Bowles v. Weld Tire & Wheel, Inc.

41 S.W.3d 18, 2001 Mo. App. LEXIS 293, 2001 WL 137329
CourtMissouri Court of Appeals
DecidedFebruary 20, 2001
DocketNo. WD 58386
StatusPublished
Cited by4 cases

This text of 41 S.W.3d 18 (Bowles v. Weld Tire & Wheel, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowles v. Weld Tire & Wheel, Inc., 41 S.W.3d 18, 2001 Mo. App. LEXIS 293, 2001 WL 137329 (Mo. Ct. App. 2001).

Opinion

ULRICH, Judge.

Donald Bowles appeals the summary judgment entered by the trial court in favor of Weld Tire & Wheel, Inc. in his action against the company to recover for injuries resulting from his exposure to carbon monoxide while operating a gasoline-powered power washer to prepare an enclosed stairwell for painting. Mr. Bowles contends that the trial court erred in finding that the inherently dangerous activity exception to the general rule that a landowner is not vicariously hable for the torts of an independent contractor did not apply. The judgment of the trial court is affirmed.

The material facts of this case are undisputed. In September 1994, Weld Tire & Wheel, Inc. (Weld) hired Ron Auen, an independent contractor, to prepare and paint exterior and interior portions of its facility. The Appellant, Donald Bowles, was employed by Mr. Auen.1 On December 15, 1994, Mr. Auen and Mr. Bowles began preparing a three-story enclosed stairwell for painting. Starting on the top floor, the men used a gasoline-powered power washer, which emitted carbon monoxide, to remove old, loose paint and dirt from the stairwell walls. After operating the power [22]*22washer for approximately one half hour, Mr. Bowles complained of a headache and ringing in his ears. Mr. Auen told Mr. Bowles to go home and that he would finish the job. As Mr. Bowles was walking down the stairs, he lost consciousness. Mr. Auen, who was then operating the power washer, did not see Mr. Bowles collapse. Within minutes, Mr. Auen also lost consciousness. The men were eventually discovered by Weld employees and taken to the hospital for carbon monoxide poisoning.

Thereafter, Mr. Bowles filed this action for damages against Weld. He claimed that the activity of operating a gasoline-powered power washer in an enclosed stairwell was inherently dangerous and that Weld was vicariously liable for Mr. Auen’s negligence in failing to take adequate precautions. Specifically, Mr. Bowles alleged that Mr. Auen was negligent in failing to monitor the carbon monoxide levels in the stairwell, in failing to provide a mechanism to direct the exhaust fumes to the outside, and in failing to provide proper ventilation.

Weld filed a motion for summary judgment and suggestions in support arguing that the activity of painting a stairwell was not in itself inherently dangerous and that Mr. Auen and Mr. Bowles could have chosen a different and safer manner to remove paint from the stairwell walls. The trial court granted Weld’s motion for summary judgment. This appeal by Mr. Bowles followed.

Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id.

Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. Facts contained in affidavits or otherwise in support of a party’s motion are accepted as true unless contradicted by the non-moving party’s response to the summary judgment motion. Id. at 376. A defending party may establish a right to judgment as a matter of law by showing any one of the following: (1) facts that negate any one of the elements of the claimant’s cause of action, (2) the non-movant, after an adequate period of discovery, has not and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense. Id. at 381.

Once the movant has established a right to judgment as a matter of law, the non-movant must demonstrate that one or more of the material facts asserted by the movant as not in dispute is, in fact, genuinely disputed. Id. The non-moving party may not rely on mere allegations and denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue for trial. Id.

On appeal, Mr. Bowles contends that the trial court erred in granting Weld’s motion for summary judgment because Weld failed to establish a right to judgment as a matter of law and genuine issues of material fact existed. In its motion for summary judgment and supporting suggestions, Weld argued that the activity that caused Mr. Bowles’s injuries, preparing and painting an en[23]*23closed stairwell, was not in itself inherently dangerous and could have been performed safely with a different method or by providing proper ventilation by opening windows or doors in the stairwell. Mr. Bowles argues that the operation of a gasoline-powered power washer in an enclosed stairwell was the activity that caused his injuries. He contends that such activity was inherently dangerous unless special precautions were taken because the internal combustion engine emitted carbon monoxide, an odorless, tasteless, lethal gas. Mr. Bowles also argues that Weld failed to show that the activity could have been performed safely with proper ventilation and that even if it had made such showing, the facts were disputed as to whether the doors and windows could have been opened.2

Generally, a landowner is not vicariously hable for injuries caused by the negligence of an independent contractor or his employees to innocent third parties or employees of the independent contractor. Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 130 (Mo. banc 1993); Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 133-134 (Mo.App. E.D.1999); Lawrence v. Bainbridge Apartments, 957 S.W.2d 400, 403-404 (Mo.App. W.D.1997). The court in Zueck v. Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384 (Mo. banc 1991), stated:

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.”

Id. at 386 (quoting W. Peossek & W. Keaton, The Law of ToRts 509 (5th ed.1984)). An exception to this general rule is recognized, however, if the activity performed by the independent contractor is inherently dangerous. Matteuzzi 866 S.W.2d at 130; Lawrence, 957 S.W.2d at 404. Under this exception, a landowner who hires an independent contractor to perform an inherently dangerous activity has a nondele-gable duty to take special precautions to prevent injury from the activity. Id. For inherently dangerous activities, the landowner “remains liable for the torts of the contractor, simply for commissioning the activity.

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41 S.W.3d 18, 2001 Mo. App. LEXIS 293, 2001 WL 137329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowles-v-weld-tire-wheel-inc-moctapp-2001.