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Weber v. McBride & Son Contracting Co.12/13/2005
tenuated by time or circumstance, there must be additional evidence to show the defendant has superior information, experience, or opportunity to know about the cause of the alleged occurrence." Eversole, 135 S.W.3d at 429. In this case both subcontractors had the duty to construct and/or replace a protective barrier over the hole in the floor prior to finishing their work. Accordingly, both subcontractors have superior experience and opportunity to know that without a protective barrier on a construction site, someone could fall through a hole in the floor. Thus, Weber made a submissible res ipsa loquitur case.
When a plaintiff establishes the elements of res ipsa loquitur, an inference of negligence by the defendant is created. Zumwalt, 24 S.W.3d at 168. "Once the inference of negligence created by res ipsa loquitur is established, it 'will defeat a motion for summary judgment even though the defendant presents evidence tending to establish absence of negligence.'" Id. at 169 (quoting Graham v. Thompson, 854 S.W.2d 797, 801 (Mo. App. W.D. 1993)).
Thus, I believe, Weber should be granted his day in court. I would vote to reverse the judgment of the trial court.
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