Werdehausen v. Union Elec. Co.

• Decision Date: 30 October 1990
• Docket Number: No. 56983,56983
• Citation: 801 S.W.2d 358
• Parties: Joseph WERDEHAUSEN, Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 358

801 S.W.2d 358

Joseph WERDEHAUSEN, Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, Defendant-Appellant.

No. 56983.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 30, 1990.

Motion for Rehearing and/or Transfer

to Supreme Court Denied Dec. 19, 1990.

Application to Transfer Denied Feb. 7, 1991.

Paul S. Brown, T. Michael Ward, Mark Lawson, St. Louis, for defendant-appellant.

Elmer C. Oberhellmann, St. Louis, for plaintiff-respondent.

SATZ, Presiding Judge.

This is a personal injury action involving the duty of an employer to an employee of an independent contractor. Defendant-employer, Union Electric Company (UE), appeals from a money judgment in favor of plaintiff, Joseph Werdehausen, an employee of the independent contractor, Daniel International Corporation (Daniel). We reverse.

By written contract, UE hired Daniel to do construction work on UE's Callaway Nuclear Power Plant. Plaintiff, a pipefitter, was injured on the construction site while working for Daniel. Plaintiff was walking under a scaffold when a man on the scaffold, apparently another Daniel's employee, unintentionally kicked a large piece of wood off of the scaffold. The wood fell 30 feet, struck and broke through plaintiff's hard hat, cut plaintiff's head and, according to plaintiff's evidence, seriously injured his cervical spine.

Plaintiff's evidence showed the wood fell from the scaffolding because the scaffolding had no toe boards. A toe board is a safety device nailed to a scaffold to prevent objects from falling off the scaffold.

Plaintiff's Submitted Theory of Liability

UE contends that plaintiff failed to show it had a duty of due care to plaintiff, and, therefore, UE contends, plaintiff failed to make a submissible case. To state the obvious, this contention raises the threshold issue of plaintiff's submitted theory of UE's liability. The record does not reveal plaintiff's theory with complete clarity.

To us, plaintiff's verdict directing instruction submits a garbled claim under § 414 of the Restatement (Second) of Torts (1965). ¹ Section 414 subjects to liability an employer who hires an independent contractor to do work but "retains control over any part of the work" and, then, fails to exercise his control with reasonable care, causing injury "to others". ² The verdict directing instruction submitted to the jury states:

In your verdict you must assess a percentage of fault to Defendant Union Electric, whether or not Plaintiff Joe Werdehausen was partly at fault, if you believe:

First, Defendant Union Electric entered into a contract with Daniel on July 16, 1975 for construction work to be performed by Daniel, and

Second, Defendant Union Electric had authority to stop any work operation of Daniel which failed to comply with the Occupational Safety and Health Act of 1970 and applicable amendments, and

Third, the Occupational Safety and Health Act of 1970 [1926.451] requires toe boards and wire mesh and guard rails to be installed on all open sides and ends of scaffolds more than ten feet above the ground floor, and

Fourth, scaffold number 62 was more than 10 feet above the ground floor and did not have toe boards and wire mesh and guard rails on all open sides and ends, and, as a result the area beneath scaffold number 62 was not reasonably safe for persons walking beneath scaffold number 62, and

Fifth, Defendant Union Electric knew or by using ordinary care could have known of this condition, and Sixth, Defendant Union Electric failed to stop work operations until toe boards and wire mesh and guard rails were installed on scaffold number 62, and

Seventh, Defendant Union Electric was thereby negligent, and

Eighth, as a direct result of such negligence, plaintiff Joe Werdehausen was injured.

We read this instruction as imposing a duty of due care on UE to plaintiff, derived from UE's retained contractual power to stop any unsafe work of the independent contractor, Daniel. However, in the copy of this instruction made part of the record, plaintiff cites three separate sections of the Restatement and a federal case to support the instruction:

NOT IN MAI Restatement (Second) of Torts sections 414, 422, and 428. Donovan vs. General Motors, 762 F.2d 701 (8th Cir.1985) section 414, Donovan vs. General Motors, 762 F.2d 701 (8th Cir.1985)

Submitted by Plaintiff.

Rather than illuminating plaintiff's submitted theory of UE's duty, these citations obfuscate it.

We have synopsized an employer's duty to an employee of an independent contractor under § 414. Section 422 subjects a landowner to liability to an employee of the independent contractor for injury caused "by the unsafe condition of the structure" if the landowner retains "possession" of the land during the progress of the work. The duty of the landowner extends to "persons upon the land, such as invitees, to whom the possessor owes such a duty." Id. Comment a. However, "[p]ossession usually is surrendered fully in the cases of construction ... work." Id. Comment c.

UE owned the land upon which the power plant was being built. We do not, however, read plaintiff's verdict directing instruction as submitting the element of UE's, actual or constructive, retained "possession" of the land and, thus, do not find the instruction to be a submission of a § 422 claim.

Section 428 subjects a franchisee to vicarious liability "for physical harm caused [to others] by the negligence of a contractor employed to do work in carrying on the activity." UE was permitted to build and operate the nuclear power plant by a permit from the Nuclear Regulatory Commission (NRC). Plaintiff's instruction, however, does not submit the issue of UE's vicarious liability for Daniel's negligence.

The Donovan case provides no more illumination than the cited sections of the Restatement. Donovan is a diversity case brought under Missouri law. The employee of an independent contractor sued the landowner-employer for injuries the employee sustained while working on the land of the employer-landowner. The appellate court reversed the trial court's submission of plaintiff's case under § 343 of the Restatement. Section 343 defines the liability of a possessor of land to an invitee for a dangerous condition on the land. "As applied [in Missouri] to an employee of an independent contractor", the court said, "s 343 is referred to as the 'safe workplace' doctrine, under which one who contracts with an independent contractor has a duty to provide a safe workplace for the employees of the independent contractor." Id. at 704. In Missouri, the court said, this principle applies to conditions that pre-exist the independent contractor's coming on to the premises and, therefore, was not applicable to the facts there.

The court, however, found sufficient evidence to support a submissible case under §§ 414 and 422. "Of course", the court said, "the instructions on retrial will depend on the evidence introduced." Id. at 705.

Donovan's relevance here, if any, is that plaintiff could not submit a claim under § 343 but could submit claims under §§ 414 and 422, on properly supporting evidence. We need not address the propriety of Donovan's holding or teaching. The record before us discloses plaintiff submitted one instruction with one claim. Moreover, neither Donovan nor plaintiff in his brief demonstrates the meaningful difference between a § 343 and a § 422 claim. And Furthermore, we are not aided by the record of the instruction conference before us. When asked by the trial court whether he had any objections to "any instructions", plaintiff's counsel, Mr. Oberhellman, responded: "No, I do not." However, a Mr. Becherer, apparently also speaking for the plaintiff, objected to the trial court's refusal of an "Instruction A" which, according to Mr. Becherer, submitted "two theories" of liability that "could have been submitted together". The record before us, however, does not disclose Mr. Becherer as co-counsel for plaintiff, "Instruction A" is not part of the record before us, and the meaning and legal effect of the instruction conference is not developed in plaintiff's brief on appeal.

plaintiff does not argue that UE's retained contractual power to stop unsafe work constitutes retained possession under § 422.

To make the waters murkier, plaintiff finds a § 414 in Count III of his fourth amended petition, but UE finds this claim in Count V of the petition. This difference is understandable. To say the least, plaintiff's petition is not a model of clarity. Although Count III is captioned: RETAINED CONTROL OF WORK, its allegations, by incorporation, plead "inherently dangerous" activities or conditions of work and base UE's liability on vicarious liability, the "negligent acts of Daniels (sic) International as [if] those such acts had been its own". Section 414 contemplates neither "inherently dangerous" activities nor vicarious liability.

Count V of plaintiff's petition, referred to by UE, contains allegations in forty separate paragraphs and more than ten additional subparagraphs. Neither party has explained the meaning of this prolixity.

Our pleading principles may have abolished the technicalities of pleading. They have not abolished the need for clear thinking and clarity.

We take the record as we find it and address those issues we believe have been joined by the parties. Plaintiff's chosen theory of liability, as reflected in his verdict directing instruction, was a claim under § 414.

Both parties assume that we, in Missouri, have adopted § 414 in detail. No Missouri court, however, has expressly adopted § 414, although this Court, in dicta, has recognized its applicability with approval. See, Barbera v. Brod-Dugan Co., 770 S.W.2d 318, 323-324 (Mo.App.1989). And, certainly no Missouri court has approved the employer's liability under § 414 to include liability to the employees of the independent contractor. Id. at 323, fn. 3. For our purposes here, however, we will assume §...