Nusbaum v. City of Kansas City

• Decision Date: 01 April 2003
• Docket Number: No. SC 84838.,SC 84838.
• Citation: Nusbaum v. City of Kansas City, 100 S.W.3d 101 (Mo. 2003)
• Parties: Zilma and Wayne NUSBAUM, Plaintiffs, v. CITY OF KANSAS CITY, Missouri, and Asphalt Plant Sales, Defendants, Starlight Theatre and J. E. Dunn Construction, Inc., Respondents-Appellants, and PC Contractors, Inc., Appellant-Respondent.
• Court: Missouri Supreme Court

Page 101

100 S.W.3d 101

Zilma and Wayne NUSBAUM, Plaintiffs, v. CITY OF KANSAS CITY, Missouri, and Asphalt Plant Sales, Defendants Starlight Theatre and J. E. Dunn Construction, Inc., Respondents-Appellants, and PC Contractors, Inc., Appellant-Respondent.

No. SC 84838.

Supreme Court of Missouri, En Banc.

April 1, 2003.

Steven G. Piland, Overland Park, for Appellant-Respondent.

David R. Buchanan, Scott A. Hunter, Melodie A. Powell, Kansas City, for Respondents-Appellants.

PER CURIAM.¹

A Starlight Theatre patron fell at the site of one of the theater's walkways. J. E. Dunn Construction Company was the general contractor for a project near where the injury occurred. PC Contractors, Inc., was a sub-contractor. Both companies and other entities were sued for allegedly causing the unsafe conditions that resulted in the patron's fall and injury. PC appeals the trial court's order granting summary judgment in favor of Dunn on Dunn's claim for contractual indemnification for liability and expenses, including attorneys' fees, Dunn incurred as a result of defending against Zilma and Wayne Nusbaum's personal injury lawsuit.² PC contends that the trial court erred in entering judgment in favor of Dunn. Both Dunn and Starlight Theatre Association of Kansas City, Inc., cross-appeal, alleging that the trial court erred in not awarding them the full amount of legal expenses requested and in not awarding prejudgment interest. Dunn provisionally cross-appeals, arguing that the trial court erred in entering judgment in favor of Starlight on Starlight's claim for contractual indemnification for liability and expenses, including attorneys' fees, Starlight incurred as a result of defending against the Nusbaums' lawsuit. The judgment is reversed, and the case is remanded.

Zilma and Wayne Nusbaum attended Starlight Theatre in Swope Park. As they walked to their vehicle after a show, Zilma Nusbaum tripped on a manhole cover that protruded above the sidewalk. She fell and was severely injured. The Nusbaums first sued the City of Kansas City, Missouri the owner of Swope Park, for failing to provide safe premises. In an amended petition, the Nusbaums added Starlight and Asphalt Plant Sales, Inc. (APSI)³ as additional defendants to their lawsuit. Along with general allegations against all the defendants, the Nusbaums alleged that Starlight was responsible for the maintenance of Starlight Theatre, including the sidewalk area where Mrs. Nusbaum fell, and that Starlight, like the city, failed to provide safe premises.

When the Nusbaums discovered that a light pole had been knocked down during the construction of the Starlight Theatre Shirley Bush Helzberg Garden of the Stars (Garden of the Stars), near the area where Mrs. Nusbaum fell, the Nusbaums added Dunn as a defendant to the suit. Along with general allegations against all the defendants, the Nusbaums alleged that Dunn, the general contractor on the Garden of the Stars project, (1) knocked down a light pole near the site where Mrs. Nusbaum fell; (2) promised to replace the light pole; (3) never replaced the light pole; and (4) damaged the manhole/sidewalk area where Mrs. Nusbaum was injured.

After the Nusbaums named Dunn as a defendant, Starlight filed a cross-claim against Dunn asserting a contractual claim for indemnification as provided in its contract with Dunn on the Garden of the Stars project. Thereafter, Dunn filed a third party petition seeking contractual indemnification and/or contribution from PC as provided in its subcontract with PC on the Garden of the Stars project.

During discovery, PC admitted that one of its employees knocked down a light pole. PC further admitted that the light pole was adjacent to the project site and to the manhole cover on which Mrs. Nusbaum tripped. Despite its admission, PC denied that Dunn was entitled to indemnification. PC argued that, immediately following the incident, Dunn agreed to repair the damage that PC had caused and to bill or backcharge PC for the repairs.

After Dunn filed its third party petition, the Nusbaums added PC as a defendant. Along with general allegations against all the defendants, the Nusbaums alleged that Dunn and PC (1) knocked down the light pole near the site where Mrs. Nusbaum fell; (2) damaged the manhole/sidewalk area where Mrs. Nusbaum was injured; (3) promised to repair the damaged property; and (4) never repaired the property.

Starlight filed a motion for summary judgment. The Nusbaums challenged Starlight's motion by proffering evidence that Starlight had actual control and rights of possession and use of the sidewalk area outside the fence of the theater where Mrs. Nusbaum fell.⁴ The Nusbaums also argued that Starlight had made "special use" of the sidewalk area by allowing the operation of equipment over the sidewalk during the construction of the Garden of the Stars. Lastly, the Nusbaums argued that the protruding manhole cover and the absence of the light pole constituted a dangerous condition sufficient to render Starlight liable as an abutting owner. The trial court denied Starlight's motion for summary judgment.

Dunn filed a motion for summary judgment against the Nusbaums. In that motion, Dunn argued that it had no respondeat superior liability for the negligent acts of PC. Dunn further sought summary judgment for its own alleged negligence.

In response to Dunn's motion, the Nusbaums stated that they were not proceeding against Dunn on a respondeat superior theory for the negligence of PC but rather for Dunn's own negligence in failing to replace/repair the light pole, either as the general contractor or because of its express assumption of the duty to do so. Accordingly, the trial court granted Dunn summary judgment on claims of vicarious or respondeat superior liability for the acts of PC but denied Dunn summary judgment on the Nusbaums' claim of Dunn's direct negligence.

On July 7, 1999, Dunn forwarded to PC a letter from the Nusbaums demanding $35,000.00 to settle the Nusbaums' claims against Dunn. PC responded by noting that the subcontract required PC to indemnify Dunn only to the extent of Dunn's liability for PC's negligence and not for the Nusbaums' claims based on Dunn's own direct negligence.

On that same day, PC settled the Nusbaums' claims against it and for any derivative claims of the Nusbaums against either Starlight or Dunn for PC's negligence. PC advised Dunn of the settlement.

The release between the Nusbaums and PC provided, in part:

First Parties [the Nusbaums] are releasing Starlight Theatre Association of Kansas City, Inc., J.E. Dunn Construction Company, and all other companies, organizations or persons who may have contractual, respondeat superior or other derivative liability for the alleged negligent actions of PC Contractors, Inc. in performing its work at the Shirley Bush Helzberg Garden of the Stars located in Starlight Theatre.

On July 10, 1999, Dunn settled with the Nusbaums for $5,000.00. The "Settlement Contract and Complete Release" between the Nusbaums and Dunn released the Nusbaums' claims against Dunn but not the claims against Starlight for Dunn's negligence. After the Nusbaums settled with the city and after the trial court dismissed the Nusbaums' claims against the city, the trial court severed the indemnification claims of Starlight and Dunn from the trial of the Nusbaums' claims against Starlight.

When Starlight eventually settled the Nusbaums' claims against it for $45,000.00, Starlight sought indemnification and attorneys' fees from Dunn. Likewise, Dunn sought indemnification and attorneys' fees from PC. Starlight and Dunn filed motions for summary judgment, and the trial court granted both motions. At a hearing on damages, Dunn sought $35,049.90, representing its $5,000.00 settlement with the Nusbaums and $30,049.90 for all attorneys' fees and expenses in defending the Nusbaums' claims and in establishing indemnification. Starlight sought $70,505.27, representing its $45,000.00 settlement with the Nusbaums and attorneys' fees and expenses for both defending against the Nusbaums' claims and pursuing indemnification. PC denied owing indemnification for the attorneys' fees and the amounts of settlements between the Nusbaums, Starlight, and Dunn.

The trial court entered judgment ordering Dunn to indemnify Starlight in the amount of $68,994.77 (Starlight's $45,000.00 settlement with the Nusbaums and a portion of Starlight's attorneys' fees and expenses) and ordering PC to indemnify Dunn in the amount of $95,194.77 (Starlight's recovery against Dunn, Dunn's $5,000.00 settlement with the Nusbaums and a portion of Dunn's attorneys' fees and expenses). The court also ordered PC to pay postjudgment interest to both Dunn and Starlight.

When considering an appeal from summary judgment, this Court reviews the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Facts in support of a party's motion, set forth by affidavit or otherwise, are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. The non-movant is afforded the benefit of all reasonable inferences from the record. Id.

The criteria on appeal for testing the propriety of summary judgment are no different from those that should be employed by the trial court to determine the appropriateness of sustaining the motion initially. Id. The propriety of summary judgment is purely an issue of law, which an appellate court reviews de novo. Id. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment. Id. Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact and (2) the movant is entitled to judgment as a matter of law. Id. at 377. Summary judgment is proper to...