857 S.W.2d 222 (Mo. 1993), 75087, Harris v. Niehaus

CourtUnited States State Supreme Court of Missouri
Citation857 S.W.2d 222
Docket Number75087.
PartiesEugenia HARRIS, et al., Respondents, v. Harold E. NIEHAUS, et al., Appellants.
Date29 June 1993

Page 222

857 S.W.2d 222 (Mo. 1993)

Eugenia HARRIS, et al., Respondents,


Harold E. NIEHAUS, et al., Appellants.

No. 75087.

Supreme Court of Missouri, En Banc.

June 29, 1993

Page 223

Rehearing Denied Aug. 17, 1993.

Page 224

Walter D. McQuie, Jr., Montgomery City, for appellants.

Richard B. Blanke, St. Louis, for respondents.

ROBERTSON, Chief Justice.

This case is about a terrible tragedy. The three minor children of Larry and Eugenia Harris drowned when an automobile in which they had been left unattended rolled down a roadway, through some woods and into a lake. The issue in this case is whether the trustees of the subdivision, who bore responsibility for the maintenance of the roadway, also bear liability for the damages resulting from the deaths of the Harrises' children. A jury returned a verdict for the plaintiffs. The Court of Appeals, Eastern District, affirmed in part and reversed in part and transferred the case to this Court pursuant to Article V, Section 10, Missouri Constitution, because of the general interest and importance of the questions presented in the case. We have jurisdiction and reverse the judgment of the trial court awarding plaintiffs damages in the case and remand for entry of judgment in favor of defendants.


Defendants/appellants are the trustees of the Woodridge Subdivision. Under the trust indenture the trustees bear responsibility for the maintenance of the roads, parks, and common areas of Woodridge Subdivision. Eugenia Harris (Mrs. Harris) is the sole proprietor of C & H Roofing, a small roofing company headquartered in Warrenton, Missouri.

In August, 1986, Mrs. Harris successfully bid a roofing job for a new home along Lakepoint Drive, one of the roadways in Woodridge Subdivision. Lakepoint Drive is a gravel road that descends in increasingly steep gradients to a cul-de-sac. A small lake lies approximately one hundred feet from the end of the roadway. An abandoned boat ramp extends from one point on the cul-de-sac. Lakepoint Drive was constructed, in part, to permit subdivision lot owners and their guests access to the lake.

On September 16, 1986, Mrs. Harris stopped by the contract property to view the progress on the construction and determine when her services would be required. Her three minor children, ages 6, 4 and 3, accompanied her. When she arrived at the job site, Mrs. Harris parked her car on Lakepoint Drive, pointed toward the lake. Trial exhibits show a 6.31 percent grade where Mrs. Harris parked. The lake is clearly visible from that point. The road extends from there approximately 200 feet to the end of the cul-de-sac. The grade increases to 7.99 percent for approximately 90 feet, decreases slightly to 7.00 percent for 50 feet, increases to 9.38 percent for the next 32 feet, and increases to 17.89

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percent for the last 11.5 feet of the roadway. The lake lies 98.5 feet from the end of the road; from the end of the road to the lake the grade increases to an average of 26.40 percent through a thinned grove of mature trees and brush.

Mrs. Harris testified that, when she arrived at the construction site, she put the car's automatic transmission in park, removed the keys from the ignition, and left the car with the three children in it. Shortly after entering the unfinished home, Mrs. Harris heard gravel crunching. Running outside, she could not see her car but could hear it moving through the trees and brush toward the lake. Mrs. Harris ran to the end of the road and followed the path of the car to the lake. By the time she got there, she was too late to save her children. All of them drowned.

Mr. and Mrs. Harris, as the statutory designees, filed this wrongful death action against the trustees of the Woodridge Subdivision alleging negligence in their failure to warn of, or protect their children from, the unreasonably dangerous slope of Lakepoint Drive. The trial court submitted the Harrises' claims to the jury. The jury awarded damages in the sum of $375,000, allocating 90 percent of fault to Mrs. Harris and 10 percent of fault to the trustees of the subdivision.


In a negligence action, liability only exists when a defendant's conduct "falls below the standard [of care] established by law for the protection of others against unreasonable risk of harm," Restatement (Second) of Torts, § 282, and such conduct is the proximate cause of the plaintiffs' injuries. The particular standard of care that society recognizes as applicable under a given set of facts is a question of law for the courts. Whether a defendant's conduct falls short of the standard of care is a question of fact for the jury. The Court will not, however, submit a case to the jury where no evidence exists to support a finding that defendant's conduct fell below the identified standard of care.


When a plaintiff sues a possessor of land for injuries arising out of an unreasonably dangerous condition on that land, the standard of care owed by the defendant is defined by the relationship existing between the possessor of the land and the plaintiffs. As this is a wrongful death action, the debate in this case centers on the status of the Harris children. Defendants claim that the children were licensees; the Harrises argue that the children assumed Mrs. Harris' status as an invitee. The standard of care owed an invitee is generally higher than that owed a licensee.

A licensee "is a person who is privileged to enter or remain on land only by virtue of the possessor's consent." Restatement (Second) of Torts, § 330 (1965). An invitee "is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Restatement (Second) of Torts, § 332 (1965).

As a subcontractor who had contracted to provide construction services on the contract home, Mrs. Harris' entry upon the land of the Woodridge Subdivision served not only her business purposes, but the financial interests of the subdivision as well. Thus, it appears that Mrs. Harris was an invitee at the time of the accident. We need not decide whether the Harris children were also invitees or were mere licensees because we believe that the trustees had a right to judgment even under the higher of the two standards of care. We assume, therefore, without deciding, that Mrs. Harris' children were vested with her status as an invitee when they accompanied her to the subdivision.


When the plaintiff is an invitee, a possessor of land is subject to liability for injuries caused by a condition on the land only if the possessor

(a) knows or by the exercise of reasonable care would discover the condition,

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and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Restatement (Second) of Torts, § 343 (1965). Thus, to meet the applicable standard of care a possessor of land must (1) exercise reasonable care; (2) disclose to the invitee all dangerous conditions which are known to the possessor and are likely not to be discovered by the invitee; and (3) see that the premises are safe for the reception of a visitor, or at least ascertain the condition of the land, to give such warning that the invitee may decide intelligently whether or not to accept the invitation, or may protect himself against the danger if he does accept it. Restatement (Second) of Torts, § 343, Comment b.

Under the second element of § 343, when the dangerous condition is so open and obvious that the invitee should reasonably be expected to discover it and realize the danger, a possessor of land does not breach the standard of care owed to invitees "unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts, § 343A(1) (1965). This element acknowledges that a possessor of land is not an absolute insurer of the well-being of its invitees. As a general matter, therefore, a possessor's actions do not fall below the applicable standard of care if the possessor fails to protect invitees against conditions that are open and obvious as a matter of law. We adopt §§ 343 and 343A(1) as accurate statements of the law of Missouri.

The Harrises claim that (1) the trustees knew or should have known that the slope of Lakepoint Drive posed an unreasonable risk of harm to users of that road, (2) the trustees should have expected that neither Mrs. Harris nor her children would realize the danger or be able to protect themselves from it, and (3) the trustees failed to use ordinary care to protect them by either (a) warning of the slope or (b) barricading the end of the cul-de-sac.

The Harrises presented a submissible case on the first element of § 343. The slope of the road and the position of the lake were either actually or constructively apparent to the trustees....

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