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Savory v. Hensick9/14/2004
Opinion Vote: AFFIRMED. Cohen, P.J. and Dowd, Jr., J. concur.
Opinion:
Plaintiffs, an injured contractor and his wife, filed this premises liability action against the defendant homeowners to recover damages plaintiffs suffered when the contractor, who was descending a ladder while working on the homeowners' premises, stepped on the homeowners' dog at the base of the ladder, and fell, injuring himself. The trial court entered judgment in accord with the jury's verdict in plaintiffs' favor against one of the homeowners, who appeals. We affirm.
On February 24, 1998, plaintiff, William Savory, contracted with defendants, Ronald Hensick and Carol Davis, to build a deck on their home in Arnold, Missouri. Mr. Hensick and Ms. Davis owned two dogs, an older, ninety-pound Labrador and a fifty-to-sixty-pound nine-month old Labrador, who, they knew, were extremely playful and rambunctious, and tended to interfere with and get in the way of guests on their property. Generally, they kept the dogs outside during the day in their fenced yard. Upon Mr. Savory's request, Mr. Hensick and Ms. Davis agreed to keep the dogs inside the home, or tied up, while he and his work crew were present. Mr. Hensick and Ms. Davis testified that they agreed to keep the dogs inside because the dogs were so playful with guests, and they were concerned that the dogs would get in the workmen's way and cause plaintiff and his crew to get hurt. Mr. Hensick compared the risk that the dogs would interfere with plaintiff and his crew to "having a baby crawl between your feet while you're trying to do some plumbing in the sink." After the contract was signed, Mr. Hensick and Ms. Davis requested that a five-to-six-foot gate be installed at the bottom of the deck to protect their guests on the deck from the dogs.
On the first day of work, Mr. Savory and his crew complained that the dogs were in the way, and requested that the dogs be brought inside. On seven of the eight days Mr. Savory and his crew were on the site, they had problems with the dogs coming out of the house. In particular, the younger dog was underfoot all of the time, and the work crew did not want to stumble over it. Mr. Savory's father worked on the job and frequently asked Mr. Hensick and Ms. Davis to take the dogs inside the home during the project, because the dogs would come up around his legs and lean on him and get in the way of his work. Charles Brown, another carpenter on the job, said the younger dog chewed on his tools and kept pulling his hat off of his head. He also asked Mr. Hensick and Ms. Davis directly, or through Mr. Savory, to bring the dogs inside. Mr. Hensick and Ms. Davis watched the construction and were aware that Mr. Savory and his crew were using a ladder and tools. On the final day of work, Mr. Savory was the last workman on site. Mr. Hensick was home, but Ms. Davis was not. As Mr. Savory began to clean up and load his car, Mr. Hensick said he had to run to the store and would be right back. He did not tell Mr. Savory that the dogs were in the backyard. Mr. Savory went back to the backyard and climbed a ladder to retrieve his tools from the deck, which was six to eight feet above ground. He did not hear or see the dogs. As he stepped down from the ladder, he stepped on one of the dog's paws and heard a loud yelp. Mr. Savory was startled, the paw moved, and Mr. Savory lost his balance, twisted, and fell to the ground on his hip. He suffered injuries that resulted in two back surgeries.
Subsequently, Mr. Savory and Cynthia Savory, his wife, (hereinafter, collectively, "plaintiffs") filed a petition against Mr. Hensick and Ms. Davis in which Mr. Savory sought damages for his injuries on a premises liability
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