United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
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
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.
parties appear to disagree regarding whether plaintiff fell
through rotting roofing material or through a hole he had
already created intentionally.
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,
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).
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.
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).
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