Mays v. Penzel Const. Co., 56464

• Decision Date: 16 October 1990
• Docket Number: No. 56464,56464
• Citation: 801 S.W.2d 350
• Parties: Allen MAYS and Sandra Mays, Appellants, v. PENZEL CONSTRUCTION COMPANY, Respondent.
• Court: Missouri Court of Appeals

Page 350

801 S.W.2d 350

Allen MAYS and Sandra Mays, Appellants, v. PENZEL CONSTRUCTION COMPANY, Respondent.

No. 56464.

Missouri Court of Appeals,

Eastern District,

Southern Division.

Oct. 16, 1990.

Concurring Opinion Nov. 20, 1990.

Richard L. Hughes, St. Louis, for appellants.

F. Patrick Davis, Finch, Bradshaw, Strom & Steele, Cape Girardeau, for respondent.

HAMILTON, Judge.

Plaintiffs-Appellants, Allen and Sandra Mays, appeal a jury verdict in favor of Defendant-Respondent Penzel Construction Company (hereinafter Penzel) in a personal injury action. Allen Mays (hereinafter Mays), an employee of the subcontractor Lasley Construction Company (hereinafter Lasley), was injured while working on premises leased and occupied by Penzel. Mays based his claim on the inherently dangerous activity exception to the rule of the immunity from liability of the employer of an independent contractor. We reverse and remand for a new trial.

In July, 1982, Penzel began construction of a warehouse on land it had under a twenty-year lease. Penzel undertook the preliminary foundation and flooring work but contracted all of the steel erection work to Lasley.

Lasley constructed the steel framework for the building and then began the work of attaching metal sheeting to girders to form the walls of the warehouse. Lasley's employees worked on a scaffold attached to a superstructure built on the bed of a truck. The scaffold sections assembled on top of this structure were five to six feet wide at the base and about five feet high. The platform truck was parked alongside the girders, and Lasley employees attached metal sheeting to the girders at different levels on the scaffolding. The scaffold might be moved four to five times a day.

Lasley completed attaching metal sheeting to the two long sides of the warehouse first because that sheeting was of a uniform length and the scaffolding necessary to attach it to those two sides did not have to be as high as the scaffolding necessary at the peaked ends of the building. The long sides required five sections of scaffolding or approximately twenty-five feet assembled on top of the platform. The peaked ends required an additional two or three sections of scaffolding, making a total of thirty-five to forty feet of scaffolding.

To prevent the scaffold from leaning against the building at the peaked ends, Lasley's foreman, Marion Hill, had a guy rope attached to the top of the scaffold. The crew then attached the other end of the rope to a parked pickup truck.

On September 8, 1982, at the end of the day, Marion Hill called out for the crew on the scaffold to roll up its tools. Normally, he would then untie the guy rope and drive the pickup truck around so that the crew could put its tools in the toolbox on the truck. This time Hill failed to untie the rope. The scaffold fell away from the building carrying Mays with it. The scaffold hit Mays across the back and neck.

Mays and his wife thereafter filed a personal injury action against Penzel. On January 12, 1989, a jury found in favor of the defendant Penzel. Mays and his wife appeal.

Appellants raise two points on appeal. They contend the trial court erred (1) in giving and reading to the jury defendant Penzel's Instructions Number 12 and Number 18 and (2) in giving and reading to the jury defendant's Instruction Number 7.

Defendant's Instruction Number 12 states:

Your verdict must be for Defendant Penzel Construction Company and against Allen Mays if you believe:

First, that Lasley Construction Company used improper scaffold; and

Second, that Lasley Construction Company was thereby negligent; and

Third, the negligence of Lasley Construction Company consisted solely in the improper manner in which it performed the work; and

Fourth, said negligence created a risk of harm which is not inherent in or normal to the work; and Fifth, Penzel Construction Company, Inc., had no reason to contemplate Lasley Construction Company's negligence when the contract was made.

Instruction Number 18 is identical except that it substitutes Sandra Mays for Allen Mays as the plaintiff. Penzel also gave Instructions Number 11 and Number 17 that states:

Your verdict must be for Defendant Penzel Construction Company unless you believe Defendant Penzel Construction Company was negligent.

Appellants contend the giving of Instruction Numbers 12 and 18 constituted error because those instructions (1) failed to hypothesize facts sufficient in law to defeat the plaintiffs' claims; (2) were erroneous attempts to use the affirmative converse form to submit only the negative of plaintiffs' submission that Lasley's work was an inherently dangerous activity and also constituted the erroneous giving of more than one true converse instruction; (3) erroneously limited plaintiffs' claims to such negligence of Lasley as defendant had reason to contemplate when the contract was made; (4) were erroneously abstract, conflicting, misleading and confusing; submitted conclusions instead of ultimate fact issues; and gave the jury a roving commission to speculate beyond the evidence about the meaning of "improper scaffold" and "improper manner" in which Lasley performed the work.

As a general rule, those who contract with an independent contractor to perform work are not liable for bodily harm caused to another by the tortious act or omission of the independent contractor. Ballinger v. Gascosage Elec. Coop., 788 S.W.2d 506, 511 (Mo. banc 1990); Smith v. Inter-County Tel. Co., 559 S.W.2d 518, 521 (Mo. banc 1977). The employer of an independent contractor may be held liable, however, if the contracted work involves an inherently dangerous activity. An inherently dangerous activity is one for which the "employer should recognize as necessarily requiring the creation ... of a condition involving a peculiar risk of bodily harm to others unless special precautions are taken...." Smith, 559 S.W.2d at 521 (quoting Stubblefield v. Federal Reserve Bd. of St. Louis, 356 Mo. 1018, 204 S.W.2d 718, 722 (1947)). Inherently dangerous tasks create a danger requiring active care to counteract; these tasks must be distinguished from situations in which the danger is created by the negligent manner of performing the task. Smith, 559 S.W.2d at 522.

Smith sets forth four elements necessary for presenting a submissible case under the inherently dangerous activity theory. A plaintiff must present evidence that

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

(2) the activity which caused the damage was reasonably necessary to the performance of the contract and was inherently dangerous;

(3) the one contracting with the independent contractor negligently failed to insure that adequate precautions were taken to avoid damage by reason of the inherently dangerous activity; and

(4) plaintiff's damage was a direct result of such negligence.

Id. at 523. Appellants' verdict director closely tracks Smith's four elements. Jury Instruction Number 10 states:

In your verdict you must assess a percentage of fault against Defendant Penzel Construction Company if you believe:

First, the erection of metal walls by Lasley Construction Company necessarily required the use of scaffold to assist in attaching the metal walls to the structural iron framework of the building and was attended with substantial danger to workers unless proper precautions were taken and was an inherently dangerous activity; and

Second, the work which Plaintiff Allen Mays was doing at the time of this incident was reasonably necessary for the erection of the metal walls and was an inherently dangerous activity unless adequate precautions were taken; and

Third, Penzel Construction Company failed to insure that adequate precautions were taken to avoid injury to Plaintiff Allen Mays in connection with Lasley Construction Company's scaffolding activity and was thereby negligent; and

Fourth, such negligence either directly caused or directly contributed to cause damage to Plaintiff Allen Mays.

"Inherently dangerous activity" as used in this Instruction is that which necessarily presents a substantial risk of damage unless adequate precautions are taken.

As the Supreme Court noted in Ballinger v. Gascosage Elec. Coop., 788 S.W.2d 506 (Mo. banc 1990), the elements in Smith produced confusion. Ballinger, 788 S.W.2d at 511. In Ballinger the Supreme Court recognized that in dicta Smith added elements that had not previously been required for a submissible case under this theory. Specifically, the third and fourth elements under Smith are not required for submitting a case under this theory. The Ballinger Court quoted the introductory note to §§ 416-29 of the Restatement (Second) of Torts, which stresses that these sections rest not upon any personal negligence of the employer, but upon vicarious liability. Ballinger, 788 S.W.2d at 510. The Court stated that there was no purpose in Smith to change the governing law by adding the third and fourth elements. Id. at 511. In Ballinger, the Court declared that the "liability attaches without any need for showing that the employer is in any respect negligent. It is purely vicarious." Id.

Smith relied on Stubblefield v. Federal Reserve Bd. of St. Louis, 356 Mo. 1018, 204 S.W.2d 718, 722 (1947). Stubblefield cited both sections 413 and 416 of the Restatement (Second) of Torts, mixing elements from unrelated sections of the Restatement. ¹ Smith perpetuated that confusion by prescribing four elements based on language from both sections 413 and 427.

Appellants contend that Stubblefield, Smith, and Barbera v. Brod-Duggan Co., 770 S.W.2d 318 (Mo.App.1989) are all cases under section 413 of the Restatement and are similar factually to this case. They assert that cases like Hofstetter v. Union Elec. Co., 724 S.W.2d 527 (Mo.App.1986), and Sullivan v. St. Louis Station Assocs., 770 S.W.2d 352 (Mo.App.1989), fall under sections 416 and 427 of the Restatement....