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Wilson v. Dura-Seal and Stripe Inc.

Court of Appeals of Missouri, Eastern District, Fourth Division

March 21, 2017

PATRICIA A. WILSON, Appellant,
v.
DURA-SEAL AND STRIPE, INC., Respondent.

         Appeal from the Circuit Court of Jefferson County 11JE-CC01063 Honorable Mark T. Stoll.

          Gary M. Gaertner, Jr., Judge.

         Introduction

         Appellant Patricia A. Wilson (Wilson) appeals the trial court's summary judgment in favor of Respondent Dura-Seal and Stripe, Inc. (Dura-Seal) on Wilson's negligent construction claim. Wilson argues that summary judgment was improper because genuine issues of material fact exist regarding whether Dura-Seal was in control of the premises at the time of Wilson's injury. We affirm.

         Background

         In March of 2006, the Fox C-6 School District (School District) hired Dura-Seal by oral agreement to construct an asphalt overlay of a drive lane near the auditorium at one of the District's schools. Dura-Seal performed the work in August of 2006 and then sent an invoice to the School District, which the School District paid in September of 2006.

         The parties agree that in paving the drive lane, Dura-Seal did not pave all the way to the curb, but left a "gutter area" between the road and the curb, resulting in the asphalt in the drive lane being taller than the gutter area in between the drive lane and the curb. Wilson offered evidence that the height differential was three to four inches.[1] No written specifications for the project were in evidence.

         On November 3, 2006, Wilson was attending a school-sponsored function. On her way from the auditorium to the parking lot, Wilson fell when crossing the drive lane, sustaining injuries. She claimed it was the same drive lane paved by Dura-Seal, and that she fell as a result of the height differential between the gutter area and the new asphalt. There was evidence that sometime after this incident, the School District asked Dura-Seal to fill in the gutter area gap along at least part of the drive lane, and Dura-Seal did so. There was also evidence that Dura-Seal offered a one-year guarantee of its work, but no written terms of the guarantee were in evidence.

         Wilson filed a premises liability claim against the School District, which in turn added Dura-Seal as a third-party defendant. Wilson then amended her petition to include a claim for negligent construction directly against Dura-Seal. Wilson settled her claim against the School District. Dura-Seal filed a motion for summary judgment on Wilson's claim against Dura-Seal, and the trial court granted Dura-Seal's motion. This appeal follows.

         Standard of Review

         Our review of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record in the light most favorable to the party against whom summary judgment was entered, according the non-movant the benefit of all reasonable inferences from the record. Id. A movant must show that there is no genuine dispute as to any material fact, and that he or she is entitled to judgment as a matter of law. Rule 74.04(c); ITT Commercial Fin. Co., 854 S.W.2d at 380. A genuine dispute "exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts." ITT Commercial Fin. Co., 854 S.W.2d at 382.

         Discussion

         Wilson raises four points on appeal. First, she argues that the trial court erred in granting summary judgment based on the acceptance doctrine because genuine issues of fact remain as to whether Dura-Seal completed the work and whether the School District accepted it. Second, Wilson argues that Dura-Seal's guarantee operated to extend Dura-Seal's liability to third parties for the duration of the guarantee, despite any acceptance by the School District. Third, Wilson argues that even if the acceptance doctrine applied, it should not defeat Wilson's claim here because an exception applies. Finally, Wilson argues that we should reject the acceptance doctrine as inconsistent with Missouri's comparative fault doctrine.

         Poin ...


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