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Weber v. McBride & Son Contracting Co.12/13/2005
Plaintiff-Appellant Keith Weber ("Weber") appeals from the decision of the trial court granting Defendant-Respondent McBride & Son Contracting Company's (McBride) and Laramie Drywall Company's (Laramie) motions for summary judgment. We affirm.
We consider the record from an appeal of summary judgment in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (hereinafter "ITT"). Facts established by affidavit or other proof in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. We accord the non-moving party the benefit of all reasonable inferences from the record below. Id. The propriety of summary judgment is purely an issue of law, and our review is de novo. Id.
The essential facts, by way of motion for summary judgment, before the trial Court are clear: Weber was working as a painter, for a painting contractor, on an unfinished single-family residence when he fell through a hole in the floor which had been cut for a stairwell. At the time of the fall the residence was owned by the general contractor Vantage Home, Inc. (Vantage) who is not before the Court. McBride and Laramie were sub-contractors on the job but had finished their respective specialties and had turned the residence over to Vantage who had accepted McBride and Laramies work as complete.
The record before the trial Court further showed that on the day of the fall Weber and a co-worker were the only people in the residence, that Weber had inspected the house and seen the unbarricaded hole and warned his co-worker of what was an open and obvious peril. The record shows no attempt by Weber to contact Vantage to have a barricade placed around the hole, or any attempt by Weber or his co-worker to cover the hole themselves.
The record further before the Court showed that McBride had cut the hole in the sub floor and constructed a railing around the hole. McBride was never informed by Vantage or Laramie that the railing had been removed.
Weber filed a two count petition in Count I alleging that either McBride or Laramie, or both were negligent in regard to the hole relying on res ipsa loquitur. By Count II Weber sought relief against McBride, only, for negligent design of the barricade.
After discovery McBride filed a motion for summary judgment specifically claiming judgment as a matter of law arguing it had negated essential elements of both Counts of Weber's petition. Laramie sought summary judgment as to Count I alleging that the application of res ipsa loquitur was inappropriate in this case. Both McBride and Laramie relied on the acceptance doctrine before the trial Court. The trial Court granted summary judgment as to both McBride and Laramie.
The clear standard regarding summary judgment is stated as "...the key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question..." ITT, 854 S.W.2d at 380. As the trial Court below correctly concluded Weber cannot show that either McBride or Laramie owed Weber a duty in regard to the unbarricaded hole. Neither McBride nor Laramie can be held liable for Weber's injuries as a matter of law as the Courts of this state have repeatedly recognized that acceptance by the general contractor of a sub-contractors work relieves the sub-contractor of liability as to a third person.
Appellant Weber candidly acknowledges this doctrine in his brief and asks us to overturn a long line of Missouri cases on the basis of one cited Oregon case, and the a
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