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Logan v. Show-Me Power Electric Cooperative11/25/2003
follows:
"1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for . . . death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or to any other person. . . .
"2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee, his . . . parents . . . or otherwise on account of such . . . death, except such rights and remedies as are not provided for by this chapter."
In the following points relied on, Plaintiffs advance various theories why their wrongful death claim against the Defendants is viable, i.e., the exclusivity provisions of the Workers' Compensation Act do not attend here; consequently, they argue the trial court should be reversed.
Point I: Plaintiffs' claim against Sho-Me
Generally stated, the first point on appeal involves the issue of Sho-Me's liability for Logan's death. Plaintiffs argue that Sho-Me is liable because: (1) as a supplier of electricity, it had a non-delegable duty to provide " the highest degree of care to prevent a forseeable injury ," and (2) even if the duty could be delegated, Sho-Me failed to do so because it retained substantial possession and control of the premises and the construction project. In order to answer their claim on appeal, we must examine certain principles of premises liability for landowners.
Under the common law, a landowner has a duty to use reasonable and ordinary care to prevent injuries to a business invitee on the landowner's property. Gillespie v. St. Joseph Light & Power Co., 937 S.W.2d 373, 375 (Mo.App. 1996). An exception to this rule exists when a landowner relinquishes possession and control of the premises to an independent contractor during a period of construction. State ex rel. Anheuser-Busch v. Mummert, 887 S.W.2d 736, 738 (Mo.App. 1994). This exception recognizes that the independent contractor is deemed to be the possessor of the land and the duty to use reasonable care to prevent injury shifts from the landowner to the contractor. Id.
The common law, however, recognized an "exception" to this exception when the activity performed by the independent contractor was inherently dangerous. Matteuzzi v. Columbus P'ship, L.P., 866 S.W.2d 128, 130 (Mo.banc 1993). "If so, the landowner who commissioned the inherently dangerous work was said to have a non-delegable duty to take precautions to prevent injury from the activity." Id. Consequently, when an employee of an independent contractor is injured while working, he or she can obtain compensation from the landowner. Halmick v. SBC Corporate Services, Inc., 832 S.W.2d 925, 927 (Mo.App. 1992).
In 1991, the Missouri Supreme Court abolished the inherently dangerous exception to premises liability. Zueck v. Oppenheimer Gateway Properties, 809 S.W.2d 384, 390 (Mo.banc 1991). "Landowner liability in such cases rests, not on the nature of the activity employed in, but on the degree of control a landowner maintains over the construction." Halmick, 832 S.W.2d at 928 . The Zueck rule has been applied to situations wherein an employee of an independent contractor was electrocuted while performing work for a landowner who was also a supplier of electricity. Mummert, 887 S.W.2d at 737-39; Prayson v. Kansas City Power & Light Co., 847 S.W.2d 852, 853-58 (Mo.App. 1992).
In prong (A) of Point I, Plaintiffs allege that Sho-Me, as a transmitter of electricity, "had a non-delegable duty" to use "the highest d
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