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Logan v. Show-Me Power Electric Cooperative11/25/2003
egree of care to prevent a foreseeable injury." Their argument is without merit. In Prayson, Larry Bunger was an employee of B&L;Electric, Inc. (independent contractor), who was electrocuted while working on transformers owned by Kansas City Power and Light ("KCP&L;). His surviving children sued KCP&L;"under the 'inherently dangerous activity' doctrine." Id. at 853. The trial court entered a j.n.o.v. in favor of KCP&L;because the Zueck case was decided while KCP&L;s motion for new trial was pending. Id. The Prayson court applied the Zueck rule retroactively to hold that a supplier of electricity (KCP&L; could not be held liable for the electrocution of an employee (Bunger) of an independent contractor (B&L;Electric). Id. at 853-58. This disposes of Plaintiffs first argument under Point I. Subpoint denied.
In their second argument under Point I, Plaintiffs claim that Sho-Me is still liable even if it could delegate its duty as a provider of electricity. They argue that, as a landowner, Sho-Me owed a duty of reasonable care to its invitees. Plaintiffs further allege that this duty cannot shift to an independent contractor (Irby) because Sho-Me retained substantial control of the construction site and the work performed thereon.
In order to impose liability upon Sho-Me, the company's involvement in the construction project must be substantial. Mummert, 887 S.W.2d at 739 . "The right to insure proper performance of a contract is insufficient in itself to justify the imposition of such liability." Halmick, 832 S.W.2d at 929 . The "control" must reach beyond merely securing compliance with the contracts. Id. To demonstrate that Sho-Me retained possession of the land, Plaintiffs must show that Sho-Me "controlled the jobsite and the activities of the contractor." Matteuzzi, 866 S.W.2d at 132 . Stated differently, "the owner must be controlling the physical activities of the employees of the independent contractors or the details of the manner in which the work is done." Halmick, 832 S.W.2d at 929 .
For the most part, the "substantial control" allegations in Plaintiffs' petition are derived from provisions in the Irby/Sho-Me construction contract. On appeal, Plaintiffs limit their "substantial control" claims to (1) contract provisions they characterize as proof of Sho-Me's "exclusive control over the flow of electricity" and (2) contract provisions that Plaintiffs cast as evidence of "Sho-Me's frequent direction of Irby's employees."
As to the first category of contract provisions, (those allegedly showing Sho-Me's control over electricity), Plaintiffs cite two paragraphs. The first paragraph provided that Irby could not work upon "energized lines . . . , unless otherwise specificed in the Notice and Instructions to Bidders." The second paragraph utilized by Plaintiffs is a "Line Switching" provision that required Irby to contact Sho-Me each morning to check the status of a line, whether energized or de-energized. Further, Sho-Me was required to "make every effort to insure that the lines are in a de-energized condition prior to any work being done on them." In sum, Plaintiffs argue that "Sho-Me had exclusive control over both the flow of electricity through the transmission lines and when Irby could work on the lines." (Emphasis supplied.) The record, however, does not support such an argument.
First, Plaintiffs apparently argue that the "jobsite" merely consisted of the power lines. Contrary to those assertions, the job site was 63.8 miles of easements and rights-of-way owned by Sho-Me upon which was located existing pole structures, guy-wires, electric transmission lines, and other improvements. The contract placed Irby in "charge
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