Breckenridge v. Meierhoffer-Fleeman Funeral Home, Inc.

• Citation: 941 S.W.2d 609
• Decision Date: 11 February 1997
• Docket Number: MEIERHOFFER-FLEEMAN,No. WD,WD
• Parties: Debbie A. BRECKENRIDGE and Kirk D. Breckenridge, Appellants, v.FUNERAL HOME, INC., Respondent. 51824.
• Court: Court of Appeal of Missouri (US)

Page 609

941 S.W.2d 609

Debbie A. BRECKENRIDGE and Kirk D. Breckenridge, Appellants, v. MEIERHOFFER-FLEEMAN FUNERAL HOME, INC., Respondent.

No. WD 51824.

Missouri Court of Appeals Western District.

Feb. 11, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 1, 1997.

Application to Transfer Denied

April 29, 1997.

Thomas E. Hankins, Gladstone, for appellants.

John G. Schultz, Jonathan K. McCoy, Franke & Schultz, P.C., Kansas City, for respondent.

Before ELLIS, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

ELLIS, Presiding Judge.

On Saturday, January 22, 1994, at approximately 3:00 p.m., Kirk and Debbie Breckenridge and other family members began arriving at the Meierhoffer-Fleeman Funeral Home, Inc. ("Meierhoffer") for a family viewing of a deceased relative. The temperature outside had been above freezing since 6:00 a.m. that morning, reaching a high of fifty-five degrees at 3:00 p.m. that afternoon.

When family member Phyllis Dye arrived at the funeral home, she observed a funeral home employee hosing off the walkways leading to the building. Other family members noted that the hoses were out, but did not see anyone using them.

When the family returned at 6:00 p.m. that evening to inspect the final touches on the deceased's makeup, there was no water or ice on the walkway leading to the funeral home. When they left thirty to forty-five minutes later, the temperature outside was still forty-six degrees. As they were leaving, Debbie Breckenridge slipped and fell on the walkway, which was partially covered by a six to eight inch wide, thin glaze or sheet of ice along its western edge. Although Meierhoffer had installed an electric heating system under the walkways leading to the funeral home, the system was not in use the day of the fall, because it is activated only when the temperature is forty degrees or below.

The Breckenridges brought this negligence action against Meierhoffer to recover damages for injuries Debbie Breckenridge sustained when she slipped and fell on the ice, which they allege the funeral home negligently created. The verdict director submitted to the jury by the Breckenridges sets forth the elements of their claim:

First, there was ice on the walkway outside the defendant's facility and as a result the walkway was not reasonably safe, and

Second, defendant knew or by using ordinary care should have known of this condition, and

Third, defendant failed to use ordinary care to remove it or warn of it, and

Fourth, such failure directly caused or directly contributed to cause damage to plaintiff Debbie Breckenridge.

The trial court initially entered judgment on the jury verdict in favor of the Breckenridges in the amount of $53,900, plus costs. Thereafter, Meierhoffer filed, and the trial court granted, a Motion for Judgment Notwithstanding the Verdict ("Judgment N.O.V."), thereby nullifying the judgment in favor of the Breckenridges. The Breckenridges appeal.

In deciding whether the trial court properly granted Meierhoffer's Motion for Judgment N.O.V., we review the evidence in a light most favorable to the Breckenridges. Blake v. Irwin, 913 S.W.2d 923, 928 (Mo.App. W.D.1996). We presume the Breckenridges' evidence to be true, give them the benefit of all reasonable inferences to be drawn from the evidence, and disregard Meierhoffer's evidence except to the extent that it aids the Breckenridges' case. Nettie's Flower Garden, Inc. v. SIS, Inc., 869 S.W.2d 226, 231 (Mo.App. E.D.1993).

The principles of law in a slip and fall case are well established in this state. Prier v. Smitty's Supermarkets, Inc., 715 S.W.2d 579, 580 (Mo.App. S.D.1986). In such cases, liability to a business invitee is premised upon the owner's superior knowledge of a defective or dangerous condition on his premises which results in injury. Hunt v. Nat'l Super Mkts., Inc., 809 S.W.2d 157, 159 (Mo.App. E.D.1991). When the owner of a business has actual or constructive knowledge of a dangerous, foreseeable condition, he has the duty to prevent injuries resulting therefrom. Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778, 781 (Mo. banc 1989). For the Breckenridges to make a submissible case of negligence, they must establish that Meierhoffer had actual or constructive knowledge of the dangerous or defective condition. Hunt, 809 S.W.2d at 159.

Each and every fact essential to liability must be shown by substantial evidence. Garrett v. Overland Garage & Parts, Inc., 882 S.W.2d 188, 191 (Mo.App. E.D.1994). Substantial evidence is competent evidence from which a trier of fact can reasonably decide the case. Id. "Liability cannot rest upon guesswork, conjecture, or speculation beyond inferences that can reasonably be drawn from the evidence." Id. Accordingly, if a defendant's motion for judgment N.O.V. identifies one or more elements of the plaintiff's case which are not supported by the evidence, the motion is properly granted. Sch. Dist. of Independence v. U.S. Gypsum, 750 S.W.2d 442, 446 (Mo.App. W.D.1988).

In sustaining Meierhoffer's Motion for Judgment N.O.V., the trial court found that:

[i]n order for plaintiff to submit her verdict director to the jury, she was required to provide some evidence that defendant Meierhoffer knew or should have known that ice was on the sidewalk at the time plaintiff fell. (citation omitted). It was undisputed by the parties that defendant had no actual knowledge of the icy condition. Thus, plaintiff was required to submit evidence that defendant Meierhoffer should have known of the ice. Plaintiff failed to present such evidence.

On appeal, the Breckenridges claim that they did not have to prove Meierhoffer had notice of the icy condition. Specifically, they contend the notice requirement is dispensed with because Meierhoffer created the icy condition when it hosed down the walkways in the middle of the winter. The argument is without merit. The Breckenridges petition alleged, and their verdict director submitted, that Meierhoffer "knew or by using ordinary care should have known" of the icy condition. As alleged in their petition, and subsequently submitted, it was essential for the jury to so find and, therefore, imperative that there be evidence to support such a finding. Garrett, 882 S.W.2d at 191. As noted by the trial court, the Breckenridges failed to present any evidence from which such a finding could be made. Consequently, they failed to prove each and every element of their case, and the trial court properly granted Meierhoffer's Judgment N.O.V. U.S. Gypsum, 750 S.W.2d at 446.

Moreover, the same conclusion is compelled if we analyze the Breckenridges contention. They rely on Prier v. Smitty's Supermarkets, Inc., 715 S.W.2d 579, 580 (Mo.App. S.D.1986), Nickerson v. Moberly Foods, Inc., 781 S.W.2d 87, 90 (Mo.App.W.D.1989), and Edwards v. Ornest Family Partnership, 829 S.W.2d 552, 553 (Mo.App. E.D.1992) for the proposition that actual knowledge is imputed to the property owner "if it is affirmatively shown that an agent of defendant created or was aware of the hazardous condition." Prier, 715 S.W.2d at 580. Edwards and Nickerson cite to Prier as authority. Prier, on the other hand, cites to Ward v. Temple Stephens Co., 418 S.W.2d 935 (Mo.1967) and Vinson v. National Super Markets, Inc., 621 S.W.2d 373 (Mo.App. E.D.1981) for the proposition. A review of the cases reveals the following.

First, the complete statement in Prier is "[t]he defendant store owner is generally deemed to have actual notice if it is affirmatively shown that an agent of defendant created or was aware of the hazardous condition." Prier, 715 S.W.2d at 580 (emphasis added). The Prier court relied on the following statement in Vinson, "[d]efendant is generally deemed to have actual notice if it is affirmatively shown that an agent of the defendant was aware of the existing danger." Vinson, 621 S.W.2d at 375 (emphasis added). Ultimately, both the Prier and Vinson courts were relying on the language in Ward v. Temple Stephens Co.:

Generally, defendant is deemed to have had actual notice if it is affirmatively shown that an agent of the defendant has placed an obstruction in the aisle of a store, for that act supplies the requirement of notice. In the absence of such a showing, there must be evidence that the defect has existed for a sufficient length of time to constitute constructive notice, or, in other words, to show that defendant should reasonably have known of it.

Ward, 418 S.W.2d at 938 (citations omitted); (first emphasis added; second emphasis in original).

From the foregoing, it can be seen that the actual rule as announced by our Supreme Court is that a store owner can be deemed to have actual notice of a defective condition on the premises if it is affirmatively shown that the store owner's agent placed an obstruction in the aisle of the store. The store owner is deemed to have actual notice because the agent has actual knowledge of the obstruction. Thus, when the Vinson court stated that the defendant is deemed to have actual notice if "an agent of the defendant was aware of the existing danger," Id. at 375, it was being consistent with Ward because it was a case in which there was a claim that the defendant's agents had knowledge of a...