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Potts v. Cooper

United States District Court, E.D. Missouri, Southeastern Division

February 13, 2019




         Plaintiff Kevin Potts was injured when he fell through the roof of defendant's business. Defendant moved for summary judgment. (#35.) After extended briefing and a few contested discovery- and ADR-related motions, the matter is ripe for disposition.

         I. Factual Background

         The following facts are undisputed unless otherwise indicated. In September 2015, defendant hired non-party Casco Midwest to replace the roof on his commercial property located in Cape Girardeau, Missouri. Plaintiff testified that he was an employee of Casco Midwest and that Casco's owner, Jerry Casper, Sr., was plaintiff's boss. The contract, which plaintiff testified he never saw, indicated that the roof was rotting and needed to be replaced. Plaintiff did testify, however, that before beginning work on the roof, he and another Casco employee surveyed the roof with defendant, who pointed out rotting areas and “soft” spots. Defendant was at his home, not on the premises, when plaintiff fell through the roof. Plaintiff testified that the accident happened as follows:

The rubber on the roof is on a flat boarded surface. The rubber is glued down to the wood. Naturally you have to put some kind of force on it to pull it up. I was pulling it up with both hands. And I recall my hands slipped off. I made a step back. I slipped off, just kind of falling backwards a little bit. So I put my left foot out. I wasn't falling. I was just stumbling backwards. I put my left foot back. I guess when I put my foot back I went through…the roof.

         The parties appear to disagree regarding whether plaintiff fell through rotting roofing material or through a hole he had already created intentionally.

         II. Legal Standard

         Pursuant to Federal Rule of Civil Procedure 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that “there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Assoc. Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

         In ruling on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).

         III. Discussion

         Plaintiff's remaining counts are for (1) negligence and (2) loss of consortium on behalf of plaintiff's wife. Because the Court will grant summary judgment to defendant on the negligence count, the plaintiff's loss of consortium count also necessarily fails.

         Plaintiff's theory is that the defendant, as the owner of the property on which plaintiff was working when he fell, was responsible for plaintiff's safety. A landowner owes a duty to use reasonable and ordinary care to prevent injury to invitees. State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 83 (Mo. banc 2008); Restatement (Second) of Torts § 343 (1965). An employee of an independent contractor performing work contracted for by the landowner is one such invitee. Dolan, 256 S.W.3d at 83. An exception to that rule arises, however, when “the landowner relinquishes possession and control of the premises to an independent contractor during a period of construction.” Id. (quoting Matteuzzi v. Columbus P'ship, L.P., 866 S.W.2d 128, 132 (Mo. Banc 1993)). “[T]o establish that the landowner retained possession and control of the premises and the attendant duty of care, the plaintiff must show that the landowner controlled the jobsite and the activities of the contractor.” Id. (quoting Matteuzzi, 866 S.W.2d at 132).

         Plaintiff faces a high bar:

the owner's involvement in overseeing construction must be substantial...the control must go beyond securing compliance with the contracts; the owner must be controlling the physical activities of the employees of the independent ...

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