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Bowles v. Weld Tire & Wheel2/20/2001
Appeal From: Circuit Court of Jackson County, Hon. David W. Shinn, Judge
Opinion Vote: AFFIRMED.
Breckenridge, P.J., and Howard, J. concur.
Opinion:
Donald Bowles appeals the summary judgment entered by the trial court in favor of Weld Tire & Wheel, Inc. in his action against the company to recover for injuries resulting from his exposure to carbon monoxide while operating a gasoline-powered power washer to prepare an enclosed stairwell for painting. Mr. Bowles contends that the trial court erred in finding that the inherently dangerous activity exception to the general rule that a landowner is not vicariously liable for the torts of an independent contractor did not apply. The judgment of the trial court is affirmed.
The material facts of this case are undisputed. In September 1994, Weld Tire & Wheel, Inc. (Weld) hired Ron Auen, an independent contractor, to prepare and paint exterior and interior portions of its facility. The Appellant, Donald Bowles, was employed by Mr. Auen. On December 15, 1994, Mr. Auen and Mr. Bowles began preparing a three-story enclosed stairwell for painting. Starting on the top floor, the men used a gasoline-powered power washer, which emitted carbon monoxide, to remove old, loose paint and dirt from the stairwell walls. After operating the power washer for approximately one half hour, Mr. Bowles complained of a headache and ringing in his ears. Mr. Auen told Mr. Bowles to go home and that he would finish the job. As Mr. Bowles was walking down the stairs, he lost consciousness. Mr. Auen, who was then operating the power washer, did not see Mr. Bowles collapse. Within minutes, Mr. Auen also lost consciousness. The men were eventually discovered by Weld employees and taken to the hospital for carbon monoxide poisoning.
Thereafter, Mr. Bowles filed this action for damages against Weld. He claimed that the activity of operating a gasoline-powered power washer in an enclosed stairwell was inherently dangerous and that Weld was vicariously liable for Mr. Auen's negligence in failing to take adequate precautions. Specifically, Mr. Bowles alleged that Mr. Auen was negligent in failing to monitor the carbon monoxide levels in the stairwell, in failing to provide a mechanism to direct the exhaust fumes to the outside, and in failing to provide proper ventilation.
Weld filed a motion for summary judgment and suggestions in support arguing that the activity of painting a stairwell was not in itself inherently dangerous and that Mr. Auen and Mr. Bowles could have chosen a different and safer manner to remove paint from the stairwell walls. The trial court granted Weld's motion for summary judgment. This appeal by Mr. Bowles followed.
Appellate review of the grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is reviewed in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id.
Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. Facts contained in affidavits or otherwise in support of a party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. at 376. A defending party may establish a right to judgment as a matter of law by showing any one of the following: (1) facts that negate any one of the elements of the claimant's cause of action, (2) the non-movant, after an adequate period of discovery, has not a
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