Rogers v. Frank C. Mitchell Co., 67750

• Decision Date: 31 October 1995
• Docket Number: No. 67750,67750
• Citation: 908 S.W.2d 387
• Parties: Teresa ROGERS and Michael Rogers, Appellants, v. FRANK C. MITCHELL COMPANY, Respondent.
• Court: Missouri Court of Appeals

Page 387

908 S.W.2d 387

Teresa ROGERS and Michael Rogers, Appellants, v. FRANK C. MITCHELL COMPANY, Respondent.

No. 67750.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 31, 1995.

Thomas M. Lang, Clayton, for appellants.

Joseph H. Mueller, St. Louis, for respondent.

RHODES, Judge.

Teresa and Michael Rogers ("Plaintiffs") appeal the granting of summary judgment in favor of Frank C. Mitchell Company ("Defendant") on their claim for personal injuries. Teresa Rogers was injured when a tree, located near a water line Defendant installed, fell on her while driving her car. We reverse and remand.

Defendant entered into a contract with the City of Valley Park ("City") for the construction of a ten inch water line through the City. The specifications given to Defendant called for the water line to be installed across the subject property, near a large oak tree. In November 1988, Defendant dug a trench across the subject property approximately 4 to 5 feet deep, 2 feet wide, and 7.5 feet from the base of a large, 48 inch diameter, oak tree. The water line was put in the trench and the trench was covered. On December 22, 1989, the City authorized a final payment for the completed project.

On March 27, 1991, during a storm, Teresa Rogers was driving her car on Meramec Station Road when the large oak tree located on the subject property fell down across her vehicle causing her to be rendered a quadriplegic. Plaintiffs brought a negligence suit against both Defendant and Campbell Design Group, Inc. ¹ In their petition, Plaintiffs alleged that Defendant was negligent when it performed excavation work near the tree in that the excavation cut several of the tree roots, weakening its support structure, and ultimately causing the tree to fall.

On November 15, 1994, Defendant filed a motion for summary judgment based upon the acceptance doctrine. The acceptance doctrine relieves contractors of liability towards third parties who are not a party to the contract after the owner has accepted the contractor's work. Gruhalla v. George Moeller Construction Co., 391 S.W.2d 585, 597 (Mo.App.1965). Plaintiffs filed a response to the motion which contended that there were genuine issues of dispute concerning whether the imminently dangerous exception to the acceptance doctrine applied. The response included affidavits from two city employees and an arborist. Simultaneously, Plaintiffs attempted to amend their petition. Instead of filing a motion to amend, however, they submitted a proposed order granting them leave to amend and filed their amended petition. That order was never signed by the judge. On December 16, 1994, Defendant's summary judgment motion was granted. On January 5, 1995, Plaintiffs filed a "Motion for New Trial or in the Alternative to Vacate, Reopen, Correct, Amend or Modify Summary Judgment and for Leave to File First Amended Petition." On January 25, 1995 the trial court denied the motion for new trial or, in the alternative, to vacate, reopen, correct, amend or modify summary judgment. The January 25, 1995 order also stated, "Leave never granted plaintiffs to file First Amended Petition." This appeal follows.

In their first point on appeal, Plaintiffs argue that the trial court erred in granting summary judgment. The standard of review for summary judgment cases is governed by ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp. 854 S.W.2d 371 (Mo. banc 1993). When considering appeals from summary judgment, we review the record in the light most favorable to the party against whom judgment was entered. Id. at 376. The propriety of summary judgment is purely an issue of law and as the trial court's judgment is founded on the record as submitted and on the law, an appellate court need not defer to the trial court's order granting summary judgment. Id. Summary judgment should only be maintained where facts are not in dispute so that the prevailing party can be determined as a matter of law. Id.

Plaintiffs essentially concede that the work was accepted by the City and that this would normally preclude recovery. In their response to the summary judgment motion, however, they argue that this case falls within the imminently dangerous exception to the accepted work doctrine. ² This doctrine imposes liability on the contractor even after acceptance where (1) the defect is imminently dangerous to others, (2) the defect is so hidden that a reasonably careful inspection would not reveal it, and (3) the contractor knows of the defect, but the owner does not. Gast v. Shell Oil Co., 819 S.W.2d 367, 370 (Mo. banc 1991).

In support of the first prong to the exception, Plaintiffs allege that the work done by Defendant was so negligent that it rendered the tree imminently dangerous to others. In support of their position, Plaintiffs point to the deposition of Frank DiPiano, the owner of the property where the tree was located, saying that tree roots were cut by Defendant while digging the trench. They also attached to their response an affidavit by Skip Kincaid, a tree consultant and arborist, stating that cutting roots of that size would create a significant risk to others, which Defendant knew or should have known about.

The second prong to the exception, that the defects are so hidden and concealed that a reasonably careful inspection would not have disclosed them, is also disputed. Plaintiffs' affidavits from City employees stated that the trench Defendant dug was filled in prior to any on site inspection by the City. Therefore, Plaintiffs contend the condition was hidden so that a reasonably careful inspection would not reveal the cut tree roots.

Finally, Plaintiffs contend that the third prong, that the defects were known to Defendant but not to the City, is also in dispute as Plaintiffs allege that Defendant cut the tree roots. They produced an affidavit from a tree expert saying that contractors should have anticipated and foreseen the danger of cutting roots of that size. Plaintiffs' affidavit stated that the trench, where the roots were cut, was filled in prior to...