Lindsay v. Mazzio's Corp.

• Decision Date: 30 June 2004
• Docket Number: No. 25928.,25928.
• Citation: 136 S.W.3d 915
• Parties: Grace LINDSAY, Plaintiff-Appellant, v. MAZZIO'S CORPORATION d/b/a Zio's Italian Kitchen, Defendant-Respondent.
• Court: Missouri Court of Appeals

136 S.W.3d 915

Grace LINDSAY, Plaintiff-Appellant, v. MAZZIO'S CORPORATION d/b/a Zio's Italian Kitchen, Defendant-Respondent.

No. 25928.

Missouri Court of Appeals, Southern District, Division Two.

June 30, 2004.

Steven E. Marsh, Springfield, MO, for appellant.

Randy P. Scheer, S. Jacob Sappington, Springfield, MO, for respondent.

JEFFREY W. BATES, Judge.

Plaintiff Grace Lindsay ("Lindsay") appeals from a summary judgment granted in favor of Defendant Mazzio's Corporation d/b/a/ Zio's Italian Kitchen ("Zio's"). Lindsay argues that summary judgment was improperly granted because her case presents genuine issues of material fact requiring a trial to resolve. This court agrees. The judgment of the trial court is reversed, and the case is remanded.

I. Facts and Procedural History

Lindsay slipped and fell at Zio's on December 6, 1998. On September 17, 2001, she filed a personal injury action against Zio's in the Circuit Court of Greene County, Missouri. Her petition alleged, inter alia, that she was injured because "[t]he floor of the premises was wet and extremely slick[.]"

After suit was filed, Lindsay was deposed by Zio's attorney. The following facts are drawn from her deposition testimony.¹ Lindsay was approximately 88 years old when she was deposed in July 2002. Shortly before noon on December 6, 1998, she had gone to Zio's for an after-church lunch with her daughter, Thelma Wissinger ("Wissinger"). After waiting near the entrance of Zio's for a short time, a hostess began escorting Lindsay and Wissinger to a table all the way in the back of the restaurant. Lindsay was walking behind Wissinger. As Lindsay neared the back part of the establishment, she started to turn to her left in order to walk to the table. As she turned, she slipped and fell onto her left side. Lindsay's left shoulder was dislocated and broken in the fall, causing her left arm to be pushed upward such that it appeared to be growing out of her neck. Lindsay did not see anything on the floor that caused her to fall. Immediately after the accident, however, an unknown woman customer ("the observer") spoke up and said, "That floor is wet there." The observer, who was eating lunch, was sitting at a table right beside the spot where Lindsay fell. While Lindsay was lying on the floor waiting for an ambulance to arrive, she also heard Wissinger say, "Well, this floor is wet." Wissinger was "frantic" when she made this statement because Lindsay's injuries were causing her severe pain.

In October 2002, Wissinger was deposed by Zio's attorney. The following facts are drawn from her deposition testimony.² Wissinger was 62 years old when she was deposed. Her mother's injury had occurred almost four years earlier. Wissinger was walking in front of her mother as they proceeded with the hostess to their table. As they reached the back part of the restaurant and turned toward their table, Wissinger realized Lindsay had fallen. She had slipped in the walkway area and was lying between two tables. Wissinger was "so distraught" because her mother was in severe pain that Wissinger didn't get the names of the witnesses sitting at these tables. Wissinger then gave the following testimony:

Q. Did you see anything on the floor in the area where your mother fell?

A. No.

Q. Didn't see anything?

A. Not that I recall now.

Q. And when I say "anything," I mean something that she could have slipped on?

A. I don't remember seeing anything, but I was not looking down.

Q. After she fell, did you see anything while you were down there helping her?

A. I don't remember that I did.

Q. Did you—do you remember anybody at the table sitting around saying that they saw something?

A. I don't. I was too distraught to hear or see much of anything.

After these depositions were taken, Zio's filed a motion for summary judgment on the ground that Lindsay had "failed to provide evidence that there was any substance on the floor that could have caused her fall." (Emphasis in original.) Other than the depositions of Lindsay and Wissinger, the only evidentiary matter submitted with the motion was an affidavit by Brad Ernst. According to the affidavit, Ernst was the Front-of-the-House Manager on duty when Lindsay fell. Ernst stated that "[i]mmediately after Plaintiff's fall, I assisted Plaintiff. I carefully examined the floor in the area where she fell, and I did not see any condition or substance on the floor that could have caused her to fall."

Lindsay responded to the motion for summary judgment in the appropriate manner by admitting and denying the factual statements in Zio's motion. For example, Lindsay denied Zio's factual statement that "[n]either Plaintiff nor Ms. Wissinger observed anything on the floor that could have caused Plaintiff to fall." Lindsay's response stated, in pertinent part, that "Ms. Wissinger observed that the floor was wet where Plaintiff fell.... Plaintiff was told by two other persons immediately after her fall that the floor was wet at the place she fell." Lindsay's denial was supported with specific references to discovery, exhibits or affidavits as required by Rule 74.04(c)(2).³ The discovery references make it clear that the "two persons" mentioned in Lindsay's response were Wissinger and the observer sitting at the table right beside the spot where Lindsay fell.

As permitted by Rule 74.04(c)(2), Lindsay also set out the following additional material facts: (1) the place where Lindsay fell was routinely wet and slick because of its close proximity to a kitchen opening used by employees who tracked water and other liquids into the customer dining area; (2) warning signs were available, but were not used, because the signs impeded employees exiting the kitchen area; and (3) other persons had slipped and fallen on moisture in the area where Lindsay fell, which was adjacent to the kitchen opening. These additional factual allegations were supported by affidavits from two former Zio's employees.

Thereafter, Zio's filed a reply in which it challenged the admissibility of the statements about the floor being wet that Lindsay overheard while she was lying injured on the floor. Based on the assumed correctness of this argument, Zio's then asserted the facts contained in former employees' affidavits were irrelevant and immaterial because there still was no proof the floor was actually wet when Lindsay fell. Zio's filed a motion to strike these affidavits for this reason. However, Zio's did not deny the existence of the additional facts and support such denial with specific references to the discovery, exhibits or affidavits as required by Rule 74.04(c)(2). No sur-reply in opposition to the motion for summary judgment was filed by Lindsay.

The motion for summary judgment was argued on October 6, 2003. At the conclusion of the hearing, the trial court made a docket entry indicating concern about the admissibility of the observer's statement that the floor was wet.⁴ The parties were granted additional time to brief the issue. On November 5, 2003, the trial court granted Zio's motion for summary judgment. This appeal followed.

II. Standard of Review

If the motion for summary judgment, response, reply and sur-reply demonstrate "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law," a summary judgment shall be entered. Rule 74.04(c)(6). Our review is essentially de novo because we employ the same tests that the trial court must use in deciding whether to grant the motion. Jones v. Brashears, 107 S.W.3d 441, 444 (Mo.App.2003). Thus, we need not defer to the trial court's order granting summary judgment. Bland v. IMCO Recycling, Inc., 122 S.W.3d 98, 102 (Mo.App. 2003). The propriety of a summary judgment is purely an issue of law. Daniels v. Senior Care, Inc., 21 S.W.3d 133, 135 (Mo. App.2000).

On appeal, we review the record in the light most favorable to the party against whom judgment was entered, and we accord the non-moving party the benefit of all reasonable inferences from the record. Cox v. Clark, 949 S.W.2d 231, 233 (Mo.App.1997). "A genuine issue of material fact exists where the record contains competent evidence that two plausible but contradictory accounts of essential facts exist." Contract Freighters, Inc. v. Fisher, 13 S.W.3d 720, 722 (Mo.App.2000). However, "[o]nly evidentiary materials that are admissible or usable at trial can sustain or avoid a summary judgment." Partney v. Reed, 889 S.W.2d 896, 901 (Mo. App.1994); Blunt v. Gillette, 124 S.W.3d 502, 503 (Mo.App.2004).

Here, the motion for summary judgment was filed by Zio's, the defendant in the lawsuit. A defending party may establish a right to judgment by showing: (1) facts that negate any one of the claimant's elements facts; (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 381 (Mo. banc 1993). Each of these three means establishes a right to judgment as a matter of law. Payne v. City of Osage Beach, 132 S.W.3d 314, 316 (Mo.App.2004).

III. Discussion and Decision

Lindsay presents two points for us to decide. In the first point, Lindsay contends her response to Zio's motion provided the trial court with admissible evidence that the floor was wet when Lindsay fell, thereby creating a genuine issue of material fact that precluded summary judgment. In the second point, Lindsay contends Zio's failure to properly deny the additional facts in Lindsay's response meant those facts had to be considered by the trial court in ruling on the motion for summary judgment. To facilitate our discussion, we...