United States District Court, W.D. Missouri, Central Division
JOHN P. LIPP and STEPHANIE S. LIPP, Plaintiffs,
GINGER C, L.L.C., et al., Defendants.
NANETTE K. LAUGHREY, UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs' Motion for Partial Summary
Judgment as to Defendant Ginger C's Third Party/Non-Party
Fault Defense, [Doc. 371]. For the following reasons,
Plaintiffs' Motion is denied.
the surviving parents of Jack Lipp, filed suit alleging
negligence against Defendants Ginger C, L.L.C., American
Campus Communities (ACC), and Roland Management. The suit
stems from Lipp's death, which occurred after he fell off
a balcony at 507 South Fourth Street in Columbia, Missouri
while attending a fraternity party on December 12-13, 2014.
Plaintiffs allege Jack Lipp fell because of a defective
railing on the balcony.
September 2014, Derrow Properties LLLC owned the property at
507 South Fourth Street. One of Derrow's maintenance
employees, Ryan Krueger, repaired the balcony railing in
September 2014 after one of the tenants “kicked
out” the balcony railing. Ginger C purchased the
property from Derrow in October 2014. Ginger C's purchase
of the property was financed by ACC Defendants through a loan
and Ginger C assigned its lease to ACC. ACC was set to close
on the property along with other properties in the area as
part of a redevelopment assemblage in August 2015. Ginger C
contracted with Defendant Roland Management for property
maintenance. No tenant spoke to Roland Nabhan, Roland
Management's sole member, about the balcony railing
repair before Jack Lipp suffered injuries.
Strzalka lived at 507 South Fourth Street in the fall of 2014
with roommates Charlie Smith and Mike Novak, all of whom were
affiliated with the Pi Kappa Phi fraternity. Lukas Reichert
was Vice Archon of Recruitment for Pi Kappa Phi Fraternity in
the fall of 2014. Reichert spoke with tenants Mike Novak and
Chris Strzalka about hosting the fraternity party at which
Jack Lipp was injured.
was a balcony on the second floor of the property that could
only be accessed through Chris Strzalka's bedroom. The
tenants of 507 S. Fourth Street and Reichert spoke before the
party of December 12-13, 2014 about preventing party
attendees from accessing the second story balcony.
Specifically, Novak told Reichert that he [Novak] had locked
the door to the balcony to prevent people from getting out
there. Strzalka testified that he shut the door to his
bedroom on the night of the party but allowed “people
he knew” to enter his room and store coats or purses
during the party. Strzalka also testified that he taped a
warning on the door leading to the balcony, although the
Police photographs submitted by Defendants show the door to
the balcony was unlocked and do not show any warning sign. It
is unclear from the evidence available at what time the door
was locked and when any sign was visible. Columbia Police
believe that party attendees had been using the balcony to
urinate due to long bathroom lines.
Lipp arrived at the party shortly after 11:00 p.m. Sometime
between 1:00 and 1:30, student Scott Campbell walked out of
Strzalka's bedroom and saw Jack Lipp walk into the
bedroom. No more than 15 minutes later, Campbell exited the
party and saw Lipp lying on the driveway directly below the
second story balcony. He was unconscious and bleeding from
his head. On December 25, 2014, Lipp died from his injuries.
filed their Fourth Amended Complaint against ACC Defendants,
Ginger C, Roland Management, and former Defendants Pi Kappa
Phi Fraternity, alleging each Defendant was negligent and
caused Jack Lipp's injuries. In Ginger C's Answer, it
noted “Plaintiffs' damages, if any, were caused by
others and not Ginger C.” Plaintiffs filed this Motion
for Partial Summary Judgment asking the Court to dismiss
Ginger C's “third party or non-party fault”
motion for summary judgment “is appropriate when the
evidence, viewed in a light most favorable to the nonmoving
party, shows no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of
law.” Wierman v. Casey's Gen. Stores, 638
F.3d 984, 999 (8th Cir. 2011) (citation omitted). The moving
party bears the burden of establishing a lack of genuine
issue of fact. Brunsting v. Lutsen Mountains Corp.,
601 F.3d 813, 820 (8th Cir. 2010). “Summary judgment is
to be granted only where the evidence is such that no
reasonable jury could return a verdict for the non-moving
party.” Smith v. Basin Park Hotel, Inc., 350
F.3d 810, 813 (8th Cir. 2003) (citation omitted). The Court
must review the facts in the light most favorable to the
nonmoving party and give that party the benefit of all
reasonable inferences drawn from those facts. See Adickes
v. S.H. Kress & Co., 398 U.S. 144 (1970). Partial
summary judgment “is merely a pretrial adjudication
that certain issues shall be deemed established for the trial
of the case.” Rule 56 Advisory Committee Note.
their Suggestions in Support of their Motion, Plaintiffs'
argue (1) third party and non- party fault are affirmative
defenses that “defendants have failed to adequately
plead and preserve”; and (2) even if procedurally
correct, there is no evidence that a third party or non-party
was at fault. Ginger C opposes this motion, and asks the
Court to allow it to “present relevant evidence that
it was not negligent and did not cause Plaintiffs'
their Reply suggestions, however, Plaintiffs concede that
“Ginger C can argue that a non-party was the
‘sole cause' of Plaintiffs' injuries.”
[Doc. 440, p. 7]. The Court agrees; under Missouri law, a
defendant may introduce evidence that tends to establish that
he or she is not guilty of the negligence charged.
Oldaker v. Peters, 817 S.W.2d 245, 252 (Mo. banc
1991). That same rule does “not prevent a defendant
from arguing that the act of a third person, even a
non-party, was the sole cause of the plaintiffs
(sic) injuries.” Mengwasser v. Anthony
Kempker Trucking, Inc., 312 S.W.3d 368, 373 (Mo.Ct.App.
2010) (emphasis added). In light of this concession,
Plaintiffs ask the Court to: (1) order Ginger C to identify
the single non-party it intends to argue is responsible for
Jack Lipp's injuries, and (2) bar Ginger C from admitting
evidence of such fault.
Suggestions in Opposition, Ginger C points to the actions of
the tenants of 507 South Fourth Street, Pi Kappa Phi
Fraternity, and Derrow Properties as potentially relevant in
determining who proximately caused Jack Lipp's injuries.
Plaintiffs contend that “no Missouri case has allowed a
defendant to take a shotgun approach and argue that
multiple non-parties were all somehow a
‘sole' cause of the plaintiff's injuries. . .
At a minimum, Ginger C should be required to identify the
single non-party it intends to argue was the ...