Gast v. Shell Oil Co.

819 S.W.2d 367, 1991 WL 244346

• Court: Supreme Court of Missouri
• Decided: December 17, 1991
• Docket: 73553
• Status: Published

Opinions

BLACKMAR, Judge.

Linda Gast, a cashier at a 24-hour self-service gasoline station, was shot to death in the course of a daytime robbery. Her parents seek damages for her wrongful death from the contractor who converted a service bay into a cashier’s room. The trial court directed a verdict for the defendant at the close of the evidence.¹ The court of appeals reversed and remanded for trial, relying largely on the opinion in Honey v. Barnes Hospital, 708 S.W.2d 686, 700 (Mo. App.1986). We granted transfer to consider the scope of the contractor’s duty to third persons suffering injury on the premises following completion and acceptance of the work, and now affirm the direction of a verdict by the trial court.

In determining whether the plaintiffs made a case, we of course consider all the evidence in the record which supports sub-missibility and give the plaintiffs the benefit of all reasonable inferences from the evidence. The trial court sustained numerous objections to the plaintiffs’ evidence, and we also accept rejected evidence which is covered by proper offers of proof. Where the plaintiffs introduced testimony which has potentially adverse effect, we take this evidence as true except when it is contradicted by other evidence.²

The facility is located at 12th Street (Tucker Boulevard) and Delmar Boulevard, in the City of St. Louis. It is owned by Shell Oil Company and operated by a lessee. In 1977, Shell decided to convert one of the service bays into a secure cashier’s room so that the facility could be safely operated on a 24-hour basis. Shell prepared a one-page specification sheet which was used by defendant Henty Construction Company, Inc. as a basis for bidding the job. The specifications provided that, except as otherwise stated, “New office to be exactly the same as that at 4600 Jennings at 1-70;” “permit by Shell;” and “Reuse extg. door to service room. Need new locks and pull handle.” The contract was awarded to Henty. Henty bid $4,672 for the job and realized a profit of about $1,100.

Henty has been engaged in the construction business in St. Louis for a number of years. It hires carpenters and laborers but subcontracts work requiring the services of other specialists. It employs no architects, engineers or designers and does not design buildings or facilities. There is no evidence that it holds itself out as an expert in the design of secure facilities. It simply sought to perform the contract for the cashier’s room in accordance with Shell’s specifications. Shell had blueprints of the Delmar facility, which may have accompanied the application for the building permit it was required to obtain, and also had blueprints of the Jennings facility, but Henty prepared no blueprints and did not examine or make use of Shell’s. Shell’s project engineer was on the construction site during the work, and testified that he was aware of the work Henty was doing. The work was completed by the contractor and accepted by Shell in January of 1978.

The robbery occurred on Monday, July 20, 1981, about 4:25 P.M. Linda, the only employee on the premises, was in the cashier’s room with the door locked. This room adjoined an area containing vending machines to which the public had access. A gasoline customer would make payment by going through the vending machine area to the cashier’s window. The door to the cashier’s room contained a bullet resistant glass window and a pass-through slot. On the fatal day, three teenage robbers entered the vending area. One of them kicked in the door to the cashier’s booth with a single kick, causing the deadbolt lock assembly to be ripped from the door frame. The robbers shot Linda and rifled the cash register.

The plaintiffs claim that the contract was performed negligently in three respects, as follows: (1) the door between the cashier’s booth and the vending machine area was hollow rather than solid; (2) the door was hung so as to open inward, rather than outward into the vending area; and (3) the strike plate for the deadbolt lock was insufficiently secured, in that it was not reinforced by a metal plate in the frame, and that it was secured by screws that extended only into the door frame rather than into the adjoining wall. Plaintiffs offered expert testimony to show deviation from good construction standards in each of these respects. The witness testified that the break-in would at least have required more time if proper practice had been followed. For present purposes we will accept the proffered expert testimony, including the portions to which the trial judge sustained objections.

The first inquiry must be as to the duty owed to the plaintiffs by the defendant. This is a question of law. The court of appeals placed its essential reliance on Honey, which states a general rule as follows:

After the owner accepts a structure, the general rule is that a general contractor is not liable to persons with whom he did not contract....

Honey, 708 S.W.2d at 700.

This rule is enunciated in a series of Missouri cases. An instructive case is Gruhalla v. George Moeller Construction Co., 391 S.W.2d 585 (Mo.App.1965). In Gruhalla, a school visitor stepped in a hole in the floor in a dark vestibule, and sought to impose liability on a contractor who had done work on the vestibule. The court held that the contractor was not liable for injury occurring after the owner had accepted the construction work. Id. at 597. See also Frogge v. Nyquist Plumbing and Ditching Co., 453 S.W.2d 913, 916 (Mo.1970) (stating the “very general rule”); Restatement (Second) of Torts § 385 comment d (1965).

In Honey v. Barnes Hospital, 708 S.W.2d 686 (Mo.App.1986), a mental patient opened a window in the psychiatric ward of a hospital and plunged to his death. The court of appeals affirmed a judgment against the hospital, the general contractor who had installed the windows, and the supplier of the windows. The specifications provided that “life safety hardware shall provide clean opening between sash and frame of 3 to 5 inches” and that sash openings for the Psychiatric Floor “shall be controlled to a fail-safe position.” The court of appeals found that the windows could be opened wide enough to permit the patient to get through them and that the jury could have found that the specifications were violated in this respect. It also found that the violations were concealed so that they could not be discovered by the owner’s visual inspection. The court therefore concluded that the claim against the general contractor, based on the very kind of injury the specifications were designed to prevent, fell within an exception to the general rule stated by this Court in Begley v. Andaber Realty and Inv. Co., 358 S.W.2d 785, 791 (Mo.1962), as follows:

This exception applies where the structure was so defectively constructed as to be essentially and imminently dangerous to the safety of others; the defects are so hidden and concealed that a reasonably careful inspection would not have disclosed them, and these things are known to the defendants but not to those who accepted them.

In Begley, a customer of a supermarket was injured when 80 feet of overhead duct-work fell on him. The evidence supported a finding that the installation was defective, that the contractor knew or should have known of the defect, and that the defective condition was not known to the tenant in possession of the building.

The case before us is clearly distinguishable from Honey and Begley. We assume for present purposes, without assessing the legal significance, that the contractor knew that the purpose of the construction was to protect the cashier from criminal activity, and that the possibility of violent criminal activity at the site was anticipated. Henty’s undertaking, nevertheless, was simply to effect the modification to the facility in accordance with the owner’s specifications, and the owner accepted the work. Any departure from specifications which is known to the owner would be condoned by knowing acceptance.

Henty cannot be faulted for using the hollow door, because the specifications directed that this be done. Even if the door could have been installed elsewhere, it was hung where it had hung before and the owner accepted the work knowing where it was located. It is of no moment that the contractor could have hung the door so that it would swing outward, or that the door at Jennings opened outward, because the door at Delmar obviously swung inward and the owner surely knew how it was hung when it accepted the work. Nor do the plaintiffs make a case simply by showing that Henty procured the locking mechanism and the screws, that nothing in the specifications would have precluded the use of longer screws, and that the owner did not know the length of the screws actually used. The screws which were used were not contrary to specifications. The contractor, indeed, could have complied with the specifications by using screws “exactly the same” as those used at the Jennings station, and there is no evidence that the screws were not the same.³ The same is true of the absence of a reinforcing metal plate in the door frame. No evidence showed that the Jennings station door had such a plate. There is absolutely nothing to show that the owner relied on the expertise of the contractor as to the proper design of the modification; thus, suggestions about how the contractor might have advised the owner are inappropriate. The use of the shorter screws does not establish an “imminently dangerous” situation within the compass of the Begley holding, in which there was a continuing danger that heavy pipes would fall on customers.

State Farm Insurance Company v. Nu Prime Roll-A-Way of Miami, Inc., 557 So.2d 107 (Fla.App.1990), in which a burglar entered a dwelling by forcing its window shutters open is distinguishable in that the supplier had advertised that the shutters would prevent break-ins.

The plaintiffs do not rest their legal argument with Honey. They urge us to adopt a “modern rule,” in which, it is suggested, acceptance by the owner does not terminate the liability of the contractor for negligent construction, citing Restatement (Second) of Torts § 385 (1965); 3 Harper, James, and Gray, The Law of Torts (2d ed. 1986) § 18.5, at 705-11, and the writings of other commentators. They also present strings of citations which are said to apply this modem rule. We have thoroughly examined the cases cited. Our task has been the more difficult because the plaintiffs do not discuss the facts of the cases and the defendant fails to provide any response. Our examination persuades us that the prevailing case law is not substantially different from the law enunciated in our cases. Acceptance is still a significant event. See Restatement (Second) of Torts, § 385 comment d (1965). Some of the cited cases involve departure from specifications that could not be discovered by reasonable investigation. Honey recognized liability in such a situation. Others involve a dangerous character of the structure or condition, unknown to the owner, which appropriately describes the facts on the basis of which Begley imposed liability. A similar situation was presented in Casey v. Hoover, 114 Mo.App. 47, 89 S.W. 330 (1905), which held that a contractor could be liable for hidden defects in a bridge which were not discoverable by the proprietor. In the present case, the contractor’s undertaking was to follow the owner’s specifications. The project of providing a secure place for the cashier was the Owner’s. The contractor owed no duty to the lessee’s employees with respect to the design of the modifications. We cannot say that the specifications are “so imperfect or improper that the ... contractor should realize that the work done thereunder will make the structure or condition unsafe ...” Restatement (Second) of Torts, § 384, comment f (1965). We believe that our conclusion is consistent with the prevailing law.

The plaintiffs point to § 516.097, RSMo 1986, which is the so-called “statute of repose” for claims against architects, professional engineers, and contractors for “a defective or unsafe condition of any improvement to real property, ...” and suggest that this statute and its counterparts in other states connote a widened scope of liability for defective or unsafe conditions and a realization that claims may be presented long after the construction is completed and accepted. It suffices to say that statutes of limitations are procedural enactments which are not designed to impose or to define the scope of substantive liability.

The trial judge was correct in directing a verdict. The judgment is affirmed.

ROBERTSON, C.J., and COVINGTON, HOLSTEIN and BENTON, JJ., concur. RENDLEN, J., dissents in separate opinion filed. SHRUM, Special Judge, dissents and concurs in dissenting opinion of RENDLEN, J. THOMAS, J., not participating because not a member of the Court when case was submitted.

1 . The defendant moved for a directed verdict at the close of the plaintiffs’ case, but the court did not rule on the motion until the defendant rested. The plaintiffs cannot complain that they were deprived of the opportunity to present rebuttal evidence because they offered no such evidence.

2 . See Duke v. Missouri Pac. Ry. Co., 303 S.W.2d 613, 616 (Mo.1957); Higgins v. Knickmeyer-Fleer Realty and Inv. Co., 335 Mo. 1010, 74 (1934); State ex rel Highway and Transp. Comm’n. v. Keetey, 780 S.W.2d 84, 87 (Mo.App.1989); Zahorsky v. Griffin, Dysart, Taylor, Penner & Lay, P.C., 690 S.W.2d 144, 147 (Mo.App.1985). The dissent suggests that this opinion "overlooks a number of salient facts and ignores reasonable inferences supportive of the submission_” This opinion turns on the nature of the contractor’s duty. We do not disagree with anything that is stated in the dissent’s lengthy recitation of facts. The record shows, nonetheless, that the owner did not rely on the contractor’s expertise, but rather retained the contractor to effect the improvements according to its directions. The owner then accepted and paid for the work. There is no evidence of such a concealed defect as to render the contractor liable to third persons following acceptance.

3 . Shell’s representative, called as a witness by plaintiffs, testified that he was aware of the kind of lock and hardware Henty was buying and putting on the door, although he did not recall whether he saw the actual lock and hardware used prior to installation. This testimony is undisputed on the record.