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Lipp v. Ginger C, L.L.C.

United States District Court, W.D. Missouri, Central Division

January 19, 2017

JOHN P. LIPP and STEPHANIE S. LIPP, Plaintiffs,
v.
GINGER C, L.L.C., et al., Defendants.

          ORDER

          NANETTE K. LAUGHREY United States District Judge.

         Before the Court is Plaintiffs' Motion for Partial Summary Judgment as to Defendants' Comparative Fault Defense, [Doc. 375]. For the following reasons, Plaintiffs' Motion is denied.

         I. Background[1]

         Plaintiffs, 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, 201');">2014. Plaintiffs allege Jack Lipp fell because of a defective railing on the balcony.

         Chris Strzalka lived at 507 South Fourth Street in the fall of 201');">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 201');">2014. Reichert spoke with tenants Mike Novak and Chris Strzalka about hosting the fraternity party at which Jack Lipp was injured.

         There was a balcony on the second floor of the property that could only be accessed through Chris Strzalka's bedroom. The wooden door to the balcony had a lock on it which could be flipped or latched by hand. In September 201');">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 201');">2014 after one of the tenants “kicked out” the balcony railing by bracing the existing portion of balcony railing with a 2 x 4 wooden plank. The railing repair was intended to be “temporary, ” and was not compliant with applicable City of Columbia building codes. Ginger C purchased the property from Derrow in October 201');">2014 and there is no evidence that the balcony was repaired again after Ginger C's purchase.

         A dispute remains regarding the status of the temporary balcony railing on the night of the party. When Jack Lipp was found on the ground under the balcony, pieces of the balcony railing were lying on the ground around him. Strzalka testified that the last time he saw the balcony railing “would have been probably the day of the party.” [Doc. 396-2]. Tenant Michael Novak testified that the last time he saw the repaired balcony was “probably that day.” [Doc. 396-3]. Even so, Defendants deny that the balcony railing was in place at the time of Jack Lipp's fall insofar as no witness can testify as to the condition of the railing at any point throughout the evening.

         The tenants of 507 S. Fourth Street and Reichert spoke before the party of December 12-13, 201');">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 whether the door was locked and whether any sign was visible.

         Jack 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.[2] 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, 201');">2014, Lipp died from his injuries.

         Plaintiffs' Fourth Amended Complaint alleges negligence against ACC Defendants, Ginger C, and Roland Management. [Doc. 191]. Ginger C's Answer contained the following affirmative defenses:

• “[I]f it is determined . . . that Plaintiffs' damages, if any, resulted in part from the negligence of Ginger C, Ginger C denying all negligence, then and in that event, Plaintiffs' damages should be reduced by that percentage of negligence of Plaintiffs' decedent that is determined to have caused or contributed to cause the damages of Plaintiffs as determined upon the comparison of the negligence of all parties causing or contributing to cause Plaintiffs' damages.” [Doc. 201');">201, p. 13]
• “Ginger C affirmatively states that Plaintiffs' damages, if any, were caused by Jack Lipp's failure to keep a careful lookout and observe both the edge of the balcony and the railing.” Id. at 15.

         ACC Defendants and Roland Management plead the same affirmative defense in their respective answers. See [Doc. 190, pp. 8-9]; [Docs. 199-204].

         II. ...


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