OVERVIEW OF MISSOURI PREMISES LIABILITY LAW

June 10, 2009

Robert S. Bruer

- History of Premises Liability Law in Missouri

- Summary of Missouri Premises Liability Law

- Basic summary

- Jury instructions

- Verdict directors

- Affirmative defenses

- Common Topics in Premises Liability Matters

- An “open and obvious” condition

- Use of codes and standards

- Prior similar circumstances

- Subsequent remedial measures

- Criminal activity

- General negligence vs. premises liability

- Snow and ice

- Releases and exculpatory clauses

Mr. Bruer is a lawyer at Bruer & Wooddell, P.C. in Kansas City, Missouri.

- History of Premises Liability Law in Missouri

Missouri common law is derived from that of England, and according to the Missouri Supreme Court, English judges have for many years classified entrants onto premises as trespassers, licensees, and invitees. See Wolfson v. Chelist, 284 S.W.2d 447 (Mo. 1995). Since the early 1900’s, Missouri courts have generally followed that classification system. See, e.g., Glaser v. Rothschild, 120 S.W. 1 (Mo. 1909).

- Summary of Missouri Premises Liability Law

- Basic summary

Historically, premises liability cases recognize three broad classes of plaintiffs: trespassers, licensees and invitees. Carter v. Kinney, 896 S.W.2d 926, 928 (Mo. 1995).

All entrants to land are trespassers until the possessor of the land gives them permission to enter.

All persons who enter a premises with permission are licensees until the possessor has an interest in the visit such that the visitor has reason to believe that the premises have been made safe to receive him, which then makes the visitor an invitee.

Generally, the possessor owes a trespasser no duty of care.

The possessor owes a licensee the duty to make safe dangers of which the possessor is aware.

The possessor owes invitees the duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection.

In Missouri, social guests are not a fourth class, but instead a subclass of licensees.

These definitions and standards for liability are also set forth in the Restatement (Second) of Torts §§ 330 (definition of licensee), 332 (definition of invitee), 343 and 343A (invitee liability).

At least nine states have abolished the distinction between licensee and invitee in favor of reasonable care in all circumstances, reasoning that this standard prevents the plaintiff’s status as a licensee or invitee from being the sole determinative factor in assessing the occupier’s liability. Missouri remains among the “healthy skeptics.” Carter, 896 S.W.2d 930.

- Jury instructions

- Verdict directors

22.03 [1995 Revision] Verdict Directing – Invitee Injured

Your verdict must be for the plaintiff if you believe:

First, there was (here describe the substance on the floor that caused the fall) on the floor of defendant’s store and as a result the floor was not reasonably safe, and

Second, defendant knew or by using ordinary care could have know of this condition, and

Third, defendant failed to use ordinary care to [remove it] [barricade it] [warn of it], and

Fourth, as a direct result of such failure, plaintiff sustained damage.

* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number _______ (here insert number of affirmative defense instruction)

22.07 [1991 Revision] Verdict Directing – Licensee

Your verdict must be for plaintiff if you believe:

First, there was (here describe the condition which caused the injury) on defendant’s premises and as a

result the premises was not reasonably safe, and

Second, defendant knew of this condition and knew that such condition was not reasonably safe, and

Third, defendant knew or had information from which the defendant, in the exercise of ordinary care,

should have known that persons such as plaintiff would not discover such condition or realize the risk of harm, and

Fourth, defendant failed to use ordinary care to [either] [make the condition reasonably safe] [or adequately warn of it], and

Fifth, as a direct result of such failure, plaintiff sustained damage.

* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number _______ (here insert number of affirmative defense instruction) ].

22.01 [1996 Revision] Verdict Directing – Trespassing Children

Your verdict must be for the plaintiff if you believe:

First, defendant maintained (here describe the condition that caused the injury), and

Second, defendant knew or had information from which defendant, in the exercise of ordinary care should have known that children would be exposed to such

a condition, and

Third, defendant knew or by using ordinary care could have known such condition presented an unreasonable

risk of harm to children exposed to it, and

Fourth, children such as plaintiff, because of their youth, would not appreciate the risk of harm associated with

such a condition, and

Fifth, defendant failed to prevent plaintiff from being exposed to such harm, and

Sixth, defendant was thereby negligent, and

Seventh, as a direct result of such negligence, plaintiff sustained damage.

* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number _______ (here insert number of affirmative defense instruction) ].

- Comparative fault

MAI 32.28 [1995 Revision] Comparative Fault – Invitee Injured – Failure to Keep a Lookout

In your verdict you must assess a percentage of fault to plaintiff [whether or not defendant was partly at fault] if you believe:

First, plaintiff knew or by using ordinary care could have known that there was(here describe

substance on the floor that caused fall) on the floor of defendant’s store and as a result the floor was not reasonably safe, and

Second, plaintiff failed to use ordinary care to keep a careful lookout, and

Third, such a failure directly caused or directly contributed to cause any damage plaintiff may

have sustained.

- Common Topics in Premises Liability Matters

- An “open and obvious” condition

Harris v. Niehaus, 857 S.W.2d 222 (Mo. 1993). Missouri Supreme Court, appeal from Audrain County. A mother parked her car, with her children inside, on a sloped road in a subdivision. The car rolled down the sloped roadway and into a lake, and the children drowned. The jury found for plaintiff. On appeal, the court reversed. The natural condition of the slope was “open and obvious” as a matter of law. Because the subdivision could reasonably rely on an invitee’s normal sensibilities to protect against such a condition, the subdivision’s failure to protect the invitees against such a condition did not fall below the standard of care, and the case should not have been submitted to the jury. Jury: found for plaintiff; court of appeals: reversed.

Peterson v. Summit Fitness, Inc., 920 S.W.2d 928 (Mo. App. 1996). Western District, appeal from Jackson County. Customer fell over four-foot exposed wall at the edge of indoor swimming pool. The trial court directed a verdict in favor of defendants at the close of plaintiff’s evidence, and plaintiff appealed. In reversing, the court that a defendant is entitled to judgment as a matter of law if the risk of harm from the open and obvious condition exists “only” due to the plaintiff’s failure to exercise due care. According to the court, a jury could have found that the fitness center should have anticipated harm from an exposed wall, and because the plaintiffs make a submissible case, the case was remanded for a new trial. Trial court: found for defendant; court of appeals: reversed.

Smith v. Wal-Mart Stores, Inc., 967 S.W.2d 198 (Mo. App. 1998). Eastern District, appeal from City of St. Louis County. Customer fell while entering the vestibule of a Wal-Mart store and landed in what was discovered to be water. A jury found for plaintiff, and defendant appealed contending that the trial court erred in failing to direct a verdict in favor of defendant because the condition was “open and obvious.” While the court did not expressly find whether the condition was open and obvious, it affirmed the jury verdict and noted that even if the condition was open and obvious, that finding does not end the inquiry. Instead, there remains a question for the jury whether or not a landowner should anticipate that the risk of harm exists even if the invitee exercises due care in the face of the open and obvious danger. According to the court, the evidence supported a finding that the defendant should have anticipated harm to its invitees. Jury: found for plaintiff; court of appeals: affirmed.

Lacy v. Wright, 199 S.W.3d 780 (Mo. App. 2006). Eastern District, appeal from Cape Girardeau County. Customer fell over a parking bumper in a snowy parking lot. Defendant company moved for summary judgment, which was granted. On appeal, the court reversed, noting that an “open and obvious” danger nullifies the duty to warn unless the possessor should anticipate the invitee will be harmed despite constructive knowledge on the part of the invitee. The court found that it could not say, as a matter of law, that the bumper was so open and obvious that the defendant could reasonably rely on invitees such as the plaintiff to see and appreciate the risk of danger. Trial court: found for defendant; court of appeals: reversed.

Brown v. Morgan County, 212 S.W.3d 200 (Mo. App. 2007). Western District, appeal from Moniteau County. Plaintiff fell down stairs at county courthouse. Summary judgment in favor of defendant on the basis of open and obvious was reversed where plaintiff testified that she had never perceived a slant or tilt in the stairs, and she blamed herself for the first time she fell on the stairs, not the stairs themselves. Trial court: found for defendant; court of appeals: reversed.

Crow v. Kansas City Power & Light Co., 174 S.W.3d 523 (Mo. App. 2005). Western District, appeal from Jackson County. Worker contacted electrical lines. Trial court: found for defendant; court of appeals: affirmed.

Dieterich v. Pickett, 114 S.W.3d 293 (Mo. App. 2003). Western District, appeal from Audrain county. Guest fell in drainage grate at carwash. Trial court granted summary judgment for defendant based on open and obvious. Court of appeals reversed because there was no evidence that either customer or owner knew of the dangerous condition. Trial court: found for defendant; court of appeals: reversed.

Summary of “open and obvious” concept: (1) it is fact-driven; (2) be prepared as a plaintiff or a defendant to address it in a dispositive motion; (3) the trial court can find that something is open and obvious as a matter of law and the appellate court may affirm; (4) the trial court can find that something is open and obvious and the appellate court may reverse; (5) the jury can find for plaintiff and the appellate court may reverse on the ground that the condition was open and obvious; (6) both the trial court and the appellate court can hold that a condition is not open and obvious; (7) know and develop analogous cases in your court or jurisdiction; (8) be prepared to invoke exceptions or jury question.

- Use of codes and standards

A code or standard can be relevant to prove whether the defendant met the standard of care. In other words, failure to comply with a code or standard can be evidence that the defendant did not comply with the standard of care; equally, compliance with a code or standard can be evidence that the defendant complied with the standard of care.

[See materials following – Using Standards and Codes in Missouri Premises Liability Cases]

- Prior similar circumstances

- “Offensive” use: presence of similar circumstances

Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439 (Mo. 1998). Supreme Court of Missouri, appeal from City of St. Louis Court. Customer slipped on pet food on the floor of Wal-Mart store. At trial, the jury found for plaintiff. During trial, an employee testified regarding the frequency of pet food spills. On appeal, the defendant contended that the trial court erred in allowing such evidence. In affirming the admission of the evidence, the court noted that evidence of prior occurrences similar to the one that injured plaintiff may be admissible to establish notice to the defendant of the existence of a dangerous condition. The trial court is given wide latitude in determining whether such evidence is relevant and whether the circumstances bear sufficient resemblance to those causing the injury at issue. The degree of similarity required for evidence being used to show defendant’s notice of prior similar incidents is less demanding than the degree of similarity required for a series of prior incidents being used to show the same incident occurred on the date at issue.

- “Defensive” use: absence of similar circumstances

Heitman v. Heartland Regional Med. Ctr., No. WD 68374, 2008 WL 1860883 (Mo. App. Apr. 29, 2008). Western District, appeal from Buchanan County. Plaintiff slipped and fell exiting the shower in the bathroom of her hospital room. The jury found for defendant. On appeal, the plaintiff contended the trial court erred in admitting evidence of the absence of prior patient complaints of a defective shower or of falls in the shower. In affirming the admission of the evidence, the court noted that evidence of the absence of prior accidents is relevant to show: (1) absence of a defect or condition; (2) lack of a causal relationship between the injury and the defect or condition charged; (3) nonexistence of an unduly dangerous condition; or (4) lack of knowledge of or grounds to realize the danger. For such evidence to be admissible, the proponent of the evidence must show that no accidents occurred under conditions substantially similar to those faced by plaintiff and that an adequate number of those situations occurred to make the absence of accidents meaningful. Whether a proper foundation is established for the admission of evidence of the absence of prior accidents is primarily within the discretion of the trial court. The trial court’s determination will be affirmed on appeal unless an abuse of discretion is shown.

- Subsequent remedial measures

Smith v. Wal-Mart Stores, Inc., 967 S.W.2d 198 (Mo. App.1998). Eastern District, appeal from City of St. Louis County. Customer fell while entering the vestibule of a Wal-Mart store and landed in what was discovered to be water. After a jury verdict in favor of plaintiff, defendant appealed the trial court’s decision to admit evidence that defendant placed mats down following plaintiff’s fall. On appeal, the court recited the rule that evidence of subsequent remedial measures is not admissible to prove antecedent negligence, but may be admissible for other purposes such as proving: ownership, control, or feasibility of precautionary measures. The court cited public policy considerations indicating that if precautions taken could be admitted into evidence, then no one would make improvements following an accident in fear that it would be used against them, and that the changes made are irrelevant as to the condition of the property. Nevertheless, the judgment was affirmed because the issue was not preserved for appeal.

Danbury v. Jackson County, Missouri, 990 S.W.2d 160 (Mo. App. 1999). Western District, appeal from Jackson County. Patron of gift shop at historical attraction fell on stairs at the attraction. She indicated that her foot had gotten caught in a hole in the stair mortar. The trial court excluded photographs of the scene of the incident on the grounds that the pictures showed subsequent remedial measures taken to repair the steps. On appeal, the court granted a new trial, holding that the exclusion of the photographs prejudiced plaintiff in that without them, all plaintiff could only describe the accident site in narrative fashion. According to the court, photographs showing repairs are not admissible to prove antecedent negligence, but they may be admissible if they have evidentiary value independent of the repairs.

- Criminal activity

Williams v. Barnes & Noble, Inc., 174 S.W.3d 556 (Mo. App. 2005). Western District, appeal from Jackson County, Missouri. Plaintiff was injured at the Plaza Barnes & Noble when an employee chased a shoplifter out of the store, and the shoplifter pushed her down in the process. Plaintiff filed a premises liability claim, presumably to apply the business invitee standard to the claim. The court sustained defendant’s dispositive motion and the plaintiff appealed. On appeal, the court noted that there is no general duty to protect customers from the criminal acts of unknown third parties. In order to state a claim, a plaintiff must plead one of the established exceptions to the general rule of non-liability: (1) under the first exception, the duty may arise when a person, known to be violent, is present on the premises or an individual is present who has conducted himself so as to indicate danger and sufficient time exists to prevent injury; (2) the other exception recognizes a duty on the part of business owners to protect their invitees from the criminal acts of unknown third persons under certain special circumstances – 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. Because plaintiff did not properly plead the exception, the case was remanded and dismissed without prejudice for failure to state a claim.

L.A.C. ex rel D.C. v. Ward Parkway Shopping Ctr. Co., L.P., 75 S.W.3d 247 (Mo. 2002). Supreme Court of Missouri, appeal from Jackson County. The minor plaintiff alleges she was raped at Ward Parkway Shopping Mall. She brought suit against the owners, operators, and managers of the mall, as well as the security company. The trial court entered summary judgment in favor of defendants, and the plaintiff appealed. On appeal, the court reviewed business records from the security company detailing violent and non-violent crimes perpetrated on the premises during the two years prior to the alleged rape. According to the court, the records and testimony established that defendants were aware of a number of violent crimes at the mall prior to the occurrence, and continued violent crime was foreseeable. Accordingly, defendants had a duty to take reasonable measures to protect mall customers, including plaintiff. Whether the duty was fulfilled was not before the court. Accordingly, the judgments in favor or defendants were reversed and remanded.

Rainey v. McWright, No. 4:07CV00355 ERW, 2008 WL 5377848 (E.D. Mo. Dec. 19, 2008). Altercation which developed in a store and led to a shooting death. Although the circumstances of the altercation, including a chase and a gun, invoked the exceptions to the criminal activity rule such that a duty was created, the court ruled on summary judgment that defendant neither breached its duty nor caused the death in that defendant’s employees responded to the situation effectively and reasonably under the circumstances by calling 911, ensuring the safety of other customers, and warning the men to stop fighting.

Richardson v. QuikTrip Corp., 81 S.W.3d 54 (Mo. App. 2002). Western District, appeal from Jackson County. The court conducted an extensive historical review of the violent crimes cases and noted that factual items to be considered in the “totality of the circumstances” approach include: (1) the nature of the business location, (2) the character of the business, and (3) past crimes in the area.

- General negligence vs. premises liability

Smith v. Dewitt and Associates, Inc., No. SD 28949, 2009 WL 474411 (Mo. App. Feb. 26, 2009). Southern District, appeal from Taney County. Employee injured after guardrail gave way. Plaintiff pleaded both premises liability and general negligence. In reversing the trial court’s grant of summary judgment in favor of defendants, the court of appeals noted that proven facts may establish liability arising from negligent acts or omissions (general negligence) without regard to whether the defendant had control of the premises.

Griffith v. Dominic, 254 S.W.3d 195 (Mo. App. 2008). Southern District, appeal from Douglas County. Generally, the dangerous condition for purposes of a premises liability claim is some sort of artificial condition on the property itself, not a negligent or dangerous act of one of the inhabitants of such property.

Haney v. Fire Ins. Exchange, 277 S.W.3d 789 (Mo. App. 2009). Southern District, appeal from Barry County. Mold exposure. Although plaintiffs argued that their claims sounded in general negligence, the court of appeals disagreed, noting that premises liability is triggered by assertions that the cause of the injury or damage was an unsafe or defective condition of the property itself. By contrast, the ownership status is irrelevant in general negligence cases involving injury by negligent act or omission, rather than a dangerous condition of the land.

- Snow and ice

Richey v. DP Properties, LP, 252 S.W.3d 249 (Mo. App. 2008). Eastern District, appeal from St. Louis County. Under Missouri law, there is no duty to remove snow or ice that accumulates naturally and is a condition general to the community. An exception arises where one obligates himself either by agreement or course of conduct over a period of time to remove the snow and ice, thereby assuming a duty. (Editorially, also consider whether some snow and ice does not “accumulate naturally” or is not “a condition general to the community.”)

Cooper v. Capital Investment, LLC, 204 S.W.3d 331 (Mo. App. 2006). Eastern District, appeal from St. Louis County. A possessor or owner of land may be liable for injuries occurring on an abutting sidewalk due to ice or snow where the possessor or owner: (1) artificially creates, through negligence or affirmative action, a condition that makes passage unsafe; or (2) makes use of the sidewalk for something other than a sidewalk, which makes the sidewalk more dangerous when slick or wet. Whether a weather condition of ice or snow was a general condition in the community or an isolated condition in a particular area and whether a duty exists are questions of fact for the jury. Summary judgment was reversed in that a question of fact remained as to whether the snow or ice was a general condition and whether a canopy which created drainage was an negligent or affirmative act which made the passage unsafe.

Otterman v. Harold’s Supermarkets, Inc., 65 S.W.3d 553 (Mo. App 2001). Western District, appeal from Lafayette County. Generally in snow and ice cases, a duty has been found where the conditions on an invitor’s premises had been altered.

- Releases and exculpatory clauses

Lewis v. Snow Creek, Inc., 6 S.W.3d 388 (Mo. App. 1999)

But compare Kaufold v. Chesterfield Village, GP, LLC, 232 S.W.3d 699 (Mo. App. 2007) (Rahmeyer, J., dissenting) and Milligan v. Chesterfield Village GP, LLC, 232 S.W.3d 683 (Mo. App. 2007) (Rahmeyer, J., dissenting) (finding a release to be ambiguous because its general language would include intentional torts and other causes of action which one may never use to exonerate oneself from future liability.)