Rapp v. Eagle Plumbing, Inc.

440 S.W.3d 519, 2014 WL 2576092, 2014 Mo. App. LEXIS 652
CourtMissouri Court of Appeals
DecidedJune 10, 2014
DocketNo. ED 100042
StatusPublished
Cited by12 cases

This text of 440 S.W.3d 519 (Rapp v. Eagle Plumbing, 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
Rapp v. Eagle Plumbing, Inc., 440 S.W.3d 519, 2014 WL 2576092, 2014 Mo. App. LEXIS 652 (Mo. Ct. App. 2014).

Opinion

PATRICIA L. COHEN, Judge.

Introduction

John Rapp (Plaintiff) appeals the trial court’s grant of summary judgment to Eagle Plumbing, Inc. (Defendant) on his action in negligence. Plaintiff contends the trial court erred in granting summary judgment to Defendant based on the open and obvious doctrine because it applies [521]*521only to possessors of land. Plaintiff also asserts that, even assuming application of the open and obvious doctrine, the trial court erred in entering summary judgment because genuine issues of material fact exist regarding whether: (1) the hazard posed by the trench wall was open and obvious; (2) Defendant should have anticipated the harm caused by the trench wall’s collapse; and (3) Defendant’s actions or omissions were the proximate cause of Plaintiffs injuries. We affirm.

Factual and Procedural Background1

In April 2010, Defendant was a plumbing contractor on a construction sité at Washington University. Either Defendant or another contractor dug a trench on the construction site, which Defendant used for the placement of its drainage pipes.2 The trench was thirty to thirty-six inches deep, two feet wide, and thirty to forty feet long. Defendant did not flag or otherwise barricade the trench.

Plaintiff, a journeyman bricklayer with over twenty years’ experience, worked for John J. Smith Masonry, another subcontractor working on the construction site. On April 23, 2010, Plaintiff and his coworker, Josh Guidicy, were “striking the joints” of a wall located about two feet from Defendant’s trench.3 At approximately 11:30 a.m., rain began to fall. As Mr. Guidicy continued to strike the joints of the wall, Plaintiff attempted to step around him. With his back to the wall and facing the trench, Plaintiff placed a foot on the edge of the trench. The trench wall collapsed, and Plaintiff fell, striking his shoulder on the wall he was constructing and tearing his rotator cuff.

Plaintiff filed an action for negligence against Defendant seeking damages for his injuries. In the petition, Plaintiff alleged that Defendant was negligent in: (1) failing to “warn or guard or barricade the trench so as to protect Plaintiff and others who were in a similar position”; and (2) leaving “the excavation of the trench in an open and dangerous condition for a period of ten (10) to fourteen (14) days.” Additionally, Plaintiff pleaded that: “Defendant failed to put any barricade or fencing around the trench so as to prevent anyone from falling into the trench”; “Defendant failed to put any warning, tape or lights around the trench to minimize falls”; and “Defendant failed to fill the trench with dirt and or [sic] gravel so as to eliminate the hazard.” Plaintiff alleged that, “as a direct and proximate result of the aforesaid negligence of Defendant^] Plaintiff was caused to suffer a tear of his rotator cuff.”

Defendant filed a motion for summary judgment arguing that Defendant did not have a duty to warn Plaintiff of the dangerous condition because “the trench Plaintiff fell into was an open and obvious condition which was both visually ascertainable and of which Plaintiff had actual knowledge.” Defendant also asserted that Plaintiff could not “establish that any act or omission of [Defendant] was the ‘but-for’ cause or the proximate cause of his [522]*522injuries in that [Defendant] is ‘entitled to assume and act upon the assumption’ that Plaintiff would exercise due care for his own safety.”

Plaintiff filed a memorandum in response to Defendant’s motion for summary judgment arguing that “[t]here is a genuine issue of material fact as to whether the condition which caused Plaintiffs injuries was sufficiently ‘open and obvious.’ ” More specifically, Plaintiff asserted that “it was not the visually observable trench that caused Plaintiff’s injuries,” but rather “the non-visually ascertainable unprotected and defective trench sidewall ... that caused Plaintiffs injuries.” Plaintiff also argued that the condition was not “open and obvious” as a matter of law because the “dangerous condition existed irrespective of whether Plaintiff exercised due care....” Finally, Plaintiff contended that there existed a genuine issue of material fact as to the “butfor” and proximate cause of his injuries.

After hearing arguments, the trial court granted Defendant summary judgment. Plaintiff appeals.

Standard of Review

Whether the trial court’s grant of summary judgment was proper is a question of law that we review de novo. Todd v. Mo. United Sch. Ins. Council, 223 S.W.3d 156, 160 (Mo. banc 2007). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Rule 74.04(c). On appeal, we review the summary judgment record in the light most favorable to the party against whom the judgment was entered, and we accord that party the benefit of all inferences which may reasonably be drawn from the record. ITT Commercial Fin. Carp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Where, as here, the trial court does not set forth its reasoning in the order granting summary judgment, we presume that the trial court based its decision on grounds specified in the movant’s motion for summary judgment. Central Mo. Elec. Co-op. v. Bailee, 119 S.W.3d 627, 635 (Mo.App.W.D.2003).

Discussion

In a premises liability case, a defendant may be liable for injuries suffered by an invitee4 due to a dangerous condition of the land only if the defendant: (a) knows or by exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to the invitee; (b) should expect that the invitee will not discover or realize the danger or will fail to protect himself against it; and (c) fails to exercise reasonable care to protect the invitee against danger. Holzhausen v. Bi-State Dev. Agency, 414 S.W.3d 488, 494 (Mo.App.E.D.2013) (quoting Harris v. Niehaus, 857 S.W.2d 222, 225-26 (Mo. banc 1993)). Accordingly, to satisfy the applicable standard of care, an owner or occupier of land must:

(1) exercise reasonable care; (2) disclose to the invitee all dangerous conditions which are known to the [owner or occupier] and are likely not to be discovered by the invitee; and (3) see that the premises are safe for the reception of a visitor, or at least ascertain the condition [523]*523of the land, to give such warning that the invitee may decide intelligently whether or not to accent the invitation, or may protect himself against the danger if he does accept it.

Id. (quoting Harris, 857 S.W.2d at 226). Missouri courts recognize that “[w]hen the dangerous condition is so open and obvious that an invitee should reasonably be expected to discover it and realize the danger, a possessor of land does not

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440 S.W.3d 519, 2014 WL 2576092, 2014 Mo. App. LEXIS 652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rapp-v-eagle-plumbing-inc-moctapp-2014.