Newcomb v. St. Louis Office for Mental Retardation & Developmental Disabilities Resources (MR/DD)

• Decision Date: 11 January 1994
• Docket Number: 62869,Nos. 62698,s. 62698
• Citation: Newcomb v. St. Louis Office for Mental Retardation & Developmental Disabilities Resources (MR/DD), 871 S.W.2d 71 (Mo. App. 1994)
• Court: Missouri Court of Appeals
• Parties: Robert NEWCOMB, Plaintiff/Respondent, v. ST. LOUIS OFFICE FOR MENTAL RETARDATION & DEVELOPMENTAL DISABILITIES RESOURCES , Third Party Defendant/Cross-Appellant.

Page 71

871 S.W.2d 71

Robert NEWCOMB, Plaintiff/Respondent, v.ST. LOUIS OFFICE FOR MENTAL RETARDATION & DEVELOPMENTAL

DISABILITIES RESOURCES [MR/DD], Third-PartyPlaintiff/Appellant/Cross-Respondent, v.MISSOURI DEPARTMENT OF MENTAL HEALTH [DMH], Third Party

Defendant/Cross-Appellant.

Nos. 62698, 62869.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 11, 1994.

Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 14, 1994.

Application to Transfer Denied March 22, 1994.

Edward T. Liese, Erich V. Vieth, St. Louis, for St. Louis MR/DD.

Jeremiah W.(Jay) Nixon, Atty. Gen., Jefferson City, Clate J. Baker, Asst. Atty. Gen., Springfield, for Mo. Dept. of Mental Health.

Daniel R. Devereaux, Christine A. Gilsinan, St. Louis, for respondent.

CARL R. GAERTNER, Judge.

A jury in the Circuit Court of the City of St. Louis returned a verdict in favor of plaintiff, Robert Newcomb, in his suit for damages for personal injuries sustained in a fall on basement stairs of a building owned by defendant, St. Louis Office for Mental Retardation and Developmental Disabilities Resources(MR/DD), and occupied by third-party defendant, Missouri Department of Mental Health(DMH).MR/DD appeals from the judgment entered against it on the jury verdict, and DMH appeals from the judgment entered against it for contractual indemnity.We reverse.

MR/DD is a not-for-profit corporation responsible for the administration of special tax funds collected in the City of St. Louis.These funds are restricted to use in behalf of City residents who suffer from mental retardation or developmental disabilities.DMH is a department of the executive branch of the government of the State of Missouri established pursuant to Article IV, § 37(a) of the Constitution of Missouri.

On January 21, 1983, MR/DD and DMH entered into a contract entitled "Group Home Joint Venture Agreement," which provided generally for a cooperative project to acquire, develop, and operate group homes for persons suffering from mild or moderate mental retardation.Under the agreement, MR/DD promised to purchase, renovate, and equip a residential structure located at 2111-2115 Arsenal Street and DMH agreed to operate the group home pursuant to established policies and practices.DMH agreed to furnish necessary personnel and to be responsible for all costs of operation, including all maintenance and repairs of the building.Title to the property was held solely by MR/DD, but its only responsibility under the agreement was for capital or structural improvements.MR/DD reserved a right to enter the residence for inspection to ensure the premises were being kept in repair but only upon reasonable notice to DMH.The agreement provided for a one-year term automatically renewable unless cancelled by either party upon the giving of six months notice.

In connection with the renovation of the 90-100 year-old building, MR/DD called upon the Urban League of St. Louis to furnish architectural services.The League hired George Everding for that purpose.Everding's cousin, Al Guise, Jr., served as construction manager on the project.MR/DD determined what work was to be done as part of the renovation and made the decision not to do anything in the basement because there was no anticipated use of that part of the building.In February, 1984, the renovation was substantially completed, and DMH approved and accepted the facility.From that time on, DMH was in sole possession of the residence.In April, 1984, the operation of the group home commenced.

Robert Newcomb was employed as a painter by DMH.He was assigned the task of painting portions of the residence.On July 16, 1984, while walking down the stairway to the basement where he had stored his paint, Newcomb fell when a stair tread came loose.After settling his claim for worker's compensation against DMH, Newcomb filed suit against MR/DD, the Urban League, Everding and Guise.In this suit, he alleged his injuries were caused by MR/DD's negligence in failing to maintain and repair the steps and in failing to warn him of their dangerous condition.MR/DD filed a third-party petition against DMH claiming a right of indemnification based upon DMH's contractual obligation to maintain and repair the premises.Prior to trial, defendant Guise obtained an order for summary judgment from which plaintiff has not appealed.The jury returned a verdict in favor of plaintiff and against MR/DD, the Urban League, and Everding.The jury also found in favor of MR/DD on its third-party petition seeking contractual indemnity against DMH.Plaintiff entered into a settlement with the Urban League and Everding.Judgment was then entered on the verdict against MR/DD and against DMH on the third-party claim.

On appeal MR/DD first argues that plaintiff failed to make a submissible case and therefore the trial court erred in overruling its post-trial motion for judgment notwithstanding the verdict.

On review when determining whether the plaintiff made a submissible case, we view the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff.Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723, 724(Mo. banc 1982).However, for plaintiff to present a submissible case of negligence, the plaintiff must present substantial evidence of every fact necessary to establish the liability of the defendant; and, it is a judicial function to determine whether negligence can be inferred from the facts and whether the plaintiff's...