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Bowles v. Weld Tire & Wheel2/20/2001
ay Properties, Inc., 809 S.W.2d 384 (Mo. banc 1991). Thus, a landowner will be vicariously liable for injuries to innocent third parties or employees of independent contractors who are not covered by workers' compensation for failure of the contractor to take such precautions against the inherent risks or dangers of the activity. Zueck, 809 S.W.2d at 384; Lawrence, 957 S.W.2d at 404; Restatement (Second) of Torts Section 416 (1965).
Whether an activity is inherently dangerous as a matter of law is initially a question of law for the court. Zueck, 809 S.W.2d at 386. To determine whether an activity is inherently dangerous, the court must begin by ascertaining the nature of the activity and the manner in which it is ordinarily performed. Hatch, 990 S.W.2d at 136. An activity is inherently dangerous if the work being done, by its very nature, involves some "peculiar risk" of physical harm. Hofstetter v. Union Elec. Co., 724 S.W.2d 527, 530 (Mo. App. E.D. 1986)(citing Restatement (Second) of Torts Section 416 cmt. d (1965)). A peculiar risk is differentiated from a "common risk" in that common risks are those to which persons in general are subjected by the ordinary forms of negligence that are typical in the community. Id. " he inherently dangerous activity exception applies only where 'the harm results from the negligence of the contractor in failing to take precautions against the danger involved in the work itself, which the employer should contemplate at the time of his contract'." Hatch, 990 S.W.2d at 135 (quoting Restatement (Second) of Torts Section 427 cmt. d (1965)).
The exception does not apply, however, where "the negligence of the independent contractor creates a new risk, not intrinsic in the work itself, which could have been prevented by routine precautions of a kind which any careful contractor would be expected to take." Hofstetter, 724 S.W.2d at 530 (citing Restatement (Second) of Torts Section 413 cmt. b and Section 427 cmt. d (1965)). Additionally, a landowner is not liable under the inherently dangerous activity exception for the "collateral negligence" of the contractor. Hatch, 990 S.W.2d at 135; Hofstetter, 724 S.W.2d at 530. Collateral negligence is "negligence which is unusual or abnormal, or foreign to the normal or contemplated risks of doing the work, as distinguished from negligence which creates only the normal or contemplated risk." Hatch, 990 S.W.2d at 135 (quoting Restatement (Second) of Torts Section 426 cmt. a (1965)). Under the theory of collateral negligence, a landowner
is not required to contemplate or anticipate abnormal or unusual kinds of negligence on the part of the contractor, or negligence in the performance of operative details of the work which ordinarily may be expected to be carried out with proper care, unless the circumstances under which the work is done give him warning of some special reason to take precautions, or some special risk of harm to others inherent in the work. Restatement (Second) of Torts Section 426 cmt. b (1965).
The test is whether the independent contractor's acts were or should have been within the contemplation of the landowner. Hatch, 990 S.W.2d at 136.
The inherently dangerous activity exception to the general rule that a landowner is not vicariously liable for the torts of an independent contractor does not apply in this case. The contract between Weld and Mr. Auen encompassed Mr. Auen preparing and painting exterior and interior portions of Weld's facility including a three-story enclosed stairwell. Mr. Auen was an independent contractor, and Weld had no control of the manner in which Mr. Auen chose to perform the contract. The activity of preparing and painting an enclosed stairwel
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