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09/28/93 LEE DILLARD v. SHAUGHNESSY

September 28, 1993

LEE DILLARD, ET AL., APPELLANTS,
v.
SHAUGHNESSY, FICKEL & SCOTT ARCHITECTS, ET AL., RESPONDENTS, AND STRUCTURAL ENGINEERING ASSOCIATES, INC., RESPONDENT.



APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI. The Honorable Donald L. Mason, Judge

Before Spinden, P.j., Fenner and Hanna, JJ.

The opinion of the court was delivered by: Fenner

Appellant Lee Dillard suffered serious injuries in a construction accident. At the time of his injury, Lee Dillard was working as a construction worker in the employment of P & S Masonry, Inc., a subcontractor of A. L. Huber & Sons, Inc. (Huber). Huber was the general contractor in the construction of the Church of the Nativity (the project) on behalf of the Catholic Diocese of Kansas City in Kansas (Archdiocese) as the owner. P & S Masonry was constructing a masonry wall at the project that fell on Lee Dillard injuring him. The project site was in Kansas.

Appellant Sheila Dillard is the wife of Lee Dillard and their minor children are Joshua, Justin, and Leah Dillard. Appellants William Jerome Dillard and Brittany Dillard are also minor children of Lee Dillard.

Respondent Shaughnessy, Fickel and Scott Architects, Inc. (SFS) was the architect hired by the Archdiocese to design the project. Respondent Structural Engineering Associates, Inc. (SEA) was hired by SFS as a subcontractor of SFS to provide engineering services for the project.

Appellants brought suit against respondents and others. Appellants represent that SFS and SEA had a duty to see that the wall in question was properly reinforced or braced during construction and that proper job site safety precautions and related inspections were undertaken.

SFS and SEA filed motions to dismiss or in the alternative for summary judgment. The trial court granted summary judgment on behalf of SFS and SEA finding that neither SFS nor SEA owed a duty to Lee Dillard for job site safety precautions or related inspections and further that section 44-501(f), K.S.A. Supp. 1992, *fn1 provided statutory immunity to SFS and SEA.

In their appeal, appellants argue first that the trial court erred in granting summary judgment against them because there are unresolved issues of fact on the existence of a duty owed by SFS and SEA to Lee Dillard for job site safety. Secondly, appellants argue that section 44-501(f) does not provide statutory immunity to SFS and SEA. Since we do not find any unresolved issues of fact which preclude summary judgment, it is not necessary for us to discuss appellants' second argument, that is, whether or not section 44-501(f) provides statutory immunity to SFS and SEA. *fn2

Under Rule 74.04, a movant is entitled to summary judgment when the movant can establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. For purposes of Rule 74.04, a "genuine issue" exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. ITT Commercial Finance Corp. v. Mid-American Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993). Additionally, in a summary judgment proceeding the facts stated in the affidavits and exhibits filed by defendant or plaintiff in support of its motion for summary judgment to which plaintiff or defendant filed no verified denial stand admitted for the purpose of the motion for summary judgment. Cherry v. City of Hayti Heights, 563 S.W.2d 72, 75 (Mo. banc 1978). Once a motion for summary judgment is made and supported by affidavit or exhibit, the adverse party cannot rest upon pleadings, but must respond by affidavit or otherwise as provided in Rule 74.04 setting forth specific facts showing that there is a genuine issue for trial. Cherry , 563 S.W.2d at 75 ; Rule 74.04(e). The party opposing a summary judgment must aver specific facts and not just doubts or speculation about a material issue. Chrysler Credit Corp. v. Schroeder, 724 S.W.2d 726, 727 (Mo. App. 1987).

Appellants argue first that the trial court erred by finding that the record failed to establish a genuine issue on the existence of a duty owed by SFS and SEA to Lee Dillard for job site safety. We find that the record is void of any evidence to establish the existence of such a duty.

Appellants cite nothing in the record that supports their argument on appeal that the trial court erred by failing to find a genuine issue on the existence of a duty owed by SFS and SEA to Lee Dillard for job site safety. Appellants merely argue that if they had been allowed to proceed, it would have been possible for them to discover facts to support their claim of a duty owed by SFS and SEA.

Appellants argue that under Kansas law a duty owed by an architect or engineer to workers at a construction site may arise from contract or be assumed by actions outside the contract. Appellants rely chiefly upon Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, 662 P. 2d 243 (Kan. 1983), in support of their position on appeal. *fn3

In Hanna , the Kansas Supreme Court held that generally the duty of an architect to supervise or administer construction work merely entails the duty to see that the building, when constructed, meets the plans and specifications for which the owner agreed to pay. Id . at 252. An architect by reason of his supervisory authority over construction does not assume responsibility for the day-to-day methods utilized by the contractor to complete the construction. Id . at 252. However, the court in Hanna further held that, in addition to any specific contractual obligation, an architect could assume a duty for safety of contractors and subcontractors on a job site intentionally or impliedly by the architect's actions. Id. at 252. To determine whether a duty ...


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