# Zueck v. Oppenheimer Gateway Properties, Inc.

> Supreme Court of Missouri · June 11, 1991 · 809 S.W.2d 384

URL: https://www.frixlaw.com/law-library/cases/9770197

## Case

- **Full name:** Stephen ZUECK, Plaintiff-Appellant, v. OPPENHEIMER GATEWAY PROPERTIES, INC., Et Al., Defendants-Respondents
- **Court:** Supreme Court of Missouri
- **Decided:** June 11, 1991
- **Citations:** 809 S.W.2d 384; 1991 WL 70127
- **Precedential status:** Published
- **Opinion:** Concurrence by Blackmar
- **Judges:** Robertson, Rendlen, Higgins, Covington, Holstein, Houser, Blackmar, Billings
- **Cited by:** 78 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Limited by Prayson v. Kansas City Power & Light Co., 1992 Mo. App. LEXIS 1920 (1992).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9770197

## How later opinions describe it (automated extraction)

- explaining that purpose of non-delegable duty rule “is to prevent the [principal], for whose benefit the work is being done, from avoiding liability and defeating the recovery of an injured, innocent third party, by hiring a[n] [agent] who is not fiscally responsible____”
- holding that landowner may no longer be held vicariously liable for contractor’s negligence where workers’ compensation is available

## Opinion text

BLACKMAR, Chief Justice,
concurring.
I concur in the principal opinion. This Court has assumed responsibility for the development of the law of torts, and has, not infrequently, overruled earlier decisions in the discharge of that responsibility. We have given careful attention to the evolution of legal concepts as shown by decisions of other courts and the Restatement.
In Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362 (Mo.1969), we gave general approval to the provisions of the Restatement (Second) of Torts and to the decisions from other states from which the Restatement borrowed heavily, in developing the law of product liability. In Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599 (Mo. banc 1969), we abrogated the rule of charitable immunity, overruling the fairly recent case of Schulte v. Missionaries of LaSalette Corp. of Mo., 352 S.W.2d 636 (Mo.1961). Interspousal immunity was abolished in Townsend v. Townsend, 708 S.W.2d 646 (Mo. banc 1986) and S.A.V. v. K.G.V., 708 S.W.2d 651 (Mo. banc 1986). In Jones v. *391 State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), the Court abolished the principles of sovereign immunity for personal torts, overruling O’Dell v. School Dist. of Independence, 521 S.W.2d 403 (Mo. banc 1975). In Bass v. Nooney Co., 646 S.W.2d 765 (Mo. banc 1983), we modified the “impact rule” which had limited recovery in the past. In O’Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), we recognized the standing of a parent to sue for the death of a viable fetus, overruling State ex rel. Hardin v. Sanders, 538 S.W.2d 336 (Mo. banc 1976). We earlier departed from a long line of decisions holding that a child could not recover for prenatal injuries, Steggal v. Morris, 363 Mo. 1224 , 258 S.W.2d 577 (1953), contrary to decisions from Missouri and elsewhere over the years. These cases demonstrate the point and further examples are not necessary. It is of interest that Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95 , 6 S.W.2d 617 (1928), a precedent of more than sixty years, itself overruled a case decided some 25 years earlier.
Ballinger v. Gascosage Elec. Co-op., 788 S.W.2d 506 (Mo. banc 1990), is a very recent case, but the point on which the principal opinion turns was not briefed or argued. We have not always waited for briefing or argument before effecting substantial changes in the law, Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983); Firestone v. Crown Center Redevelopment Corp., 693 S.W.2d 99 (Mo. banc 1985), but we usually confine ourselves to the points adduced by the parties. The principal opinion persuades me that Mallory should be overruled.
I find Smith v. Inter-County Tel. Co., 559 S.W.2d 518 (Mo.1977) enigmatic. The four point test for an “inherent danger” situation was not urged on the Court by either side in the briefing or argument. As was pointed out in Ballinger, Smith departed sharply from existing authority in apparently adding a requirement of negligence on the part of the owner as an element which must be submitted when the inherently dangerous activity rule is invoked. Ballinger corrected that assumption in authorizing a submission on the basis of purely vicarious liability. Perhaps Smith retains some validity in a ease in which the evidence supports a finding of a duty from the owner to others and a breach of that duty through the owner’s own negligence. That is not this case. Ballinger also seems to remain viable when claim is made on behalf of one who is not the employee of the contractor.
With these observations, I concur in the principal opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770197. Public record. Not legal advice.