Court of Appeals of Missouri, Eastern District, Fourth Division
Appeal from the Circuit Court of St. Louis County 11SL-CC03892 Honorable Richard C. Bresnahan
ROBERT M.CLAYTON III, Judge
Clyde Woodall ("Appellant") appeals the trial court's grant of summary judgment in favor of Christian Hospital NE-NW ("Respondent") on Appellant's petition alleging Respondent was liable for injuries Appellant suffered while working for an independent contractor, Envirotech, Inc. ("Envirotech"), on a building owned by Respondent. We affirm in part and reverse and remand in part.
In 2004, Respondent contracted with Envirotech to abate asbestos in Respondent's Northwest Hospital building ("building") to prepare it for demolition. Appellant was an Envirotech employee working at the building.
Many essential facts are not disputed by the parties. Asbestos had to be removed from virtually every part of the building. Because asbestos abatement is highly dangerous and heavily regulated, the abatement work areas needed to be segregated by isolation containment measures to prevent asbestos fibers from permeating the air in surrounding areas. To contain its costs, Envirotech proceeded in a piecemeal fashion, setting up isolated containment work spaces in particular areas of the building one at a time so the work could be done in sections.
Envirotech began the abatement on the top floor of the building and had discretion over how big to make the initial containment area. Envirotech was not required to obtain Respondent's permission to move the containment area, and the sequence of the work was left to Envirotech's sole discretion. Envirotech referred to the building in its entirety as "the worksite, " and Envirotech's employees, including Appellant, had free access to the entire building.
Respondent retained ownership and had the right to be in the building, even though no medical services were being performed. Charles Graeser, Respondent's power plant operator, regularly accessed the boiler room in order to remove some pieces of equipment that had been stored there, using the dock area near the boiler room for ingress and egress. Christopher Dean, Respondent's project manager, visited the building to perform inspections on a weekly basis. Neither Graeser nor Dean was obligated to ask Envirotech for permission to enter the building. Neither Respondent, nor Graeser, nor Dean had authority over Envirotech employees.
Envirotech required electricity to operate its containment equipment and perform the abatement. When abatement began, Respondent furnished electricity to Envirotech through the local electrical utility, Ameren. Sometime after work began, Respondent discontinued the Ameren electrical service and began to provide electricity with a large diesel generator affixed to the outside of the building. Respondent maintained, tested, and operated the generator. During the abatement, the generator experienced numerous technical problems and had to be restarted by Respondent on several occasions. The reasons for the technical problems are disputed by the parties.
During the abatement, Respondent's employees were engaged in removing old equipment from the basement. To facilitate the equipment removal, Respondent's employees repeatedly removed and reinstalled the handrail on the staircase leading to the basement. Graeser testified at his deposition that he knew the rail was removable, that he had removed it and reinstalled it dozens of times, and that it was part of his job to reinstall it if he noticed it was missing.
On September 29, 2004, the worksite experienced a power outage when the generator ceased functioning. At Envirotech's direction, Appellant entered the boiler room in the building's basement to diagnose and fix the power problem. The basement staircase handrail was removed on that day. While on the staircase, Appellant fell and was impaled on the exposed handrail support bracket, sustaining permanent injuries. At the time of the accident, no asbestos was being removed from the boiler room, and as such no isolation containment measures were in that area of the building.
After his fall, Appellant filed a workers' compensation claim and received a settlement for his injuries. Appellant then filed a five-count petition against Respondent, based on two theories of liability. Appellant first asserted that Respondent was negligent due to a dangerous condition on its premises ("premises liability claim"). Appellant's second theory was that Respondent breached a duty in its negligent removal of the handrail and that Respondent breached a duty in negligently providing electrical power to the jobsite ("general negligence claims"). Respondent filed a motion for summary judgment, which the trial court granted on all counts. This appeal followed.
Appellant presents two points on appeal. In his first point, Appellant asserts the trial court erred in granting summary judgment on his premises liability claim. In his second point, Appellant argues the trial court erred in granting summary judgment on his general negligence claims.
A. Standard of review
Summary judgment is reviewed essentially de novo and affirmed only where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). A defendant may establish summary judgment is appropriate by showing, (1) facts negating any one of the plaintiff's elements necessary for judgment; (2) that the plaintiff has not produced evidence sufficient for the finder of fact to find the existence of one of the plaintiff's elements; or (3) facts necessary to support a properly pleaded affirmative defense. Rob ...