Elton SCOTT and Debra Jean Mayse, Appellants, v. John Q. HAMMONS d/b/a John Q. Hammons Industries and Wilma

Tweedy, Respondents.

Nos. WD 50401, WD 50402.

Missouri Court of Appeals Western District.

Dec. 19, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 30, 1996.

Application to Transfer Denied

March 26, 1996.

Ronald K. Barker, Kansas City, for appellants.

Laurence R. Tucker and Jayne A. Pearman, Kansas City, for respondents.

Before BERREY, P.J., and ULRICH and LAURA DENVIR STITH, JJ.

BERREY, Presiding Judge.

This appeal arises from claims for personal injuries received during the course of the construction of the Embassy Suites Hotel located near KCI Airport in Kansas City, Missouri. On July 21, 1988, appellants Shelby K. Horner and Elton Scott Mayse were injured when a steel structure at the construction site collapsed. Mr. Horner and Mr. Mayse were employed by The Bratton Corporation (Bratton). The Bratton Corporation had been retained by the respondent Don Tweedy d/b/a Tweedy Construction Company (Tweedy) ¹ to erect the steel for the construction project. Tweedy, in turn, had been retained by the respondent John Q Hammons d/b/a John Q. Hammons Industries (Hammons) to act as the general contractor for this construction project. Hammons is the owner of the property upon which the Embassy Suites Hotel is built. As a result of the accident, appellants made workers' compensation claims against Bratton and received benefits through the Missouri Division of Workers' Compensation. They also filed separate petitions on March 22, 1991, in the Circuit Court of Platte County, Missouri, for personal injuries sustained in the collapse of the steel.

Appellants originally believed the collapse of the steel structure upon which they were standing at the time of the accident was caused by design error in the specification of undersized anchor bolts. Their original petitions alleged that Jack Hood and Donald Rich d/b/a Hood-Rich Architects/Engineers (Hood-Rich) negligently specified one-half inch anchor bolts and that Hammons negligently directed his employees and Bratton's employees to install the undersized anchor bolts. Hood and Rich were the architects/engineers for the design and construction of the Embassy Suites Hotel. They prepared the plans and specifications for the hotel construction.

In March of 1992, following the depositions of Don Tweedy and his son Duane Tweedy, the appellants filed amended petitions to add claims against Don Tweedy as the agent, representative or joint venturer of Hammons. The amended petitions alleged Tweedy was an employee of Hammons and that Tweedy negligently directed and controlled the method and manner of erecting the steel structure in question. The claims of Catherine L. Horner and Debra Jean Mayse for loss of consortium were included in the amended petitions as they had been in the original petitions.

Hammons and Tweedy then filed separate motions for summary judgment. Appellants also filed motions for summary judgment and second amended petitions. Following the depositions of experts, appellants sought to change their theory of negligence. Although they continue to assert that undersized bolts were specified, they now seek to hold both respondents liable for alleged negligence in using bolts not conforming to the specifications.

On November 1, 1994, the trial court denied appellants' motions for summary judgment and entered its order sustaining Tweedy's motion on the ground that appellants Shelby Horner and Scott Mayse were statutory employees of Don Tweedy as defined by § 287.040, RSMo.1986, so that the Workers' Compensation Act provides their sole remedies. The court also sustained Hammons' motion on the finding that "Hammons did not exercise such substantial control over the construction project ... by directing the way in which the work was performed or by otherwise directing the activities of Defendant Tweedy or the sub-contractor Bratton Corporation that would cause him to be liable herein."

Appellants contend the trial court erred in entering summary judgment for both respondents. They raise two points on appeal. First, appellants claim the trial court erred in holding that Hammons, as owner of the premises where the accident occurred, did not exercise such substantial control over the construction project so as to subject him to liability for injuries sustained by employees of Bratton, the independent steel erection contractor. Appellants next argue the court erred in finding that Shelby Horner and Scott Mayse were "statutory employees" of Don Tweedy. We affirm.

Summary judgment may be entered by the trial court when the facts as to which there is no genuine dispute demonstrate a right to judgment as a matter of law. Rule 74.04. In reviewing the grant of a motion for summary judgment, the appellate court must scrutinize the record in the light most favorable to the party against whom judgment was entered, and we must accord the non-movant the benefit of all reasonable inferences from the record. Luethans v. Washington Univ., 894 S.W.2d 169, 171 (Mo. banc 1995); ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). If the plaintiff can make out a submissible case on any plausible theory, summary judgment for the defendant is inappropriate. McLeese v J.C. Nichols Co., 842 S.W.2d 115, 118 (Mo.App.1992).

In their first point, appellants argue summary judgment in Hammons favor is inappropriate. They contend Hammons exercised substantial control over the construction project in that Hammons was "the owner/developer/contractor for the project" and employed the project manager, "Don Tweedy, who negligently caused nonconforming anchor bolts to be installed, failed to warn plaintiffs of the risk created by the installation of nonconforming anchor bolts, and failed to shore and brace the structural steel during erection as required by the plans and specifications for the project." Appellants claim Hammons should therefore be directly liable for their injuries even though workers' compensation benefits have been received.

In Missouri, a landowner who relinquishes possession and control of premises to an independent contractor during a period of construction is not liable for injuries sustained by employees of the independent contractor covered by workers' compensation. Zueck v. Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384 (Mo. banc 1991). Instead, the duty to use reasonable and ordinary care to prevent injury shifts to the independent contractor. Id. This is now the rule regardless of whether or not the employee was engaged in an inherently dangerous activity, Halmick v. SBC Corporate Servs., Inc., 832 S.W.2d 925, 928 (Mo.App.1992), cited with approval in Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 131 (Mo. banc 1993), and regardless of whether the liability sought to be imposed is vicarious or direct. Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 130, 132 (Mo. banc 1993).

The Supreme Court of Missouri has articulated at least two reasons for the rule. First, it is recognized that a landowner or possessor of land indirectly helps pay for the workers' compensation coverage that the independent contractor's employees receive. Such contribution is provided in the form of the fees paid to the independent contractor, and it would be unfair to impose double liability upon the landowner or possessor of land. Zueck, 809 S.W.2d at 388-89. Secondly, the rule is said to encourage landowners and possessors of land to utilize specialists in the name of safety. Zueck, 809 S.W.2d at 388.

However, a landowner who retains substantial control of the premises during the period of construction may justifiably be liable for injuries incurred by others. Halmick, 832 S.W.2d at 928. The degree of control must go beyond merely securing compliance with the contracts. "[T]he owner must be controlling the physical activities of the employees of the independent contractors or the details of the manner in which the work is done." Id. at 929. [Emphasis added]. Appellants claim Hammons exercised the requisite control in this case. We disagree.

In Werdehausen v. Union Elec. Co., 801 S.W.2d 358 (Mo.App.1990), the Eastern District considered the precise nature and extent of control that a landowner must exercise over a subcontractor to be subject to liability. Although Werdehausen was decided prior to Zueck, Halmick, and Matteuzzi, supra, it is instructive in the instant case since the degree of control test remains. In Werdehausen, Union Electric Company hired Daniel International Corporation to do construction work on a nuclear power plant. The plaintiff was a pipefitter injured on the construction site while working for Daniel. He filed suit against Union Electric for personal injuries sustained. Id. at 361. The court recognized that one who hires an independent contractor to do work but retains significant control over the details may be liable for injury occurring to others. Id. at 363. Yet, if the employer retains "only the right to inspect the construction work to see that the contract specifications are met while the independent contractor controls how and when the work is to be done, there is probably not sufficient retained control to subject [the employer] to liability." Id. at 364 (citing Moloso v. State, 644 P.2d 205, 211 (Alaska 1982)). The mere right to stop work from being done in an unsafe manner is not enough in and of itself to impose liability upon the landowner. Id. at 365.

Ultimately, the court in Werdehausen held that Union Electric did not control the "operational details" of the construction work sufficient to impose liability. Id. at 366. The court reasoned (1) that Union Electric had never built a power plant...