Erdman v. Condaire, Inc. , 97 S.W.3d 85 ( 2002 )

ROBERT G. DOWD, JR., Presiding Judge.

Plaintiffs, Todd Erdman and his wife, Tracy Erdman, brought a suit against Condaire, Inc., and Sachs Electric Company to recover damages for injuries Todd Erdman sustained in a fall through an opening in the floor of a building under construction. The jury returned a verdict in favor of Todd Erdman for $700,000 and Tracy Erdman for $235,000 on her separate consortium claim. Condaire, Inc., and Sachs Electric Company appeal contending the Plaintiffs failed to make a submis-sible case, instructional error, and error for failing to conduct a hearing to determine whether two jurors intentionally failed to disclose information during voir dire. Because we find the Plaintiffs failed to make a submissible case, we reverse and remand with instructions.

The facts may be summarized as follows: Todd Erdman (Erdman) was employed by Interior Construction Services (ICS) as a carpenter. During July of 1998, ICS was one of several subcontractors engaged in a two-level expansion project at Sigma Chemical Company (Sigma). Sigma had entered into a construction management contract with Fru-Con Construction Company (Fru-Con) making Fru-Con the general contractor for the construction. As general contractor, Fru-Con agreed to be responsible for general safety at the construction site. As part of its responsibilities, Fru-Con entered into subcontracts with Condaire, Inc. (Condaire), and Sachs Electric Company (Sachs) to install load cells on the vessels that would ultimately house chemicals. As part of their agreement, Condaire and Sachs contracted to take the necessary precautions to avoid injuries to other workers and barricade all floor openings resulting from their work.

When construction began at the Sigma plant, Fru-Con arranged to have the cement subcontractors pre-form large holes in the plant floor to accommodate the vessels with three legs and install a four-inch steel kick plate around the openings. The opening in which each tank was placed appeared as a large circle for the vessel with three rectangular holes along the perimeter for the feet and load cells. Under the three legs of each vessel, there was to be an electronic weighing device called a load cell. Fru-Con ordered that all floor hole penetrations on the project be covered. Fru-Con carpenters fabricated and installed wooden plywood covers. Fru-Con also ordered that all vessels be covered with opaque tarps to protect them. Fru-Con also conducted several daily safety inspections. After the vessels were installed, Condaire worked with Sachs to place the load cells in each of the feet. The installation of the load cell in the reactor room where the accident took place was completed on June 23, 1998.

On July 16, 1998, Erdman arrived for work at the Sigma plant. He was taken to the reactor room where ICS would be working that day. Erdman saw a tarp draped over the vessel that occupied the room, and that the tarp extended onto the floor. Erdman was carrying materials back and forth to a co-worker. On one trip, Erdman stepped on the tarp and his right leg went into the space between the load cell and the foot of the vessel causing him to fall hitting his groin area on the steel kick plate outlining the hole. In his fall, Erdman severed his urethra, for which he later underwent reconstructive surgery. Upon investigation, Fru-Con discovered the wooden cover that should have been placed over the load cell area standing against a wall about fifteen feet from the load cell area.

Erdman and his wife Tracy Erdman filed a negligence suit against Condaire and Sachs claiming that one or both of the Defendants removed the wooden cover from the load cell opening, failed to replace the wooden cover over the load cell opening, and/or failed to warn Erdman about the load cell opening.¹ Tracy Erdman also filed a loss of consortium claim. The jury awarded Erdman $700,000 and Tracy Erd-man $285,000 on her separate consortium claim. Condaire and Sachs filed motions for judgment notwithstanding the verdict and alternative motions for new trial and remittitur and several other post-trial motions. The trial court denied all post-trial motions. Both Condaire and Sachs filed notices of appeal and their appeals were consolidated.

Because Condaire and Sachs’s points on appeal are substantially similar, we will address them together. In its first point, Condaire contends the trial court erred in denying its motion for judgment notwithstanding the verdict because Erdman failed to make a submissible case. Sachs argues the trial court erred in denying its motion for directed verdict because Erd-man failed to make a submissible case. Specifically, both Condaire and Sachs argue they did not have a duty to Erdman at the time of his injury as subcontractors because they did not create the dangerous condition or have responsibility for and control over the load cell area.

The standard of review of a trial court’s denial of motions for directed verdict and judgment notwithstanding the verdict are treated the same and the primary inquiry is whether the plaintiff has made a submissible case. Vintila v. Drassen, 52 S.W.3d 28, 38 (Mo.App. S.D.2001). To make a submissible case, a plaintiff must present substantial evidence for every fact essential to liability. Coggins v. Laclede Gas Co., 37 S.W.3d 335, 338 (Mo.App. E.D.2000). Whether evidence in a case is substantial and whether inferences drawn are reasonable are questions of law. Id. at 339.

In determining whether a plaintiff made a submissible case, we view the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff. Id. We will presume the plaintiffs evidence is true and disregard any of the defendant’s evidence that does not support the plaintiffs case. Id. We will not overturn a jury verdict unless there is a complete absence of probative facts to support it. Id. We do not supply missing evidence or give a plaintiff the benefit of unreasonable, speculative, or forced inferences. Id. A party is bound by the uncontradicted testimony of the party’s own witness, including that elicited on cross-examination. Simpson v. Johnson’s Amoco Food Shop, Inc., 36 S.W.3d 775, 776 (Mo.App. E.D.2001); Eidson v. Reproductive Health Services, 863 S.W.2d 621, 626 (Mo.App. E.D.1993).

In any negligence action, the plaintiff must establish the existence of a duty on the part of the defendant to protect the plaintiff from injury, failure of the defendant to perform that duty, and that the plaintiffs injury was proximately caused by the defendant’s failure. Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 463 (Mo. banc 1998). Here, to recover on his negligence claim, Erdman had to show, by substantial evidence, that Condaire and Sachs- owed him a duty at the time of his injury. Condaire and Sachs maintain Erd-man failed to satisfy this element because they were not under a duty to make the load cell area safe for Erdman at the time of his injury in that they did not create the dangerous condition, and they had no responsibility for and control over the area in which Erdman was injured.

Generally, the general contractor occupies the position of a possessor of the property in relation to persons on the land while the work is in the contractor’s charge and has a duty to use ordinary care to prevent injuries to invitees. Wilson v. River Market Venture, I, L.P., 996 S.W.2d 687, 693-694 (Mo.App. W.D.1999). In contrast, a subcontractor does not stand in the shoes of the landowner for the purposes of determining liability for any injury on the premises during the course of construction. Id. at 696.

In determining whether Erdman made a submissible case under subcontractor liability, we must determine the duty Con-daire and Sachs owed to Erdman at the time of the injury. Condaire and Sachs rely on Mino v. Porter Roofing Co., 785 S.W.2d 558 (Mo.App. W.D.1990) to argue they did not owe a duty because they did not create the dangerous condition, and they had no responsibility for and control over the area in which Erdman was injured. Erdman relies on Killian v. Wheeloc Engineering Co., 850 S.W.2d 759 (Mo.1961) to assert there is no requirement to show Condaire and Sachs had control over the area where he was injured. We first must determine under these facts whether Mino or Killian applies.

Mino sets forth the general propositions that control the liability of subcontractors to employees of other contractors injured on a construction site:

The [sub]contractor is liable where he is in control of and has charge of the work and the dangerous condition is attributable to wrongful or negligent acts of his employees while the work is in progress. [citing case]. If the instrumentality causing the harm is under the control of the defendant [subcontractor and the plaintiff is injured while in a work area common to employees, the defendant owes a duty of care to avoid causing such injury, [citing case]. A[sub]contractor who supplies equipment or devices which are to be used by employees of others on the construction job, owes a duty to make the device safe for its intended use. [citing case]. (Emphasis added.)

Mino, 785 S.W.2d at 561. In Mino, the defendant subcontractor was responsible for resurfacing a roof that had a preformed opening, which would later house air conditioning units. Id. at 559. At the time of the plaintiffs accident, the work was substantially complete. Id. The openings were covered with plywood and styro-foam to protect the building from rain. Id. On the day of the accident, the plaintiff, who worked for the air conditioning contractor, stepped onto an opening covered with only styrofoam and fell through to the floor below. Id.

The jury returned a verdict for the subcontractor and the plaintiff appealed. Id. The plaintiff argued the trial court erred in submitting a verdict-directing instruction requiring the plaintiff to show the subcontractor had responsibility for and control of the area where the plaintiff fell. Id. at 560. The appellate court rejected the plaintiffs argument holding that the jury was properly instructed that the subcontractor’s “liability depended on proof that [the subcontractor] had responsibility for and control over the area of the roof openings where [the plaintiff] was injured.” Id. at 561. In its holding, the court observed the subcontractor owed no duty to the plaintiff because the plaintiff presented no evidence to prove that the subcontractor created the dangerous condition; the location of the accident was not a common work area; and the subcontractor had no control over or right to control the plaintiffs conduct in the performance of his duties. Id. The court found that the undisputed evidence showed that another contractor was responsible for the roof area where the openings were located. Id.

In contrast, Erdman contends under Killian there is no requirement to show Condaire and Sachs had control over the area where he was injured. In Killian, the injured plaintiff was an employee of the general contractor and suffered cuts from scraps of tin, which the defendant subcontractor had left in a common work area. Id. at 760-61. In Killian, the defendant subcontractor was the only subcontractor that produced the tin shavings, and the defendant subcontractor’s employee was working in the basement as a tin-ner. Id. at 761. When the plaintiff left the basement area to perform another task, he did not notice pieces of metal around the ladder on which the tinner was standing. Id. When the plaintiff returned one and a half-hours later, he was injured by the metal shavings around the ladder. Id. In finding a duty, the Killian court focused on the subcontractor’s liability for creating the dangerous condition and did not require a showing that the subcontractor was in control of the area. Id. at 762. Moreover, in Killian, the facts were such that the defendant created the dangerous condition, and the plaintiff was injured in a common work area where both the plaintiff and defendant were working. Id.

The Mino court distinguished Killian by pointing out that the plaintiff in Mino did not present evidence to prove that the subcontractor created the dangerous condition by removing the plywood covering from the roof opening or covering the opening with styrofoam and the accident did not occur in a common work area. Mino, 785 S.W.2d at 561.

Our review of the facts in the record lead us to believe that Mino is controlling, and Erdman was required to show Con-daire and Sachs had responsibility for and control over the area where the accident occurred because there was no substantial evidence that Condaire and Sachs created the dangerous condition.

All parties cite the case of Williamson v. Cox, 844 S.W.2d 95 (Mo.App. S.D.1992), which we find instructive, but not controlling. In Williamson, the defendant subcontractor’s employee had cut an opening in the roof for placement of an air conditioning unit. Id. at 97. While in the process of creating a metal curb eighteen inches high to place around the hole, it started to rain, and the general contractor determined that the roof should be covered with plastic. Id. Because the roof was being covered with plastic, the defendant subcontractor’s employee did not install the metal curb and left the area. Id. The plaintiff then fell through the opening covered by the plastic. Id. In deciding that Mino did not apply, the Williamson court looked to the evidence to determine whether the defendant caused the dangerous condition. Id. The court in Williamson found that the undisputed evidence showed that the defendant subcontractor created the dangerous condition by cutting the hole and allowing it to be covered with plastic without any protection for those moving upon the plastic. Id. The Williamson court further found that although the defendant subcontractor’s employee was required to relinquish the area around the opening to the control of the general contractor, there was a basis for the jury to find that before he left the area he should have taken steps to cover, barricade, or warn of the danger. Id. at 97-98.

Here, unlike the plaintiffs in Williamson and Killian, there is no substantial evidence that Condaire and Sachs created the dangerous condition. The evidence shows the opening through which Erdman fell was pre-formed when the concrete was poured, including the four-inch kick plate surrounding the opening, and Condaire and Sachs did not create the opening. When the accident occurred, Condaire and Sachs’s work on the load cell was substantially complete, and the last time they worked in the area was on June 23, 1998, some twenty-three days prior to Erdman’s accident. Moreover, all employees at the work site had access to the room where the accident occurred and the load cell areas, and there were several trades working in the room on a daily basis, along with their equipment and supplies. Plaintiffs’ own witness, Fru Con’s superintendent, William Leveritt, testified that during the twenty-three days, Fru-Con employees inspected the load cell openings every morning and evening. On each occasion, it was reported that the cover was in place. On the night before Erdman’s accident, William Welch, Fru-Con’s employee responsible for safety, inspected the reactor room containing the vessel and did not notice an uncovered load cell opening or see any covers lying about the room. The same night, William Leveritt verified that the cover was in place. At trial, William Leveritt’s uncontradicted testimony was that on the morning of the accident, William Leveritt again checked this particular opening and confirmed that the cover was in place. We reiterate that in this situation Erdman is bound by William Lever-itt’s testimony because William Leveritt was Erdman’s own witness. See Simpson, 36 S.W.3d at 776; Eidson, 863 S.W.2d at 626. Furthermore, Fru-Con was responsible for placing the tarps over the vessels, and it was aware that the tarps often slide down and overlap the plywood covers and kick plates. On the date of the accident, Erdman had to do a “high step” in order to keep from tripping over the tarp that had slid down the vessel and onto the floor. After reviewing the evidence, we cannot say there is evidence to show Con-daire and Sachs created the dangerous condition. Thus, Erdman was required to show Condaire and Sachs had responsibility for and control over the area where the accident occurred

We next must determine whether Erdman made a submissible case. Facts may be proved by circumstantial evidence. However, the circumstances proven must be such that the facts necessary to support a verdict may be inferred and reasonably follow the verdict, and that the evidence should have a tendency to exclude every other reasonable conclusion. Steward v. Goetz, 945 S.W.2d 520, 528 (Mo.App. E.D.1997). Thus, a submissible case is not made if it depends on evidence that supports two inconsistent and contradictory factual inferences as to ultimate facts. Id.

Erdman presented evidence that Con-daire’s and Sachs’s employees were the only employees that worked in the load cell opening and those employees were responsible for making the area safe. Erdman also presented evidence that there was no reason for any other worker besides Condaire and Sachs employees to work in the load cell openings and that other subcontractors do not perform other trades’ work or handle their equipment. Erdman’s theory was that employees of Condaire and Sachs returned to the area and removed the wooden covering because no other contractor’s employees had authority to enter the opening.

Erdman’s circumstantial evidence was not sufficient to exclude all other reasonable hypotheses. While Condaire and Sachs were the only subcontractors who work directly in the load cell areas, there was no evidence presented that Condaire and Sachs had responsibility for and control over the load cell area when the accident occurred. Condaire and Sachs had moved on to other projects within the Sigma plant. Erdman presented evidence that Fru-Con had conducted a safety inspection the morning of the accident and Fru-Con superintendent William Lever-itt’s uncontradicted testimony was that the wooden cover was in place. There was no evidence that Condaire or Sachs employees were in the reactor room on the day of the accident or were present at the time of the accident. Neither Condaire nor Sachs had any control over Erdman or his duties. Because Erdman failed to produce evidence that Condaire and Sachs had responsibility and control over the area where Erdman was injured, we cannot say Erdman made a submissible ease.

No substantial evidence supports the submission of the case to the jury because there is not substantial evidence to show Condaire and Sachs had responsibility for and control of the area where Erdman was injured. If a plaintiff fails to make a submissible case, the verdict must be reversed and the cause remanded for entry of a judgment notwithstanding the verdict. See PJ’s Concrete Const., Inc. v. Gust, 983 S.W.2d 640, 642 (Mo.App. S.D.1999).

Accordingly, we reverse the jury verdict in favor of the Erdmans and remand the case to the trial court with instructions to enter a judgment notwithstanding the verdict in favor of Condaire and Sachs. Because Condaire and Sachs’s first point is dispositive, we need not address the remaining two points.²

Reversed and remanded with instructions.

HOFF, J., concurs. DRAPER, J., dissents.

1 . Erdman received workers’ compensation benefits from Fru-Con.

2 . We note that with the Mino case controlling, the verdict-directing instructions submitted were deficient because the element of control and responsibility over the area at the time of the injury was omitted.