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Weber v. McBride & Son Contracting Co.12/13/2005
(quoting Cooper v. Finke, 376 S.W.2d 225, 229 (Mo. 1964)); Hart v. Kupper Parker Communications, Inc., 114 S.W.3d 342, 345 (Mo. App. E.D. 2003). Accordingly, we review the record in the light most favorable to the party against whom the judgment was entered. ITT, 854 S.W.2d at 376. We accord the party against whom summary judgment was entered the benefit of every doubt. Allied Mut. Ins. Co. v. Brown, 105 S.W.3d 543, 545 (Mo. App. E.D. 2003). "Summary judgment exists not to execute the merely weak, but rather to euthanize the terminally ill." Zumwalt v. Koreckij, 24 S.W.3d 166, 168 (Mo. App. E.D. 2000).
Following my review of the record in the light most favorable to Weber, I would conclude the trial court erred in granting summary judgment for McBride and Son Contracting Co., Inc. and Laramie Drywall Co., Inc. (hereinafter and collectively, "Defendant"). The trial court thereby prevented Weber from submitting his personal injury claim to the jury under the doctrine of res ipsa loquitur.
Res ipsa loquitur is a rule of evidence, allowing "a jury to infer from circumstantial evidence that the plaintiff's injury resulted from some negligent act of the defendant, without requiring the plaintiff to allege and prove specific negligence." Hale ex rel. Hale v. City of Jefferson, 6 S.W.3d 187, 196 (Mo. App. W.D. 1999). In order to invoke the doctrine of res ipsa loquitur, Weber must establish: "(1) the incident resulting in injury is of the kind which ordinarily does not occur without someone's negligence; (2) the incident is caused by an instrumentality under the control of the defendant; and (3) the defendant has superior knowledge about the cause of the incident." Logan v. Phillips, 896 S.W.2d 38, 41 (Mo. App. E.D. 1994). "A party seeking to apply the doctrine of res ipsa loquitur need not submit facts surrounding the occurrence that exclude all reasonable hypotheses except defendant's negligence." Eversole v. Woods Acquisition, Inc., 135 S.W.3d 425, 428 (Mo. App. W.D. 2004).
Weber's injuries are those which ordinarily would not occur absent negligence by Defendant's failure to secure the protective barrier over the hole. There was undisputed evidence that it was not the responsibility of the painters to create or secure a protective barrier on a construction site. Weber submitted enough facts to conclude, more often than not, an accident such as this resulted from a failure to exercise reasonable care on the part of the person in charge of securing the protective barrier.
There were genuine issues demonstrating that both subcontractors were responsible for securing a protective barrier over the hole in the floor. "If the instrumentality causing the harm is under the control of the defendant contractor and the plaintiff is injured while in a work area common to employees, the defendant owes a duty of care to avoid causing such injury." Mino v. Porter Roofing Co., Inc., 785 S.W.2d 558, 561 (Mo. App. W.D. 1990). There was disputed evidence regarding whether the general contractor accepted either subcontractors' work. The instrumentalities were under control of Defendant's management.
Further, Defendant posseses a superior knowledge regarding the cause of the injury. "Superior knowledge can be inferred when a defendant exercises exclusive control over the instrumentality at issue." Eversole, 135 S.W.3d at 429. "The requirement that the instrumentality be under the management and control of the defendant does not mean, nor is not limited to, actual physical control, but refers rather to the right of control at the time the negligence was committed." Weaks v. Rupp, 966 S.W.2d 387, 394-95 (Mo. App. W.D. 1998)(emphasis added). "However, when the evidence of control is at
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