Court of Appeals of Missouri, Southern District, Second Division
DIANNA K. MEYER, Plaintiff-Appellant,
CITY OF WALNUT GROVE, MISSOURI, Defendant, and KEN ECK, as Trustee of the JOHNNIE L. and DONNA R. HARTIN TRUST, Defendant-Respondent.
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Jason R.
WILLIAM W. FRANCIS, JR., J.
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.
and Procedural History
recite these facts from the summary judgment
record. 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.ITT Commercial Fin. Corp. v.
Mid-America Marine Supply Corp., 854 S.W.2d 371, 376,
381- 82 (Mo. banc 1993).
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.
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.
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
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.
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.
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.
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
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
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 ...