Section 13.23 Inherently Dangerous Activity

• Library: Tort Law 2016

2. (§13.23) Inherently Dangerous Activity

There is an exception to the maxim described in §13.22 above if the contracted work necessarily involves, during its progress, the creation of "a condition involving a peculiar risk of bodily harm to others unless special precautions are taken." Stubblefield v. Fed. Reserve Bank of St. Louis, 204 S.W.2d 718, 722 (Mo. 1947). If the work is considered intrinsically dangerous, a primary, nondelegable duty is imposed on the landowner, and hiring an independent contractor does not relieve the landowner of responsibility to persons not involved in the work. See Carson v. Blodgett Const. Co., 174 S.W. 447, 448 (Mo. App. S.D. 1915) (the owner was liable to a passerby injured by blasting performed by an independent contractor); Stubblefield, 204 S.W.2d at 722 (hiring an independent contractor to perform stonework 100 feet above a downtown street did not relieve the owner, as a matter of law, from liability to a pedestrian struck by a falling wooden wedge while walking on the sidewalk, which had not been covered or barricaded).

The verdict directing instruction is MAI 31.15 [1992 New], which provides as follows:

Your verdict must be for plaintiff and against (state the name of the employer of the independent contractor) if you believe:

First, (here describe the allegedly inherently dangerous activity) was an inherently dangerous activity, and

Second, during such activity, (state the name of independent contractor ) either:

failed to (here state the special precaution the independent contractor failed to take), or

failed to (here insert alternative failure), and

Third, (state the name of independent contractor), in one or more of the respects submitted in Paragraph Second, was thereby negligent, and

Fourth, such negligence and the danger inherent in such activity combined to directly cause damage to plaintiff.

See Syn, Inc. v. Beebe, 200 S.W.3d 122 (Mo. App. W.D. 2006) (failure to follow MAI 31.15 was error). The term "inherently dangerous activity" must be defined in accordance with MAI 16.08 [1992 New].

At one time the courts held that, if the work was inherently dangerous, the owner could be liable to its independent contractor’s employees, both for the owner’s negligence in failing to take precautions and vicariously for the independent contractor’s negligence. See:

· Mallory v. La. Pure Ice & Supply Co., 6 S.W.2d 617, 626 (Mo. banc 1928)

· Smith v. Inter-County Tel. Co., 559 S.W.2d 518, 521 (Mo. banc 1977)

· Hofstetter v. Union Elec. Co., 724 S.W.2d 527, 529–30 (Mo. App. E.D. 1986)

· Ballinger v. Gascosage Elec. Coop., 788 S.W.2d 506, 511 (Mo. banc 1990)

But in Zueck v. Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384 (Mo. banc 1991), the Court held that a landowner is not vicariously liable to employees of independent contractors covered by workers’ compensation. The Court overruled Mallory and cases following Mallory, including Ballinger to the extent that those cases were inconsistent with its opinion.

The Court in Zueck summarized the history of the exception for inherently dangerous activities. The Court noted that Salmon v. Kansas City, 145 S.W. 16 (Mo. banc 1912), recognized an owner’s liability to an innocent third party for the acts of independent contractors in per- forming an inherently dangerous activity but refused to extend the exception to the employees of an independent contractor. Mallory overruled Salmon, making the land- owner vicariously liable for injuries received by an independent contractor’s employee. The Zueck Court noted that Mallory "lay relatively dormant" until Smith, which:

[E]ffectively abandoned Mallory, permitting the employee of an independent contractor a cause of action against a landowner only if the employee could show that the landowner negligently failed to ensure that adequate precautions were taken to avoid injury by reason of the inherently dangerous activity, and that such negligence caused the plaintiff’s injury.

Zueck, 809 S.W.2d at 387. The Court in Ballinger then returned to the Mallory standard, eliminating the requirement of landowner negligence announced in Smith.

The Court in Zueck observed that the question of a landowner’s vicarious liability to an independent contractor’s employees had not been presented since Mallory. In Ballinger, the parties assumed that the landowner could be liable to the independent contractor’s employees, and the issue was not presented to the...