Volume Services, Inc. v. C.F. Murphy & Associates, Inc., WD

• Decision Date: 16 August 1983
• Docket Number: No. WD,WD
• Citation: 656 S.W.2d 785
• Court: Missouri Court of Appeals
• Parties: VOLUME SERVICES, INC., Appellant, v. C.F. MURPHY & ASSOCIATES, INC., et al., Defendants. 33774.

Page 785

656 S.W.2d 785

VOLUME SERVICES, INC., Appellant, v. C.F. MURPHY & ASSOCIATES, INC., et al., Defendants.

No. WD 33774.

Missouri Court of Appeals,

Western District.

Aug. 16, 1983.

Douglas Laird (argued), Gage & Tucker, Kansas City, for appellant.

Shughart, Thomson & Kilroy, Kansas City, for defendant C.F. Murphy & Assoc.

Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for defendant J.E. Dunn Const. Co.

Field, Gentry, Benjamin & Robertson, Kansas City, for defendant K.C. Structural Steel Co.

Jackson & Sherman, P.C., Kansas City, for defendant Bethlehem Steel Corp.

Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, for defendants Campbell, Roenigk, Luellen, Quinlan and Keith.

Before NUGENT, P.J., and WASSERSTROM and KENNEDY, JJ.

NUGENT, Judge.

Plaintiff appeals from the trial court's dismissal of counts one through five, nine, and ten of their ten-count petition for damages arising from the collapse of the roof of the R. Crosby Kemper Memorial Center (hereinafter Kemper Arena). All seven of the dismissed counts relate to all defendants except the city of Kansas City, Missouri (hereinafter "non-city" defendants). Counts I through V name only the non-city defendants. Counts I and II allege negligence in the construction and design of Kemper Arena and seek recovery for damage to plaintiff's equipment and inventory, as well as for the loss of plaintiff's concession rights. Count III is based on products liability. Count IV alleges breach of an implied warranty of usefulness, and Count V alleges that defendants negligently and recklessly misrepresented that Kemper Arena was properly designed and constructed. Counts VI, VII and VIII are solely against the city, alleging breach of contract, negligent maintenance and operation of Kemper Arena, and wrongful representation that the arena was free of defects. Counts IX and X name only the non-city defendants. Count IX pleads breach of a contract between the city and the non-city defendants, to which plaintiff was a third party beneficiary. Count X pleads breach of a nondelegable duty owed plaintiff by the defendants. We are asked to determine whether any of Counts I through V, IX and X state a cause of action. We reverse in part and remand to the trial court for further proceedings consistent with this opinion.

On review of the trial court's dismissal of a petition, our duty is to determine if the facts pleaded and reasonable inferences to be drawn therefrom when viewed in the light most favorable to the plaintiffs, demonstrate any ground for relief. DeMaranville v. Fee Fee Trunk Sewer, Inc., 573 S.W.2d 674, 676 (Mo.App.1978). Even if the petition is imperfectly or defectively stated, we must accept as true all facts it avers, construe all averments liberally and favorably to the plaintiff and determine whether they invoke principles of substantive law upon which relief may be granted. City of Kansas City v. Mary Don Co., 606 S.W.2d 411, 413-14 (Mo.App.1980).

Doing so, we accept as true the following facts which appear in plaintiff's first amended petition dated May 8, 1981.

Volume Services, a wholly owned subsidiary of Interstate United, Inc., operates refreshment vending stands and vending services. Defendant C.F. Murphy & Associates, Inc. designed the Kemper Arena and supervised its construction. Defendant J.E. Dunn Construction Co. was the general contractor. Defendant Kansas City Structural Steel Co. was a sub-contractor responsible for the erection of the structural steel elements supporting the roof. Defendant Bethlehem Steel Corp. manufactured the bolts used to support the roof. The individual defendants comprise the last board of directors of Bob D. Campbell & Co. which participated in the design and construction of the structure which supported the roof.

On December 11, 1973, Volume Services entered into an agreement with the city by which the city leased to Volume Services certain areas in the arena designated as "concession premises" and granted exclusive vending machine and concession rights. The non-city defendants had knowledge of this agreement.

On June 4, 1979, the roof of the Kemper Arena collapsed as a result of the non-city defendants' negligence. Thirteen specific failures of design and construction are listed, including failure to design and construct the roof to withstand stress caused by normal weather conditions; failure to design and construct devices to drain water from the roof; failure to design, construct, inspect, and test adequate roof supports; failure to provide a warning system for stress build-up; failure to design and manufacture parts that could withstand normal and foreseeable pressures; and failure to warn that the parts provided were not capable of withstanding such pressures. The defects were said to be concealed so that a reasonable inspection by plaintiff would not have revealed them. Plaintiff asserts that as a direct and proximate result of defendants' negligence, Kemper Arena was completely unusable from June 4, 1979, to February 20, 1980, damaging plaintiff's leasehold estate, damaging plaintiff's equipment and inventory, and rendering worthless plaintiff's exclusive right to use and occupy the arena. Plaintiff alleges in Count I and every subsequent count that it suffered damages of $200,000.00 plus costs.

In Count II, plaintiff alleges as well that the non-city defendants' defective design and construction rendered Kemper Arena "essentially, imminently and unreasonably dangerous to plaintiff, other users of the building and the general public."

In Count III, plaintiff alleges that the arena, including the bolts, steel structures, and other material used in its construction, was in a defective condition unreasonably dangerous at the time of the collapse.

In Count IV, plaintiff alleges that the non-city defendants warranted that the arena was designed and constructed in a skillful and workmanlike manner when in fact it was not suitable for the intended purpose of business and entertainment.

In Count V, plaintiff alleges that the non-city defendants negligently and recklessly misrepresented that the arena was properly designed and constructed, knowing that those representations were not true and knowing that the general public would rely on those misrepresentations. In reliance on them, the plaintiff entered into its agreement with the city, an agreement rendered worthless by the collapse of the roof.

In Count VI against the defendant city plaintiff alleges that it entered into an agreement with the city to lease certain areas of Kemper Arena, that it performed all terms and conditions of the agreement, but that the city failed to make the arena available for the exclusive lease of the "concession premises" and the exclusive concession and vending machine rights.

In Count VII, plaintiff alleges that the city negligently maintained and operated Kemper Arena in that its roof and supporting structures were dangerous and defective as fully described in Count I. Further, the city was negligent in wrongfully representing that the arena was free from defects at a time that it knew or should have known that the arena was in a dangerous and defective condition in violation of city ordinances pertaining to the maintenance of the foundations, walls and roofs.

In Count VIII, plaintiff alleges that the city's negligent maintenance and operation of Kemper Arena rendered the arena "essentially and imminently dangerous" to plaintiff and the general public.

In Count IX, plaintiff again names only the non-city defendants and alleges that such defendants designed and constructed Kemper Arena, specially intending that designated areas would be for the use of plaintiff or another concessionaire, that plaintiff was a third party beneficiary to the contracts between the non-city defendants and the city, and that the non-city defendants breached their contractual obligation to design and construct a safe, habitable structure in a workmanlike manner free from defects.

Finally, in Count X against the non-city defendants, plaintiff alleges that at the time of the design and construction of the arena, plaintiff was within a foreseeable class of those who would be damaged by defendants' negligence and that the defendants owed a nondelegable duty to plaintiff and others to exercise due care ordinarily possessed by the members of their professions.

The non-city defendants filed motions to dismiss Counts I--V and IX--X of plaintiff's petition. On April 23, 1982, Judge Sprinkle dismissed Counts I--V for failure to state a claim on which relief can be granted. Volume Services filed a notice of appeal from that order on April 30, 1982. On the same day, Volume Services moved for reconsideration or in the alternative, that the April 23 order be designated as final for the purposes of appeal. On May 27, 1982, plaintiff's motion for reconsideration was denied, but the order of April 23 was designated as final. On August 13, 1982, Judge Sprinkle entered an "Amended Order", amending the order of April 23 to dismiss Counts I--V and Counts IX and X for failure to state a claim. On August 20, 1982, plaintiff filed a second notice of appeal from the August 13 order. (On August 27, 1982, that appeal was consolidated by this court with the earlier appeal).

Because Judge Sprinkle's "Amended Order" of August 13, 1982, did not indicate whether he intended that his designation of the dismissal of Counts I--V as final should apply to Counts IX and X as well, and because we wish to avoid piecemeal review of those counts at a later date, we issued a special remand on June 24, 1983, requesting that Judge Sprinkle clarify the record to indicate whether he had intended that his designation as final should apply to all dismissed counts. ¹ On July 6, 1983, he designated Counts IX and X as final for purposes of appeal. Pursuant to Rule 81.05(b), plaintiff's premature filing of notice of appeal on those counts was deemed moved up...