Eide v. Midstate Oil Co., WD

• Decision Date: 03 January 1995
• Docket Number: No. WD,WD
• Parties: Pamala EIDE, Respondent, v. MIDSTATE OIL COMPANY, Appellant. 48905.
• Court: Missouri Court of Appeals

Page 35

895 S.W.2d 35

Pamala EIDE, Respondent, v. MIDSTATE OIL COMPANY, Appellant.

No. WD 48905.

Missouri Court of Appeals Western District.

Jan. 3, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 28, 1995.

Application to Transfer Denied

April 25, 1995.

Stephen S. Brown and Terry Karnaze, Kansas City, for appellant.

Ed Dougherty, Kansas City, for respondent.

Before ULRICH, P.J., and KENNEDY and BERREY, JJ.

BERREY, Judge.

Midstate Oil Company (Midstate) appeals from a judgment in favor of Pamala Eide arising from a lawn mower accident that resulted in her left great toe being permanently severed from her body. The accident occurred at a gas station/convenience store in Chillicothe, Missouri, owned by Midstate. The jury returned a verdict of $180,000, allocating 15% of the fault to Mrs. Eide, and 85% of the fault to Midstate. The trial court entered a $153,000 judgment against Midstate, but later amended it to include prejudgment interest, resulting in a judgment of $176,956.03.

Mrs. Eide was hired by the store manager, Della Ishmael, to do the mowing around the store in the spring of 1988 or 1989. She continued the job until the accident on September 5, 1990. The grass was mowed as needed, throughout the growing season, for which Mrs. Eide was paid $25 or $35 per mowing. Mrs. Eide was not an employee of Midstate. Midstate did not furnish equipment to plaintiff, or instruct her on when or how to mow the grass. Mrs. Eide initially mowed the property by herself with a gas powered push mower. After a while, her husband, Gary Eide, and their daughter, Heather Eide, helped with the mowing. Mrs. Eide usually operated the push mower, while Gary ran the weed eater, and Heather used the riding lawn mower.

On the south side of the property, there was a wooden fence that consisted of three sections, each ten to twelve feet long. In April or May of 1990, the south section of the fence came loose from the post. Despite several attempts to reattach the fence to the pole, the fence section fell to the ground. Gary Eide mowed around it two or three times. The store manager, Della Ishmael, decided to move the fence section out of the way, and with the assistance of both Pamala and Gary Eide, they moved the fence section to the southeast corner of the store. The fence section was placed flat on the ground, atop weeds and gravel, next to one of two concrete slabs that supported two air conditioning units. Mrs. Eide testified the fence section was moved a couple of months before the accident.

Mrs. Eide admitted that, in the past, she mowed around the concrete slabs with her push mower. She did not mow around the concrete slabs, from the time the fence section was placed there, until the day of the accident. Gary Eide testified that he trimmed around the fence section with a weed eater, but did not trim the weeds growing between the boards of the fence. Mrs. Eide testified that Gary trimmed around the air conditioning units because of the terrain at the back of the building.

On the day of the accident, Mrs. Eide decided to use the push mower to help her husband trim around the building. Mrs. Eide began to mow around one of the concrete slabs. She held the mower with one hand, and began backing toward the building, pulling the mower towards her. Mrs. Eide fell backwards, and landed on her rear on top of the fence section. She immediately sat up, saw the mower was on her foot, and pushed it off. Mrs. Eide also struck a post as she fell, resulting in a laceration on the inside of her arm. Mrs. Eide's left great toe was amputated as a result of the accident. She had three surgeries on her foot.

Mrs. Eide admitted she "probably did" see the fence section, earlier in the day. Despite some weeds, a portion of the fence section was visible on the day of the accident.

I

Point I alleges the trial court erred in failing to direct a verdict in favor of Midstate because Mrs. Eide failed to make a submissible case of negligence. Midstate contends it owed no legal duty to Mrs. Eide as the dangerous condition was known and realized by her. The parties do not dispute that Mrs. Eide was an invitee at the time of the accident.

In determining whether the plaintiff made a submissible case, we will construe the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to plaintiff, and disregard defendant's evidence that does not support the plaintiff's case. Luthy v. Denny's, Inc., 782 S.W.2d 661, 662-663 (Mo.App.1989). The trial court's decision will be reversed only if all of the evidence and reasonable inferences are so strongly against the plaintiff's case that reasonable minds could not differ. Schnelting v. Coors Distributing Co., 729 S.W.2d 212, 214 (Mo.App.1987).

Our Supreme Court has adopted the Restatement (Second) of Torts, § 343 (1965). It provides that a possessor of land is subject to liability for injuries caused by a condition on the land only if the possessor (1) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (2) should expect that the invitee will not discover or realize the danger or will fail to protect themselves against it, and (3) fails to exercise reasonable care to protect them against the danger. Harris v. Niehaus, 857 S.W.2d 222, 225-6 (Mo. banc 1993). Under the second element, 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 the invitee "unless the possessor should anticipate the harm despite such knowledge or obviousness." Id. [quoting Restatement (Second) of Torts, § 343].

Point I contends Midstate owed no legal duty to Mrs. Eide because the allegedly dangerous condition was known and realized by her. It is not required that a business invitee establish that he lacked knowledge of the allegedly dangerous condition. Cox v. J.C. Penney Co., 741 S.W.2d 28, 30 (Mo. banc 1987). Under our comparative fault system, the jury simply has the responsibility to assess the relative fault of the parties in tort actions. Id. Midstate's duty argument fails in this context because it overlooks jury assessment of Midstate's fault for failure to maintain the convenience store in a reasonably safe condition. Id. An invitee's knowledge of an obvious danger is considered in determining the invitee's comparative negligence rather than in determining the duty of the owner. Luthy, 782 S.W.2d at 664.

The issue in the present case is whether the condition was so open and obvious that Midstate was without a duty to Mrs. Eide. Mrs. Eide testified that the part of the fence she tripped over did not appear to be visible in the photographs of the accident scene. Della Ishmael testified that only "part of the fence section was visible." Gary Eide testified that "there was a lot of that fence not visible." Heather Eide testified that the weeds and grass in the area of the fence were "pretty high."

The evidence in this case created an issue for the jury to decide and precluded a directed verdict. Construing the evidence in the light most favorable to Mrs. Eide, we must find that there was sufficient evidence to support a conclusion that Mrs. Eide did not know of the dangerous condition on the day of the accident or that the end of the fence covered with grass and weeds was not so open and obvious that Mrs. Eide is deemed to have had constructive knowledge of the dangerous condition. Luthy, 782 S.W.2d at 662-3.

Point I is denied.

II

Point II alleges the trial court erred in refusing to give Midstate's assumption of risk instruction. Midstate contends that because Mrs. Eide (1) helped move the fence section to the location where she fell; (2) understood the necessity of being careful while using a law mower; (3) understood the risks of encountering objects in the grass while mowing; (4) voluntarily undertook the mowing; and (5) acted unreasonably in pulling the mower backward in the vicinity of the downed fence section, the trial court should have submitted the assumption of risk instruction.

Assumption of risk bars recovery when the plaintiff voluntarily consented to accept danger of known and appreciated risk, and that she comprehended actual danger and intelligently acquiesced in it. Ross v. Clouser, 637 S.W.2d 11, 14 (Mo. banc 1982). "To be charged with assumption of risk, one must not only know the facts which create the danger but must comprehend and appreciate the danger itself. And one's knowledge of a general condition from which the danger arose does not necessarily constitute knowledge and appreciation of the danger of injury." (citations omitted) (emphasis in original) Bullock v. Benjamin Moore & Co., 392 S.W.2d 10, 14 (Mo.App.1965). In order to give an assumption of the risk instruction, there must be facts from which a jury can find that the plaintiff intelligently consented to assume the risk and knew the extent of the danger. Strang v. Deere & Co., 796 S.W.2d 908, 916 (Mo.App.1990).

Mrs. Eide helped move the fence to the location where the accident later occurred and was told "the maintenance people [would] take care of it." At the time of the accident, part of the fence section was visible, but there was evidence that the portion of the fence over which Mrs. Eide tripped was covered by grass and weeds. The fact that she helped move the fence several months before the accident does not demonstrate knowledge that the fence remained there on the day of the accident. There was no evidence that Mrs. Eide was aware of the danger of tripping over the fence section, especially when the portion she tripped over was covered by grass and weeds.

Midstate contends that Mrs. Eide acted unreasonably in walking backwards while mowing. The jury assigned 15% of the fault to Mrs. Eide, and 85% of the fault...