Schultz v. Webster Groves Presbyterian Church Ass'n

• Decision Date: 17 March 1987
• Docket Number: No. 51247,51247
• Citation: 726 S.W.2d 491
• Parties: Jean M. SCHULTZ, Plaintiff-Appellant, v. WEBSTER GROVES PRESBYTERIAN CHURCH, ASSOCIATION, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 491

726 S.W.2d 491

Jean M. SCHULTZ, Plaintiff-Appellant, v. WEBSTER GROVES PRESBYTERIAN CHURCH, ASSOCIATION, Defendant-Respondent.

No. 51247.

Missouri Court of Appeals,

Eastern District,

Division Five.

March 17, 1987.

Stephen M. Hereford, Christy H. Garesche, Mann, Poger, Wittner & Hereford, P.C., Clayton, for plaintiff-appellant.

Daniel E. Wilke, Brinker, Doyen & Kovacs, P.C., Clayton, for defendant-respondent.

SIMEONE, Senior Judge.

On January 28, 1979, a bitterly cold, clear Sunday, after a 13" snowfall the day before, Mrs. Jean M. Schultz and her husband, both members of the Webster Groves Presbyterian Church, drove to attend church services at the defendant's church. Mr. Schultz left his wife out at the Moody Avenue entrance in front of a walkway. While he parked the car, she entered the church from that entrance. There are two other entrances to the church--the Lockwood Avenue or front door entrance and the side or parking lot entrance. The Moody Avenue entrance is the back entrance. The walk had been "pretty well" shoveled. Mrs. Schultz and her husband arrived at the Church at about 9:20 a.m. to attend the 10:00 a.m. Sunday School Services. As Mrs. Schultz went into the Church, she followed a young couple. There were people entering. It was "pretty crowded." There are two areaways. She entered the first area through the righthand door. She wore heavy "Girl Scout" boots of "very heavy traction." The soles were "like heavy rubber tread." She moved with the crowd and "didn't look down ... to see what was the condition." The entrance area had a 4' X 8' rubber-tipped mat on the floor. When she entered the church, she walked on a floor mat, which she described as "squishy oversaturated." She then entered the second areaway where there was also a mat. That is where she fell. People were "stamping their feet," she "angled off" the mat, took "one step" and fell. She said, "As I entered the second areaway, I only took about one step and then I angled off the rug" and fell. Mrs. Schultz admitted that when she left the carpet and walked onto the tile floor she "didn't look down." There was a wall to the left of the door, which she could reach, and the carpet pad would have taken her to an area where there was a rail. She did not see any "puddles of water before she fell." When she fell, water was under her, and the terrazzo floor was "exceedingly saturated" with water. She did not lose consciousness, but learned later that she suffered a displaced fracture of the neck of the left femur which required a prothesis--a "steel ball" in the hip.

After the fall, her husband came in a few minutes. A physician, a church member, also spoke to her while she was on the floor, but did not treat her. Then a janitor, Dorsey Jessup, came up to her and said, "I'm sorry, I'm too late." At trial, this comment made by Mrs. Schultz was objected to and sustained. An offer of proof was made. The offer was that if Mrs. Schultz were permitted to testify she would state that the Church janitor "came running up when she was lying on the ground; and that he had his mop and a bucket in his hand and he looked down at her and he said, 'Oh, I guess I'm too late.' " At trial, counsel contended that the statement was admissible on two grounds: as an agent of the Church and as an excited utterance.

Eventually, an ambulance was called and Mrs. Schultz was taken to St. Luke's Hospital. She was operated upon by Dr. William S. Costen. The physician surgically inserted a Fred Thompson prothesis. She remained in the hospital until February 15, 1979. She was required to use a walker, crutches and eventually a cane. She now limps and uses the cane. When she left the hospital, a nurse's aid helped her.

Almost five years later, but within the period of limitations, on January 16, 1984 Mrs. Schultz filed her petition for damages alleging negligence.

Trial was held in January, 1986. At the trial, in addition to the above facts, Ms. Dorothy Drinkhouse, a member of the church was called as a witness for the plaintiff. She had attended the services on the day of Mrs. Schultz's fall. She arrived at the church at about 20 minutes before 9:00--some 45 minutes before Mrs. Schultz. Ms. Drinkhouse entered through the Lockwood Avenue entrance. As she entered, she noticed that there was melting snow on the mat by the door and there was water on the floor. Counsel for respondent objected to this and moved that such testimony was irrelevant and that it be stricken. After a colloquy at the bench, his motion was sustained. Plaintiff then made an offer of proof that if permitted to testify, Ms. Drinkhouse would testify that when she arrived at the Church, she saw at both the Lockwood and the parking lot entrances an accumulation of "ice and snow and water," and that there were the same type of "runners" which were saturated with water. She would further testify that she told the janitor, Dorsey Jessup, that there was a lot of water accumulating at those entrances and that he'd "better mop up" before somebody gets hurt. However, the court sustained the defendant's objection on the ground of relevance "for better or worse."

In the trial, Ms. Winnie Shirreff, the financial secretary of the Church, testified. She stated that on that morning while she was teaching her Sunday School Class, parents who were bringing their children in through the Moody Avenue entrance talked about having seen somebody sitting on the floor. So she went to see if she could help. She saw Mrs. Schultz inside the church "sitting propped up against the wall." It was her testimony that at the time the floor was "dry." When she saw Mrs. Schultz she went to find help, told one of the officers, Mr. Graham, and then went back to her classroom. Mr. Graham went to the scene of the fall, and he too testified that the floor was dry. The physician attending services then came up; he asked plaintiff how she fell and she said "she didn't know what happened, she was standing there waiting for her husband, and the next thing she knew she was sitting down--or was down."

At the close of the evidence, the trial court instructed the jury. Instruction No. 6 ¹ told the jury that their verdict must be for the plaintiff "and you must assess a percentage of fault to defendant" if it believed the facts stated in that instruction. The court also gave Instruction No. 8. ² This instructed the jury to "assess a percentage of fault" to plaintiff if it believed plaintiff either failed to look where she was walking or failed to support herself by use of available rails, bars or walls. The court refused to give Instructions A, B and C offered by plaintiff which did not refer to comparative fault.

After argument, the jury returned a unanimous verdict for the defendant. The jury found that plaintiff was 100% at fault, and defendant was not at fault. Judgment was entered thereon.

On appeal, plaintiff contends that the trial court erred (1) in refusing to permit the testimony of Dorothy Ann Drinkhouse because her testimony relating to the other entrances was relevant and had probative value to show the condition of the Moody Avenue entrance and to show notice to the defendant of the condition of that entrance; (2) in refusing to permit plaintiff to testify as to the statement made by the custodian, Dorsey Jessup, that he was "too late" because it was an excited utterance and because the statement qualifies as an admission of an agent which is binding upon the principal; (3) in giving instruction 8 and in refusing to give Instructions A, B and C and Verdict Form B for the reason that there was no evidence of any contributory fault by plaintiff.

We disagree and affirm the judgment.

Certain basic principles relate to a proceeding of this kind. The general duty owed to an invitee by the owner of property is the exercise of reasonable and ordinary care in making the premises safe. Grube v. Associated Dry Goods, Inc., 663 S.W.2d 310, 311 (Mo.App.1984). The liability of a landowner to an invitee is based upon its superior knowledge of a defective condition on the premises. The knowledge may be actual or constructive. Actual knowledge may be inferred from the evidence that an agent or employee knew of the dangerous condition. If there is no such showing, then there must be evidence that the condition had existed for such a length of time to constitute constructive notice and that defendant, in the exercise of ordinary care, should have known of the condition. Taylor v. F.W. Woolworth Co., 592 S.W.2d 210, 211 (Mo.App.1980) and cases cited therein. Furthermore, if the landowner realizes that the condition involves an unreasonable risk to persons lawfully on the premises who would not know of the condition, and thereafter fails to make the premises safe or warn of the condition and risk involved, then it is negligent and liable. Blackwell v. J.J. Newberry Co., 156 S.W.2d 14, 26 (Mo.App.1941); Abernathy v. Sisters of St. Mary's, 446 S.W.2d 599 (Mo. banc 1969). The decisions also hold that there is no liability for injuries resulting from a dangerous condition which is obvious, and as well known to the plaintiff as to the defendant. Schmoll v. National Shirt Shops, 354 Mo. 1164, 193 S.W.2d 605, 607 (1946); Heidland v. Sears Roebuck & Co., 233 Mo.App. 874, 110 S.W.2d 795, 799 (1937).

The appellant does not dispute these general principles, but contends in her first point that the court erred in refusing to admit the testimony of Ms. Drinkhouse relating to the conditions at the Lockwood and parking lot entrances in order to show the condition at the Moody Avenue entrance.

The trial court did not err as to this issue. The proffered testimony was not logically or legally relevant to show the condition of the Moody Avenue entrance. First, it was not relevant to show the condition of that entrance because there was sufficient evidence related by the plaintiff to show the condition of that entrance. Neither was the proffered...