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Logan v. Show-Me Power Electric Cooperative11/25/2003
rovided with proper equipment and tools for working in the vicinity of energized lines, such as insulated measuring devices so the workmen could safely measure their distance relative to the energized line. Marlin also played a key role in determining how close the Irby employees would have to be to the energized electrical line." (Transcript citations omitted.)
We have reproduced Plaintiffs' argument to show its brevity, absence of on-point authority, and the difficulty in trying to understand Plaintiffs' claims regarding Marlin's alleged duty to Logan. Plaintiffs' allegations and transcript citations focus almost exclusively on a standard of care related to conditions on the land (premises liability), specifically the presence of energized power lines. To the extent Plaintiffs argue Marlin owed a duty to Logan based on a premises liability theory, that argument was implicitly answered adversely to Plaintiffs in our Point I analysis.
Therein, we found Sho-Me had relinquished possession and control of the "project site" to Irby; consequently, the duty to ensure that reasonable and ordinary care was exercised on the project site shifted to Irby. See Matteuzzi, 866 S.W.2d at 132 . Since Irby possessed the job site and Marlin was not Irby's employee or agent, it cannot be validly argued that Marlin had potential liability as an owner or possessor of the land absent an allegation that Marlin's conduct, and Sho-Me's ratification thereof, "reshifted" the duty to prevent injury from Irby back to Sho-Me. Neither Plaintiffs' arguments, nor their pleadings, nor anything else in the record, supports that notion. On this record, the public policy and reasoning, underlying the rule that shifted the duty of care to Irby and relieved Sho-Me of that duty during the construction period, serves to relieve Sho-Me's employee (Marlin) of the duty of care to make the premises safe. To the extent Plaintiffs argue otherwise, we reject such a proposition.
On the other hand, if Plaintiffs intend by their argument to say that Marlin's alleged independent duty of care is analogous to that asserted against Gorman (which requires a showing of "something extra"), that argument has been answered adversely to them by our analysis of Point III. This follows because any potential "something extra" allegations against Marlin are essentially identical to those leveled against Gorman and merely charge a failure to provide a safe work environment.
Finally, Plaintiffs made a new claim against Marlin at oral argument, one not presented to the trial court nor mentioned in briefs filed with this court. Specifically, they asserted Marlin's "independent duty of care" can be "extrapolated" from Butts v. Express Personnel Services, 73 S.W.3d 825 (Mo.App. 2002) (holding no statutory immunity via the Workers' Compensation Act attended where two subcontractors were separately and independently hired by a general contractor; consequently, an employee of one "parallel" subcontractor could sue an employee of the other "parallel" subcontractor as a negligent third party). By saying Marlin's alleged duty can be "extrapolated" from Butts, Plaintiffs implicitly concede that Butts dealt with issues wholly different than those presented here. More than that, Plaintiffs never explained how that "extrapolation" is to occur, nor can we readily discern how that might be done. In a negligence case, a plaintiff's initial burden is to establish a duty in the defendant to protect the plaintiff from injury . Id. at 835. Plaintiffs have not met that burden by their belated and undeveloped reference to Butts.
In sum, Plaintiffs' reliance on Butts is an argument that has not been preserved for our review and will not be conside
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