Holzhausen v. Bi-State Dev. Agency

Decision Date24 December 2013
Docket NumberNo. ED 98252.,ED 98252.
PartiesJulie HOLZHAUSEN, Plaintiff/Appellant, and Dale Holzhausen, Plaintiff, v. BI–STATE DEVELOPMENT AGENCY, d/b/a Metro, and St. Louis Cardinals, L.L.C., Defendants/Respondents, and David Mason & Associates, Defendant.
CourtMissouri Court of Appeals


Patrick J. Hagerty, Kaitlin A. Bridges, St. Louis, MO, for appellant.

Denis C. Burns, Kortenhof, McGlynn & Burns, LLC, St. Louis, MO, for respondent Bi–State.

Thomas B. Weaver, Jay A. Summerville, Darryl M. Chatman, Armstrong Teasdale LLP, for respondent St. Louis Cardinals, L.L.C.


Plaintiff, Julie Holzhausen, appeals from the entry of separate summary judgments in favor of defendants Bi–State Development Agency (Metro) and St. Louis Cardinals, L.L.C. (the Cardinals) in her premises liability lawsuit to recover damages for personal injuries suffered when she slipped and fell from an embankment owned by the Cardinals onto the below-grade Metrolink light rail track area operated by Metro.

In her lawsuit, plaintiff alleged that Metro operated the Metrolink track line, that the Cardinals owned and operated a stadium and property around the stadium, and that defendant David Mason & Associates (Mason) performed work on the “new” Busch stadium. She alleged that when defendants constructed the new Busch stadium, they failed to fence or barricade a grassy area south of Spruce Street that bordered a ledge with a twenty-to-thirty foot drop to the Metrolink tracks. She further alleged:

12. Defendants, and each of them, knew or could have known that the grassy area and surrounding structures, pipes and appurtenances south of Spruce Street and west of the stadium, were not reasonably safe and that a person using ordinary care for her own safety could not reasonably be expected to discover the dangerous condition.

She also alleged that on October 29, 2006, after the Cardinals won the 2006 World Series, she attended the St. Louis Cardinals parade and rally near Spruce Street, and as a direct result of defendants' negligence, she slipped and fell, suffering bodily injuries.

The Cardinals filed a motion for summary judgment. As grounds for its motion, the Cardinals contended it was entitled to summary judgment because plaintiff could not produce evidence sufficient to allow a trier of fact to find the element of duty in plaintiffs negligence case either because plaintiff was a trespasser, or because the dangerous condition was open and obvious. Metro filed a motion for summary judgment on the same grounds.

The following facts, relevant to the “open and obvious” issue, were uncontroverted for purposes of the summary judgment motions. The area from which plaintiff fell was the Cardinals's property. The property below the ledge was a right of way owned by Metro. While on the Cardinals's property, plaintiff approached two metal pipes located near the ledge. The pipes impeded plaintiff's ability to get to the area where she ended up. Plaintiff went under one pipe and over the other pipe. Plaintiff had both feet on the ground after climbing over the second pipe and was starting to take a step when someone bumped into her, She then lost her balance and fell. Plaintiff admitted she gave the following responses to the following questions:

Q. Did you make any effort when you stood on your feet after you had come over the pipe, knowing that you had just come over a bridge, to determine what it was that the bridge was spanning?

A. No.

Q. Can I ask you why you did not?

A. I was very distracted by all the people and what was going on in the street and the parade.

* * *

Q. As you climbed over the silver pipe, did you notice the fall-off?

A. I did not. I got distracted. I heard somebody say, “Here comes Tony LaRussa on the beer wagon.” That's why I went to see him. I looked toward the street and not behind me, and so I never did see that it was open there, no.

* * *

Q. Do you believe that there was anything that obstructed your view from where you were standing on your feet on the earth and/or mulch and the railroad right-of-way?

A. No.

Defendants included photographs as exhibits in their summary judgment motion of the area where plaintiff was standing when she fell. These photographs show a large, horizontal beam capped by a large horizontal steam pipe running between the street on one side and a mulched or dirt strip and a ledge on the other side. The ledge bordered a drop-off to the uncovered light rail bed and tracks below.

The court entered summary judgment in the Cardinals's favor on the ground that [t]he record, including photographs of the scene and Plaintiffs own testimony, indicate that the drop-off was not obstructed from her view, either by design or by the presence of other people in the vicinity;” that “the danger posed by a drop-off onto the tracks below is one which is readily and reasonably known;” and that the Cardinals could reasonably expect its invitees to discover the risk posed by the ledge, weigh the risk, and act in accordance with a reasonable appreciation of that risk. It concluded that the condition was open and obvious as a matter of law. A second judge subsequently entered summary judgment in Metro's favor on the same ground, citing the law-of-the-case doctrine. The court denied Mason's motion for summary judgment on this ground because it was not an owner or occupier of the land. Plaintiff then dismissed her cause of action against Mason.


Summary judgment is designed to permit the trial court to enter judgment, without delay, when the moving party has demonstrated, on the basis of facts on which there is no genuine dispute, a right to judgment as a matter of law. Rule 74.04; ITT Commercial Finance v. Mid–Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria on appeal for testing the propriety of summary judgment are no different from those that the trial court employs to determine the propriety of sustaining the motion. ITT Commercial Finance, 854 S.W.2d at 376. We view the record in the light most favorable to the party against whom summary judgment is entered and accord the non-movant the benefit of all reasonable inferences from the record. Id. We take as true every fact set forth by affidavit or otherwise in support of the moving party's summary judgment motion unless the non-movant has denied it in its response. Id.

The non-moving party's response must show the existence of some genuine dispute about one of the material facts necessary to the plaintiff's right to recover. Id. at 381. A “defending” party may establish a right to summary judgment by demonstrating:

(1) facts negating any one of the elements of the non-movant's claim; (2) ‘that the non-movant, after an adequate period for discovery, has not been able and will not be able to produce sufficient evidence to allow the trier of fact to find the existence of any one’ of the elements of the non-movant's claim; or (3) ‘that there is no genuine dispute as to the existence of facts necessary to support movant's properly pleaded affirmative defense.’Goerlitz v. City of Maryville, 333 S.W.3d 450, 453 (Mo. banc 2011) (quoting ITT Commercial Finance, 854 S.W.2d at 381).

A genuine issue is a dispute that is real and not merely argumentative, imaginary, or frivolous. Thompson v. Western–Southern Life Assur., 82 S.W.3d 203, 205 (Mo.App.2002). The Missouri Supreme Court has adopted the following definition for determining when a fact is material:

“As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”

Martin v. City of Washington, 848 S.W.2d 487, 491 (Mo. banc 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). As the trial court's judgment is founded on the record submitted and the law, we need not defer to the trial court's order granting summary judgment. ITT Commercial Finance, 854 S.W.2d at 376. This makes appellate review essentially de novo. Id. at 387. A summary judgment may be affirmed under any theory that is supported by the record. Id. at 387–88.

The key to summary judgment is the undisputed right to judgment as a matter of law, not simply the absence of a fact question. Id. at 380. The adage that the record is viewed “in the light most favorable to the non-movant,” does not mean that we disregard facts favorable to the movant in determining whether the movant is entitled to judgment as a matter of law; rather, it means that the movant bears the burden of establishing a right to judgment as a matter of law on the record as submitted. See id. at 382.

This is an appeal from the entry of summary judgments in defendants' favor on defendants' motions for summary judgment. The trial court's consideration of the record was limited to the summary judgment record made on defendants' motions. [A]ll facts must come into the summary judgment record in the manner required by Rule 74.04(c)(1) and (2), that is, in the form of a pleading containing separate separately numbered paragraphs and a response addressed to those numbered paragraphs.’ Syngenta Crop Protection v. Outdoor Equip., 241 S.W.3d 425, 429 (Mo.App.2007) (quoting Sloss v. Gerstner, 98 S.W.3d 893, 898 (Mo.App.2003)). A party confronted by a proper motion for summary judgment may not rest upon mere allegations or denials in his or her pleadings, but in order to overcome the motion, the party must set forth specific facts supported by affidavits, discovery, or admissions on file showing a genuine issue for trial. ITT Commercial Finance, 854 S.W.2d at 381; Rule 74.04(e). A non-movant who relies...

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