Zueck v. Oppenheimer Gateway Properties, Inc., No. 73226

Decision Date03 May 1991
Docket NumberNo. 73226
Citation809 S.W.2d 384
PartiesStephen ZUECK, Plaintiff-Appellant, v. OPPENHEIMER GATEWAY PROPERTIES, INC., et al., Defendants-Respondents.
CourtMissouri Supreme Court

As Modified on Denial of Rehearing June 11, 1991.

Paul J. Passanante, M. Jane Matoesian, St. Louis, for plaintiff-appellant.

J. Douglas O'Leary, Robyn Fox, Thomas J. Magee, Ben Ely, Jr., St. Louis, for defendants-respondents.


Under the common law, one who contracts with an independent contractor is generally not liable for bodily harm caused by the torts of the contractor or the contractor's servants. Where, however, the activity undertaken by the independent contractor is inherently dangerous, the common law recognizes an exception and subjects the landowner to liability to innocent third parties for injuries resulting from failure of the independent contractor to take special or reasonable precautions against the inherent risks or dangers. In Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617 (banc 1928), this Court extended the inherently dangerous exception to an employee of the independent contractor, making the landowner vicariously liable for the employee's injuries. The dispositive issue before the Court here is whether the rule announced in Mallory should continue to be the law of Missouri. We hold that the inherently dangerous exception no longer applies to employees of independent contractors covered by workers' compensation and overrule Mallory and cases following Mallory, including Ballinger v. Gascosage Electric Cooperative, 788 S.W.2d 506 (Mo. banc 1990), to the extent that those cases are inconsistent with this opinion. We affirm the order of the trial court sustaining the defendants' motions for summary judgment.


The relevant facts are not in dispute. Stephen Zueck worked as a journeyman painter for a painting contractor involved in the renovation of the St. Louis Union Station. On his first working day, Zueck's employer assigned him to paint rafters which extended at an angle from 20 to 80 feet above the floor. The painters stood on a metal platform or "pick," some 25 feet long and 2 1/2 feet wide, which was attached to the rafters by ropes. Zueck asked for a safety belt, or line, which could be attached to a cable, but was told that all available safety belts were being used by other painters that day and that one would be furnished for him for the next working day. His employer instructed Zueck to continue painting after the normal working day had ended. Zueck discovered that the paint on the rafters previously applied had not dried. This situation prevented the application of another coat of paint. As Zueck prepared to come down, he stepped from a rafter onto the pick, which slid and flipped, causing him to fall to the floor.

Zueck filed a petition in the Circuit Court of the City of St. Louis against four defendants who have in common either ownership or development responsibilities for the St. Louis Union Station. Specifically, Zueck's third amended petition averred that his injuries

were directly and proximately caused by the carelessness and negligence of the defendants, and each of them, in that the defendants failed to ensure that adequate and proper precautions were taken to avoid personal injury and damage during the course of the performance of this inherently dangerous activity, in the following respects, to wit:

a) defendants failed to provide plaintiff with a reasonably safe manner of access to the roof and rafters;

b) defendants failed to provide plaintiff with a scaffold and/or an excess ladder to the roof and rafters;

c) defendants failed to utilize a manlift or other suitable device to provide plaintiff with access to the roof and rafters;

d) defendants failed to provide plaintiff with a safety belt and/or safety harness and/or safety net, and

e) defendants failed to provide plaintiff with a reasonably safe place and/or conditions for work.

Each of the defendants filed a motion for summary judgment, claiming that the work in which Zueck was engaged was not inherently dangerous. The trial court sustained the motion as to each defendant, relying on Hofstetter v. Union Electric Co., 724 S.W.2d 527, 530 (Mo.App.1986) ("The theory of liability for an inherently dangerous activity is not applicable where the negligence of the independent contractor creates a new risk, not intrinsic in the work itself, which could have been prevented by routine precautions ... which any careful contractor would be expected to take."); Barbera v. Brod-Dugan Co., 770 S.W.2d 318, 323 (Mo.App.1989) (The danger which faced a painter, "i.e., falling from an elevation of 28 feet, was no more than an ordinary and customary danger of painting."); and Sullivan v. St. Louis Station Associates, 770 S.W.2d 352, 356 (Mo.App.1989) ("[W]hen the contractor chosen is ... competent, the [landowner] will not be liable for his [the contractor's] negligence.") The court of appeals en banc, affirmed, by a vote of 6 to 5, without an opinion which commanded a majority of the votes. We granted Zueck's application for transfer because of the importance of the question and the diversity of the views expressed by the court of appeals. Our jurisdiction is predicated on Article V, section 10 of the Missouri Constitution.


Summary judgment is an extreme, drastic remedy and may be employed only where there are no genuine issues of fact and where the moving party is entitled to judgment as a matter of law. Elliott v. Harris, 423 S.W.2d 831, 835 (Mo. banc 1968). On review, this Court examines the record in the light most favorable to the party against whom a judgment was rendered. Gast v. Ebert, 739 S.W.2d 545, 546 (Mo. banc 1987).

Although we believe that the question whether an activity is inherently dangerous is a question of law for a court's initial determination, for purposes of this opinion we assume, arguendo, that the work of painting at a height in which Zueck was engaged and as a result of which he was injured was inherently dangerous. Although we might reach a different conclusion were that the critical issue in the case, our assumption removes any issue of unresolved fact. Indeed, under the resolution we reach in this case, Zueck's petition could not withstand a motion to dismiss. Concerning the propriety of the trial court's summary judgment order, the only issues remaining before this Court now are matters of law.


Before this Court, Zueck contends that the question whether appellant was engaged in an inherently dangerous activity presents a genuine issue of material fact for the jury to decide. Zueck argues that the presence of such a genuine issue of material fact renders the trial court's summary judgment erroneous. Our willingness to assume that Zueck's work is inherently dangerous resolves this point. Zueck also argues that he was injured as a result of the inherently dangerous nature of the activity and not his employer's negligence; that the defendants as owners or possessors of the land are vicariously liable for his injuries as a result of the inherently dangerous activity; and that the inherently dangerous activity doctrine extends to employees of independent contractors. The defendants counter each of these arguments, strenuously urging that this Court should overrule Mallory.


The general rule under the common law is that a landowner has no vicarious liability for the torts of an independent contractor. This general rule recognizes that the landowner has no right of control over the manner in which the work is to be done, and for that reason the work "is to be regarded as the [independent] contractor's own enterprise, and he, rather than the [landowner], is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing it." W. Prosser & W. Keaton, The Law of Torts, 509 (5th ed. 1984). Bower v. Peate, 1 Q.B.D. 321 (1876), announced an exception to this general rule, holding that a landowner is liable for the negligence of his independent contractor if the landowner "directs an act to be done from which injurious consequences will result unless means are taken to prevent them." Id. at 326.

Restatement (Second) of Torts, sections 416 and 427 extend liability to landowners who contract for work involving "special danger" or "peculiar risk" of which the landowner knows or should know. The landowner is subject to liability "to others" for physical harm caused to them for the failure of an independent contractor to take special or reasonable precautions against such risks or dangers. The inherently dangerous exception at issue in this case is based upon negligence, usually by the independent contractor. The obvious purpose of the exception is to prevent the landowner, for whose benefit the work is being done, from avoiding liability and defeating the recovery of an injured, innocent third party, by hiring a contractor who is not fiscally responsible to do the dangerous work.

Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16 (1912), recognized the owner's liability to an innocent, third party where the owner "directs the contractor to perform an act which is dangerous to others, even if carefully performed." Id. 145 S.W. at 24. Salmon, however, refused to extend the inherently dangerous exception to employees of the independent contractor. Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617 (Mo. banc 1928), overruled Salmon, making the landowner vicariously liable for injuries received by an employee of an independent contractor engaged in the work which was the subject of the contract between the landowner and the independent contractor.

Mallory lay relatively dormant until Smith v. Inter-County Telephone Co., 559 S.W.2d 518 (Mo. banc 1977). In Smith, this Court effectively abandoned Mallory, permitting the employee of an independent contractor a cause of action against a...

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