Lipp v. Ginger C, L.L.C.
| Decision Date | 19 April 2016 |
| Docket Number | Case No. 2:15-cv-04257-NKL |
| Parties | JOHN P. LIPP and STEPHANIE S. LIPP, Plaintiffs, v. GINGER C, L.L.C., et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Plaintiffs, the surviving parents of Jack Lipp, filed suit under Missouri's wrongful death statute, Mo. Rev. Stat. § 537.080, alleging negligence against Defendants Ginger C, L.L.C., American Campus Communities (ACC),1 Pi Kappa Phi Fraternity, Inc. (PKP National), and Pi Kappa Phi Fraternity Missouri Beta Epsilon Chapter (PKP Chapter). Before the Court are the following motions:
For the reasons discussed below, Ginger C's Motion for Judgment on the Pleadings and ACC's Motion to Dismiss are denied. PKP's Motion to Dismiss is granted. However, with regards to the premise liability claim alleged against PKP Chapter, Plaintiffs' Motion to Substitute is granted, and Plaintiffs may assert this claim against Scott Swafford, representative of the unincorporated association PKP Chapter. Plaintiffs' Motion for Leave to File Fourth Amended Complaint is granted for the purposes of (1) adding factual allegations against Roland Management, L.L.C., including allegations that apply to other defendants and (2) substituting Scott Swafford in place of PKP Chapter. Plaintiffs' other motions to amend are denied as moot.
On December 12, 2014, Lukas Reichert, the rush chairman of PKP Chapter, asked Michael Novak, Christopher Strzalka, and Charlie Smith to host a PKP "rush party" at the residence they were renting, a structure at 507 South Fourth Street in Columbia, Missouri. This party was designed to recruit freshmen students at the University of Missouri into the chapter. Novak, Strzalka, and Smith—all members of PKP Chapter—agreed to host the event.
Two days later, on the night of December 14, over 100 people attended the rush party at 507 South Fourth Street, which grew out of control due to an atmosphere of alcohol abuse. Jack Lipp arrived at this party around 1:15 a.m the following morning. At some point in the next hour, Lipp went onto a second-floor deck on the south side of the property, where he stood on a wooden balcony in order to urinate onto the driveway below. Columbia Police believe party attendees had been urinating off the deck throughout the night due to long bathroom lines inside the house. While he was on the deck, the wooden balcony broke, causing Lipp to fall 18 feet to the driveway. Lipp died on December 25, 2014 as a result of his injuries.
The balcony had been temporarily repaired by a prior owner of the property with unpainted wooden boards. At the time of Lipp's injury, 507 South Fourth Street was owned by Ginger C, which had an agreement with ACC to redevelop the property. ACC planned to remove the existing structure on the premises to make room for a large student apartment complex, and to this end ACC financed Ginger C's purchase of the property. However, in the spring and summer of 2014, the Columbia City Council repeatedly tabled its consideration of ACC's proposed project. The existing structure was leased in August 2014 to Novak, Strzalka, and Smith for the upcoming school year.
In October 2014, Ginger C inspected the property and was aware of the defective balcony. ACC also inspected the property around this time and was also aware of the defective balcony. While Michael Novak's mother complained to Ginger C about the balcony's temporary repair job, Ginger C did not make any repairs because the property was still scheduled for demolition.
Plaintiffs filed this suit on November 9, 2015. Their Second Amended Complaint contains four counts of negligence, one each against Ginger C, ACC, PKP Chapter, and PKP National.
When considering a motion to dismiss, a court asks whether the complaint "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when its allegations rise above the "speculative" or "conceivable," Twombly, 550 U.S. at 547, and "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," Iqbal, 556 U.S. at 678. Such a complaint will be liberally construed in the light most favorable to the plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). Likewise, a court will apply this same standard to a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Ashley County v. Pfizer, 552 F.3d 659, 665 (8th Cir. 2009).
The Defendants argue that Plaintiffs have not sufficiently pled the negligence claims against them. Crucially, in their motions, all the Defendants contend that they did not exercise control over the defective balcony such that the law imposes upon them a duty to inspect, correct, or warn of this defect. Because these claims all involve an alleged dangerous condition on a property, they are properly considered under theframework of premise liability. Cossey v. Air Systems Intern., Inc., 273 S.W.3d 588, 590 (Mo. Ct. App. 2009).
To maintain a premise liability claim, Plaintiffs must establish that (1) the Defendants were "possessors" of the property at 507 South Fourth Street, Adams v. Badgett, 114 S.W.3d 432, 436 (Mo. Ct. App. 2003), and (2) that each owed Lipp a duty of care, Woodall v. Christian Hosp. NE-NW, 473 S.W.3d 649, 653 (Mo. Ct. App. 2015). "Generally, the status of an entrant on the land, i.e., whether the entrant is a trespasser, licensee, or an invitee, determines the specific duty of care owed by the possessor of land." Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d 490, 495-96 (Mo. Ct. App. 2015).
Plaintiffs allege that Lipp attended the PKP rush party as a guest, and therefore that he entered the property as an invitee. The PKP Defendants, however, urge the Court to consider Lipp a licensee because Plaintiffs have not established that Lipp, by his mere presence at the party, had been invited "with the expectation of a material benefit" and thus moved from a licensee to an invitee. See Carter v. Kinney, 896 S.W.2d 926, 928 (Mo. banc 1995).
The Court need not presently resolve this issue because it has no bearing on the Defendants' motions to dismiss. If Lipp was an invitee, he was owed a duty if the possessor "kn[ew] [about the dangerous condition] or by the exercise of reasonable care would discover the condition." Medley, 460 S.W.3d at 496. If Lipp was a licensee, he was owed a duty "to make safe dangers of which the possessor [was] aware." Carter, 896 S.W.2d at 928. Because Plaintiffs allege that all the Defendants were aware of thedefective balcony, see [Doc. 64, pp. 6, 19, 11, ¶¶ 32, 62, 90], each Defendant owed Lipp a duty of care if it possessed the property at the time of the injury, regardless of his exact status as an entrant.
Further, as examined below, Plaintiffs have sufficiently alleged in their Second Amended Complaint that Ginger C, ACC, and PKP Chapter possessed the property at the time of Lipp's injury. Plaintiffs have since filed a Third Amended Complaint that adds claims against Roland Management, L.L.C. [Doc. 125]. Plaintiffs have also sought leave to file a Fourth Amended Complaint, [Doc. 129], arguing that they should be permitted to add facts regarding Roland Management that also pertain to other defendants' control of the property. ACC and Ginger C have consented to this motion.
For several reasons, the Court finds "good cause" to grant Plaintiffs' Motion for Leave to File Fourth Amended Complaint. Fed.R.Civ.P. 16(b)(4). First, in light of the complex relationship between the parties in this case and the extensive discovery undertaken to identify several of these parties, the uncontested addition of Roland Management necessarily requires Plaintiffs to allege added facts against several defendants. Second, as explained below, the Defendants are not prejudiced because even under their Second Amended Complaint, Plaintiffs have stated premise liability claims against ACC, Ginger C, and PKP Chapter. See Brown v. Wallace, 957 F.2d 564, 566 (8th Cir. 1992) (). Third, the Court's Amended SchedulingOrder [Doc. 33] still provides the parties sufficient time to complete discovery and file dispositive motions.3
Accordingly, within seven days of the date of this order, Plaintiffs are granted leave to file a Fourth Amended Complaint containing factual allegations against Roland Management that also apply to other defendants. Plaintiffs are also granted leave to substitute Scott Swafford as representative of PKP Chapter, for the reasons discussed below. No further amendments will be granted absent extraordinary circumstances.
However, as also discussed below, Plaintiffs have not alleged a claim against PKP National in any complaint. They further have not alleged a negligence claim against PKP Chapter stemming from PKP Chapter's failure to train, failure to follow fraternity policy, or provision of alcohol at the rush party. These claims are dismissed with prejudice.
The parties agree that Ginger C owned the property at 507 South Fourth Street at the time of Lipp's injury. Ginger C argues, however, that it is entitled landlord immunity and cannot be held liable for a defective condition on the premises—the wooden balcony—of which its tenants were aware. Under Missouri law, if a tenant is in control of the property, the landlord generally "is not liable for personal...
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