Joseph Zygler v. Hawkins Construction

In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
JOSEPH ZYGLER ) No. ED108543
)
Appellant, ) Appeal from the Circuit Court of
) St. Louis County
vs. )
) Honorable David L. Vincent III
HAWKINS CONSTRUCTION, ET AL., )
)
Respondent. ) Filed: September 22, 2020
Introduction
Plaintiff-appellant Joseph Zygler (“Appellant”) appeals the entry of summary judgment on
his negligence claims for defendant-respondents Hawkins Construction & Flat Work Contracting
Co. (“Hawkins”) and Deluca Plumbing, Inc. (“Deluca”) (“Respondents”). Respondents were
subcontracted by general contractor K&S Associates to work on a new government building in
Wildwood, Missouri. Hawkins was hired to perform concrete work and Deluca was hired to
perform plumbing work. Appellant was an employee of St. Charles Acoustics, the flooring
subcontractor on the project. The issue here is a question of law: whether the acceptance doctrine
applies to shield Respondents from liability.
Appellant raises six points on appeal – three points regarding Deluca’s liability and three
regarding Hawkins’ liability. Appellant’s arguments are parallel in Points I and IV, Points II and
V, and Points III and VI. In Points I and IV, Appellant argues summary judgment was improper
because Respondents owed a duty of reasonable care to Appellant under a general negligence
theory. Respondents contend they are protected from liability by the acceptance doctrine, an
affirmative defense available to subcontractors under Missouri negligence law. Appellant argues
the acceptance doctrine does not apply. In Points II and V, Appellant argues even if the acceptance
doctrine applies, summary judgment was improper because genuine issues of material fact exist
about whether K&S accepted Respondents’ work before Appellant’s injury. In Points III and VI,
Appellant argues he was a third-party beneficiary of the contracts between K&S and Respondents
and Respondents owed a heightened duty of care to protect Appellant from injury. Finding no
genuine issues of material fact Respondents were entitled to judgment as a matter of law, we
affirm.
Factual and Procedural History1
In 2012, K&S constructed a government building for the City of Wildwood, Missouri.
K&S subcontracted various construction tasks to several subcontractors. Three subcontractors
relate to this appeal. K&S hired subcontractor Hawkins to perform concrete foundation and
flatwork-related tasks on the project, Deluca to perform plumbing work, and St. Charles Acoustics
to perform floor tiling.
This case concerns a workplace injury. On November 14, 2012, Appellant was doing floor
tiling work on the project for St. Charles Acoustics. Around noon, Appellant was walking in an
unlit hallway when his boot caught on a plumbing cleanout that protruded approximately ¾-1 inch
from the concrete floor. Appellant tripped, injuring his ankle. Deluca installed the rough plumbing
including the cleanout. Hawkins poured the concrete floor over the roughed in plumbing and
around the cleanout. The cleanout had no warning signs or markers around it. Appellant says the
1
Because this is an appeal of summary judgment, the facts are set forth in the light most favorable to Appellant’s case.
2
cleanout was difficult to see because it was dirty and similar in color to the surrounding concrete.
Appellant testified that in his experience on other job sites, plumbing cleanouts are sometimes
marked with cones or rings to alert others to the possible tripping hazard.
Respondents claim they finished work on the area where Appellant was injured several
months before the injury. Deluca alleges it finished rough in plumbing work in the hallway where
Appellant was injured by April 27, 2012 and moved on to other finishing projects throughout the
building. Hawkins alleges it finished its concrete work in the interior of the building by May 15,
2012 and performed outdoor work only after that date. Respondents argue K&S reviewed and
accepted the quality and completeness of their work on the hallway several months before
Appellant’s injury. Respondents supported their assertions by submitting proof of payment from
K&S for their work in the hallway, while noting other tasks that were uncompleted had not yet
been paid.2
Appellant sued K&S on March 7, 2016. He then amended his petition to include
Respondents on July 8, 2016. Appellant voluntarily dismissed K&S without prejudice on August
8, 2016. After discovery, Respondents moved for summary judgment on June 14, 2017. The trial
court granted Respondents’ motion on October 27, 2017. This appeal follows.
Standard of Review
The standard of review on summary judgment is essentially de novo. ITT Commercial
Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376. When considering
appeals from summary judgment, we review the record in the light most favorable to the party
against whom judgment was entered. Id. (citing Zafft v. Eli Lilly, 676 S.W.2d 241, 244 (Mo. banc
1984)). This Court exercises great care in affirming summary judgment because doing so denies
2
Respondents submitted affidavits signed by K&S president Thomas Kraska that certified Respondents’ work in the
hallway was complete and to K&S’s satisfaction by no later than May of 2012.
3
the losing party its day in court. Id. at 377. We accord the nonmoving party the benefit of all
reasonable inferences from the record. Id. at 376 (citing Martin v. City of Washington, 848 S.W.2d
487, 489 (Mo. banc 1993)). We will affirm summary judgment when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Germania Bank v.
Thomas, 810 S.W.2d 102, 105 (Mo. App. 1991).
Discussion
Points I-III apply to Appellant’s action against Hawkins and Points IV-VI apply to
Appellant’s action against Deluca. Points I and IV, II and V, and III and VI are parallel arguments.
We will address Appellant’s parallel arguments together.
Points I & IV: Whether the Acceptance Doctrine Applies
In Points I and IV, Appellant argues Respondents negligently caused his injuries because
(1) they owed a duty of care to protect Appellant from injury, (2) they failed to perform their duty,
and (3) their failure was the proximate cause of Appellant’s injury. Appellant also argues the
acceptance doctrine should not shield Respondents from liability here because the doctrine applies
only to cases involving premises liability, not general negligence. Appellant notes the single count
of his amended petition alleged negligence and not premises liability. He argues the acceptance
doctrine is irrelevant to the question of Respondents’ liability.
Respondents argue K&S accepted and paid for their work on the plumbing cleanout six
months before Appellant’s injury. They further argue they had no control over the area at the time
of the injury because they vacated the space to make way for other subcontractors to work,
including Appellant’s employer. Respondents argue the acceptance doctrine is a complete
affirmative defense shielding them from liability.
4
A. The Acceptance Doctrine
The acceptance doctrine is the principle that when a subcontractor completes work on a
project or portion of a project and relinquishes control to the general contractor, the general
contractor assumes responsibility for any defects in the work and “relieves the subcontractor of
liability as to a third person.” Weber v. McBride & Son Contracting, Co., 182 S.W.3d 643, 644
(Mo. App. E.D. 2005). The purpose of the acceptance doctrine is to cut off subcontractor liability
after they give up the right of control over their work and the general contractor holds the work
out as its own, including defects. Id. at 644-45 (citing Casey v. Hoover, 89 S.W. 330, 334 (1905)).
Under the acceptance doctrine, contractors are liable to third parties only if they had control or the
right to control the premises at the time of the injury. Coleman v. City of Kansas City, Mo., 859
S.W.2d 141, 146 (Mo. App. W.D. 1993).
Acceptance of a subcontractor’s work can be proven by an overt act or by constructive or
practical acceptance through the general contractor’s control or use of the property. Roskowske v.
Iron Mountain Forge Corp., 897 S.W.2d 67, 71 (Mo. App. E.D. 1995). Acceptance need not be
made formally. Id. (citing Gruhalla v. George Moeller Construction Co., 391 S.W.2d 585, 597
(Mo. App. 1965)). If a plaintiff claims work was not accepted, the plaintiff must prove a lack of
acceptance. Wilson v. Dura-Seal and Stripe, Inc., 519 S.W.3d 479, 482 (Mo. App. E.D. 2017).
B. The Acceptance Doctrine Applies Here
Here, Appellant’s contention that the acceptance doctrine does not apply to subcontractors
in negligence cases is contradicted by more than a century of case law in Missouri. Missouri courts
have consistently applied the acceptance doctrine in negligence cases. See, e.g. id. at 482-83;
Weber, 182 S.W.3d 644-45 (2005); Singleton v. Charlebois Const. Co., 690 S.W.2d 845, 849
(1985); Gruhalla, 391 S.W.2d 585 (1965); and Casey, 89 S.W. 330.
5
Appellant relies first on Daoukas v. City of St. Louis to argue the acceptance doctrine
should shield subcontractors from liability only if a plaintiff asserts a premises liability claim. 228
S.W.3d 30, 35 (Mo. App. E.D. 2007). This reliance is misplaced. Although Daoukas involved an
independent contractor’s liability to a third party, the acceptance doctrine was not at issue. Id. at
32-33. Instead, the independent contractor defense was at issue. Id. at 34. The independent
contractor defense shields property owners from premises liability claims, but not from general
negligence, for harm that occurs while a contractor controls the property. Id. Appellant’s
argument to limit the acceptance doctrine to premises liability is unsupported by Daoukas and
therefore fails.
Appellant also argues Respondents’ liability can be established solely by their participation
in creating a dangerous condition. When the acceptance doctrine applies, a general contractor is
presumed to have inspected the property for defects, assumed responsibility for the property, and
relieved subcontractors of liability to third parties. See Weber, 182 S.W.3d at 644. Taking the
facts in the light most favorable to Appellant, even if Respondents created a dangerous condition,
K&S’s inspection, payment, and control of the workspace is sufficient for the acceptance doctrine
to apply.
Appellant cites Killian v. Wheeloc Engineering for the proposition that a subcontractor can
be liable in negligence to a fellow subcontractor sharing a workspace with him. 350 S.W.2d 759,
761-62 (Mo. 1961). In Killian, the plaintiff carpenter was injured when he stepped on scrap that
another subcontractor negligently placed in a common area where both were working. Id. The
plaintiff won at trial and on appeal, with the Missouri Supreme Court finding the subcontractor
owed a duty of reasonable care to the plaintiff. Id. at 762. Respondents correctly point out the
defendant subcontractor owed a duty to his fellow worker in Killian because both were still
6
working on the same area of the same project and had not yet relinquished control of the workspace
as required by the acceptance doctrine. Killian is therefore distinguishable and inapposite.
Similarly, Appellant relies on Smith v. Dewitt and Assoc., Inc. for the proposition that a
subcontractor can be liable in negligence for injuries suffered by a plaintiff, even if the
subcontractor was not in control of the area or dangerous condition at the time of the injury. 279
S.W.3d 220 (Mo. App. Ct. 2009). In Smith, the plaintiff was at a construction site when he fell
through a wooden guardrail weakened by a subcontractor repeatedly removing and reattaching it.
Id. at 222. The movement of the guardrail weakened it over time, eventually creating a dangerous
condition that ultimately caused the injury. Id. Smith did not involve the acceptance doctrine – it
was about whether the defendant contractors could prevail on summary judgment if they failed to
refute the plaintiff’s claim that one defendant loosened the guardrail. Id. at 225. Because the Smith
subcontractors’ work (1) had not been accepted by an authority such as a general contractor or the
owner of the premises at the time of the injury and (2) the acceptance doctrine was not raised as a
defense, Smith is inapposite. Id.
Appellant also relies on Williamson v. Cox to argue a subcontractor can be liable for
negligence if an injury occurs after the subcontractor relinquished control of a workspace to the
general contractor with the subcontractor-created dangerous condition still in existence. 844
S.W.2d 95 (Mo. App. S.D. 1992). In Williamson, a subcontractor tasked with cutting a hole in the
roof of a building had to temporarily relinquish control of the area to the general contractor while
the roof was being covered in plastic to keep out rain. Id. at 97. The subcontractor did nothing to
warn other workers of the hole in the roof or mark it. Id. at 97-98. The general contractor’s
employee fell through the hole and was injured. Id. at 97. The employee recovered from the
7
subcontractor in negligence because the subcontractor caused the dangerous condition and did
nothing to stop the plaintiff from walking toward the concealed hole. Id.
Appellant’s reliance on Williamson is misplaced. Although the subcontractor temporarily
relinquished control of the roof, the relinquishment of control regarding that area was not
permanent and was not because the general contractor accepted his work as complete. The
subcontractor’s work in the area was only partially done – a hole had been cut in the roof but that
was only the first step in preparing the roof to install an air conditioning unit. Id. Williamson is
therefore distinguishable by its facts and inapposite because it did not involve the acceptance
doctrine.
Appellant relies on Woodall v. Christian Hospital NE-NW for the proposition that when a
plaintiff alleges “negligent conduct rather than the condition of the property itself, a negligence
claim may lie.” 473 S.W.3d 649, 658 (Mo. App. E.D.). In Woodall, an asbestos abatement
contractor was working on an upper floor of respondent landowner’s building and needed to visit
the boiler room in the basement. Id. at 652. The contractor did not know the respondent’s
employees had removed the handrail on the stairs. Id. As a result, he fell and sustained serious
injuries. Id. The court concluded a genuine issue of material fact existed about whether the
landowner’s conduct breached a duty of care and whether the breach was the proximate cause of
the plaintiff’s injuries. Id. at 658. Woodall is inapposite because it does not address the
fundamental issue raised in Points I and IV: whether Respondents can be liable even though
Appellant was injured after Respondents returned control of the workspace to K&S. Contrary to
Appellant’s assertion that the “issue of control of the premises is irrelevant”, the right of a
subcontractor to control and make changes to a workspace at the time of the injury is the reason
8
the acceptance doctrine exists and is fundamental to determining liability. See Weber, 182 S.W.3d
at 644-45 and Coleman, 859 S.W.2d at 146.
The cases Appellant cites are also inapposite because of the timing of the injury. Appellant
cites cases where subcontractors were liable because they owed a duty to others (1) while they
were still working on their projects and (2) had not yet been released from their duties in the
workspace where the injury occurred. The acceptance doctrine applies here because Appellant
was injured after Respondents finished working on the hallway and were released from
responsibility for that area six months before the injury. By the time Appellant was injured,
Hawkins moved on to outside concrete work and Deluca moved on to unrelated “finish” plumbing
throughout the building. Points I and IV are denied.
Points II and V: Whether Summary Judgment on the Issue of Acceptance was Warranted
Appellant argues even if the trial court was correct in concluding that the acceptance
doctrine applies here, genuine issues of material fact remain about whether K&S accepted
Respondents’ work. Specifically, Appellant argues factual questions remain whether K&S
formally or constructively accepted the work in the hallway where Appellant was injured.
Appellant notes if a general contractor did not formally accept a subcontractor’s performance, a
factual question precluding summary judgment may exist if the facts rebut a presumption of
acceptance by the general contractor.
Appellant relies on Fattah v. Tran for the proposition that a subcontractor does not
relinquish control of a job site by simply leaving the workspace, particularly if there is shared
access to the site, the general contractor has not inspected the subcontractor’s work, or there was
no communication between the general contractor and subcontractor after the subcontractor
9
finished working.3 2009 WL 6371480. Appellant analogizes Fattah to the facts here, arguing
K&S never formally inspected or accepted Respondents’ work. We disagree. In Fattah, the
accident occurred within hours of the end of the subcontractor’s work. The general contractor did
not inspect the work or communicate with the subcontractor before the accident. Here
Respondents produced proof they finished working in the hallway six months before the accident,
K&S paid for that portion of the work, and authorized other workers to take over the space. Fattah
raises no genuine dispute about whether K&S’s conduct regarding Respondent’s work in the
hallway rose to the level of acceptance.
The record refutes Appellant’s assertion “there was no evidence submitted to the Trial
Court that a formal acceptance of [Respondents’] work . . . was ever made by K&S.” Appellant’s
argument relies on the fact (1) Hawkins continued to lay concrete outside the building after
completing work on the hallway and (2) Deluca continued its plumbing operations elsewhere in
the building. Appellant also argues Hawkins’ work outside the building caused one exit to be
blocked on the day of the accident, forcing Appellant to use the hallway where he was injured.
These facts do not create a genuine issue of material fact about whether K&S accepted
Respondents’ work on the hallway. Thomas Kraska, the President of K&S, submitted an affidavit
certifying Hawkins completed work on the interior of the project by May 14, 2012 and K&S
acknowledged the project as complete on that date.4 Similarly, Kraska certified by affidavit that
Deluca completed its work on the hallway part of the project by April 27, 2012 and retained no
control over the area after that day. K&S paid Respondents for their work on the hallway after it
3
We note Fattah is an unreported circuit court case. Unpublished opinions, let alone unpublished circuit court
opinions, are neither binding nor persuasive precedent in this Court. Executive Bd. of Missouri Baptist Convention v.
Windermere Baptist Conference Ctr., 280 S.W.3d 678, 691 (Mo. App. W.D. 2009).
4
Kraska clarified in his deposition that Hawkins finished work a day later, May 15. This single-day difference is not
material to our analysis.
10
was completed and before the accident. Respondents were only paid for segments of their work
after each segment was completed to K&S’s satisfaction. There is also no genuine dispute that
Respondents retained no control over the area after they were paid. It is undisputed that other
subcontractors – including Appellant’s employer – took over the space after Respondents vacated
it. Whether Hawkins’ outdoor project blocked an exit is immaterial to acceptance because K&S’s
payment history shows the outside work and hallway work were separate, unrelated projects.
Therefore, no reasonable inferences support Appellant’s argument that Respondents’ work was
not “accepted” by K&S.
We conclude the trial court correctly determined there are no genuine issues of material
fact regarding K&S’s acceptance of Respondents’ work. The trial court properly granted summary
judgment. Appellant’s arguments in Points II and V are denied.
Points III and VI: Whether Respondents Owed Appellant a Heightened Duty of Care as a
Third-Party Beneficiary of Their Contracts with K&S
Appellant’s final points on appeal argue the contractual relationship between Respondents
and K&S imposed heightened duties of care on Respondents. Appellant argues further that he was
a member of the class owed a heightened duty as an intended third-party beneficiary. Respondents
argue (1) Appellant was at most an incidental beneficiary of the contract, (2) the terms of the
contract specifically preclude third party causes of action based on the contract, (3) Appellant
cannot allege breach of contract on appeal because he pled no contract causes of action, and (4)
the acceptance doctrine severs any duty owed by subcontractors to third parties after the
subcontractor finishes working. Appellant’s arguments are without merit.
A third-party beneficiary to a contract can sue on the contract if the contract terms express
intent to benefit the third party or an identifiable class that the third party is a member of. State ex
11
rel. William Ranni Assoc., Inc. v. Hartenbach, 742 S.W.2d 134, 140-41 (Mo. banc 1987). Third
party beneficiaries do not have standing if they are incidental beneficiaries to a contract, where
they benefit only collaterally from the contract. Id. at 140.
Appellant claims he was a member of an expressly identified class under the terms of the
contracts between K&S and Respondents. He directs our attention to language in Respondents’
contracts that allegedly impose duties on Respondents to protect employees and other persons at
the job site. (Emphasis added). In Appellant’s view, he was an “other person” under the contract
and was owed a heightened duty of care by Respondents as an intended beneficiary. Appellant
suggests Respondents could have met their duty of care by posting danger notices or erecting safety
barriers. Appellant argues Respondents breached their contracts with K&S by not taking steps to
protect other persons after they vacated the workspace. Appellant argues there is a genuine issue
of material fact about whether Respondents breached their contracts regarding their duty of care
to third parties and asks us to reverse summary judgment on that basis.
Appellant’s argument fails for several reasons. First, Respondents accurately note causes
of action must be pled at the trial court and new issues cannot be raised on appeal of summary
judgment. LeBlanc v. Patton, 247 S.W.3d 573, 576 (Mo. App. E.D. 2008). Appellant’s First
Amended Petition contains no contract claims or other claims based on his third-party beneficiary
status. Appellant raised a contract claim for the first time on appeal. Appellant cannot raise this
cause of action for the first time on appeal. Id.
Even if Appellant’s argument could have been raised on appeal, it would fail. Appellant
argues Respondents’ duty to protect people on the job site made him an intended beneficiary under
the contract. This interpretation is incorrect. Intended third party beneficiaries have a “right to
maintain a cause of action for breach of contract even though the third party is not privy to the
12
contract or its consideration.” OFW Corp. v. City of Columbia, 893 S.W.2d 876, 879 (Mo. App.
W.D. 1995). The question of intent is paramount and should be gleaned from the four corners of
the contract. Id.
No reasonable interpretation of the contract between K&S and Respondents indicates intent
to grant Appellant or those similarly situated a cause of action under the contract. Paragraph 27.3
of the contracts between K&S and Respondents state “[n]o provision contained in this Subcontract
shall create or give to third parties any claim or right of action against K&S or Subcontractor in
addition to those legally existing in the absence of such provision.” As OFW makes clear, when
the four corners of a contract indicate no intent to create new claims or rights of action for third
parties, this Court will not create a right. Id. We find no reasonable inference supporting
Appellant’s assertion he was an intended beneficiary under the contract because the terms of the
agreement directly contradict his claim. Appellant cites no authority to suggest paragraph 27.3
should not be given effect. Because Appellant failed to raise this claim in his pleadings and no
reasonable inference supports his claim of right as an intended beneficiary, we need not reach the
remainder of Appellant’s arguments under the contract about the acceptance doctrine. Points III
and VI are denied.
Conclusion
We have reviewed the record in the light most favorable to Appellant’s case and afforded
Appellant all reasonable inferences. The material facts surrounding Appellant’s injury are
undisputed and the law is clear: Missouri’s acceptance doctrine insulates subcontractors from
liability for their work after they relinquish control of a workspace to the general contractor and
the general contractor approves the work. Weber, 182 S.W.3d at 644. On this record, there are no
reasonable inferences Respondents were still working where Appellant was injured at the time of
13
the injury or K&S did not accept their completed work. Respondents are entitled to judgment as
a matter of law and the judgment of the trial court is affirmed.
_______________________________
Philip M. Hess, Judge
Gary M. Gaertner, Jr., P.J. and
Michael E. Gardner, J. concur.
14