Owens v. Shop 'N Save Warehouse Foods, Inc., No. 75791
| Decision Date | 23 November 1993 |
| Docket Number | No. 75791 |
| Citation | 866 S.W.2d 132 |
| Parties | Jack and Marie OWENS, Appellants, v. SHOP 'N SAVE WAREHOUSE FOODS, INC., Respondent. |
| Court | Missouri Supreme Court |
Thomas J. Gregory, Shelby Susman, St. Louis, for appellants.
Charles E. Reis, IV, Steven D. Asher, St. Louis, for respondent.
John F. Medler, Jr., St. Louis, for amicus curiae S.W. Bell Tel. Co.
Jack and Marie Owens, husband and wife, sued Shop injuries resulted from an accident that occurred as he painted the ceiling of a Shop 'N Save store under construction in the City of St. Louis. At the time of the accident, Mr. Owens was working for Paintsmiths, Inc., the painting subcontractor. In addition to this lawsuit, he filed and collected on a separate claim against Paintsmiths for workers' compensation benefits.
The procedural history is complex. In the original posture of the case, the trial court granted summary judgment in favor of Shop 'N Save, but the Court of Appeals, Eastern District, reversed. This Court then granted transfer but remanded the case to the circuit court for further proceedings consistent with Zueck v. Oppenheimer Gateway Properties, 809 S.W.2d 384 (Mo. banc 1991). On remand, the trial court again granted summary judgment in favor of Shop 'N Save, and the Owens again appealed. Under Rule 83.02, the Court of Appeals ordered transfer of this case having already transferred the similar case of Matteuzzi v. The Columbus Partnership, No. 75707. The judgment is affirmed.
According to the trial court record, the facts are as follows: Mr. Owens' job was to spray paint the store's middle deck ceiling and the exposed ceiling bar joists. To accomplish this task, he had to stand on scaffolding that rose about twenty to twenty-one feet above the floor. The type of paint most often used for ceilings is fast-drying paint generically known as "safety spray." The excess spray from this type of paint falls as a dry dust rather than as a slick paint. The color of the paint that Shop 'N Save chose for the ceiling--orange-pink (OP 49)--was not readily available in a safety spray. Because of a construction deadline, there was no time to have this color made up in a safety spray. Consequently, Paintsmiths decided to use oil paint for the job.
Mr. Owens stated that on the first day of painting he had problems with his footing because the oil paint made the scaffolding slick. Although he would ordinarily use a safety line because of the height at which he was working, it was impractical to do so on this job. He explained that when spray painting, the safety line gets in the way, gets wet, and does not otherwise work properly. He added that there was no railing around the scaffolding, even though he asked Paintsmiths that one be installed.
The accident giving rise to this lawsuit occurred on the second day of painting. By then, according to Mr. Owens, the scaffold was wet and slick with paint. As he approached the end of the scaffold, it was so slick that he could not stop. He slid off and fell to the concrete floor, and as a result, suffered serious and permanent injuries.
In this appeal, Mr. Owens claims that Shop 'N Save negligently failed to provide adequate protection for persons performing inherently dangerous work. The particulars of that claim are found in the Owens' first amended petition, which states in pertinent part:
8. That plaintiff Jack Owens was injured as the direct result of the negligence of defendant Shop 'N Save Warehouse Foods, Inc. in the following respects;
(i) Defendant directed Paintsmiths, Inc. to use a color of paint in connection with this spray painting job that was not readily available in a safety spray, and because of time commitments required for completion of the job, ordered use of a paint for spray painting on a scaffold which paint was not available in a safety spray and which made the surface of the scaffold slick and wet when applied and presented a substantial and unreasonable risk of bodily harm to plaintiff.
(ii) Defendant knew or should have known that Paintsmiths, Inc.'s use of...
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...doctrine." 866 S.W.2d at 131-32. The same result was reached in another recent Missouri Supreme Court case. Owens v. Shop 'N Save Warehouse Foods, 866 S.W.2d 132 (Mo.1993). The second case relied upon by the trial court and the Court of Appeals was Parker v. Neighborhood Theatres, 76 Md.App......
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...(Gosnell ) (Missouri law) (plumber fell from elevated walkway during construction of apartment complex); Owens v. Shop 'N Save Warehouse Foods, 866 S.W.2d 132 (Mo.1993) (painter slipped on scaffolding painted, at landowner's insistence, in a color not available in non-slick safety spray); G......
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