Jones v. St. Louis Housing Authority
| Decision Date | 03 February 1987 |
| Docket Number | Nos. 51029,51031 and 51081,s. 51029 |
| Citation | 726 S.W.2d 766 |
| Parties | Edna JONES, Plaintiff-Appellant/Respondent, v. ST. LOUIS HOUSING AUTHORITY, Defendant-Respondent/Appellant, v. Geter RHYMES, d/b/a Rhymes Landscaping Company, Defendant-Respondent/Appellant, and the Toro Company, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Samuel Goldblatt, Fox, Goldblatt & Singer, Inc., St. Louis, for Edna jones.
Joel D. Monson and Stuart M. Haw, Anderson, Gilbert, Wolfort, Wolfort, Allen & Bierman, St. Louis, for St. Louis Housing Authority.
Russell Watters, Brown, James & Rabbitt, P.C., St. Louis, for Geter Rhymes.
Kenneth W. Bean, Shepherd, Sandberg, & Phoenix, St. Louis, and Robert Wallis, Haynes, Fullenweider, Houston, Tex., for Toro Co.
Plaintiff sued three defendants for the wrongful death of her son. Plaintiff's son, Larry Jones, was struck in the head by a stick thrown from a Toro lawn mower. The jury found defendants St. Louis Housing Authority (Housing Authority) negligent as landowner and Geter Rhymes, d/b/a Rhymes Landscaping Company, negligent as operator of the lawn mower. The jury found in favor of Toro Company, the manufacturer of a riding lawn mower, on plaintiff's products liability claim. It returned a verdict for total damages of $250,000 against defendants Housing Authority and Rhymes. It apportioned the fault 80% to the Housing Authority and 20% to Rhymes. The trial court entered a judgment for $250,000 against both defendants. However, the court limited execution on the judgment against the Housing Authority to a total of $100,000. It also entered judgment in favor of Geter Rhymes on his cross-claim against the Housing Authority for 80% of any sum paid by Geter Rhymes in excess of $50,000, but contribution was not to exceed $100,000.
Plaintiff now appeals judgment for the Toro Company. Defendant, Geter Rhymes, appeals judgment for the plaintiff. Defendant, Housing Authority, appeals judgment for plaintiff and judgment on Rhymes' cross-claim.
We have consolidated the appeals. We will first consider the appeals of each defendant because plaintiff's appeal is viable only if we reverse her judgment against defendants Housing Authority and Rhymes. This is the position which plaintiff acknowledged in oral argument.
On September 30, 1981, Larry Jones, a ten year old boy lived with his mother in the Peabody Housing Project. Peabody was owned and operated by defendant St. Louis Housing Authority. On that afternoon Larry met his friend Jermaine Belford at 3:00 p.m. They parted when Larry went to his grandmother's apartment. Larry left the apartment and walked toward an apartment occupied by Janet Jones. Meanwhile, Jermaine was walking toward Larry who was standing in front of the apartment. Jermaine noticed a man cutting grass, which was almost waist high, with a riding lawn mower in the yard on the east side of Janet Jones' apartment. He heard the mower make a loud noise, "[i]t was like--like some ranging up in it." He saw a stick fly out from the lawn mower and strike Larry in the head. He estimated the stick to be about two inches thick and twelve inches long. When hit, Larry screamed for his mother and collapsed into a chair. An ambulance responded to the scene and transported Larry and his mother to Cardinal Glennon Hospital. Larry slipped into a deep coma before arriving at the hospital and he died at 9:39 p.m. on October 1, 1981, from a swelling of the brain.
Mr. Hunter, the maintenance superintendent for the St. Louis Housing Authority, stated at trial the Housing Authority normally cuts the grass at the Peabody Project. An independent contractor was called in prior to the accident because the grass was so high and out of control. The contract with Rhymes Landscaping to cut the grass was made two-three weeks before the accident.
The Peabody Housing Project is located on twenty-seven acres and consists of 650 apartments in 51 buildings. Mr. Hunter stated he had five custodians to maintain the outside of the buildings. Each custodian was assigned to a particular outside area to police and clean on a daily basis, including the area where the accident occurred. He further testified the area was policed and cleared of any debris on a routine daily basis. Hunter stated at trial that if a landscaper was going to remove debris in addition to cutting grass he would expect the contract to state that the contractor would remove any debris. Geter Rhymes stated that a crew from the Housing Authority was to police the area before the grass was to be cut and if he was to police the area the price for his services would be an additional $1,000 or more above the contract price.
Hunter testified that he showed Geter Rhymes the area to be cut. He claimed at trial that he was not aware of any discussion with Geter Rhymes concerning who would police the area. Mr. Kuhlmann, the purchasing agent of the Housing Authority, did not want Rhymes to police the area because he had his own crew. The contract was introduced as evidence. It did not specify that Geter Rhymes was to police the grounds before cutting.
Newton Simpkins, the operator of the Toro Groundmaster 72 riding lawn mower and employee of Geter Rhymes, stated he was cutting grass in an area where the grass was somewhere between his knee and thigh in height. He believed the area had been cleared of any debris prior to his cutting. However, if he saw any object, he would pick it up before mowing.
William Rhymes, son and employee of defendant Geter Rhymes, stated he was at the project the day of the occurrence operating a weed-eater while Simpkins was operating the lawn mower. Rhymes testified that at 3:30 in the afternoon he turned around and saw a young boy holding his head. The boy was calling for his mother and crying. Rhymes began walking toward the boy, as did the boy's mother, who had been in the doorway of the apartment near the area where he was trimming. Rhymes looked over toward the area to where Simpkins was cutting and saw he was mowing around a utility pole. He then walked over to Simpkins and told him to turn off the lawn mower because a child had been hurt. Rhymes observed that the deflector chute was down on the mower. He then stated that a young boy had picked up a stick off the ground around where Larry Jones was standing and handed it to someone. Jermaine gave the stick to Larry's mother. She brought it to the hospital when she accompanied her son in the ambulance.
Appeal of Defendant Geter Rhymes, d/b/a Rhymes Landscaping,
Company from Judgment for Plaintiff.
Defendant contends three points of trial error, the first of which is plaintiff failed to make a submissible case against landscaper, Rhymes, because plaintiff did not establish with substantial evidence that Rhymes had actual or constructive knowledge that the stick which struck the fatal blow was in the area where grass was being cut.
"When determining whether or not a plaintiff has made a submissible case, the plaintiff's evidence is presumed to be true, any of defendant's evidence to the contrary is disregarded, and the plaintiff is given the benefit of all reasonable and favorable inferences drawn from the evidence." Howard v. Lundry, 591 S.W.2d 193, 197 (Mo.App.1979) (citation omitted). "The rule entitling a plaintiff to the most favorable view of the evidence does not authorize courts to supply missing evidence, (citation omitted), or 'to disregard the dictates of common reason and to accept as correct or true that which obviously, under all the circumstances in evidence, cannot be correct or true, nor does it require us to give plaintiff the benefit of any other than reasonable inferences.' " Begley v. Connor 361 S.W.2d 836, 839 (Mo. banc 1962) (citation omitted).
Defendant Rhymes cites Abraham v. Johnson, 579 S.W.2d 734, 737 (Mo.App.1979), for the proposition that this court recognized the necessity of establishing actual or constructive knowledge of an operator of a power mower of the presence of an object which may cause danger within the area being cut before liability is imposed upon the power mower operator. In Abraham, we stated, "Although all of the authorities recognize that basic principle, varying factual situations have produced holdings that the evidence was sufficient ... or insufficient ... to support findings of actual negligence on the part of the mowing machine operator." Id. at 737.
We find the evidence supported submission on the issue of knowledge. Geter Rhymes stated there was a lot of debris lying around in areas where his men were going to cut grass. The debris was there a couple of days before he started the job. Officer Mansell, of the St. Louis Police Department, responded to the call for the emergency and stated that when he walked into the area (meaning the project) he remembered "broken glass and pieces of brick and wood and stuff and trash" all over the area. There was so much debris he stated "it was too much [for him] to determine" what had struck the boy. Jermaine Belford testified that the grass was thick and "you could hardly see it unless you was walkin' through it or something" but, that he noticed "rocks, sticks, paper wraps, and cans, and stuff like that" when he played in that area. Simpkins, the operator of the lawn mower, stated that in some spots one could see debris and depending upon what the debris was, for example, a piece of wood two and one half inches wide by eight or nine inches long, could be seen in the grass depending upon how it was laying. Geter Rhymes and Newton Simpkins had actual knowledge that debris was in the general area.
In Abraham, this court reviewed several cases from other jurisdictions and distinguished two cases which found insufficient evidence to support findings of actual knowledge on the part of the mowing machine operator...
To continue reading
Request your trial
-
Wade v. Department of Corrections
...agency to liability under an exception for injuries caused by a "condition of a public entity's property." Jones v. St. Louis Housing Authy., 726 S.W.2d 766, 774 (Mo.App., 1987). See Mo.Rev.Stat., Sec. 537.600.1(2).Failure to trim foliage found to be causally related to surprise attack by a......
-
Martin v. Missouri Highway and Transp. Dept., WD
...positioning of various items of property. Alexander v. State, 756 S.W.2d 539, 542 (Mo. banc 1988); See Jones v. St. Louis Housing Authority,, 726 S.W.2d 766, 774 (Mo.App. E.D.1987) (holding that the presence of debris on the public entity's yard was a dangerous condition of the property, an......
-
Holesapple v. Mo. Highways & Transp. Comm'n
...941 (Mo. App. S.D. 1992) (enforcing a single statutory cap for slip and fall injuries on city property); Jones v. St. Louis Hous. Auth. , 726 S.W.2d 766, 778-79 (Mo. App. E.D. 1987) (upholding a single statutory cap in wrongful death case involving dangerous condition of property).In sum, a......
-
State ex rel. City of Marston v. Mann, 20372
...ladder on which plaintiff was working created a physical deficiency which constituted a dangerous condition); Jones v. St. Louis Housing Auth., 726 S.W.2d 766, 774 (Mo.App.1987) (holding that the negligent failure to remove debris on grounds contributed to creating a dangerous condition whi......