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Logan v. Show-Me Power Electric Cooperative11/25/2003
and control" of the job site "from the commencement of work to completion." Upon completion, Irby was to deliver possession and control of the job site to Sho-Me. Although Sho-Me retained the exclusive right to turn on or shut off electricity through the subject lines, its discretion in doing so was not unlimited. To the contrary, Sho-Me had to make "every effort to insure that the lines [were] in a de-energized condition prior to any work being done on them."
More than that, Sho-Me's sole control over putting in or withholding electricity to the lines did not serve as control over the physical activities of Irby's employees or the details of the manner in which the work was done. The contract clearly gave Irby the choice of whether it would work on an energized line or move to a different line section that could be de-energized. In keeping with that provision Irby assigned its employees to work "on energized lines all the way through " the job . As Gorman explained it, "we would have our hanging crew . . . working below [the line]. . . . They [Irby's employees] would hang the hardware to keep the squence moving." Continuing, Gorman testified: "If you finished this one [section of line] and waited to get this one de-energized, then you would have half your crew sitting while this crew went out and put their hardware up." Another significant contract provision made Irby responsible for safety measures for its employees. See n.5.
Considering the contract in its entirety, along with all attendant circumstances, a jury could not fairly or reasonably find or infer that Sho-Me's contractual right to energize or de-energize its lines met the "substantial control" test, and thus, Sho-Me cannot be held liable because it did not retain possession of the premises.
Turning now to the second category of contract terms, (those that allegedly raise factual issues about Sho-Me's control of Irby's employees), Plaintiffs assert (a) Sho-Me supplied all materials and dictated how Irby's employees were to install cables, (b) Sho-Me created drawings and staking sheets that Irby was required to follow, and (c) Irby had to follow a sequence of construction approved by Sho-Me.
Although the contract provided that Sho-Me would furnish the materials specifically listed therein, it did not require Sho-Me to furnish all materials as Plaintiffs contend. Evidence is insufficient to impose liability when it merely shows that an owner provides an independent contractor with some of the materials with which to perform the construction and directs where the work is to be performed. James v. Union Elec. Co., 978 S.W.2d 372, 377 (Mo.App. 1998); see also Owens v. Shop 'N Save, 866 S.W.2d 132, 135 (Mo.banc 1993).
The contract obligated Irby to use and follow Sho-Me's detailed parts lists, specifications, construction drawings, and staking sheets. But, a contract that requires an independent contractor to use specified materials, follow detailed construction documents, and adhere to directives about the sequence of work are not sufficient to show an owner is so substantially involved in overseeing construction as to justify imposing liability on the owner. See Williams v. Southwestern Bell Tel. Co., 265 S.W.2d 354, 358-60 (Mo. 1954); Boulch v. John B. Gutmann Const. Co., 366 S.W.2d 21, 29-30 (Mo.App. 1963).
In this case, none of the provisions in the contract (such as those relating to specifications, drawings, or staking sheets), whether considered separately or together, are sufficient to impose liability. This follows because the provisions do not provide a basis for finding that Sho-Me retained such substantial oversight of the project, or right to control the work, as to raise
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