Liability Of Land Owner For Negligence Of Independent Contractors
July 3, 2010
The law of premises liability in Missouri provides that a property owner owes an invitee the duty to use reasonable and ordinary care to prevent injury to the invitee as the result of a dangerous condition existing on the premises. Brown v. Morgan County, 212 S.W.3d 200, 203-04 (Mo.App.2007); Hunt v. Jefferson Arms Apt. Co., 679 S.W.2d 875, 879 (Mo.App. 1984). An employee of an independent contractor who has permission to use a landowner’s premises is such an invitee. Enloe v. Pittsburgh Plate Glass Co., 427 S.W.2d 519, 522 (Mo.1968). To establish a cause of action against the landowner under premises liability, the injured invitee must show: (1) a dangerous condition existed on the premises which involved an unreasonable risk; (2) the landowner knew, or by using ordinary care should have known of the condition; (3) the landowner failed to use ordinary care in removing or warning of the danger; and (4) as a result, the invitee was injured. Brown, 212 S.W.3d at 204.
“If, however, the landowner relinquishes possession and control of the premises to an independent contractor during a period of construction, the duty [to use reasonable and ordinary care to prevent injury as the result of a dangerous condition] shifts to the independent contractor. The landowner, no longer considered the possessor of the land, is thus relieved of potential liability.” Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 132 (Mo. banc 1993) (citing Halmick v. SBC Corp. Servs., Inc., 832 S.W.2d 925, 927 (Mo.App.1992)).
On the other hand, liability can be imposed upon the landowner if sufficient facts are shown that the landowner retained possession and control of the premises. Matteuzzi, 866 S.W.2d at 132; Halmick, 832 S.W.2d at 928. In order to impose such premises liability, the landowner’s involvement in overseeing construction must be “substantial.” Matteuzzi, 866 S.W.2d at 132; Halmick, 832 S.W.2d at 929. A “bare assertion” by an injured employee that the construction site was owned or controlled by the landowner is insufficient to state a cause of action against the landowner under premises liability. Matteuzzi, 866 S.W.2d 128 at 132. The employee must show that the landowner controlled either the physical activities of the employees of the independent contractor or the details of the manner in which the work is done. Matteuzzi, 866 S.W.2d at 132; Halmick, 832 S.W.2d at 929.
At common law, a landowner generally was not liable for injuries to “innocent third parties” caused by the negligence of an independent contractor or that of the contractor’s employees. Zueck, 809 S.W.2d at 384. An exception to this rule was recognized, however, if the activity performed by the independent contractor was inherently dangerous. If so, the landowner who commissioned the inherently dangerous work was said to have a nondelegable duty to take precautions to prevent injury from the activity. The notion of a nondelegable duty gave rise to two, interrelated causes of action, one for the landowner’s direct negligence, and the other for the landowner’s vicarious liability for the negligence of the independent contractor.
These two variations on the inherently dangerous activity doctrine are expressed more fully in Restatement (Second) of Torts §§ 413 and 416 (1965) respectively. Those sections provide:
§ 413. Duty to Provide for Taking of Precautions Against Dangers Involved in Work Entrusted to Contractor
One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
(a) fails to provide in the contract that the contractor shall take such precautions, or
(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.
§ 416. Work Dangerous in Absence of Special Precautions
One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.