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Weber v. McBride & Son Contracting Co.12/13/2005
rgument that Missouri is in the minority of states in regard to application of the doctrine. We decline the invitation.
Since at least 1905 Missouri, in this one area of its negligence jurisprudence, has applied the principle that acceptance of work by a general contractor (or owner) relieves the sub-contractors from liability.
The principle involved, and the policy at issue, has changed little since articulated by the Western District of this Court in 1905 as follows:
"... y occupying and resuming possession of the work, the owner deprives the contractor of all opportunity to rectify the wrong. Before accepting the work as being in full compliance with the terms of the contract, he is presumed, to have made a reasonably careful inspection thereof, and to know of its defects, and, if he takes it in defective condition he accepts the defects and the negligence that caused them as his own, and hereafter stands forth as their author. Casey v. Hoover, 114 Mo. App. 47, 89 S.W. 330, 334 (1905).
A cursory examination of cases show the doctrines validity today, albeit, not described in language as colorful as in Casey, id. Recent cases include: Fisher v. State Highway Commission, 948 S.W.2d 607 (Mo banc 1997); Gast v. Shell Oil, 819 S.W.2d 367 (Mo. banc 1991); Becker v. Setien, 904 S.W.2d 338 (Mo. App. W.D. 1995); Coleman v. City of Kansas City, 859 S.W.2d 141 (Mo. App. W.D. 1993); Bloemer v. Art Welding, 884 S.W.2d 55 (Mo. App. E.D. 1994); and Rogers v. Mitchell, 908 S.W.2d 387 (Mo. App. E.D. 1995).
The record contains clear evidence that neither McBride nor Laramie had control of the residential construction at issue - as such both McBride and Laramie were due judgment as a matter of law as to Count I and the trial Courts analysis in this regard was correct. Simply, consistent with the acceptance doctrine McBride owed Weber no duty as to Count I or Count II, and Laramie owed no duty as to Weber as to Count I, the doctrine is a complete defense.
Reliance on res ipsa loquitur by Weber is no panacea. In this area of the law res ipsa loquitur does not overcome the acceptance doctrine as a complete defense. A cursory examination of what res ipsa loquitur is and when it has efficacy is instructive. Clearly, res ipsa loquitur is a rule of evidence. Weaks v. Rupp, 966 S.W.2d 387, 393 (Mo. App. W.D. 1998). The rule allows a jury to infer negligence when three elements combine: (1) the incident normally does not occur without negligence; (2) and, the incident was caused by an instrumentality under the control of the defendant; (3) and, the defendant has superior knowledge about the cause of the incident. Id. at 393-94. Interestingly, both the acceptance doctrine and res ipsa loquitur have at their core control by the defendant. As is clear on this record neither McBride nor Laramie had control; no control, no application of res ipsa loquitur, which would but shift an evidentiary burden not create a duty. The effect of the acceptance doctrine is to make no inquiry as to whether the defendant is "negligent", the doctrine simply says once control is no longer in the defendants hands the defendant owes no duty as to negligence.
The trial Court correctly granted summary judgment, Judgment Affirmed.
Dissenting opinion by George W. Draper, Judge
I respectfully dissent from the majority opinion. I would vote to reverse the judgment of the trial court for the following reasons.
Great care should be exercised in utilizing summary judgment because it denies the party against whom it is entered a day in court. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 377 (Mo. banc 1993)
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