Sullivan v. St. Louis Station Associates

Decision Date28 March 1989
Docket NumberNo. 54440,54440
PartiesJohn D. SULLIVAN and Joy A. Sullivan, Appellants, v. ST. LOUIS STATION ASSOCIATES, Respondent.
CourtMissouri Court of Appeals

Richard E. Schwartz, St. Louis, for appellants.

Ben Ely Jr., St. Louis, for respondent.

DOWD, Presiding Judge.

John Sullivan was injured while operating a forklift on a construction site owned by St. Louis Station Associates (SLSA). Sullivan and his wife sued SLSA, but the trial judge directed a verdict for SLSA at the close of the Sullivans' evidence. The Sullivans now appeal and we affirm.

SLSA, holder of a 99 year lease, planned to construct a hotel at St. Louis Union Station. To further this goal, SLSA hired both a construction management firm and an operating agent. At all times relevant to this appeal, Dunfy Hotel Corporation held the position of operating agent as an independent contractor. Dunfy hired Baring Industries to supply, unload and install laundry equipment for the hotel and Baring subcontracted the job of unloading and installing the laundry boiler system to Wolfert Heavy Hauling (Wolfert). Wolfert hired John Sullivan through a union hall.

On November 20, 1984, Wolfert planned to lower the laundry boiler into the sub-basement of the hotel. This boiler weighed 11,500 pounds and was approximately 10 feet high and 7 feet in diameter. The procedure Wolfert chose to lower the boiler involved two forklifts. One forklift was equipped with a homemade jib and "come-along chain" which was attached to the boiler. This arrangement was designed to prevent lateral movement of the boiler, not to bear the weight of the boiler.

At the beginning of the operation, the boiler rested on a wooden cribbing at the edge of the ten foot deep sub-basement. The fortified boiler stood in the upper basement level while Mr. Sullivan's forklift was in the sub-basement. Mr. Sullivan's forklift lifted the boiler off the cribbing while the forklift with the come-along chain moved to steady the load. Both forklifts moved so the boiler cleared the edge and was situated above the sub-basement. They then began to lower the boiler to the sub-basement floor. Before the boiler reached the floor, the come-along chain shattered and part of the chain struck Mr. Sullivan's hard hat causing it to break and producing severe head injuries. After the accident, the boiler was still resting on Mr. Sullivan's forklift, although it had tilted and was leaning against the wall.

Mr. Sullivan and his wife filed a three count petition against SLSA. 1 Count I claimed SLSA was liable for its independent contractor's negligence under the inherently dangerous activity exception, Count II claimed SLSA negligently hired an incompetent contractor, and Count III was a loss of consortium claim. At trial, the Sullivans produced, in part, the following witnesses. 2 Mr. Sullivan, the other forklift operator, a third construction worker and the safety director for Mr. Sullivan's union all testified to the events of the day in question and the safety measures, or lack thereof, at the job site. One of SLSA's officers testified concerning the partnership's involvement in the construction process, but the testimony actually accepted on this issue was severely limited. An offer of proof indicated that the witness could have testified that SLSA knew it had contracted for installation of a laundry system, but did not know what type of equipment would be used to complete the contract. Plaintiffs offered depositions from representatives of both Dunfy and Baring. Dunfy's representative testified that it did not concern itself with safety and did not participate in the selection of Wolfert. Baring's representative testified that it never discussed safety with any of the other parties and that it merely looked up Wolfert in a directory of rigging operators, never making an inquiry into Wolfert's qualifications. This witness also testified that Baring did not follow up on the safety of Wolfert's work.

The Sullivans also presented two expert witnesses. The direct examination of these witnesses, although extensive, elicited little testimony due to the large number of sustained objections. Mr. MacCollum, a consulting safety engineer, was allowed to testify regarding the safety of moving the boiler with forklifts. When asked "what is the custom and practice in the heavy construction industry with regard to the movement [and] placement of boilers," he replied "you use a crane." In his pre-trial deposition, Mr. MacCollum stated that if the lift had been performed with a proper crane there "would be practically no risk of harm." During an offer of proof at trial, he testified that the work was inherently dangerous, but further questioning revealed that he felt all heavy construction involves a high risk. Mr. Alfeld, an architect, was ultimately not allowed to testify. The offers of proof revealed that he would have testified the work was inherently dangerous, that a crane should have been used and that the methods used violated OSHA safety standards.

At the close of plaintiffs' case, defendants moved for a directed verdict based on plaintiffs' failure to present evidence making a submissible case. The trial court granted this motion. 3 The Sullivans now appeal in four basic points. They first challenge the directed verdict, claiming that they made a submissible case under all their theories of liability. The final three points challenge the trial court's restriction of certain evidence, namely: (1) testimony as to SLSA's failure to take safety measures and to hire a competent contractor; (2) OSHA regulations; and (3) expert testimony.

Appellants initially claim that the trial court erred in granting the motion for directed verdict because they made a submissible case under the inherently dangerous, negligent hiring and negligent retention theories of liability. A directed verdict is a drastic measure only applicable where, under the facts and inferences presented, reasonable minds must agree that plaintiff was not entitled to recover. In re Estate of Mapes, 738 S.W.2d 853, 855 (Mo. banc 1987). In reviewing the grant of such a motion, the appellate court should view the evidence in the light most favorable to the plaintiff. Rustici v. Weidemeyer, 673 S.W.2d 762, 765 (Mo. banc 1984). With these principles in mind, we review each of the liability theories separately.

In general, a landowner is not liable for bodily harm caused by the tortious acts of an independent contractor or its employees, but this rule does not apply where the work involved is inherently dangerous because, in such situations, the employer has a non-delegable duty to guard against that inherent danger. Smith v. Inter-County Telephone Co., 559 S.W.2d 518, 521 (Mo. banc 1977). This exception applies to work "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." Id. (quoting Stubblefield v. Federal Reserve Board of St. Louis, 356 Mo. 1018, 204 S.W.2d 718, 722 (1947)). A task falls into this category if it necessarily creates a danger requiring active care to counteract and such tasks must be distinguished from situations where the danger is created by the negligent manner of performing a task. Id. at 522. The Missouri Supreme Court established the criteria for a submissible case under this theory in Smith v. Inter-County Telephone Co., 559 S.W.2d 518 (Mo. banc 1977). Plaintiff must present evidence showing 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.

The second Restatement of Torts discusses the inherently dangerous activity exception in sections 416 and 427. Comment d of section 427 states that the exception does not apply either to situations where "the negligence of the contractor creates a new risk, not inherent in the work itself or in the ordinary or prescribed way of doing it" or to a contractor's collateral negligence as defined in section 426, which should be read in connection with section 427. Section 426 of the Restatement, defines a contractor's collateral negligence as negligence that "consists solely in the improper manner in which [the contractor] does the work;" creates a new risk, not inherent in the work; and that the "employer had no reason to contemplate ... when the contract was made."

The application of the inherently dangerous activity exception in Missouri was further explicated in Hofstetter v. Union Electric Co., 724 S.W.2d 527 (Mo.App.1986). Mr. Hofstetter was injured while helping erect a crane at a construction site. Specifically, he fell and broke his leg while descending from the crane due to the absence of steps leading down from the crane platform. The cause was submitted under the inherently dangerous activity exception and the jury found for Mr. Hofstetter. On appeal, this court reversed, noting that the inherently dangerous activity exception is not applicable when the independent contractor's negligence "creates a new risk, not intrinsic to the work itself, which could have been prevented by routine precautions of a kind which any careful contractor would be expected to take." Id. at 530. The employer is not liable for his contractor's collateral negligence "meaning that negligence which is unusual or foreign to the normal or...

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