Casey ex rel. Morgan v. Florence Construction Co.

939 S.W.2d 36, 1997 Mo. App. LEXIS 265
CourtMissouri Court of Appeals
DecidedFebruary 25, 1997
DocketNo. WD 52178
StatusPublished
Cited by5 cases

This text of 939 S.W.2d 36 (Casey ex rel. Morgan v. Florence Construction Co.) 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
Casey ex rel. Morgan v. Florence Construction Co., 939 S.W.2d 36, 1997 Mo. App. LEXIS 265 (Mo. Ct. App. 1997).

Opinion

SPINDEN, Judge.

Terri Casey died in 1994 when the motorcycle she was riding crashed headon with a pickup in a construction area in Independence. Her children and parents filed a wrongful death suit against Florence Construction Company, the general contractor for the highway construction project. Florence Construction filed a motion for summary judgment which the circuit court granted. Casey’s children and parents appeal. We reverse and remand.

The crash occurred on Mo. 291 on March 13, 1994, when Jeanette Mclntire drove her pickup southbound across the highway’s center line into a lane designated for northbound traffic. Casey was a passenger on a motorcycle traveling northbound on Highway 291. The vehicles collided headon.

In their petition for damages for wrongful death, Casey’s children, Sean and Adam Casey, and her parents, Marion and Ernestine Morgan, claim that Florence Construction was negligent and caused or contributed to causing Casey’s death by (1) not placing proper signals and warnings to indicate two-way trafile in the area; (2) using a confusing and misleading traffic control, and (3) making the area appear to authorize only one-way traffic.

Florence Construction was working on the highway under contract with the Missouri Highway and Transportation Commission. Florence Construction subcontracted with Gun-Ko Traffic Control, Inc., to provide signs and warning devices for traffic control in the area.

The commission designed the traffic control for the construction project. Its design called for signs, pavement markings, specially-marked barrels and other traffic control devices. The commission retained authority to direct Florence Construction to make changes in the way it controlled traffic at the site. Commission representatives inspected traffic every day during construction.

Walter Waugh, the commission’s resident engineer who was in charge of the construction project, and Jim McClanahan, the commission’s inspector, testified that Florence Construction’s traffic control was in compliance with the commission’s contract and directives when the accident occurred and that it was the same then as it had been for months before the accident. Waugh and McClanahan testified that the traffic control was safe and proper at the time of the accident and that Florence Construction had no [38]*38reason to believe that the traffic control was unsafe or dangerous to the general public.

Casey’s children and parents assert that the circuit court erred in granting Florence Construction’s motion for summary judgment because (1) it relied upon Florence Construction’s compliance with the commission’s contract to satisfy Florence Construction’s obligation to control traffic properly and (2) genuine issues of material fact remain as to whether Florence Construction knew, or had reason to believe, that its actions were dangerous or likely to cause injury to third parties. We agree that a genuine issue of material fact remains; therefore, the circuit court erred in granting Florence Construction’s motion for summary judgment.

A litigant moving for summary judgment must establish that the parties are not disputing any genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation, 854 S.W.2d 371, 376 (Mo. banc 1993). When we review the granting of a motion for summary judgment, we review the record in the light most favorable to the party against whom the judgment was entered and accord the other party the benefit of all reasonable inferences from* the record. Id.; Rule 74.04.

The circuit court concluded that Florence Construction was not liable to the Casey family because it obeyed the commission’s contract and directives without negligence. Indeed, “where a servant obeys the orders of his master without negligence, the servant will not be liable for injury to third persons unless he knew, or had reason to believe, that such actions were dangerous and likely to cause injury to a third party.” Beyerbach v. Girardeau Contractors, Inc., 868 S.W.2d 163, 167 (Mo.App.1994). See also Southwestern Bell Telephone Company v. Clarkson Construction Company, Inc., 782 S.W.2d 404, 406 (Mo.App.1989). The circuit court stated that no evidence in the record established that Florence Construction knew, or had reason to believe, that by following the commission’s directions its actions were dangerous or likely to cause injury to third parties. We disagree.

Casey’s children and parents responded to Florence Construction’s motion for summary judgment by filing an affidavit by their expert, Ronald W. Eek, which said:

... I am employed as the Director of Engineering Research at the West Virginia University. I received my Ph.D. degree in transportation engineering in 1975. I currently am a professor of civil engineering and teach graduate and undergraduate students in my employment. I am a registered professional engineer in the state of West Virginia....
... I have reviewed a copy of the motion for summary judgment (“Motion”) filed in the Case, and all supporting materials submitted by Florence in support of the Motion, including a collection of documents entitled Exhibits to Defendant Florence Construction Company’s Motion For Summary Judgment. I have also reviewed the following materials: the petition for wrongful death filed in the Case; two volumes of the deposition of J.W. McClana-han; copies of photographs provided to me by counsel for plaintiffs which I understand have been distributed to counsel for the defendants; the contract awarded by the Missouri Highway and Transportation Commission to Florence Construction Company concerning the highway construction project at issue in the Case; a copy of the subcontract between Florence Construction Company and Gun-Ko Traffic Control, Inc.; the Missouri Standard Specifications For Highway Construction, 1990 edition; copies of two videotapes of the construction area in the vicinity of Missouri 291 Highway and U.S. 24 Highway in Independence, Missouri, one prepared by the state highway department and the other prepared by a private individual named Jeanette McIntyre; and a copy of the police report prepared by the Independence Police Department concerning the death accident on March 13, 1994 involving Terri L. Casey.
... After performing my review of the materials in the Case, I offer the following based upon my education, training, and experience, and state the same with a rea[39]*39sonable degree of certainty in the engineering profession as follows:
a. In general, the contractors Florence Construction Company and Gun-Ko Traffic Control, Inc., and each of them, knew or had reasons to know that the traffic controls that existed in the area of Missouri 291 Highway and U.S. 24 Highway in Independence, Missouri, where the accident occurred on March 13, 1994, (“Accident Area”) were dangerous and a hazard to life and were likely to cause and could cause accidents and injury;
b.

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939 S.W.2d 36, 1997 Mo. App. LEXIS 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casey-ex-rel-morgan-v-florence-construction-co-moctapp-1997.