Matteuzzi v. Columbus Partnership, L.P.

• Decision Date: 23 November 1993
• Docket Number: No. 75707,75707
• Citation: 866 S.W.2d 128
• Parties: James MATTEUZZI, Appellant, v. The COLUMBUS PARTNERSHIP, L.P., et al., Respondents.
• Court: Missouri Supreme Court

Page 128

866 S.W.2d 128

James MATTEUZZI, Appellant, v. The COLUMBUS PARTNERSHIP, L.P., et al., Respondents.

No. 75707.

Supreme Court of Missouri En Banc.

Nov. 23, 1993.

James Leonard, R.J. Slater, St. Louis, for appellant.

J. Michael Waller, St. Louis, for respondents.

Philip C. Denton, St. Louis, for amicus curiae MATA.

John F. Medler, Jr., St. Louis, for amicus curiae S.W. Bell Telephone Co.

LIMBAUGH, Judge.

In this personal injury case, we are asked to review a cause of action based on the inherently dangerous activity doctrine. The trial court dismissed the petition for failure to state a claim on which relief can be granted. Plaintiff Matteuzzi appealed to the Court of Appeals, Eastern District, which, after opinion, transferred the case to this Court under Rule 83.02. The judgment of the trial court is affirmed.

The facts disclosed in the petition and the record of the trial court are summarized as follows: Defendant Columbus Partnership ("Partnership") owns a 95 year-old rowhouse located in the City of St. Louis as part of its business of acquiring and rehabilitating older properties. The Partnership hired R.G. Ross Construction Company ("R.G. Ross"), an independent contractor, to perform the interior and exterior renovation of the rowhouse. Plaintiff James Matteuzzi was employed by R.G. Ross as an apprentice carpenter replacing roof rafters and sheathing on the building. This work required Matteuzzi to position himself on the roof without scaffolding, ladders or any other support except for an exterior brick wall. Matteuzzi was injured when the brick wall, which was in a deteriorated condition, collapsed, causing him to fall approximately 23 feet from the roof of the building to the ground. He then filed a claim for workers' compensation with his employer and filed this separate action for damages against the Partnership.

In his petition, Matteuzzi asserts that the Partnership negligently failed to protect R.G. Ross' employees who were performing inherently dangerous work. The particulars of this allegation are set forth in the following paragraphs, taken from the petition:

9. [T]hat the [removal and replacement of roof rafters and sheathing] necessarily presented a substantial risk of danger to workmen unless adequate precautions were taken; that the activity described involved a substantial risk of workmen falling from the roof if adequate and proper precautions were not taken to prevent such an occurrence, as the work was inherently dangerous.

11. That because of the inherently dangerous nature of the work being performed, which work necessarily included the specific risk of workmen falling from the roof in the absence of proper safeguards, Defendants had a non-delegable duty to assure that adequate precautions were taken to prevent workmen from falling off the edge of the building while working on the roof, but Defendants negligently failed to assure that such proper and adequate precautions were taken, and as a result, no precautions were taken to prevent injury to workmen caused by falling from the roof.

12. That industry standards, and in particular OSHA Safety and Health Standards (29 CFR 1926.500) provide and require that, during the performance of roofing work on low pitched roofs with a ground to eave height greater than 16 feet, employees engaged in such work shall be protected from falling from all unprotected sides and edges of the roof by the use of motion-stopping-safety system or warning line system.

13. That Defendants failed to assure that a motion-stopping-safety system or warning line system, or any other protective measures, were in effect and utilized while men, and in particular Plaintiff, were working on the aforesaid roof, and such failure of Defendants was negligence.

14. ... That as a direct and proximate result of Defendants' failure to assure that preventive safety measures were taken, Plaintiff fell approximately twenty-three feet (23') from the roof to the pavement below as a direct result of the inherently dangerous activity.

15. That as a direct and proximate result of the aforesaid negligence of Defendants, Plaintiff suffered [numerous injuries].

(Emphasis added).

The gist of the proposed cause of action is that the landowner breached a nondelegable duty to assure that adequate precautions were taken to prevent injury to employees of independent contractors engaged in inherently dangerous activity. In support of his position, Matteuzzi cites Smith v. Inter-County Telephone Co., 559 S.W.2d 518 (Mo. banc 1977). To the extent that Matteuzzi's cause of action relies on the inherently dangerous activity doctrine, this Court, in the more recent case of Zueck v. Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384 (Mo. banc 1991), held that the doctrine "no longer applies to employees of independent contractors covered by workers' compensation." Id. at 390. We are asked, then, to determine the viability of Smith in light of the Zueck case.

Landowner liability under the inherently dangerous activity doctrine is a species of premises liability. At common law, a landowner generally was not liable for injuries to "innocent third parties" caused by the negligence of an independent contractor or that of the contractor's employees. Zueck, 809 S.W.2d at 384. An exception to this rule was recognized, however, if the activity performed by the independent contractor was inherently dangerous. If so, the landowner who commissioned the inherently dangerous work was said to have a nondelegable duty to take precautions to prevent injury from the activity. The notion of a nondelegable duty gave rise to two, interrelated causes of action, one for the landowner's direct negligence, and the other for the landowner's vicarious liability for the negligence of the independent contractor. These two variations on the inherently dangerous activity doctrine are expressed more fully in Restatement (Second) of Torts §§ 413 and 416 (1965) respectively. ¹ Those sections provide:

§ 413. Duty to Provide for Taking of Precautions Against Dangers Involved in Work Entrusted to Contractor

One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer

(a) fails to provide in the contract that the contractor shall take such precautions, or

(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.

§ 416. Work Dangerous in Absence of Special Precautions

One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

Section 413 differs from Section 416, as we understand it, only by the direct imposition of liability on a landowner who fails to provide in the contract or otherwise for the taking of any necessary precautions.

In Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617 (1928), a vicarious liability case, this Court expanded the inherently dangerous exception so that landowners could be liable for injuries sustained by employees of independent contractors, not just "innocent third parties," such as passersby. As we noted in Zueck, Mallory did not consider the impact of what was then the recently enacted workers' compensation law. Zueck, 809 S.W.2d at 387.

In the Smith case, on which Matteuzzi relies, this Court endorsed a cause of action based on the landowner's own negligence. A submissible case is established when:

(1) performance of the contract necessarily involves some inherently dangerous...