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Bowles v. Weld Tire & Wheel2/20/2001
nd will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. Id. at 381.
Once the movant has established a right to judgment as a matter of law, the non-movant must demonstrate that one or more of the material facts asserted by the movant as not in dispute is, in fact, genuinely disputed. Id. The non-moving party may not rely on mere allegations and denials of the pleadings, but must use affidavits, depositions, answers to interrogatories, or admissions on file to demonstrate the existence of a genuine issue for trial. Id.
On appeal, Mr. Bowles contends that the trial court erred in granting Weld's motion for summary judgment because Weld failed to establish a right to judgment as a matter of law and genuine issues of material fact existed. In its motion for summary judgment and supporting suggestions, Weld argued that the activity that caused Mr. Bowles's injuries, preparing and painting an enclosed stairwell, was not in itself inherently dangerous and could have been performed safely with a different method or by providing proper ventilation by opening windows or doors in the stairwell. Mr. Bowles argues that the operation of a gasoline-powered power washer in an enclosed stairwell was the activity that caused his injuries. He contends that such activity was inherently dangerous unless special precautions were taken because the internal combustion engine emitted carbon monoxide, an odorless, tasteless, lethal gas. Mr. Bowles also argues that Weld failed to show that the activity could have been performed safely with proper ventilation and that even if it had made such showing, the facts were disputed as to whether the doors and windows could have been opened.
Generally, a landowner is not vicariously liable for injuries caused by the negligence of an independent contractor or his employees to innocent third parties or employees of the independent contractor. Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 130 (Mo. banc 1993); Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 133-134 (Mo. App. E.D. 1999); Lawrence v. Bainbridge Apartments, 957 S.W.2d 400, 403-404 (Mo. App. W.D. 1997). The court in Zueck v. Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384 (Mo. banc 1991), stated:
This general rule recognizes that the landowner has no right of control over the manner in which the work is to be done, and for that reason the work "is to be regarded as the [independent] contractor's own enterprise, and he, rather than the [landowner], is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing it." Id. at 386 (quoting W. Prosser & W. Keaton,
The Law of Torts 509 (5th ed. 1984)). An exception to this general rule is recognized, however, if the activity performed by the independent contractor is inherently dangerous. Matteuzzi, 866 S.W.2d at 130; Lawrence, 957 S.W.2d at 404. Under this exception, a landowner who hires an independent contractor to perform an inherently dangerous activity has a non-delegable duty to take special precautions to prevent injury from the activity. Id. For inherently dangerous activities, the landowner "remains liable for the torts of the contractor, simply for commissioning the activity. The liability attaches without any need for showing that the employer is in any respect negligent. It is purely vicarious." Ballinger v. Gascosage Elec. Coop., 788 S.W.2d 506, 511 (Mo. banc 1990), overruled on other grounds by Zueck v. Oppenheimer Gatew
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