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Rapp v. Eagle Plumbing, Inc.

Court of Appeals of Missouri, Eastern District, Fourth Division

June 10, 2014

JOHN C. RAPP, Appellant,

Appeal from the Circuit Court of St. Louis County. Honorable Mark D. Seigel.

James D. O'Leary, St. Louis, MO, for appellant.

Portia C. Kayser, St. Louis, MO, for respondent.

Patricia L. Cohen, Judge. Lisa S. Van Amburg, P.J., and Philip M. Hess, J., concur.


Page 520

Patricia L. Cohen, Judge


John Rapp (Plaintiff) appeals the trial court's grant of summary judgment to Eagle Plumbing, Inc. (Defendant) on his action in negligence. Plaintiff contends the trial court erred in granting summary judgment to Defendant based on the open and obvious doctrine because it applies

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only to possessors of land. Plaintiff also asserts that, even assuming application of the open and obvious doctrine, the trial court erred in entering summary judgment because genuine issues of material fact exist regarding whether: (1) the hazard posed by the trench wall was open and obvious; (2) Defendant should have anticipated the harm caused by the trench wall's collapse; and (3) Defendant's actions or omissions were the proximate cause of Plaintiff's injuries. We affirm.

Factual and Procedural Background[1]

In April 2010, Defendant was a plumbing contractor on a construction site at Washington University. Either Defendant or another contractor dug a trench on the construction site, which Defendant used for the placement of its drainage pipes.[2] The trench was thirty to thirty-six inches deep, two feet wide, and thirty to forty feet long. Defendant did not flag or otherwise barricade the trench.

Plaintiff, a journeyman bricklayer with over twenty years' experience, worked for John J. Smith Masonry, another subcontractor working on the construction site. On April 23, 2010, Plaintiff and his co-worker, Josh Guidicy, were " striking the joints" of a wall located about two feet from Defendant's trench.[3] At approximately 11:30 a.m., rain began to fall. As Mr. Guidicy continued to strike the joints of the wall, Plaintiff attempted to step around him. With his back to the wall and facing the trench, Plaintiff placed a foot on the edge of the trench. The trench wall collapsed, and Plaintiff fell, striking his shoulder on the wall he was constructing and tearing his rotator cuff.

Plaintiff filed an action for negligence against Defendant seeking damages for his injuries. In the petition, Plaintiff alleged that Defendant was negligent in: (1) failing to " warn or guard or barricade the trench so as to protect Plaintiff and others who were in a similar position" ; and (2) leaving " the excavation of the trench in an open and dangerous condition for a period of ten (10) to fourteen (14) days." Additionally, Plaintiff pleaded that: " Defendant failed to put any barricade or fencing around the trench so as to prevent anyone from falling into the trench" ; " Defendant failed to put any warning, tape or lights around the trench to minimize falls" ; and " Defendant failed to fill the trench with dirt and or [sic] gravel so as to eliminate the hazard." Plaintiff alleged that, " as a direct and proximate result of the aforesaid negligence of Defendant[,] Plaintiff was caused to suffer a tear of his rotator cuff."

Defendant filed a motion for summary judgment arguing that Defendant did not have a duty to warn Plaintiff of the dangerous condition because " the trench Plaintiff fell into was an open and obvious condition which was both visually ascertainable and of which Plaintiff had actual knowledge." Defendant also asserted that Plaintiff could not " establish that any act or omission of [Defendant] was the 'but-for' cause or the proximate cause of his

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injuries in that [Defendant] is 'entitled to assume and act upon the assumption' that Plaintiff would exercise due care for his own safety."

Plaintiff filed a memorandum in response to Defendant's motion for summary judgment arguing that " [t]here is a genuine issue of material fact as to whether the condition which caused Plaintiff's injuries was sufficiently 'open and obvious.'" More specifically, Plaintiff asserted that " it was not the visually observable trench that caused Plaintiff's injuries," but rather " the non-visually ascertainable unprotected and defective trench sidewall . . . that caused Plaintiff's injuries." Plaintiff also argued that the condition was not " open and obvious" as a matter of law because the " dangerous condition existed irrespective of whether Plaintiff exercised due care . . . ." Finally, Plaintiff ...

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