Phillips v. Drury Sw., Inc.

• Decision Date: 01 August 2017
• Docket Number: No. ED 104908.,ED 104908.
• Citation: 524 S.W.3d 228
• Parties: David PHILLIPS, Appellant, v. DRURY SOUTHWEST, INC., Respondent.
• Court: Missouri Court of Appeals

524 S.W.3d 228

David PHILLIPS, Appellant,

v.DRURY SOUTHWEST, INC., Respondent.

No. ED 104908.

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: August 1, 2017

Adam E. Gohn, Cape Girardeau, MO, for appellant.

John R. Schneider, Cape Girardeau, MO, for respondent.

Opinion

Angela T. Quigless, P.J.

David Phillips ("Phillips") appeals the trial court's summary judgment in favor of Drury Southwest, Inc., DSW Industries, Inc., and Drury Hotels Company, Inc. ("Drury," collectively) on Phillips's suit for negligence stemming from a slip and fall on Drury's property. On appeal, Phillips argues the trial court erred in granting Drury's motion for partial summary judgment because there exists a genuine issue of material fact with respect to the issue of knowledge, in that there was sufficient evidence regarding Drury's actual or constructive knowledge of the dangerous condition. We reverse and remand.

Factual and Procedural Background

Phillips filed a petition against Drury, alleging he suffered physical and emotional injuries resulting from a slip and fall while using the first floor men's bathroom on Drury's property located at 351 South Silver Springs Road in Cape Girardeau. Phillips was an employee of AT&T, which leased office space in the building. Phillips alleged that, on January 19, 2012, he slipped and fell on liquid left on the bathroom floor. Phillips alleged that Drury "knew or had information from which [Drury], in the exercise of ordinary care, should have known that anyone entering the bathroom would be exposed to the dangers of the substance left on the floor."

After Phillips was deposed, Drury filed a motion for partial summary judgment. Drury argued Phillips had not pled any facts in his petition or given any testimony that would establish Drury knew or had reason to know of any dangerous condition prior to his fall. Drury asserted Phillips testified he did not know what caused the liquid to be on the floor or how long it had been on the floor prior to his fall, and he had no knowledge of Drury knowing about any problem or condition in the bathroom prior to his fall.

Phillips deposed Leonard Weber ("Weber"), a building maintenance worker for Drury, and obtained a signed affidavit from Adam Riley ("Riley"), an AT&T employee who also worked in the building. Thereafter, Phillips challenged Drury's motion for partial summary judgment, arguing Drury was not entitled to judgment as a matter of law. In support, Phillips relied on his own deposition testimony, the deposition testimony of Weber, and Riley's affidavit.¹ Following a hearing, the trial court granted Drury's summary judgment motion, finding there was no genuine issue of material fact as to the issue of knowledge. This appeal follows.

Standard of Review

Our review of a grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993) ; Rule 74.04.² Whether summary judgment was proper is a question of law, and we need not defer to the trial court's order granting summary judgment. ITT Commercial Fin. Corp. , 854 S.W.2d at 376. We review the record in the light most favorable to the non-moving party and afford that party the benefit of all reasonable inferences. Id. We will uphold the grant of summary judgment on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377.

A defending party—here, Drury—may establish a right to summary judgment by demonstrating: (1) facts negating any one of the elements of the non-movant's claim; (2) that the non-movant, after an adequate period of discovery, has not been able and will not be able to produce sufficient evidence to allow the trier of fact to find the existence of any one of the elements of the non-movant's claim; or (3) that there is no genuine dispute as to the existence of the facts necessary to support movant's properly pleaded affirmative defense. Id. at 381.

Once the moving party has made a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law, the burden shifts to the non-movant—here, Phillips—to prove the existence of genuine issues of material fact. Id. The non-movant "may not rest upon the mere allegations or denials of the party's pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial." Rule 74.04(c)(2) (emphasis added); see also Strable v. Union Pac. R.R. Co. , 396 S.W.3d 417, 425 (Mo. App. E.D. 2013).

Where, as here, the trial court does not specify the reasons for its grant of summary judgment, we presume summary judgment was granted on the grounds specified in the moving party's motion. Metal Exch. Corp. v. J.W. Terrill, Inc. , 173 S.W.3d 672, 676 (Mo. App. E.D. 2005).

Discussion

In his sole point on appeal, Phillips argues the trial court erred in granting Drury's motion for partial summary judgment because there exists a genuine issue of material fact with respect to the issue of knowledge, in that Phillips produced sufficient evidence on record regarding Drury's actual or constructive knowledge of the dangerous condition.

To prevail in a slip and fall case, the plaintiff must prove: (1) a dangerous condition existed on the defendant's property which involved an unreasonable risk; (2) the defendant knew or by using ordinary care should have known of the condition; (3) the defendant failed to use ordinary care in removing or warning of the danger; and (4) the plaintiff was injured as a result. Rycraw v. White Castle Sys., Inc. , 28 S.W.3d 495, 499 (Mo. App. E.D. 2000). Here, Drury only attacked the second element of Phillips's cause of action. Specifically, Drury argued Phillips failed to produce sufficient evidence that Drury knew or should have known of a dangerous condition, the water, on the floor of the first floor bathroom.

In order to defeat Drury's summary judgment motion, Phillips was required to establish, using discovery, exhibits, or affidavits, that a genuine issue of material fact existed regarding whether Drury had either actual or constructive knowledge of the dangerous condition. See Rule 74.04(c)(2); Braun v. George C. Doering, Inc. , 907 S.W.2d 371, 373 (Mo. App. E.D. 1995).

In support of his challenge to Drury's summary judgment motion, Phillips produced both his and Weber's deposition testimonies, and Riley's affidavit. Specifically, Phillips testified that he slid as soon as he walked into the first floor bathroom, and his shorts and shirt were wet after he fell. Phillips also testified maintenance was aware of previous issues of water on the floor in other bathrooms in the building, and Drury had prior knowledge of water leak issues in the building. Phillips stated he saw and reported water on the floor of another bathroom prior to his fall. Phillips also received emails warning tenants and employees about water leaks in another bathroom prior to his fall. Further, Phillips testified there was a regular maintenance crew who maintained the building several times a day.

Moreover, Weber testified that he mopped water from the floor of the first floor bathroom and closed it for safety purposes on more than one occasion prior to Phillips's fall. Weber testified that he...