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Meyer v. City of Walnut Grove

Court of Appeals of Missouri, Southern District, Second Division

September 19, 2016

DIANNA K. MEYER, Plaintiff-Appellant,
v.
CITY OF WALNUT GROVE, MISSOURI, Defendant, and KEN ECK, as Trustee of the JOHNNIE L. and DONNA R. HARTIN TRUST, Defendant-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Jason R. Brown, Judge.

          OPINION

          WILLIAM W. FRANCIS, JR., J.

         Dianna K. Meyer ("Meyer") appeals from summary judgment granted in favor of Ken Eck, as Trustee ("Trustee") of the Johnnie L. and Donna R. Hartin Trust. In one point, Meyer contends the trial court erred in granting summary judgment in favor of Trustee because "there exists a duty on the part of [Trustee], or its agents and representatives, to use ordinary care in operating tractors, brush hogs, and other mowing equipment, and a duty to warn if damage occurs as of [sic] result, and there exists genuine issues of material fact with respect to breach of duty and causation[.]" Finding no merit to Meyer's point, we affirm the trial court's judgment.[1]

         Factual and Procedural History

         We recite these facts from the summary judgment record.[2] In this case involving review of a grant of summary judgment, we view the record and all reasonable inferences therefrom in the light most favorable to Meyer, the non-movant, subject to the requirements of Rule 74.04.[3]ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376, 381- 82 (Mo. banc 1993).

         This case arises out of allegations by Meyer that her property at 211 S. Washington Street in Walnut Grove, Missouri, was damaged when sewage from the City of Walnut Grove's ("the City") sewer system backed up into a storage building on her property on April 12, 2012.

         Ken Eck is the Trustee of the Johnnie L. and Donna R. Hartin Trust ("the Trust"). The Trust owns certain real property in Walnut Grove known as Lots 8 through 14 of the Williams First Addition ("the Trust property"). The Trust property is vacant and undeveloped, containing trees and vegetation. Trustee saw the Trust property for the first time in November 2013, after the present lawsuit was filed. Trustee has no knowledge of the physical condition of the Trust property, and does not know of anyone with knowledge of what the Trust property looked like prior to that time. Meyer's property and the Trust property are separated by one other property.

         On or about April 12, 2012, sewage was observed to have backed up into Meyer's building at 211 South Washington. On that same date, Travis Holman ("Holman"), then director of the City of Walnut Grove public works department, searched for the cause of the sewage backup by inspecting the City's sewer main. While inspecting the sewer line to try and locate the problem, Holman located a manhole on the Trust property that did not have a cover. The manhole was covered in brush so it was not visible and had to be located using a probe.

         After the sewer main was cleaned out, Holman located pieces of the manhole cover that appeared to have been broken. The manhole on the Trust property is on the City's sewer main- not a branch off to a private residence-and the manhole is maintained by the City.

         Trustee never spoke with Johnnie or Donna Hartin regarding the condition of the Trust property or the sewer lines. Trustee did not know who may have ever brush hogged or mowed the Trust property, or whether it had been mowed or brush hogged at all. Further, Trustee did not know whether the manhole on the Trust property was damaged by a brush hog. To his knowledge, no one ever contacted Johnnie or Donna Hartin concerning damage to the sewer line on the Trust property. No one from the City ever contacted Trustee regarding damage to the sewer line on the Trust property.

         Meyer had lived in the City for 20 years and had never known the City to have a problem with trespassers. At times, Trust agents had performed maintenance and upkeep on the Trust property, and such agents had mowed or brush hogged the property on several occasions in the past.

         In the summary judgment record, there was expert testimony from Bud Sherman ("Sherman"), who opined that "it was obvious the [Trust property] had been brush hogged more than just the recent event . . . parts had been brush hogged in years past, some had not, and some were more recent." Sherman further indicated it was his opinion that a brush hog ran over the manhole cover, breaking it, which allowed debris to aggregate in the sewage line, causing the backup onto Meyer's property.[4]

         Meyer never saw anyone on the Trust property, and cannot recall ever seeing anyone mow or brush hog the property. She has never been on the Trust property, and has never seen the manhole cover in person, only in photographs taken after the incident. She did not know what the Trust property was used for currently, or what it may have been used for in the past. She did not know of anyone who had claimed to have mowed or brush hogged the Trust property, and did not know whether the Trust had an agreement with anyone to mow or brush hog the Trust property.

         Meyer was not aware of anyone who might have seen the manhole cover in its broken condition prior to the sewage backup. She did not know whether prior trustees of the Trust were ever aware of the damage to the manhole cover, whether prior trustees were actually aware there were pieces of the manhole cover in the sewer line, and she had no personal knowledge as to what caused the damage to the manhole cover. Meyer did not know whether the damage to the manhole cover could have been caused by something other than a brush hog; i.e., a utility vehicle, a falling tree, or a lightning strike. She did not know when the ...


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