*1 of mate- genuine we find issues Because commit- to whether Bross
rial fact exist as Phelps we find Ries-
ted an assault on Eagle assumed and Golden
enbeck transporta- Phelps provide golf tournament
tion to and from fact exist of material
genuine issues Eagle and Golden Riesenbeck find duty, we
breached that re- appropriate. was not We trial court on
verse the further I and III and remand for
points opinion. consistent with this
proceedings II. point
We affirm DOWD, C.J., R. and WILLIAM
JAMES JR., CRANDALL, J., concur.
H. Individually HEFFERNAN,
Dianna Minors,
as Next Friend for Steven Heffernan, Keith
Plaintiffs/Appellants, REINHOLD, Devel
Frederick Reinhold
opment Corp., Meadows Mastodon Association, Estate of
Homeowners Rambo, Deceased,
Gary and Christo Kimberly
pher A. T. Dawidowski and
Dawidowski, Defendants/Respondents. ED
No. 79029. Appeals,
Missouri Court of District,
Eastern
Division One.
Feb. 2002. Rehearing Transfer to
Motion and/or April 2002. Denied
Supreme Court for Transfer Denied
Application
28,May 2002. *3 DOWD, JR.,
ROBERT G. Judge. Plaintiffs Dianna Heffernan and her children, Keith, Steven from appeal grant the trial court’s of summary judg- ment to the defendants stemming from wrongful Plaintiffs’ death suit. Although raise allegations several of error to the granting defendant, each we find the undisputed negate facts essential element each *4 of Plaintiffs’ causes of action all defen- dants are judgment entitled to as a matter of law. accordingly We affirm. Statement Facts heart, At its this case involves fatal accident that occurred when Ray Heffer- nan, Rambo, Gary and Chris Dawidowski attempted repair pipe, broken sewer causing flooding which was in Mastodon Meadows subdivision men where three Initially, lived. the three men used bob- dig feet, cat to down between four and five but failed to uncover the damaged sewer men pipe. The then used a backhoe to dig, ultimately dug continue to a ditch approximately twelve feet and fifteen feet wide uncovering before the broken men, however, pipe. The did not shore the Eventually, walls the ditch. the ditch walls caved while the men working were hole. Both Heffernan and Gary result, Rambo were killed as a injured Chris Dawidowski was in the acci- dent. accident,
As a result Plaintiffs a wrongful filed death suit against Fre- drick Reinhold Development and Reinhold Adams, Louis, Janet M. St. for Appel- Corporation “Reinhold”), (collectively who lant.
installed the subdivision sewer lines and Sherman, Hillsboro, D. Randall P. Sam pipes, the Mastodon Meadows Home- Feltz, Rynearson, A. David Christina E. (“MMHA”), owners Association the Estate Watters, Dubis, (Rambo), Russell F. St. (“Rambo”), Gary Rambo Chris Dawi- Louis, (Dawidowski), Butsch, David T. wife, Kimberly, (collectively dowski and his Clayton, Dawidowskis”), for Respondents. “the Patrick and Jean- (Mo. Club, 80, Inc., 994 Country then filed mo- Lindsey.1 ette E.D.1999). thus, We, con may not judgment against App. partial summary tion in Plaintiffs’ any theories advanced liability. on the issue of sider the defendants judgment, as partial summary separate also motion for Each of the defendants filed the trial court by denied judgment against such motion was summary motions for Jones v. not reviewable. motions for and therefore Plaintiffs. defendants’ Ltd., Leasing, granted as to summary judgment were Landmark E.D.1997). Further, may (Mo.App. separate grounds each defendant any theories advanced partial summary Plaintiffs’ motion for consider appeal, first time on This follows. Plaintiffs for the appeal was denied. before properly consider those Standard of Review v. Mat Country trial Mut. Ins. Co. court. (Mo.App. W.D. ney, 25 S.W.3d trial court’s Appellate review a grant essentially Corp. novo. ITT Commercial these limitations and our standard de Finance With mind, each defendant Supply Corp., v. Mid-America Marine of review we find *5 871, (Mo. negate undisputed has forth facts 876 banc set Summary of judgment ap will be on an element of Plaintiffs’ causes upheld essential was there- judgment if movant entitled to action and peal the genuine a law issues appropriate. as matter of and no of fore way material fact exist. Id. at 377. One a Analysis right a defending party may establish judgment by showing as a matter of law is Reinhold Against undisputed negate any facts one of Plaintiffs bring In petition, their several the of cause plaintiffs elements the of Reinhold, installed the against claims who action. Id. at 381. men pipe sewer the three broken outset, repair at the time of attempting
At the we make several were According Plaintiffs, we the Rein- preliminary observations to what are eave-in. (1) First, implied for of reviewing. and are not the record hold was liable breach extensive, particular pur- for a appeal including warranty on Plaintiffs’ of fitness for defective installation petition, separate pose, essentially sixteen-count five an (2) strictly lia- pipe; setting original swers from the defendants forth sewer defenses, Plaintiffs’ ble failure to warn of numerous affirmative for pipe; and summary judgment and condition of the defective partial motion for thereto, design and installation responses negligent for sep defendants’ liable In sum- judgment his motion for summary pipe. arate motions for the sewer count, first mary judgment, as to the there against responses to, of implied Reinhold that breach ruling regarding and the trial court’s denied pur- for pur warranty particular For of fitness a summary motions. not a however, applicable because this was appeal, pose of this we are con poses buyer addressing only prop goods between fined those issues transaction and failure- negligence erly in the defendants’ motions for seller. raised if counts, responses Reinhold asserted judgment and the to-wam any negligence in the installa- there was thereto. Mothershead Greenbriar case, appeal. parly to this Lindseys and are not 1. The were dismissed from 664 of the pipes, liability
tion his was not negligence warn, strict for failure plain- proximate cause of Ray Heffernan’s injuries tiff must show were direct death. Because we find Reinhold had set proximate result of the defendant’s forth negate facts to essen- warn. failure to Cole v. Tire & Goodyear action, element tial Plaintiffs’ causes Co., Rubber (Mo.App. S.W.2d find summary judgment we appropriate. E.D.1998). We will address these causes together of action because both them In order to establish a case breach of require proximate cause as an essential implied warranty particular fitness for element. purpose, plaintiff must establish a contracting “seller” at the time of has rea- prove order to causal any purpose to know particular son necessary negli connection to establish “goods” which and that required gence, plaintiff must show both causa buyer is relying skill or the seller’s and proximate tion fact Robin cause. to select or furnish suitable son v. Missouri Highway State goods. 400.2-315, Section If RSMo 2000. Com’n, Transp. (Mo.App. met, these elements are then there is an W.D.2000). A defendant’s conduct is the implied warranty goods be fit for shall plaintiffs injuries cause in fact of a where purpose. such Id. injuries would not have “but occurred record, After our review of the for” that conduct. Id. A must find that the installation of the storm sew also show conduct defendant’s pipe er in this situation not a “transac inju proximate was also the cause of the in goods.” installed tion Reinhold sewer ries. Proximate Id. cause is not causa *6 pipes into in Mastodon Meadows the sub fact, tion in but is a limitation the law development division’s phase before imposes the upon right to recover for the Heffernan owned in property his Masto consequences of a negligent act. The Id. Thus, Meadows. persuad don not are requirement of proving proximate cause that “buyer” ed Heffernan was a absolves those actors whom it would be 400.2-315, of purposes Section RSMo 2000. unfair punish because of the attenuated Given the sewer pipe installation was relation their the which conduct bears to goods not a transaction in Heffer- injuries. Thus, plaintiffs Id. at 77-78. buyer, nan wasn’t a there no implied proximate requires cause in something ad warranty of particular pur fitness for a dition “but for” to a causation test because Therefore, pose. summary judgment was the “but for” causation test serves properly granted on to Reinhold the war fact; exclude that are items not causal in ranty count. proximate cause will include “items that respect negli With to Plaintiffs’ in are fact but that unrea causal would be theory, in gence order to sum overcome liability they base upon sonable to because (1) mary judgment they the must show: are too removed from far the ultimate defendant owed a of care to the dece injury damage.” Id. at 78. dent; (2) the defendant breached (3) proximate The test of is duty; the breach cause was the cause fact death; whether defendant’s is that proximate negligence cause of his breach, injury a result of cause or act which the Mahler, damages. probable v. natural consequence. suffered Finocchio E.D.2000). 300, 37 S.W.3d 302 Williams Missouri (Mo.App. Highway Further, (Mo. Com’n, 605, in order a claim for Transp. to establish 611
665 W.D.2000). cause, of the soil regardless of nature there shored App. Proximate back, negligence “It to fail fore, looking is not is after conditions. determined occurrence, negligent will be examining that another anticipate upon and act a reasonable and entitled to assume injury appears be for one is exercise consequence of the conduct. that others will probable assumption Robinson, ab- safety, at 78. own S.W.3d due care for their contrary.” Buck v. sence of notice to Further, to note important it is Co., S.W.2d 434-35 Elec. Union persons guilty if or more two E.D.1994). Here, Ray Heffer- (Mo.App. negligence acts of there consecutive own due care his nan failed to exercise act to whether the initial question as safety. conduct was suffi- Heffernan’s proximate was a cause of the negligence cause. intervening cient efficient, injury or was an whether there intervening cause. Simonian v. Gevers not establish causa- could Inc., Heating Conditioning, & Air on to succeed their tion element needed E.D.1997). An (Mo.App. facts establish claims. efficient, cause is a new and intervening rea- Heffernan’s death was interrupts force so independent which probable of Rein- consequence sonable and respon chain events it becomes the installing sewer pipe hold’s conduct of sible, direct, proximate, immediate Therefore, to warn. or Reinhold’s failure injury, cause of it not consist may in granting not err the trial court did merely an act of or contrib concurring summary judgment to Reinhold. uting negligence. proximate Id. Whether Against MMHA usually jury question; cause exists peti in their alleged Plaintiffs also however, interposes a court its properly in failing was negligent tion that MMHA in this determination when the con adequately safeguard and exercise evidence reveals the existence of an inter pipe, trol of the sewer over excavation vening eclipses role the cause which easement within was located played plain defendant’s conduct MMHA, however, of MMHA. control Id. injury. tiffs *7 summary judg its argued in motion Here, undisputed evidence duty ment that it owed no to Heffernan originally shows that while in Reinhold twelve-feet improperly because the shored damaged Plaintiffs cannot pipe, stalled the was deep open fifteen-feet wide hole and proximate negli prove cause to establish obvious, appreciated and and Heffernan gence. upon the sum Based our review of to the col prior condition record, mary judgment we cannot conclude lapse. neigh that reasonably it foreseeable three above, Plaintiffs a must estab- project such with stated bors would undertake to following to com elements order proper safeguards needed lish the out on theo- wrongful death claim a job safely. The record shows succeed plete the (1) a ry negligence: defendant owed could have been done that excavation (2) decedent; to the de- duty own ex of care safely conceded Plaintiffs’ as (3) the duty; that breach noting Gomez. fendant breached pert, Dr. Mario After proximate in fact and the Dr. Go was the cause collapse, reasons for potential (4) death; a however, result stated, cause of his that the excavation mez breach, damages. suffered trench safely if the could have been done Finocchio, we at Because 37 S.W.3d 302. sloped properly been properly had MMHA find that has set forth equipment, such as the bobcat to negate duty backhoe, facts element of Plain- necessary. The trench was claim, negligence tiffs’ apparent to all present those at the scene appropriately rendered. undisput- the excavation. Under these facts, ed we must conclude that the twelve- Generally, occupi an owner or foot and fifteen-foot ditch was wide er of land does protect not have a an open obvious condition on the land. against invitees open conditions that are Hultz, See Kenward v. 371 S.W.2d as a and obvious matter of law. Harris v. (Mo.App.1963) ditch (finding 350-51 Niehaus, (Mo. banc wide, and half- was two to three-feet sev- Supreme Our Court Hams deep, sixty- and approximately en-feet (Second) adopted Restatement of Torts seventy-feet long open and obvious con- 343A(1)(1965), Sections 343 and which em dition). Further, the undisputed evidence body standard of care a landowner Ray appreciated indicated Heffernan Hams, to an owes invitee. if Under posed by danger open and obvious condition on the so property open fact, of the condition trench. Patrick obvious that an invitee reasonably should Lindsey during testified deposition his expected be to discover it realize trench, shortly the collapse before of the danger, possessor of land does not Heffernan, getting while back into the breach standard of care owed invi trench, said, crazy. “This is This looks possessor unless the anticipate tees should dangerous.” Such indicate statements despite knowledge the harm such or obvi danger Heffeman realized the Failure, therefore, Id. at 226. ousness. posed by trench. protect against invitees conditions that are facts, upon Based such cannot con- open and obvious as a of law does matter the trial granting clude that court erred in applicable not fall below the standard of Id. A MMHA possessor care. is not an MMHA. of land well-being protect Ray given absolute insurer did not fail to of its invitees. Id. open was the condition obvious, appre- Heffeman himself pivotal therefore, question, danger ciated the involved. twelve-foot deep and fifteen-foot Against the Dawidowskis open wide ditch is an condition obvious thus, and, matter as a of law reheves alleged petition Plaintiffs further in their MMHA from its duty Hef- Dawidowskis, owners, that the as property or whether fernan MMHA should have (1) were liable for a hazardous condition to expected Ray Heffeman would not (2) invitees, strictly guest, hable to a *8 Here, appreciate danger posed. thus neghgence negli- for hable for to invitees find both that an open we the ditch was safe, gent excavation and failure to make condition, Ray and obvious and that Hef- neghgence guests and liable for to appreciated fernan the harm. neghgent excavation and failure to make Dawidowskis, however, open to whether an the ditch was safe. The counter condition, Ray obvious Heffernan was in judgment their motion for summary involved in closely creating they, the twelve-foot as the servient owner of the tenement, deep maintain, fifteen-foot wide on the were under duty ditch no to land. Heffeman of the warn of repair, dangerous was aware or conditions on job by enormous nature of the the bids he an under the easement control of ease- received. that heavy Heffernan knew ment owner. granting summary in by err brought
Each of the counts is against Plaintiffs Dawidowskis the Dawidowskis.
premised liability on landowner Against Rambo The guest. an or duty owed to invitee alleged Rambo further the trench was undisputed facts show that Ray Hef- failing in to warn negligent was easement, on the which was dug sewer make condition or dangerous of the fernan In the ab under the control MMHA. site safe for Heffernan. the excavation an contrary, agreement sence of Rambo, however, in his asserted responsible keeping easement owner duty no motion he owed any repair in and is liable for property open obvious risks. Ray Heffernan for injury resulting repair. failure to from the Co., Kibbons Union Elec. S.W.2d to the issue Rambo’s respect With (Mo. words, In other banc safe, duty premises to warn or make the duty has no to maintain or a landowner factually analo find the Kenward case or to or repair, warn barricade Kenward, and instructive. gous conditions on the easement that are in the defendant were brothers-in- plaintiff and control of the sole holder easement. re helped other with law who often each This is liable Id. because landowner is receiving Ken projects pay. without pair injuries by only for those caused devices ward, at The plaintiff 346. placed by premises easement dig large the defendant helping under pos holder the landowner’s property. The trench on the defendant’s duty session control. Id. There no hole and half- to three- dug two men two knowledge even where the landowner has wide, approxi feet seven-feet potentially Id. harmful condition. long, mately sixty- seventy-feet without Accordingly, under Indenture of The shoring bracing or the walls. Id. and Restrictions under Covenants which Id. collapsed, injuring plaintiff. trench operates, MMHA had an MMHA exclusive court affirmed the trial appeal, the On over all the easement storm sewers within grant motion to set court’s of defendant’s Mastodon Meadows to maintain order concluding plain the verdict that the aside repair the sewers. As an easement be tiff failed to make submissible case holder, responsible MMHA is for the bro- cause he had not established defendant’s Further, sewer find pipe. ken because we duty. Specif at 351. legal Id. breach contrary agreement no between MMHA ically, the stated: court and the Dawidowskis for the Dawidowskis nothing There is the record to show repairs to maintain or make on the ease- upon came defen- that when ment, we hold the cannot Dawidowskis dig premise and started dant’s responsible for Heffernan’s death. any there trench that condition The Dawidowskis held a servient es- risk involving an unreasonable present no or tate and thus had warn a hidden safety to his constituted against conditions con- pitfall. snare or MMHA, danger, trap, the owner of the controlled any risk incident trench and dition Although Dawidowski easement. Chris *9 apparent digging to therein were excavation, Ray in the at Hef- participated as to defendant. plaintiff obvious to duty fernan’s this did not create a request, By plaintiff use of his senses .... that protect Ray warn to any existing appreciate duty could supercede MMHA’s as the know would de- Thus, as could danger trial did to the same extent easement holder. court fendant, JR., with he at CRANDALL, whom stood in least WILLIAM H. position himself, unless, equal Presiding Judge, concurring part in by dissenting part. some reason disclosed the evi- in dence, superior defendant had knowl- majority I concur in the opinion, which edge of the in work— risks involved in affirms favor of particular, in the likelihood of the trench I Reinhold and the Dawidowskis. am un- collapsing. wall join majority opinion able in the regard- Id. at 350-51. ing Mastodon Meadows Homeowners As- sociation, and Rambo. already
We have determined as a matter that law the trench was an open The majority pivotal states that Ray obvious condition land. Hef- question is whether twelve-foot fernan, Kenward, like the in could ditch open fifteen-foot wide is an and obvi- appreciate existing in danger ous condition as matter of law. I be- trench to the same extent as Rambo. lieve, however, that we need narrow the fact, clearly the record indicates Hef- Certainly inquiry. the size of the ditch fernan danger by was aware of the posed obvious, open was not that trench, undisputed as evinced condition, danger. herein, stated, fact he “This is crazy. This propensity collapse the ditch to dangerous.” Moreover, looks can it be proper shoring. without I believe equal said certainty with did Rambo open condition was and obvi- appreciate danger trench question jury, ous is a of fact for the thus based on the fact that he in died precluding judgment. collapse along with Heffernan. Given accident, Rambo’s resulting statement, death from the As to Heffernan’s “This how we say superior can Rambo had crazy. dangerous,” I This looks cannot knowledge danger conclude, of the at involved as matter of law means excavation site? Nor does the fact that he danger realized the a collapse. Rambo had seen com- previous excavations It is more reasonable conclude that pleted by Reinhold establish that he had Heffernan would not have gone superior knowledge properly digging if he thought collapse. ditch it would I Instead, ditches. believe, least, facts in- very at ap- Heffernan’s dicate that Rambo owed Heffernan no specific preciation danger ques- Therefore, duty. the trial court did not jury question. tion is a err in granting summary Rambo, superior whether he had Rambo. knowledge and thus owed a to Hef- believe, is, jury I question. fernan
Conclusion stated, part For the I reasons concur genuine Because there no issues of and dissent in part. material fact and the defendants are enti- law, tled to as a matter of
judgment of the court trial is affirmed.
CRANDALL, P.J., in part concurs in part opinion.
dissents in separate
CRANE, J., concurs.