Stars Investment Group, LLC et al v. AT&T Corp. et al

Filing 93

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that the motions for summary judgment filed by Defendants AT&T Corp. (AT&T) and MasTec North America, Inc. (MasTec) are GRANTED in part, as to Plaintiffs' direct negligence claims against MasTec (Cou nts II and X), Plaintiffs' negligent hiring and negligent supervision claims against AT&T and MasTec (Counts VI, VII, XIV, and XV), and Plaintiff Star's Design Group, Inc.s negligent misrepresentation claim against AT&T (Count XVII). The motions are otherwise DENIED. (Doc. Nos. 69 & 70 .). Signed by District Judge Audrey G. Fleissig on 2/27/2017. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STARS INVESTMENT GROUP, LLC
and STAR’S DESIGN GROUP, INC.,
Plaintiffs,
v.
AT&T CORP., MASTEC NORTH
AMERICA, INC., and FOUR WINDS
CONSTRUCTION, LLC,
Defendants.

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No. 4:15CV01370 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motions (Doc. No. 69 & 70) for summary
judgment filed by Defendants AT&T Corp. (“AT&T”) and MasTec North America, Inc.
(“MasTec”). Plaintiffs’ claims against these Defendants (two of the three Defendants in
this case) arise out of a gas line explosion, which occurred during the installation of
underground fiber optic cable lines on or near Plaintiffs’ property and which destroyed
Plaintiffs’ property. For the reasons set forth below, Defendants’ motions will be granted
in part and denied in part.
BACKGROUND
For purposes of these summary judgment motions, the record establishes the
following. In 2013, Plaintiff Star’s Design Group, Inc. (“SDG”) contracted with AT&T
to install underground fiber optic cable lines into its headquarters office, located in a

building owned by Plaintiff Stars Investment Group, LLC (“SIG”),1 at 2222 Menard
Street, St. Louis, Missouri. The contract between SDG and AT&T provided that “AT&T
may . . . subcontract work to be performed under the Agreement, but AT&T will in each
such case remain financially responsible for the performance of such obligations.” (Doc.
No. 69-4 at 5.) The contract also included a “Limitation of Liability” provision, limiting
AT&T’s liability for damages arising out of a breach of the contract to “the applicable
credits specified in the service publication or, if no credits are specified, an amount equal
to the total net charges to the customer for service to which such breach relates during the
period in which such breach occurs and continues.” Id. at 4. However, the Limitation of
Liability provision stated that it did “not apply to bodily injury, death or damage to real
or tangible property directly caused by AT&T’s negligence or intentional misconduct.”
Id.
In affidavits submitted in response to Defendants’ motions, two of SDG’s
executive officers attested that, in approving and executing the contract with AT&T, they
interacted exclusively with AT&T personnel and relied on AT&T’s representations that
“AT&T would be conducting the project and ensuring its proper completion.” (Doc.
Nos. 80-4 & 80-5.)
AT&T subcontracted the SDG project to MasTec for a flat fee of $6,900, pursuant
to a contract AT&T had previously entered into with MasTec to provide fiber optic cable
installation services for AT&T’s customers. MasTec, in turn, subcontracted the SDG

1

It is not clear from the record whether and how SDG and SIG are affiliated.
-2-

project to Defendant Four Winds Construction, LLC (“Four Winds”), also for a flat fee.2
AT&T’s corporate representatives testified by deposition that they did not know that
MasTec would be hiring Four Winds to complete the project and that they did not learn
of Four Winds’ existence until after the gas explosion at issue in this lawsuit.
AT&T’s Contract With MasTec
In its contract with AT&T, MasTec agreed to perform all work “as an independent
contractor and not as the agent or employee of AT&T.” MasTec further agreed that its
personnel “shall be considered solely the employees or agents of [MasTec] and not
employees or agents of AT&T”; that MasTec was responsible for payment of all
compensation and benefits to its employees; and that MasTec retained “full control and
supervision over the performance” of the contract. (Doc. No. 69-2.) Although the
contract allowed AT&T to “have inspectors at the job site to inspect the performance and
quality of the Work and to ensure [MasTec’s] compliance” with order specifications and
the contract’s terms, the contract stated that “[a]ny AT&T inspectors, employees or
agents . . . shall have no authority to direct or advise [MasTec] concerning the manner by
which the Work is to be performed.” Id. The contract provided that MasTec had “sole
authority, responsibility and control over the Work.” Id.
William Galluzzo, a contract coordinator for AT&T, testified by deposition as
AT&T’s corporate representative regarding how AT&T handled fiber optic cable
installation projects performed by contractors such as MasTec during the relevant time
period. According to Galluzzo, AT&T designed the placement of fiber optic cables, and
2

The record does not indicate the amount of this fee.
-3-

AT&T’s contractors “simply follow[ed] the design that [AT&T] provide[d].” (Doc. No.
79-6 at 2.) Galluzzo testified that designing the cable placement involved “[k]nowing
where the customer location is, knowing where our existing facilities are where we have
to connect to, and . . . finding a feasible route, whether it be aerial, buried or
underground, to get the facilities from our main infrastructure to the customer.” Id.
AT&T looked for existing utilities when plotting their cable routes and made adjustments
if existing utilities were exposed after the initial route was plotted. These design
adjustments had to be approved by AT&T.
Galluzzo further testified that AT&T was responsible for evaluating which permits
were necessary for cable installation projects. For projects in the City of St. Louis,
AT&T would apply for a permit from the City of St. Louis and after a permit was
obtained, the AT&T contractor would use the city permit number to apply for a separate
excavation permit. Galluzzo testified that AT&T provided materials such as “[c]ables,
cabinets, terminals, conduit, inner duct, and manholes” for cable installation jobs. Id. at
16.
According to Galluzzo, once a fiber optic cable installation project began,
AT&T’s contractors were to report to AT&T employees known as contract coordinators,
such as Galluzzo. These contract coordinators were considered “field managers,” and
their job was to confirm that AT&T’s contractors were following proper safety and
quality procedures, including procedures to locate any existing utilities. Galluzzo
testified that contractors were supposed to notify AT&T when they or their
subcontractors started a particular job, and were supposed to send AT&T a daily work
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log of what they or their subcontractors were going to be working on the following day.
Galluzzo testified that AT&T had “all kinds of guidelines” for its contractors, including
guidelines for the “[d]epth that fiber cable should be buried at, recommended depth.” Id.
at 21. Galluzzo further testified that AT&T had authority to tell contractors not to start
work on a particular day if, for example, the proper permits had not been obtained.
According to Galluzzo, AT&T contract coordinators not only evaluated the
finished result of projects for quality control, but also “visit[ed] jobs every day” and were
“out in the field every day.” Galluzzo testified that “every active project that we have
going on we’re going by and we’re making sure that, you know, [contractors] have the
proper work area protection, you know, signage on their trucks that they’re representing
AT&T properly.” Id. at 9.
MasTec’s Contract With Four Winds
Like the contract between AT&T and MasTec, the contract between MasTec and
Four Winds provided that Four Winds was “engaged as an independent contractor and is
not an agent or employee of [MasTec].” (Doc. No. 69-3.) The contract provided that
Four Winds would have “full control and supervision of the performance of the Work,”
but that MasTec “may deny access to the Work site to any employee or other agent of
[Four Winds] who is not in compliance with the requirements of the [contract].” Id.
Under the contract, Four Winds was responsible for payment of all compensation and
benefits to its employees, and was required to supply all labor, tools, equipment, vehicles,
fuel, and other materials necessary to complete the work. Id.

-5-

MasTec’s corporate representative, Randall Butler, testified by deposition
regarding MasTec’s performance of fiber optic cable installation for AT&T, including
MasTec’s use of subcontractors. Butler, a project coordinator for MasTec who worked
exclusively on AT&T contracts, testified that MasTec typically walked through cable
installation projects with its subcontractors, including by instructing its subcontractors
where to place the cable lines. Butler indicated that MasTec communicated with
subcontractors regularly to get updates on projects, and also performed quality control
checks after subcontractors completed projects.
SDG Cable Installation Project
According to Galluzzo, AT&T set the start date for the SDG cable installation
project as February 3, 2014, and the completion date as February 10, 2014. Although
AT&T had not received a permit from the City of St. Louis by February 3, 2014, AT&T
never adjusted the project start date.
On January 30, 2014, MasTec contacted the Missouri One Call System to locate
existing underground utilities or facilities in the area of installation for the SDG project.
On February 3, 2014, employees from United States Infrastructure Corporation marked
the existing underground utilities in the area, including a gas line which was marked with
yellow paint according to industry standards.
Later in the day on February 3, 2014, after all utilities in the area had been
marked, MasTec’s Butler met with Jim McElveen, a Four Winds supervisor, at the dig
site. During this meeting, Butler identified the utility location marks for McElveen and
“walked over” the job with McElveen, including by instructing McElveen where to place
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the cable lines. Butler instructed McElveen that Four Winds should not start the
installation until AT&T had received proper permits from the City of St. Louis, and until
Four Winds obtained a license to perform work in City of St. Louis3 and called in a
request for its own “utility line locates.” Butler testified that he informed McElveen
during the February 3rd meeting that AT&T had not yet obtained a city permit. Butler
directed McElveen to bring all required permits and licenses, once obtained, to MasTec
before starting the installation.
On February 5, 2014, snow covered the job site and obscured the utility markings.
AT&T also had not yet secured a permit from the City of St. Louis by that day, and Four
Winds had not obtained a license or excavation permit to perform work in St. Louis.
Nevertheless, Four Winds proceeded with the cable installation. No one from AT&T or
MasTec was on the job site on February 5, 2014, and neither AT&T nor MasTec was
aware that Four Winds was beginning work on that day. All members of the installation
crew were Four Winds employees, and Four Winds owned the directional drill, mini
excavator, trailer, and trucks used to complete the installation. During the course of the
installation, the drill Four Winds was using struck the gas line running to Plaintiffs’
building, causing a fire and an explosion. The fire and explosion on February 5, 2014,
destroyed Plaintiffs’ building and caused other property damage.
Butler testified that, had he known that Four Winds was starting the installation on
February 5, 2014, he or anyone else at MasTec who had known of the circumstances
3

According to Butler, Four Winds had to apply for a city license to perform work in
the city, which required proof of insurance, and also had to apply for an excavation
permit, which first required AT&T to obtain a city permit.
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would have called McElveen and stopped Four Winds from performing the installation.
Butler testified that he believed the explosion on February 5, 2014, happened because
Four Winds “screwed up.” (Doc. No. 80-6 at 38.)
Butler further testified that he was not personally involved in any evaluation of
Four Winds before beginning the project for SDG. However, he testified that Four
Winds had previously done subcontract work for MasTec in Minnesota, that he believed
that Four Winds was competent and experienced, and that he had not had any issues with
Four Winds until the February 5, 2014 incident.
Plaintiffs filed suit in state court on July 31, 2015. On September 3, 2015,
Defendants removed the case to this Court, invoking the Court’s diversity jurisdiction. In
their amended complaint, both Plaintiffs assert various types of negligence claims against
AT&T and MasTec.4 Specifically, Plaintiffs assert direct negligence claims against
MasTec (Counts II and X),5 and Plaintiffs assert several claims which seek to hold AT&T
and MasTec vicariously liable for Four Winds’ and Four Winds’ employees’ conduct.
Plaintiffs label these vicarious liability claims as: Respondeat Superior against AT&T
and MasTec (Counts III, IV, XI, and XII), Res Ipsa Loquitur against AT&T and MasTec
(Counts V and XIII), Negligent Performance of Statutory Duty against AT&T, based on

4

Plaintiffs also assert tort claims against Four Winds, but Four Winds has not
moved for summary judgment.
5

The Court assumes that in Counts II and X, Plaintiffs are attempting to assert
direct negligence claims against MasTec, rather than vicarious liability, because these
Counts refer to MasTec’s own allegedly negligent conduct, such as “failing to advise
Four Winds that its proposed boring path intersected with the underground natural gas
line.” (Doc. No. 30 at 45.)
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Missouri statutes applying to public utilities (Counts VIII and XVIII), and Recklessness
against AT&T and MasTec (Count XIX). Plaintiffs also assert claims of Negligent
Hiring/Retention (Counts VI and XIV) and Negligent Supervision (Counts VII and XV)
against AT&T and MasTec. Finally, SDG asserts Breach of Contract (Count XVI) and
Negligent Misrepresentation (Count XVII) claims against AT&T. In each of these
counts, Plaintiffs seek “actual and consequential damages, special damages including lost
profits and business interruption damages, punitive damages, and [costs and attorney’s
fees].” (Doc. No. 30.)
ARGUMENTS OF THE PARTIES
AT&T and MasTec argue that summary judgment is warranted on Plaintiffs’
vicarious liability claims because Four Winds and its employees were not agents of
AT&T or MasTec as a matter of law. Both Defendants argue that the undisputed facts
demonstrate that Four Winds was an independent subcontractor of AT&T’s independent
contractor, MasTec.
Next, these Defendants argue that summary judgment is warranted on Plaintiffs’
negligent hiring claims because Plaintiffs have submitted no evidence that either Four
Winds or MasTec was incompetent or inexperienced in the installation of underground
cables. Moreover, AT&T argues that because it undisputedly did not hire Four Winds, it
could not be liable for negligent hiring of Four Winds as a matter of law.
With respect to Plaintiffs’ negligent supervision claims, AT&T and MasTec argue
that summary judgment is warranted because Plaintiffs cannot establish two elements of

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such a claim: (1) that Four Winds was acting as an agent of AT&T or MasTec, and (2)
that Four Winds’ employees were acting outside the scope of their agency.
MasTec also argues that summary judgment is warranted on Plaintiffs’ direct
negligence claims against it because Plaintiffs have submitted no evidence that MasTec,
rather than Four Winds, acted negligently.
Likewise, AT&T argues that SDG’s claims against it for negligent
misrepresentation and breach of contract fail as a matter of law. AT&T argues that
SDG’s breach of contract claim fails because SDG has no evidence that AT&T (as
opposed to Four Winds) is liable for SDG’s damages. AT&T acknowledges that the
contract between SDG and AT&T provides that AT&T must remain “financially
responsible for the performance of [its subcontractor’s] obligations,” but AT&T argues
that it has complied with this obligation by ensuring that MasTec is indemnified by
insurance for all claims arising from the SDG cable installation contract, and that in any
event, MasTec is not liable for any such claims. AT&T also argues that the limitation of
liability provision in its contract with SDG prevents SDG from recovering the damages it
seeks. Finally, AT&T argues that SDG’s negligent misrepresentation claim fails as a
matter of law because AT&T’s contract with SDG expressly warned that AT&T may
subcontract the work.
In response to Defendants’ motions, Plaintiffs argue that summary judgment must
be denied as to their vicarious liability claims because genuine issues of material fact
exist regarding whether Four Winds and its employees were agents of MasTec and/or
AT&T. Plaintiffs argue that, at this stage, they must be given the benefit of all
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reasonable inferences that AT&T and/or MasTec had the right to control the cable
installation project.
Plaintiffs also argue that summary judgment must be denied as to their negligent
hiring claims because genuine issues of material fact exist regarding whether AT&T and
MasTec each exercised reasonable care “with respect to the hiring of Four Winds.” In
particular, Plaintiffs point to evidence that AT&T did not know of Four Winds’ existence
and that Butler had not personally evaluated Four Winds at the time Four Winds was
hired.
Likewise, Plaintiffs argue that genuine issues of material fact exist with respect to
their negligent supervision claims, both as to Four Winds’ status as an agent (versus an
independent contractor) and as to whether Four Winds’ employees acted outside the
scope of their agency by commencing the cable installation without necessary permits, in
violation of governing rules and regulations.
SDG also argues that summary judgment must be denied as to its breach of
contract and negligent misrepresentation claims against AT&T. SDG argues that it has
offered sufficient evidence to demonstrate that AT&T breached its contract with SDG by
failing to properly install the fiber optic cable. SDG contends that the contract’s
limitation of liability explicitly excludes property damage caused by AT&T’s negligent
misconduct, and a question of fact exists as to whether negligence attributable to AT&T
caused the property damage here.
Finally, SDG argues that questions of fact exist regarding its negligent
misrepresentation claim in light of evidence that SDG officials interacted exclusively
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with AT&T personnel and were told that AT&T would be conducting the project and
ensuring its proper completion.6
Neither AT&T nor MasTec has filed a reply, and the time to do so has passed.

DISCUSSION
Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment shall be
entered “if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). In ruling on a
motion for summary judgment, a court is required to view the facts in the light most
favorable to the non-moving party and must give that party the benefit of all reasonable
inferences to be drawn from the record. Sokol & Assocs., Inc. v. Techsonic Indus., Inc.,
495 F.3d 605, 610 (8th Cir. 2007).
Plaintiffs’ Vicarious Liability Claims Against Defendants AT&T and MasTec
Under Missouri law, which the parties agree governs this diversity suit, “[t]he
general rule is that a general contractor is not liable for . . . harm caused to another by the
tortious acts or omissions of an independent contractor, while [it is] liable for the torts of
[its] employees.” Sakabu v. Regency Constr. Co., 392 S.W.3d 494, 498 (Mo. Ct. App.
2012) (internal citations omitted). “In Missouri, in contrast to the law of some other
states, employment status is a question of fact. In other words, a court applying Missouri
law may decide [employment status] on summary judgment only when the material facts
6

Plaintiffs have not responded to MasTec’s arguments regarding Plaintiffs’ direct
negligence claim against MasTec.
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are undisputed and only one reasonable conclusion can be drawn from those facts.” Gray
v. FedEx Ground Package Sys., Inc., 799 F.3d 995, 999 (8th Cir. 2015) (internal citations
omitted); see also Johnson v. Bi–State Dev. Agency, 793 S.W.2d 864, 867 (Mo. 1990).
“The terms subcontractor and independent contractor are not necessarily
synonymous,” and “simply characterizing a party an independent contractor does not
make it so.” Sakabu, 392 S.W.3d at 498-99. “[R]ather, a court must make a factual
determination of independent-contractor status,” id. at 499, and “whether or not the
parties believe they are creating the relationship of master and servant” is “only one
factor out of many.” Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 860
(8th Cir. 2010) (internal citations omitted) (applying Missouri law).
“The principal factors that Missouri courts routinely consider in determining
whether one acting for another is an employee or an independent contractor for purposes
of respondeat superior liability are set out in § 220(2) of the Restatement (Second) of
Agency.” Id. at 858 (citations omitted). They are:
(a) the extent of control which, by the agreement, the master may exercise
over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or
business;
(c) the kind of occupation, with reference to whether, in the locality, the
work is usually done under the direction of the employer or by a specialist
without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities,
tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the
employer;

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(i) whether or not the parties believe they are creating the relation of master
and servant; and
(j) whether the principal is or is not in business.
Restatement (Second) of Agency § 220 (Am. Law Inst. 1958).
Of these factors, “the touchstone is whether the party sought to be held liable has
the control or right to control the conduct of another in the performance of an act.” J.M.
v. Shell Oil Co., 922 S.W.2d 759, 764 (Mo. 1996). “The determining factor is not
whether [the defendant] actually exercised control over the work but whether [the
defendant] had the right to exercise that control.” Bargfrede v. Am. Income Life Ins. Co.,
21 S.W.3d 157, 162 (Mo. Ct. App. 2000) (citation omitted). That right “must extend to
the ‘means and manner of service’ as distinguished from [merely] controlling the
‘ultimate results of the service.’” Steele v. Armour & Co., 583 F.2d 393, 398 (8th Cir.
1978) (quoting Wigger v. Consumers Coop. Ass’n, 301 S.W.2d 56, 60 (Mo. Ct. App.
1957)).
A close question is presented here, as several factors, including the terms of the
contracts between AT&T and MasTec and between MasTec and Four Winds, weigh in
favor of finding that Four Winds was an independent contractor. But the Court does not
believe that is the only reasonable conclusion that can be drawn from the record before it.
Rather, the testimony of AT&T’s and MasTec’s corporate representatives creates a
factual question as to whether AT&T and/or MasTec had the right to control the details
of Four Winds’ employees’ work. For example, these representatives testified that
MasTec had the right to stop Four Winds’ employees from beginning work on February
5, 2014, in light of the snow and the lack of permits, and that AT&T and MasTec had
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some authority over the details of the cable installation. The question of agency therefore
remains a question of fact to be determined based on the evidence at trial. The Court will
deny Defendants’ motions for summary judgment on Plaintiffs’ vicarious liability claims.
See Gray, 799 F.3d at 1003 (reversing grant of summary judgment and finding that a
genuine dispute remained as to the question of agency under Missouri law where the
evidence, particularly as to the control factor, was mixed).
Plaintiffs’ Negligent Hiring Claims Against AT&T and MasTec
“To establish a claim for negligent hiring or retention [of an employee], a plaintiff
must show: (1) the employer knew or should have known of the employee’s dangerous
proclivities, and (2) the employer’s negligence was the proximate cause of the plaintiff’s
injuries.” Gibson v. Brewer, 952 S.W.2d 239, 246 (Mo. 1997). Likewise, “[a]n
employer is liable for the negligent action of an independent contractor only when the
employer did not exercise reasonable care in hiring a competent independent contractor.”
Lonero v. Dillick, 208 S.W.3d 323, 329 (Mo. Ct. App. 2006) (citation omitted).
“It is well recognized that a contractor’s negligence in conducting the work it was
hired to do creates no presumption that the employer was negligent in selecting the
contractor. One incident of poor judgment does not prove incompetence.” Sullivan v. St.
Louis Station Assocs., 770 S.W.2d 352, 356 (Mo. Ct. App. 1989) (internal citation
omitted) (recognizing that the same test would apply regardless of whether the claim is
for negligent hiring of an employee or an independent contractor).
Plaintiffs have failed to offer evidence that Four Winds or its employees had
dangerous proclivities or were incompetent beyond the single instance of negligence in
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conducting the installation at issue in this case. Therefore, Plaintiffs’ negligent hiring
claims fail as a matter of law. See Sullivan, 770 S.W.2d at 356-57 (holding that where
“[t]here was no proof that either contractor had a poor job safety record, a poor reputation
or that either lacked sufficient expertise and experience to act in the capacity for which
they were hired,” and “[t]he only accusation of ability involves [the contractor’s] choice
of an improper method in one situation—the job which it was hired to execute,” the
plaintiffs “were not entitled to a jury instruction on the negligent hiring theory”).
Moreover, the Court agrees with AT&T that, as AT&T did not hire or retain Four
Winds, AT&T could not be liable for negligent hiring in any event. At most, AT&T had
a duty of care in hiring MasTec, but Plaintiffs have offered no evidence that AT&T
breached that duty, as they have offered no evidence of MasTec’s incompetence. The
Court will grant Defendants’ motions for summary judgment on Plaintiffs’ negligent
hiring claims.
Plaintiffs’ Negligent Supervision Claims Against AT&T and MasTec
A claim of negligent supervision under Missouri law implicates “the duty of a
master . . . ‘to exercise reasonable care so to control his servant while acting outside the
scope of his employment as to prevent him from intentionally harming others or from so
conducting himself as to create an unreasonable risk of bodily harm to them.’” Gibson,
952 S.W.2d at 247 (quoting Restatement (Second) of Torts § 317 (Am. Law Inst. 1965)).
Therefore, “a negligent supervision claim requires as a necessary and indispensable
element that the employee be acting outside of the scope of her employment.” Nickel v.
Stephens Coll., 480 S.W.3d 390, 402 (Mo. Ct. App. 2015). If the tortfeasor was acting
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within the scope of his employment at the time of his tortious act, the master will not be
liable for negligent supervision but may be vicariously liable under principles of agency.
Restatement (Second) of Torts § 317 cmt. a (Am. Law Inst. 1965) (adopted by Missouri
courts).7
Acting outside the scope of employment in this context means that “the servant is
not performing the work of his employer at the time of the act or at the time he commits
an intentional tort which, by definition, is not done in his role as the master’s agent but
rather solely for his own purposes.” Doe v. Roman Catholic Archdiocese of St. Louis,
347 S.W.3d 588, 592 (Mo. Ct. App. 2011).
Here, Plaintiffs have alleged only that the Four Winds and its employees were
acting within the scope of their employment with AT&T and/or MasTec, albeit
negligently. Plaintiffs’ claims therefore must rely on the principles of agency, rather than
negligent supervision. The Court will grant Defendants’ motions for summary judgment
on Plaintiffs’ negligent supervision claims.
Plaintiffs’ Direct Negligence Claim Against MasTec
“To prevail on a cause of action in general negligence, three elements must be
proven: 1) the existence of a duty on the part of the defendant to protect the plaintiff from
injury; 2) the defendant's failure to perform that duty; and 3) the plaintiff’s injury was
7

Missouri does not appear to recognize a negligent supervision claim arising out of
supervision of an independent contractor. Lonero v. Dillick, 208 S.W.3d 323, 328 (Mo.
Ct. App. 2006) (“Because the parties have not provided, and we cannot find, any
Missouri cases applying the doctrine of negligent supervision to independent contractors,
we find that a cause of action of negligent supervision cannot be sustained under these
circumstances.”).

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proximately caused by the defendant’s failure.” Smith v. Dewitt & Assocs., Inc., 279
S.W.3d 220, 224 (Mo. Ct. App. 2009). “A duty of care arises out of circumstances in
which there is a foreseeable likelihood that particular acts or omissions will cause harm
or injury,” and “[t] he scope of that duty is measured by whether a reasonably prudent
person would have anticipated danger and provided against it.” Id. (Citations omitted).
Although Plaintiffs allege that MasTec acted negligently in instructing Four Winds
regarding the placement of the cable lines, Plaintiffs have neither alleged nor offered
evidence that it was Four Winds’ adherence to MasTec’s instructions, which were given
at a time when the existing utility lines were marked and visible, that caused the
explosion. Rather, Plaintiffs’ evidence suggests that it was Four Winds’ failure to adhere
to such instructions (for example, by beginning work on a day when the utility line
markings were not visible) that contributed to the explosion. And because Plaintiffs have
not alleged or offered evidence that MasTec was on notice that Four Winds would begin
work on that day, no duty arose to stop Four Winds from doing so. On this record, a jury
could not reasonably conclude that MasTec was negligent. The Court will therefore grant
MasTec’s motion for summary judgment on Plaintiffs’ direct negligence claim against it.
SDG’s Breach of Contract Claim Against AT&T
AT&T’s only arguments with respect to SDG’s breach of contract claim are that
AT&T cannot be held vicariously liable for Four Winds’ employees’ conduct as a matter
of law and that, in any event, SDG’s damages are limited by the limitation of liability
provision in AT&T’s contract with SDG. The Court rejects the first argument for the
reasons set forth above. The Court also agrees with SDG that a question of fact exists as
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to whether SDG’s property damage was caused by negligent misconduct of Four Winds
attributable to AT&T, so as to fall outside of the plain language of the limitation of
liability provision. Therefore, the Court will deny AT&T’s motion for summary
judgment on SDG’s breach of contract claim. However, the Court notes that SDG will
not be permitted to recover duplicative damages. See Norber v. Marcotte, 134 S.W.3d
651, 661 (Mo. Ct. App. 2004) (“It is a well-settled rule in Missouri that a party cannot be
compensated for the same injury twice.”).
SDG’s Negligent Misrepresentation Claim Against AT&T
The elements of a claim of negligent misrepresentation under Missouri law are:
“(1) the speaker supplied information in the course of his business; (2) because of a
failure by the speaker to exercise reasonable care, the information was false; (3) the
information was intentionally provided by the speaker for the guidance of a limited group
of persons in a particular business transaction; (4) the listener justifiably relied on the
information; and (5) due to the listener’s reliance on the information, the listener suffered
a pecuniary loss.” Wellcraft Marine v. Lyell, 960 S.W.2d 542, 546 (Mo. Ct. App. 1998).
“The failure to prove any one of these five elements is fatal to a claim of negligent
misrepresentation.” Id.
Here, SDG has not offered evidence that AT&T made a false statement. Even
viewed in the light most favorable to it, SDG’s evidence does not suggest that AT&T
represented that it would conduct the project without the use of subcontractors. Rather,
AT&T’s contract with SDG explicitly notified that AT&T may use subcontractors. And
as to AT&T’s alleged representation ensuring “proper completion” of the project,
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Missouri courts hold that “[m]ere predictions about future behavior are typically not
sufficient to meet the first element of a claim for negligent misrepresentation.” Williams
v. HSBC Bank USA, N.A., 467 S.W.3d 836, 845 (Mo. Ct. App. 2015). The Court will
grant AT&T summary judgment on SDG’s negligent misrepresentation claim.
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that the motions for summary judgment filed by
Defendants AT&T Corp. (“AT&T”) and MasTec North America, Inc. (“MasTec”) are
GRANTED in part, as to Plaintiffs’ direct negligence claims against MasTec (Counts II
and X), Plaintiffs’ negligent hiring and negligent supervision claims against AT&T and
MasTec (Counts VI, VII, XIV, and XV), and Plaintiff Star’s Design Group, Inc.’s
negligent misrepresentation claim against AT&T (Count XVII). The motions are
otherwise DENIED. (Doc. Nos. 69 & 70.)

________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 27th day of February, 2017.

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