Sakabu v. Regency Construction Co.
2012 Mo. App. LEXIS 1215
| Mo. Ct. App. | 2012Background
- Plaintiffs contracted Regency to renovate their home; Regency hired Kirsch Plumbing to perform plumbing work.
- A grinding tool used by Kirsch caused a fire, damaging Plaintiffs’ property and personal belongings valued over $50,000.
- Plaintiffs asserted breach of contract and negligence against Regency, citing lack of notice/permission, safety failures, inadequate supervision, and failure to prevent the fire.
- Regency moved for summary judgment claiming general contractors aren’t liable for subcontractors’ torts and that alleged acts were contractual, not tortious.
- Trial court granted summary judgment, holding Kirsch was a subcontractor (interchangeable with independent contractor) and that breach of contract cannot give rise to tort liability; Plaintiffs appealed.
- Court reverses and remands to determine whether Kirsch was an independent contractor for liability purposes and because Regency failed to prove no genuine fact issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Independent-contractor status governs liability | Kirsch was a subcontractor, not proven independent contractor | Subcontractor status equates to independent contractor for liability | Genuine fact issue on independent-contractor status; reversal warranted |
| Negligence based on breach of contract | Regency liable for negligent supervision due to contract duties | Breach alone cannot support tort liability; no independent tort shown | Summary judgment improper; remand for further fact-finding on duty and tort basis |
Key Cases Cited
- Barkley v. Mitchell, 411 S.W.2d 817 (Mo. App. 1967) (subcontractor vs independent-contractor analysis depends on control and terms of agreement)
- Smith v. Inter-County Tel. Co., 559 S.W.2d 518 (Mo. banc 1977) (general rule: contractor not liable for independent contractor’s torts (overruled on other grounds))
- Empson v. Mo. Hwy. & Trans. Comm’n, 649 S.W.2d 517 (Mo. App. W.D. 1983) (independent-contractor status requires factual determination beyond label)
- Lee v. Pulitzer Pub. Co., 81 S.W.3d 625 (Mo. App. E.D. 2002) (employment-law factors for independent-contractor analysis)
- Sloan v. Bankers Life & Cas. Co., 1 S.W.3d 555 (Mo. App. W.D. 1999) (factors to assess control and contractor status)
- Lonero v. Dillick, 208 S.W.3d 323 (Mo. App. E.D. 2006) (negligent supervision generally not owed for independent contractors; exceptions)
- ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993) (summary-judgment standard; burden on movant to show no genuine issue)
- Khulusi v. Southwestern Bell Yellow Pages, Inc., 916 S.W.2d 227 (Mo. App. W.D. 1995) (tort vs contract analysis; independent-contractor status affects duties)
- Ryann Spencer Group, Inc. v. Assurance Co. of Am., 275 S.W.3d 284 (Mo. App. E.D. 2008) (breach of contract does not create tort liability absent tortious act)