Ellis v. Jurea Apartments, Inc., 18705

• Decision Date: 24 March 1994
• Docket Number: No. 18705,18705
• Citation: Ellis v. Jurea Apartments, Inc., 875 S.W.2d 203 (Mo. App. 1994)
• Parties: Anna ELLIS, Plaintiff-Appellant v. JUREA APARTMENTS, INC., a Missouri corporation, d/b/a Chandelaque Apartments, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 203

875 S.W.2d 203

Anna ELLIS, Plaintiff-Appellant v. JUREA APARTMENTS, INC., a Missouri corporation, d/b/a Chandelaque Apartments, Defendant-Respondent.

No. 18705.

Missouri Court of Appeals,

Southern District,

Division One.

March 24, 1994.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 13, 1994.

Timothy E. Gammon, Hulston, Jones, Gammon & Marsh, Springfield, for plaintiff-appellant.

Brad J. Fisher and Carol T. Aiken, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for defendant-respondent.

PARRISH, Chief Judge.

Anna Ellis (plaintiff) appeals from a judgment entered following jury verdicts in favor of Jurea Apartments, Inc., (defendant) in actions for negligence (Count I), and two counts for breach of a rental agreement (Counts II and III). This court affirms.

Plaintiff occupied an apartment owned by defendant from March 1990 until January 1991. Plaintiff's apartment was in the Chandelaque Apartments complex at 2010 South Ingram Mill Road in Springfield, Missouri. Plaintiff originally occupied the apartment subject to a written lease. There was no showing that the written lease contained any provision regarding snow or ice removal. The lease was for a six-month term. It expired in August 1990. After the lease expired, plaintiff continued to occupy the apartment on a month-to-month tenancy until January 15, 1991.

During the last few days of December 1990, and the first week of January 1991, a sleet storm occurred in the city of Springfield. The Acting Director of Public Works for the city of Springfield, Mr. Charles Turner, explained:

On December the 29th and 30th of 1990 we received a sleet storm in the city that had about between three and four inches of sleet on the entire area. It almost immediately went to a solid piece of ice, four inches of ice, and for the next three weeks, from that point up until January the 18th, we continually battled that ice.

The city had four road graders available for ice removal--it's snow plows were ineffective in removing the ice. The city was unable to make any progress in its efforts to remove ice from roadways until it hired private contractors to provide additional equipment.

On January 6 or 7, the city arranged for and began using 32 pieces of equipment for ice removal. Mr. Turner related that the city had taken those actions only "three times in the last twenty years." The four-inch build up of ice was still on the ground on January 8, 1991. There was a "general condition of ice" in the city at that time.

Defendant had not removed the accumulated ice from common areas throughout the apartment complex. It had removed ice from an area near the entrance to its manager's office.

On January 8, 1991, plaintiff left her apartment to walk to her mailbox. She had not left her apartment for the past three or four days. Because the sidewalks between plaintiff's apartment and her mailbox were covered with ice, she chose to follow a route over a grassy area to her mailbox. She reached her mailbox and retrieved her mail. She decided to follow a different route to return to her apartment. It went over a footbridge that crossed a drainage ditch. The footbridge was ice-covered. As plaintiff crossed the footbridge, near its end, she slipped and fell backwards. She explained:

And I grabbed for the rail and the rail had ice on it and I fell. I fell backwards and I bent my finger back and broke it. And I also heard a pop in my chest.

And I crawled the rest of the way to the house, because I was afraid to get up. And I crawled the rest of the way to the house, which wasn't very far. And I crawled into the west door there and got up and went on into my apartment.

And my finger started swelling up and hurting. And I sat around and waited for a long time, but it got to hurting so bad I didn't know what to do. And it was snowing a little bit and I said, "Well, maybe I can get some grip on the snow," you get a little traction on snow.

And so I put my clothes on and went to the Cox Emergency Room. They x-rayed my hand and told me that finger was broken.

Plaintiff's back and hip hurt. Her hip was x-rayed and found to be all right. Her chest hurt. She previously had heart surgery that required her sternum to be wired together. Later, in November 1991, surgery was required to rewire her sternum. At trial, the parties stipulated that this surgery "resulted from the accident."

Plaintiff contends by her first point on appeal that the trial court erred in giving Instruction No. 11. Plaintiff claims that the instruction misstated the law; that defendant had assumed a duty to remove snow and ice and, therefore, the trial court "should either have so instructed the jury or not have given Instruction 11."

In addressing plaintiff's first point, defendant calls this court's attention to Rule 84.04(e) that includes the requirement, "If a point relates to the giving, refusal or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief." Defendant correctly points out, "Plaintiff has failed to set forth this instruction in full under Point I of the argument portion of her brief as required by Rule 84.04(e)." Plaintiff has included a copy of Instruction No. 11, as well as Instruction No. 10, and an offered but refused instruction, Instruction No. A, in an "[a]ddendum" at the end of her brief.

In McMullin v. Borgers, 806 S.W.2d 724 (Mo.App.1991), the Eastern District of this court held:

Rule 84.04(e) clearly states that, "[i]f a point relates to the giving, refusal or modification of an instruction such instruction shall be set forth in full in the argument portion of the brief." (Emphasis supplied). Rule 84.04 is to be strictly enforced. East v. Landmark Central & Trust Company, 585 S.W.2d 222, 225 (Mo.App.1979). By not placing the instructions in the argument portion of his brief plaintiff has failed to preserve his points on appeal. McKee v. Wilmarth, 771 S.W.2d 955, 957 (Mo.App.1989).

Id. at 727-28. In McMullin, the appellant had set forth the applicable instruction in an addendum to the brief. The Eastern District opted to review the point "for plain error pursuant to Rule 84.13(c)." Id. at 728.

Defendant's complaint that plaintiff did not comply with Rule 84.04(e) is well-taken. As was done in McMullin, this court will review Point I only for plain error.

Instruction No. 11 states:

You must not assess a percentage of fault to Defendant Jurea Apartments, Inc. if you believe that, at the time plaintiff Anna Ellis fell on said defendant's pathway, there existed throughout the City of Springfield a general condition of ice, and the condition of said defendant's pathway, as submitted in Instruction No. 10 was not a special, isolated condition.

Instruction No. 10 states:

You must assess a percentage of fault to Defendant on Plaintiff's claim for personal injuries if you believe:

First, there was ice on the bridge on the pathway and as a result the pathway was not reasonably safe, and

Second, Defendant knew, or by using ordinary care could have known, of this condition, and

Third, Defendant failed to use ordinary care to make the pathway reasonably safe, 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 No. 11.

The instruction given as Instruction No. 11 in this case was approved in Willis v. Springfield Gen. Osteopathic Hospital, 804 S.W.2d 416, 418 (Mo.App.1991). Plaintiff argues, however, that this defendant, unlike the defendant in Willis, "has by contract either expressed or by course of conduct obligated [itself] to perform the duty of snow and ice removal." Plaintiff correctly states:

The general rule [the "Massachusetts rule"] is that there is a duty on a landlord to keep his premises in good repair and safe condition. There is an exception when dangerous conditions are the result of a general condition of fresh fallen snow or ice. But there is an exception to the exception, where by express promise or course of conduct a landlord has created a duty to remove snow and ice.

See Willis v. Springfield Gen. Osteopathic Hospital, supra, at 419; Woodley v. Bush, 272 S.W.2d 833, 834-35 (Mo.App.1954). Plaintiff then, in an attempt to distinguish this case from Willis, relies on the "exception to the exception, where by express promise or course of conduct a landlord has created a duty to remove snow and ice."

The exception to the Massachusetts rule was explained in Willis. Willis quoted from Alexander v. American Lodging, Inc., 786 S.W.2d 599 (Mo.App.1990):

An exception to the Massachusetts rule arises where a landlord obligates himself either by agreement or a course of conduct over a period of time to remove snow and ice from common areas, thereby assuming a duty to exercise ordinary care to remove the snow and ice to make the common area reasonably safe.

Id. at 601, quoted in Willis, 804 S.W.2d at 419.

Plaintiff contends she was told when she signed the lease agreement with defendant that defendant would maintain the common areas. In her brief, she argues she understood that to mean that defendant would mow the grass and shovel ice and snow. Her testimony at trial, however, was:

Q. [by plaintiff's attorney]: Okay. Did you read the lease agreement?

A. No, I couldn't read the fine print on it and I asked her to read it to me. And she said she would just go over the highlights of it with me, like the rent and the deposit, and the pet deposit, and all that, and who took care of what. I was supposed to keep the apartment clean and in good shape. And she said they kept the grounds, they were supposed to keep the grounds, like mowed and cleaned and--

She also testified:

Q. When was that that [sic] lease agreement due to expire?

A. In August of '90.

Q. Did you sign any other agreement after August of '90?

A. No.

Q. Did you stay on at the apartment after August of '90?

A. Yes, I did.

...