Mothershead v. Greenbriar Country Club

Decision Date22 June 1999
Docket NumberED74270
Citation994 S.W.2d 80
PartiesThis slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Angela M. Mothershead, personal representative of the Estate of Jedidiah C. Mothershead, and Angela M. Mothershead, Individually, Appellant, v. Greenbriar Country Club, Inc., and Kay-Bee Toy and Hobby Shops, Inc. and Intex Recreation Corporation, Respondents. Case Number: 74270 Missouri Court of Appeals Eastern District Handdown Date: 0
CourtMissouri Court of Appeals

Appeal From: Circuit Court of St. Louis County, Hon. Stephen H. Goldman

Counsel for Appellant: Ronald E. Jenkins and Paula Colman

Counsel for Respondent: John A. Michener and Peter B. Hoffman

Opinion Summary: Plaintiff Angela M. Mothershead appeals from a judgment granting both Intex Recreation Corp.'s and Greenbriar Country Club, Inc.'s motions for summary judgment in her action against them for the wrongful death of her son in a snow sledding accident.

AFFIRMED.

Division Three holds: Decedent Jedidiah C. Mothershead was not a licensee. Plaintiff's facts do not show that Greenbriar had knowledge of and acquiesced to the presence of trespassers on the hill at the twelfth hole. Decedent was a trespasser to whom Greenbriar owed no duty to keep their property in a reasonably safe condition because the admittedly alleged dangerous condition was open and obvious. Intex's product, the Sno-tube, was not in a defective condition. The existence of the alleged defective condition--that the Sno-tube had an inherent inability to be steered, controlled or safely exited--was refuted by undisputed testimony that the decedent did all of these things the alleged defect allegedly should have prevented him from doing on the day prior to the accident. The existence of the alleged defect was further refuted by undisputed testimony that decedent made no attempt to steer, control or abandon the Sno-tube on his fatal run. Further, the aforementioned testimony establishes that the product allegedly lacking a warning did not cause decedent's injuries.

Opinion Author: Stephen H. Goldman, Judge

Opinion Vote: AFFIRMED. Crane and Mooney, JJ., concur.

Opinion:

Angela M. Mothershead (plaintiff), mother of Jedidiah C. Mothershead (decedent), appeals from the trial court's granting of summary judgment in favor of defendants, Greenbriar Hills Country Club, Inc. (Greenbriar), and Intex Recreation Corporation (Intex) in an action for wrongful death of her sixteen year old son resulting from a snow sledding accident.

On appeal, plaintiff contends that the trial court erred in (1) granting Greenbriar's motion for summary judgment because it (a) disregarded pleadings setting forth undisputed facts that Greenbriar had knowledge that persons regularly entered the premises to ride sleds in a particular area; (b) disregarded Missouri law holding that, by virtue of Greenbriar's knowledge, decedent was either an invitee or a trespasser to whom Greenbriar owed a duty; and (c) disregarded pleadings setting forth disputed facts that Greenbriar breached its duty to decedent as an invitee or a trespasser, that a dangerous condition existed at the twelfth hole, that Greenbriar had knowledge of this condition, that the condition was not open and obvious to decedent, that Greenbriar knew or should have known it was not open and obvious, and that Greenbriar failed to use ordinary care to remove, remedy, or warn of the dangerous condition at the twelfth hole; (2) granting summary judgment in favor of Intex because, as a matter of law, it was for a jury and not a judge to determine whether the Sno-tube was in a defective condition and unreasonably dangerous when put to its anticipated use and whether the defective design of the Sno-tube was the proximate cause of decedent's death; and (3) that the undisputed facts set forth in the pleadings demonstrate that, as a matter of law, Intex failed to provide an adequate warning of the Sno-tube's dangerous characteristics; moreover, jury questions remained concerning whether an alternative warning would have changed the decedent's behavior and whether the lack of an adequate warning was the proximate cause of the decedent's demise. We affirm.

Plaintiff's motion to strike Greenbriar's and Intex's points relied on as being in violation of Rule 84.04(d) was ordered taken with the case. Although we find that the points do not comply with Rule 84.04(d), we are able to glean from the points and argument sections of the brief the issues being raised by plaintiff. However, we do not condone the failure to comply with Rule 84.04(d) but, in the interest of resolving the case on its merits, we deny the motion.

Our standard of review of a grant of summary judgment is to review the record in the light most favorable to the party against whom judgment was rendered. ITT Commercial Finance v. Mid-Am Marine, 854 S.W.2d 371, 376 (Mo.banc 1993). Our review is essentially de novo. Id.

Greenbriar, a country club located on the border of the cities of Kirkwood and Des Peres, contains an eighteen-hole golf course on which there are numerous hills. In the late afternoon of January 19, 1994, the decedent and two friends, Steve Tellez and Brian Cizek, went to Greenbriar to ride their sleds. The depositions of Tellez and Cizek establish that upon entering Greenbriar's property they noticed that the hill where they first wanted to ride their sleds was blocked by orange snow fencing. They left the property and re-entered elsewhere by knowingly walking through other private property. They proceeded to a hill at the twelfth hole of the golf course. Intex does not dispute that the decedent was riding down the hill on a Sno-tube it had distributed.

The affidavit of Craig Leinauer, an employee of plaintiff's counsel, establishes that there are two trees at the foot of the hill at the twelfth hole which stand approximately thirty-two feet eight inches apart. Leinauer's affidavit further states that there lies a long speed-bump-like protrusion in the otherwise flat area just in front of the two trees which is approximately one and one-half feet high. In his deposition, Brian Cizek, who witnessed the accident, states that on his fatal run, decedent sat cross-legged on the Sno-tube and began accelerating down the hill. Cizek goes on to say that when decedent hit the bump, he went airborne, his legs became uncrossed, his torso flattened out, and the tube began to spin. Cizek further states that seconds after hitting the bump, decedent's head struck one of the trees at the bottom of the hill. Plaintiff's amended petition states that the decedent remained in a comatose state until he died on January 28, 1994 as a result of injuries sustained in the accident on January 19, 1994.

Plaintiff filed her action against defendants on May 5, 1995 individually and on behalf of decedent as next friend pursuant to section 537.080 RSMo 1994. After the trial court dismissed her first petition, she filed an amended petition, as personal representative and individually, with leave. The amended petition contained five counts, the first of which was against Greenbriar for negligence. The next three counts for strict liability, negligent design, and failure to warn were directed to Intex. The final count was directed to Kay-Bee Toy and Hobby Shops for breach of warranty. The negligent design claim against Intex was only mentioned in a footnote to plaintiff's second point relied on. Since this was not properly contained in a point relied on, it has not been preserved for review. State ex rel. Hwy. & Tr. Com'n v. Pracht, 801 S.W.2d 90, 92 (Mo.App. E.D. 1990), Rule 84.04(d). Further, because the claim against Kay-Bee was not set forth in a point relied on, it is deemed abandoned. Id.

Following numerous continuances and a venue dispute resulting in a voluntary change of venue by plaintiff, Greenbriar and Intex did not file answers to the amended petition. On September 11, 1997, Greenbriar filed its motion for summary judgment, specifically alleging that it was entitled to judgment as a matter of law because it owed no duty to decedent in that he was a trespasser, and the alleged dangerous condition was open and obvious. Greenbriar's motion was supported by (1) plaintiff's amended petition; (2) the affidavit of Greenbriar general manager, John Wright; and (3) an excerpt from plaintiff's answers to Greenbriar's interrogatories. Greenbriar also filed a memorandum in support of its motion. Later, Greenbriar filed an additional supplement containing references to (1) the deposition of decedent's friend who was present on the day of the accident and witnessed the accident, Brian Cizek; (2) the deposition of decedent's friend who was present on the day of the accident and the day before, Steve Tellez; (3) the deposition of Angela Mothershead; and (4) various photographs of the site of the accident. Plaintiff filed her response to Greenbriar's motion supported by: (1) the deposition of Tellez; (2) the deposition of Wright; (3) the deposition of Greenbriar treasurer Edward J. Goedeker; (4) a Post-Dispatch article published after the accident reporting another accident which took place on the same hill prior to decedent's accident; (5) a Webster-Kirkwood Times article reporting decedent's death; and (6) the affidavit of Cizek. The response was supplemented by a memorandum of law. Later, with leave of the court, plaintiff filed a supplement to her initial response to Greenbriar's motion, which she identified as a memorandum of law, setting forth legal arguments and attached the following exhibits: (1) the deposition of Tellez; (2) photocopies of the box in which the Sno-tube was sold; (3) the deposition of Cizek; (3) the deposition of Wright; (4) various photographs of Greenbriar's property; (5) a copy of the Post-Dispatch article attached to plaintiff's initial response; (6) the affidavit of Wright; and (7) the affidavit of Leinauer, with exhibits.

In its motion for summary judgment, supplement and supporting memorandum of law,...

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