Rapp v. Eagle Plumbing, Inc.

Decision Date10 June 2014
Docket NumberNo. ED 100042.,ED 100042.
Citation440 S.W.3d 519
CourtMissouri Court of Appeals
PartiesJohn C. RAPP, Appellant, v. EAGLE PLUMBING, INC., Respondent.

440 S.W.3d 519

John C. RAPP, Appellant

No. ED 100042.

Missouri Court of Appeals, Eastern District, Division Four.

June 10, 2014.
Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 7, 2014.

Application for Transfer Denied Sept. 30, 2014.

440 S.W.3d 520

James D. O'Leary, St. Louis, MO, for appellant.

Portia C. Kayser, St. Louis, MO, for respondent.



John Rapp (Plaintiff) appeals the trial court's grant of summary judgment to Eagle Plumbing, Inc. (Defendant) on his action in negligence. Plaintiff contends the trial court erred in granting summary judgment to Defendant based on the open and obvious doctrine because it applies

440 S.W.3d 521

only to possessors of land. Plaintiff also asserts that, even assuming application of the open and obvious doctrine, the trial court erred in entering summary judgment because genuine issues of material fact exist regarding whether: (1) the hazard posed by the trench wall was open and obvious; (2) Defendant should have anticipated the harm caused by the trench wall's collapse; and (3) Defendant's actions or omissions were the proximate cause of Plaintiff's injuries. We affirm.

Factual and Procedural Background1

In April 2010, Defendant was a plumbing contractor on a construction site at Washington University. Either Defendant or another contractor dug a trench on the construction site, which Defendant used for the placement of its drainage pipes.2 The trench was thirty to thirty-six inches deep, two feet wide, and thirty to forty feet long. Defendant did not flag or otherwise barricade the trench.

Plaintiff, a journeyman bricklayer with over twenty years' experience, worked for John J. Smith Masonry, another subcontractor working on the construction site. On April 23, 2010, Plaintiff and his co-worker, Josh Guidicy, were “striking the joints” of a wall located about two feet from Defendant's trench.3 At approximately 11:30 a.m., rain began to fall. As Mr. Guidicy continued to strike the joints of the wall, Plaintiff attempted to step around him. With his back to the wall and facing the trench, Plaintiff placed a foot on the edge of the trench. The trench wall collapsed, and Plaintiff fell, striking his shoulder on the wall he was constructing and tearing his rotator cuff.

Plaintiff filed an action for negligence against Defendant seeking damages for his injuries. In the petition, Plaintiff alleged that Defendant was negligent in: (1) failing to “warn or guard or barricade the trench so as to protect Plaintiff and others who were in a similar position”; and (2) leaving “the excavation of the trench in an open and dangerous condition for a period of ten (10) to fourteen (14) days.” Additionally, Plaintiff pleaded that: “Defendant failed to put any barricade or fencing around the trench so as to prevent anyone from falling into the trench”; “Defendant failed to put any warning, tape or lights around the trench to minimize falls”; and “Defendant failed to fill the trench with dirt and or [sic] gravel so as to eliminate the hazard.” Plaintiff alleged that, “as a direct and proximate result of the aforesaid negligence of Defendant[,] Plaintiff was caused to suffer a tear of his rotator cuff.”

Defendant filed a motion for summary judgment arguing that Defendant did not have a duty to warn Plaintiff of the dangerous condition because “the trench Plaintiff fell into was an open and obvious condition which was both visually ascertainable and of which Plaintiff had actual knowledge.” Defendant also asserted that Plaintiff could not “establish that any act or omission of [Defendant] was the ‘but-for’ cause or the proximate cause of his

440 S.W.3d 522

injuries in that [Defendant] is ‘entitled to assume and act upon the assumption’ that Plaintiff would exercise due care for his own safety.”

Plaintiff filed a memorandum in response to Defendant's motion for summary judgment arguing that “[t]here is a genuine issue of material fact as to whether the condition which caused Plaintiff's injuries was sufficiently ‘open and obvious.’ ” More specifically, Plaintiff asserted that “it was not the visually observable trench that caused Plaintiff's injuries,” but rather “the non-visually ascertainable unprotected and defective trench sidewall ... that caused Plaintiff's injuries.” Plaintiff also argued that the condition was not “open and obvious” as a matter of law because the “dangerous condition existed irrespective of whether Plaintiff exercised due care....” Finally, Plaintiff contended that there existed a genuine issue of material fact as to the “butfor” and proximate cause of his injuries.

After hearing arguments, the trial court granted Defendant summary judgment. Plaintiff appeals.

Standard of Review

Whether the trial court's grant of summary judgment was proper is a question of law that we review de novo. Todd v. Mo. United Sch. Ins. Council, 223 S.W.3d 156, 160 (Mo. banc 2007). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Rule 74.04(c). On appeal, we review the summary judgment record in the light most favorable to the party against whom the judgment was entered, and we accord that party the benefit of all inferences which may reasonably be drawn from the record. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Where, as here, the trial court does not set forth its reasoning in the order granting summary judgment, we presume that the trial court based its decision on grounds specified in the movant's motion for summary judgment. Central Mo. Elec. Co-op. v. Balke, 119 S.W.3d 627, 635 (Mo.App.W.D.2003).


In a premises liability case, a defendant may be liable for injuries suffered by an invitee4 due to a dangerous condition of the land only if the defendant: (a) knows or by exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to the invitee; (b) should expect that the invitee will not discover or realize the danger or will fail to protect himself against it; and (c) fails to exercise reasonable care to protect the invitee against danger. Holzhausen v. Bi–State Dev. Agency, 414 S.W.3d 488, 494 (Mo.App.E.D.2013) (quoting Harris v. Niehaus, 857 S.W.2d 222, 225–26 (Mo. banc 1993) ). Accordingly, to satisfy the applicable standard of care, an owner or occupier of land must:

(1) exercise reasonable care; (2) disclose to the invitee all dangerous conditions which are known to the [owner or occupier] and are likely not to be discovered by the invitee; and (3) see that the premises are safe for the reception of a visitor, or at least ascertain the condition
440 S.W.3d 523
of the land, to give such warning that the invitee may decide intelligently whether or not to accept the invitation, or may protect himself against the danger if he does accept it.

Id. (quoting Harris, 857 S.W.2d at 226 ). Missouri courts recognize that “[w]hen the dangerous condition is so open and obvious that an invitee should reasonably be expected to discover it and realize the danger, a possessor of land does not breach the standard of care owed to invitees ‘unless the possessor should anticipate the harm despite such knowledge or obviousness.’ ” Harris, 857 S.W.2d at 226 (emphasis in original) (quoting Restatement (Second) of Torts § 343A(1) ). “[W]here the danger is open and obvious as a matter of law and the risk of harm exists only if the plaintiff fails to exercise due care, the case is not submissible to the jury....” Harris, 857 S.W.2d at 227.

1. Application of the Open and Obvious Doctrine

In his first point on appeal, Plaintiff argues that the trial court erred in granting summary judgment in favor of Defendant based on the open and obvious doctrine as set forth in Sections 343 and 343A of the Restatement (Second) of Torts.5 More specifically, Plaintiff contends that the open and obvious doctrine is inapplicable because his cause of action “was not brought against [Defendant] as a possessor of land but rather as a sub-contractor on a construction site....” In response, Defendant asserts that summary judgment was proper because the trial court “addressed the claims made by [Plaintiff] and no other legal framework was raised by [Plaintiff] in the circuit court.”

As an initial matter, we address Defendant's assertion that Plaintiff has failed to preserve the issue he now raises on appeal. “[A]ppellate review of a decision to grant summary judgment is limited to the issues put before the trial court.” Sheedy v. Mo. Highways and Transp. Comm'n, 180 S.W.3d 66, 70 (Mo.App.S.D.2005). Consequently, “[f]or purposes of this appeal, we are confined to addressing only those issues properly raised in the defendant['s] motion[ ] for summary judgment and the responses thereto.” Heffernan v. Reinhold, 73...

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