Lawrence v. Bainbridge Apartments

• Citation: 957 S.W.2d 400
• Decision Date: 28 October 1997
• Docket Number: No. WD,WD
• Parties: Larry S. LAWRENCE, Appellant, v. BAINBRIDGE APARTMENTS, et al., Respondents. 53818.
• Court: Court of Appeal of Missouri (US)

Page 400

957 S.W.2d 400

Larry S. LAWRENCE, Appellant, v. BAINBRIDGE APARTMENTS, et al., Respondents.

No. WD 53818.

Missouri Court of Appeals Western District.

Oct. 28, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 23, 1997.

Pieter A. Brower, Kansas City, for Appellant.

Douglas R. Richmond, Kansas City, for Respondent.

Before EDWIN H. SMITH, P.J., and BERREY and ELLIS, JJ.

EDWIN H. SMITH, Presiding Judge.

Larry S. Lawrence appeals the summary judgment for Bainbridge Apartments, Ranbir A. Sahni, and American Development Corporation, collectively referred to as respondents, on his claim for damages for personal injuries he sustained resulting from a fall while washing windows as an independent contractor. In his sole point on appeal, the appellant claims that the trial court erred in sustaining respondents' motion for summary judgment in that there was a genuine dispute as to material facts which would entitle him to recover under the "inherently dangerous activity exception" to the general rule that landowners are not vicariously liable for injuries caused by the negligence of an independent contractor or its employees to innocent third parties or employees of the independent contractor.

We affirm.

Facts

Respondent, Bainbridge Apartments, is a California Limited Partnership whose general partner is respondent Ranbir S. Sahni. Bainbridge is managed by respondent American Development Corporation ("ADC"). Bainbridge, Sahni, and ADC are collectively referred to as respondents.

Prior to May 1, 1989, Smart Way Janitorial entered a bid to wash the windows of the Bainbridge Apartments, which it offered to appellant through a subcontract. On or about May 1, 1989, appellant and his father went to the Bainbridge Apartments to determine whether they could perform the window washing job at the apartment complex. During this visit, appellant was told that Bainbridge's management preferred to have the windows washed from the outside of the buildings, rather than the inside, so as to not disturb their tenants.

The Bainbridge property consists of six buildings. Four buildings are four stories tall. Two buildings are seven stories tall. The windows of the two taller buildings could not be washed from the outside, because their roof and eave structures would not allow exterior washing. The four smaller buildings had roof access that would allow the windows to be done from the roof. The building manager insisted that the four smaller buildings be done from the outside despite the absence or presence of adequate structures to tie back a safety line.

On or about May 15, 1989, appellant began washing the windows of the four shorter buildings using equipment that included a Bosun's seat, a beam fastened to rollers, and a counterweight. Appellant selected his equipment as the most economical because the ground surface, shrubs, and excavation around the buildings and their height prevented the use of ladders or other types of scaffolding. On May 25, 1989, appellant was injured in a fall from the side of one of the shorter buildings at the Bainbridge Apartments while performing the job for which he had contracted.

Appellant filed a two-count petition for damages against respondents on May 13, 1994. Count I asserted a negligence claim against respondents based on the "inherently dangerous activity" exception to the general rule that landowners are not vicariously liable for injuries caused by the negligence of an independent contractor or his or her employees to innocent third parties or employees of the independent contractor. Count II asserted a negligence claim based on the "landowner control" exception to the same general rule. Respondents filed a motion for summary judgment as to both counts, which the trial court granted. The summary judgment as to Count I was based on the trial court's finding that appellant had recovered workers' compensation benefits and was, therefore, not covered by the inherently dangerous activity exception. Summary judgment as to Count II was based on the trial court's finding that respondents had not retained substantial control of the premises and did not control the physical activities of appellant, and therefore, the landowner control exception did not apply. Appellant appealed the grant of summary judgment, and this court reversed and remanded Count I for further consideration because the trial court had mistakenly equated "coverage" with "recovery" under the workers' compensation laws. The grant of summary judgment on Count II was affirmed in Lawrence v. Bainbridge Apartments, 919 S.W.2d 566 (Mo.App.1996), this court holding that respondents did not retain substantial control of the premises and the activities of the appellant, and therefore, the landowner control exception did not apply.

On remand and after the Kansas Court of Appeals found that appellant was not a covered employee entitled to workers' compensation benefits, respondent moved for summary judgment on Count I of the original petition. The trial court granted summary judgment for respondent on January 8, 1997.

This appeal follows.

Standard of Review

Our standard of review of a summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993). We review the record in the light most favorable to the party against whom judgment was entered and accord the non-moving party the benefit of all reasonable inferences from the record. Id.; Zueck v. Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384, 385-86 (Mo.banc 1991). Summary judgment will be upheld on appeal if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. ITT, 854 S.W.2d at 377; Zueck, 809 S.W.2d at 385.

I.

The appellant claims that the trial court erred in granting respondents' motion for summary judgment because under the alleged undisputed facts of respondents' motion, he is entitled to recover for his personal injuries pursuant to the inherently dangerous activity exception for injuries he sustained as a result of his fall while washing windows at the Bainbridge Apartments owned by respondents. Respondents alleged as the basis for their motion for summary judgment that on the undisputed facts appellant could not recover under the exception because: (1) he is not a member of a protected class entitled to recover under the exception; and/or (2) the activity he engaged in was not inherently dangerous.

There is no real dispute concerning the underlying facts of the case. The controversy is over whether respondents were entitled to judgment as a matter of law based upon the undisputed facts. Thus, the issue for us to decide is whether under the undisputed facts appellant could recover under the inherently dangerous activity exception.

To be entitled to summary judgment a movant must demonstrate that there is: (1) no genuine dispute of material fact; and (2) he or she is entitled to judgment as a matter of law. ITT, 854 S.W.2d at 377; Zueck, 809 S.W.2d at 385. If the movant is the defending party, as is the case here, he or she can establish a prima facie case for summary judgment by one or more of the following three means: (1) facts that negate any one of the appellant's elements facts; (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support defendant's properly pleaded affirmative defense. ITT, 854 S.W.2d at 381. In respondents' motion for summary judgment, they employed the first means, negating one of appellant's elements facts. Thus, our review is to determine if under the alleged undisputed facts of respondents' motion, appellant is entitled to recover under the inherently dangerous activity exception.

For the appellant to be entitled to recover for his injuries under the inherently dangerous activities doctrine, he must prove: (1) that he is a member of a protected class entitled to recover under the inherently dangerous activity exception; and (2) that the activity which caused his injury was inherently dangerous. Thus, to make a prima facie case for summary judgment here, respondents must have negated one or both of these required elements under the undisputed facts. In this respect, the trial court found that both elements were negated. Therefore, we must decide whether, in fact, one or both necessary elements were negated, entitling respondents to summary judgment.

The law is well settled in Missouri that a landowner is not vicariously liable for injuries caused by the negligence of an independent contractor or his or her employees to innocent third parties or employees of the independent contractor. Zueck, 809 S.W.2d 384, Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128 (Mo.banc 1993), McLain v. Johnson, 885 S.W.2d 345 (Mo.App.1994), Gillespie v. St. Joseph Light & Power Co., 937 S.W.2d 373 (Mo.App.1996), Lawrence, 919 S.W.2d 566. There are two exceptions to this rule: (1) the "landowner control exception"; and (2) the "inherently dangerous activity exception."

The landowner control exception provides that the landowner will be liable if he exerts substantial control over the premises and the manner in which the work is done by the independent contractor. Lawrence, 919 S.W.2d 566, Matteuzzi, 866 S.W.2d 128. This issue was previously addressed and disposed of in Lawrence, 919 S.W.2d at 570, and is no longer at issue in this case.

The second exception to the rule is the inherently dangerous activity exception. It provides that a landowner will be liable for injuries to innocent third parties or employees of independent contractors who are not covered by workers' compensation for failure to take precautions to...