United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
Bonnie and Kevin Potts brought this personal injury action
against defendant for injuries Kevin sustained when he fell
through defendant's allegedly improperly-maintained roof.
Defendant has moved to dismiss Count II of plaintiffs'
to the complaint, plaintiff Kevin Potts was hired by
defendant Daryl Cooper to evaluate, inspect, and ultimately
remove and replace the roof at his business, Speed Sport
Automotive in September 2015. The roof was a flat roof, and
plaintiffs allege that defendant failed to properly maintain
the roof such that it had become dangerously unstable.
Plaintiffs also allege that defendant knew the roof was
unstable but that defendant did not warn Kevin before asking
Kevin to climb up on top of the roof. Defendant further asked
Kevin to peel back a section of the roof. When Kevin did so,
Kevin fell 12 to 15 feet down onto the concrete shop floor
below. Kevin suffered a broken superior pubic ramus, a broken
interior pubic ramus, a sacral fracture, and an open humeral
fracture. The open wound was contaminated with debris from
the property, and Kevin has suffered from ongoing bacterial
infections that require emergency care and often immobilize
him. Plaintiffs further allege that their damages include
medical bills, future medical bills, lost wages, and future
lost wages. Their complaint includes three counts: Count I
--- Ordinary Negligence; Count II ---Negligence ---
Inherently Dangerous Activity; and Count III --- Loss of
has moved to dismiss Count II under Federal Rule of Civil
Procedure Rule 12(b)(6).
purpose of a Rule 12(b)(6) motion to dismiss for failure to
state a claim is to test the legal sufficiency of a complaint
so as to eliminate those actions “which are fatally
flawed in their legal premises and deigned to fail, thereby
sparing litigants the burden of unnecessary pretrial and
trial activity.” Young v. City of St. Charles,
244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v.
Williams, 490 U.S. 319, 326-27 (1989)). “To
survive a motion to dismiss, a claim must be facially
plausible, meaning that the ‘factual content. . .
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.'”
Cole v. Homier Dist. Co., Inc., 599 F.3d 856, 861
(8th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). The Court must “accept the
allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.”
Id. (quoting Coons v. Mineta, 410 F.3d
1036, 1039 (8th Cir. 2005)). However, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, ” will not pass muster.
Iqbal, 556 U.S. at 678.
seeks dismissal of plaintiffs' Count II for
“Negligence --- Inherently Dangerous Activity.”
The rule at common law is that one who contracts with an
independent contractor is generally not liable for bodily
harm for the torts of the contractor or the contractor's
servants. Zueck v. Oppenheimer Gateway Properties,
Inc., 809 S.W.2d 384, 384 (Mo. banc 1991). “The
rationale for this exception is that because the landowner
has no right of control over the manner in which the work is
done by an independent contractor, its duty of care shifts to
the independent contractor, and the latter becomes the party
required to bear the responsibility for any injuries.”
Gillespie v. St. Joseph Light & Power Co., 937
S.W.2d 373, 376 (Mo. App. W.D. 1996) (citing Zueck,
809 S.W.2d at 386). However, the inherently dangerous
activity exception states that, “a landowner remains
liable for injuries to innocent third parties if the
plaintiff can show that the landowner has directed the
contractor to perform an act which is dangerous to
others.” Id. (quoting Salmon v. Kansas
City, 145 S.W. 16 (1912)). Another Missouri Supreme
Court case later extended a landowner's liability to
employees of independent contractors when the landowner
ordered the contractor to perform the inherently dangerous
activity. See Mallory v. Louisiana Pure Ice & Supply
Co., 6 S.W.2d 617 (Mo. banc 1928). But in 1991,
recognizing the rise of workers' compensation insurance,
the Missouri Supreme Court held that “the inherently
dangerous exception no longer applies to employees of
independent contractors covered by workers'
compensation.” Id. at 390.
Missouri Supreme Court later made clear that the “cause
of action based on the landowner's vicarious liability is
still viable for any third party not covered by workers'
compensation.” Matteuzzi v. Columbus P'ship,
L.P., 866 S.W.2d 128, 131 (Mo. banc 1993). Further,
although Matteuzzi held that the employee plaintiff
could not recover from the landowner under the inherently
dangerous work exception, Matteuzzi proceeded to
analyze that plaintiff's claim as it would any invitee,
focusing on the control the landowner had over the premises
and the activity of the contractor. Id. at 132.
argues that because Kevin Potts was not an “innocent
third party” or an “employee of an independent
contractor not covered by workers' compensation” he
cannot maintain a claim under the inherently dangerous
activity exception. Plaintiffs suggest that although Kevin
Potts was not a third party, he was not covered by
workers' compensation insurance, and the defendant knew
he was not covered by workers' compensation insurance.
Whether or not plaintiff had workers' compensation
insurance, however, the fact is that plaintiff Kevin Potts
was the independent contractor directed to take on the
allegedly inherently dangerous work. He was not a third
party, and he was not merely an employee who was subject to
whatever precautions his employer did or did not take. The
inherently dangerous work exception cannot be appropriately
applied to this case, and Count II will be dismissed.
motion to dismiss Count II will be granted.
IT IS HEREBY ORDERED that defendant's