Lewis v. Snow Creek, Inc., WD 55070.

• Decision Date: 06 January 2000
• Docket Number: No. WD 55070.,WD 55070.
• Citation: 6 S.W.3d 388
• Parties: Carrie LEWIS, Lesa Moffatt, Appellants, v. SNOW CREEK, INC., Respondent.
• Court: Missouri Court of Appeals

6 S.W.3d 388

Carrie LEWIS, Lesa Moffatt, Appellants, v. SNOW CREEK, INC., Respondent.

No. WD 55070.

Missouri Court of Appeals, Western District.

March 31, 1999.

Motion for Rehearing and/or Transfer Denied July 27, 1999.

Application for Transfer Sustained September 21, 1999.

Retransferred December 21, 1999.

Opinion Readopted January 6, 2000.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Frederick R. Edmunds, Jr., Overland Park, KS, for Appellants.

Thomas J. Magee, St. Louis, for Respondent.

Before RIEDERER, P.J.,¹ LOWENSTEIN and LAURA DENVIR STITH, J.J.

Court Retransferred December 21, 1999.

Court of Appeals Opinion Readopted January 6, 2000.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 1999.

PER CURIAM.

This is an appeal from summary judgments granted in each of two separate suits filed by two different plaintiffs making identical claims against Respondent. Pursuant to a motion filed by Appellants and Respondent, the cases have been consolidated on appeal. Because we find that there is disputed evidence regarding both Respondent's liability as a possessor of land and Appellant's implied assumption of the risk, and because we find that express assumption of the risk did not apply under the facts in this record, we reverse on those issues. However, because there is no disputed evidence regarding count III of the petitions, and because Respondent is entitled to judgment as a matter of law on that count, we affirm as to that count.

Factual and Procedural Background

On January 8, 1995, Appellant Lesa Moffatt rented skis at Snow Creek Ski Area and signed a "Snow Creek Ski Area Rental Form." On January 21, 1995, Appellant Carrie Lewis rented skis at Snow Creek Ski Area and signed a "Snow Creek Ski Area Rental Form." The form states in pertinent part:

10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.

This document was signed by both Lewis and Moffatt during the process of renting equipment. Lewis and Moffatt both stood in line with people in front of and behind them when they received this form. The form had to be completed before obtaining skis and equipment. Both Lewis and Moffatt claim that they felt pressured to move along and did not have an adequate opportunity to read and fully comprehend the rental form.

Lewis and Moffatt both fell on ice at Snow Creek and were injured. Lewis and Moffatt each filed a separate petition against Respondent which included the same four counts: I. Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred; II. Defendant negligently adjusted and maintained the bindings on Plaintiff's skis because they failed to properly release when plaintiff fell, injuring plaintiff's leg; III. Defendant created a dangerous condition by making artificial snow; and IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises. Respondent generally denied Appellant's claims in its answer and asserted affirmative defenses of comparative fault and assumption of the risk.

Respondent filed a motion for summary judgment in each case. Respondent submitted as evidence the "Snow Creek Ski Area Rental Form" and the deposition of the plaintiff in each case. In response to Respondent's motions for summary judgment, each Appellant submitted additional evidence in the form of her own affidavit. Both motions for summary judgment were granted. Lewis' and Moffatt's claims are identical, and they have been consolidated on appeal.

Standard of Review

Our standard of review of a summary judgment is essentially de novo. Lawrence v. Bainbridge Apartments, 957 S.W.2d 400, 403 (Mo.App.1997) (citing, ITT Commercial Finance Corp., v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). We review the record in the light most favorable to the party against whom judgment was entered and grant the non-moving party the benefit of all reasonable inferences from the record. Id.To be entitled to summary judgment a movant must demonstrate that there is no genuine dispute of material fact and that he or she is entitled to judgment as a matter of law. Id.

In accordance with the law, we analyze whether summary judgment is appropriate on the record developed by the parties and presented to this court. The Respondent advances several arguments why summary judgment is appropriate. First, it claims as a possessor of land, it has no duty to warn a business invitee of dangers which are open and obvious as a matter of law and that the ice alleged to have caused the fall and injury was open and obvious as a matter of law. Second, it claims Appellants expressly assumed the risk of this injury by signing the Rental Form. Third, it claims Appellants impliedly assumed the risk of this injury by engaging in the sport of skiing. Fourth, it claims the Rental Form operates as a release.

I. Duty of the Possessor of Land

Respondent claims that the presence of ice on a ski slope should be determined to be an open and obvious danger as a matter of law.

A. Duty Owed To A Business Invitee

"The standard of care owed by a possessor of land is dependent upon the status of the injured party." Peterson v. Summit Fitness, Inc., 920 S.W.2d 928, 932 (Mo.App.1996). An invitee "is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993) (quoting, Restatement (Second) of Torts, § 332 (1965)). As business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. Peterson, 920 S.W.2d at 932. A possessor of land is liable to an invitee only if the possessor:

(a) 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

(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Id.Generally, a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Id. at 933. "The exception to this rule is where `the possessor should anticipate the harm despite such knowledge or obviousness.'" Id. A condition is open and obvious if invitees should reasonably be expected to discover it. Id.

Given the preceding principles, the pivotal question is whether the ice was an open and obvious condition on the land as a matter of law. If we determine the ice was an open and obvious condition on the land as a matter of law, Respondent as possessor has no liability — unless he should anticipate the harm despite such knowledge or obviousness. Id. Thus, the next question would be whether Respondent could reasonably rely on its invitees — skiers—to protect themselves from the danger of ice or whether Respondent should have expected that skiers would not appreciate the danger thus posed. Harris, 857 S.W.2d at 226. We need not reach the second question because this court is unwilling, under the facts as developed in this case, to declare that the conditions on Respondent's property, which allegedly caused the fall, were open and obvious as a matter of law. To the contrary, we find there is a genuine dispute regarding a material fact: the nature and character of the ice alleged to have caused the fall. "For purposes of Rule 74.04, a `genuine issue' exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts." ITT, 854 S.W.2d at 382. "A `genuine issue' is a dispute that is real, not merely argumentative, imaginary or frivolous." Id.In this case, Appellants characterized the ice as large areas of thick impenetrable ice hidden under a dusting of snow. The evidence is that the Appellants fell on ice which they did not see because of the snow. Respondent maintained that both Appellants encountered ice on trails that the Appellants had been down several times before they fell. This is not sufficient evidence for this court to find that the ice Appellants encountered was an open and obvious danger as a matter of law. It is not clear that the Appellants should have reasonably been expected to have discovered the icy condition. Peterson, 920 S.W.2d at 933. "When there is disputed evidence — as in this case — on whether the landowner had reason to expect this type of accident ..., the case properly belongs to the jury." Harris, 857 S.W.2d at 229. Therefore, we find that Respondent was not entitled to summary judgment because there is a genuine issue regarding the ice, and the ice in question was not an open and obvious danger as a matter of law.

II. Assumption of Risk

Appellants claim that the trial court erred in granting summary judgment because the defense of assumption of the risk requires a jury determination as to disputed material facts. Specifically, Appellants claim that a jury should decide whether they knew of the ice and whether they understood and appreciated the danger posed by the ice. Respondent claims that the Appellants' injuries were the result of a risk inherent in the sport of skiing, and therefore, the Appellants assumed the risk, or in the alternative, that Appellants expressly assumed the risk by signing the rental form....