Court of Appeals of Missouri, Eastern District, Fourth Division
PATRICIA A. WILSON, Appellant,
DURA-SEAL AND STRIPE, INC., Respondent.
from the Circuit Court of Jefferson County 11JE-CC01063
Honorable Mark T. Stoll.
M. Gaertner, Jr., Judge.
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.
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
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. No written specifications for the project
were in evidence.
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.
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.
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
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.