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08/16/83 VOLUME SERVICES v. C. F. MURPHY &

August 16, 1983

VOLUME SERVICES, INC., APPELLANT
v.
C. F. MURPHY & ASSOCIATES, INC., J. E. DUNN CONSTRUCTION CO., KANSAS CITY STRUCTURAL STEEL CO., BETHLEHEM STEEL CORP., BOB D. CAMPBELL, IVAN L. ROENIGK, DON H. LUELLEN, MICHAEL F. QUINLAN, RALPH KEITH, AND CITY OF KANSAS CITY, MISSOURI, DEFENDANTS



From the Circuit Court of Jackson County; Civil Appeal; Judge Richard P. Sprinkle; Reversed in Part and Remanded for Further Proceedings

Before Nugent, P.j., Wasserstrom, Kennedy, JJ.

The opinion of the court was delivered by: Nugent

Plaintiff appeals from the trial court's dismissal of counts one through five, nine, and ten of their ten-count petition for damages arising from the collapse of the roof of the R. Crosby Kemper Memorial Center (hereinafter Kemper Arena). All seven of the dismissed counts relate to all defendant except the city of Kansas City, Missouri (hereinafter "non-city" defendants). Counts I through V name only the non-city defendants. Counts I and II allege negligence in the construction and design of Kemper Arena and seek recovery for damage to plaintiff's equipment and inventory, as well as for the loss of plaintiff's concession rights. Count III is based on products liability. Count IV alleges breach of an implied warranty of usefulness, and Count V alleges that defendants negligently and recklessly misrepresented that Kemper Arena was properly designed and constructed. Counts VI, VII and VIII are solely against the city, alleging breach of contract, negligent maintenance and operation of Kemper Arena, and wrongful representation that the arena was free of defects. Counts IX and X name only the non-city defendants. Count IX pleads breach of a contract between the city and the non-city defendants, to which plaintiff was a third party beneficiary. Count X pleads breach of a non-delegable duty owed plaintiff by the defendants. We are asked to determine whether any of Counts I through V, IX and X state a cause of action. We reverse in part and remand to the trial court for further proceedings consistent with this opinion.

On review of the trial court's dismissal of a petition, our duty is to determine if the facts pleaded and reasonable inferences to be drawn therefrom when viewed in the light most favorable to the plaintiffs, demonstrate any ground for relief. DeMaranville v. Fee Fee Trunk Sewer, Inc., 573 S.W.2d 674, 676 (Mo. App. 1978). Even if the petition is imperfectly or defectively stated, we must accept as true all facts it avers, construe all averments liberally and favorably to the plaintiff and determine whether they invoke principles of substantive law upon which relief may be granted. City of Kansas City v. Mary Don Co., 606 S.W.2d 411, 413-14 (Mo. App. 1980).

Doing so, we accept as true the following facts which appear in plaintiff's first amended petition dated May 8, 1981.

Volume Services, a wholly owned subsidiary of Interstate United, Inc., operates refreshment vending stands and vending services. Defendant C. F. Murphy & Associates, Inc. designed the Kemper Arena and supervised its construction. Defendant J. E. Dunn Construction Co. was the general contractor. Defendant Kansas City Structural Steel Co. was a sub-contractor responsible for the erection of the structural steel elements supporting the roof. Defendant Bethlehem Steel Corp. manufactured the bolts used to support the roof. The individual defendants comprise the last board of directors of Bob D. Campbell & Co. which participated in the design and construction of the structure which supported the roof.

On December 11, 1973, Volume Services entered into an agreement with the city by which the city leased to Volume Services certain areas in the arena designated as "concession premises" and granted exclusive vending machine and concession rights. The non-city defendants had knowledge of this agreement.

On June 4, 1979, the roof of the Kemper Arena collapsed as a result of the non-city defendants' negligence. Thirteen specific failures of design and construction are listed, including failure to design and construct the roof to withstand stress caused by normal weather conditions; failure to design and construct devices to drain water from the roof; failure to design, construct, inspect, and test adequate roof supports; failure to provide a warning system for stress build-up; failure to design and manufacture parts that could withstand normal and foreseeable pressures; and failure to warn that the parts provided were not capable of withstanding such pressures. The defects were said to be concealed so that a reasonable inspection by plaintiff would not have revealed them. Plaintiff asserts that as a direct and proximate result of defendants' negligence, Kemper Arena was completely unusable from June 4, 1979, to February 20, 1980, damaging plaintiff's leasehold estate, damaging plaintiff's equipment and inventory, and rendering worthless plaintiff's exclusive right to use and occupy the arena. Plaintiff alleges in Count I and every subsequent count that it suffered damages of $200,000.00 plus costs.

In Count II, plaintiff alleges as well that the non-city defendants' defective design and construction rendered Kemper Arena "essentially, imminently and unreasonably dangerous to plaintiff, other users of the building and the general public."

In Count III, plaintiff alleges that the arena, including the bolts, steel structures, and other material used in its construction, was in a defective condition unreasonably dangerous at the time of the collapse.

In Count IV, plaintiff alleges that the non-city defendants warranted that the arena was designed and constructed in a skillful and workmanlike manner when in fact it was not suitable for the intended purpose of business and entertainment.

In Count V, plaintiff alleges that the non-city defendants negligently and recklessly misrepresented that the arena was properly designed and constructed, knowing that those representations were not true and knowing that the general public would rely on those misrepresentations. In reliance on them, the plaintiff entered into its agreement with the city, an agreement rendered worthless by the collapse of the roof.

In Count VI against the defendant city plaintiff alleges that it entered into an agreement with the city to lease certain areas of Kemper Arena, that it performed all terms and conditions of the agreement, but that the city failed to make the arena available for the exclusive lease of the "concession premises" and the exclusive concession and vending machine rights.

In Count VII, plaintiff alleges that the city negligently maintained and operated Kemper Arena in that its roof and supporting structures were dangerous and defective as fully described in Count I. Further, the city was negligent in wrongfully representing that the arena was free from defects at a time that it knew or should have known that the arena was in a dangerous and defective condition in violation of city ordinances pertaining to the maintenance of the foundations, walls and roofs.

In Count VIII, plaintiff alleges that the city's negligent maintenance and operation of Kemper Arena rendered the arena "essentially and imminently dangerous" to plaintiff and the general public.

In Count IX, plaintiff again names only the non-city defendants and alleges that such defendants designed and constructed Kemper Arena, specially intending that designated areas would be for the use of plaintiff or another concessionaire, that plaintiff was a third party beneficiary to the contracts between the non-city defendants and the city, and that the non-city defendants breached their contractual ...


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