Lammert v. Lesco Auto Sales

936 S.W.2d 846, 1996 Mo. App. LEXIS 2084, 1996 WL 741849
CourtMissouri Court of Appeals
DecidedDecember 24, 1996
DocketNo. 69699
StatusPublished
Cited by9 cases

This text of 936 S.W.2d 846 (Lammert v. Lesco Auto Sales) 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
Lammert v. Lesco Auto Sales, 936 S.W.2d 846, 1996 Mo. App. LEXIS 2084, 1996 WL 741849 (Mo. Ct. App. 1996).

Opinion

PUDLOWSKI, Judge.

Edward Lammert (appellant), appeals the trial court’s grant of summary judgment to the respondents, Leseo Auto Sales (Leseo), Ernie Lester (Lester), and Daniel Lester (Daniel). Appellant sued respondents for injuries sustained while he was repairing a garage door on their property. We find that no exceptions to the general rule that land[848]*848lords are not liable for the injuries to their tenant’s invitees apply to the undisputed facts presented in this case. Summary judgment in favor of Lester was properly granted. We find further that respondents did not exert the “substantial” control over the work of the independent contractor necessary for them to be liable for his injuries. We also find that the repair of the garage door was not an inherently dangerous activity and said doctrine is, therefore, not available to appellant as an exception to the general rule that landowners are not liable for the torts of independent contractors. We find also that respondents did not negligently fail to warn appellant of the dangerous condition because, by hiring him to repair the condition, they effectively warned him of it. Finally, we find no merit to appellant’s claim that respondents failed to provide proper tools and a safe work place as appellant was injured by his own method of repair and use of the tools. We affirm the judgment of the trial court. We find that there are no genuine issues of material fact and respondents are entitled to judgment as a matter of law.

Appellant sued respondents for injuries sustained while he was repairing respondents’ garage door at 1605 Florissant Road on November 5, 1993. Lester owned the property and leased it to his son, Daniel, who does business there under the fictitious name of Leseo Auto Sales, a used car sales business. Leseo maintained the lot, the garage buildings and the garage doors on November 5, 1993. On that date, and at times prior to that date, Lester called appellant’s brother Donald Lammert (Donald) and asked him to repair the garage door. Donald declined to do so because he thought the job was too dangerous for him and that it required someone with more expertise in the area. Respondents then called appellant who agreed to repair the garage door. Appellant had done odd jobs for the respondents in the past and had been paid for his work. Appellant had repaired between fifty and sixty doors in the past. In one of these repairs before the accident, appellant had replaced a spring that was wound around a bracket at the top of the door, similar to the one involved in this case. Appellant stated that, before the injury, he knew that if the brackets were under tension and if the bolt securing them came loose, the bracket would spin. Appellant admitted that he was the one making decisions as to method of repair, in that “it needed a bolt and a cable.” Lester provided appellant with a wrench and a ladder, at appellant’s request. Appellant stated further that, between he and Lester, appellant had more knowledge and experience as to garage door repair. Appellant attempted to repair respondents’ garage door on November 5, 1993. Lester helped appellant by holding the ladder and was not directing him or telling him what to do. Appellant was making the decisions as to what was to be done to repair the garage door. Daniel was in the office while appellant attempted to repair the door and was not involved in any way.

In order to determine whether the bracket was loose, appellant used a hammer to tug on the bracket, and it did not appear to be loose. While tightening the bracket on the door, it came loose and spun around, injuring appellant’s hand. Appellant admits there was a safer way to repair the door and the method used at the time of the accident was different from the way he had done the same job in the past. He admits that he could have used a safer method and used different tools to make the job safer.

Summary judgment is an extreme remedy and may only be employed 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). Review of an order granting summary judgment is essentially de novo. ITT Commercial Finance Corp., v. Mid-America Marine Supply Corp., 854 S.W.2d .371, 376 (Mo. banc 1993). When reviewing the record, we will not only review it in the light most favorable to the non-moving party, but we will grant the non-movant all reasonable inferences, not deferring to the trial court’s order. Id. Since the respondents were the moving party in this case, they will be entitled to summary judg[849]*849ment if they show any one of the following three items: “1) facts that negate any one of the claimant’s elements facts, 2) that the non-movant, after an adequate period of discovery, has not been 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) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly pleaded affirmative defense.” ITT, 854 S.W.2d at 381.

In his first point on appeal, appellant asserts that he pled a viable claim for negligent failure to maintain premises, holding respondents liable for dangerous conditions on their land, and that there were genuine issues of material fact in dispute regarding this issue. Appellant, as an independent contractor with respondents’ permission to use his premises, is an invitee. Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 132 (Mo. banc 1993). Accordingly, we must analyze respondents’ potential for liability in terms of appellant’s status as an invitee and also as an independent contractor. We must also analyze appellant’s claims against Lester, the lessor landlord, and Daniel, the lessee tenant, separately as well. Since Leseo is merely a fictitious name for Daniel and not a separate legal entity, we will hereafter refer only to Daniel.

Generally, a lessor is not liable to business invitees of a tenant for personal injuries received while on leased premises. J.M. v. Shell Oil. Co., 922 S.W.2d 759 (Mo. banc 1996); Uelk v. Directory Distributing Assoc., 803 S.W.2d 632, 635 (Mo.App.1991). This general rule does not apply in several situations: 1) where the landlord had superior knowledge of a dangerous condition not discoverable by his tenant and he fails to warn of said condition; 2) where the injury occurs in an area over which the landlord retains actual control; 3) where the landlord is responsible for premises maintenance and repair or 4) where the landlord leases for a “public use” premises that are in a dangerous condition. Id. at 635-636. Milne v. Pevely Dairy Co., 641 S.W.2d 168,160-161 (Mo.App.1982). Appellant has not alleged any facts to support any of the above exceptions or any other exception. Appellant admitted that he knew that the brackets were under tension and that if a securing bolt came loose, the bracket would spin. He stated further that he had more knowledge than Lester in repairing garage doors. Therefore, respondents did not have superior knowledge of the dangerous condition because appellant admitted to his knowledge of it. There is no disputed fact on this issue.

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Bluebook (online)
936 S.W.2d 846, 1996 Mo. App. LEXIS 2084, 1996 WL 741849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lammert-v-lesco-auto-sales-moctapp-1996.