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 Defendants' Comparative Fault Defense,
[Doc. 375]. For the following reasons, Plaintiffs' Motion
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.
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.
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.
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.
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.
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, 201');">2014, Lipp died from
Fourth Amended Complaint alleges negligence against ACC
Defendants, Ginger C, and Roland Management. [Doc. 191].
Ginger C's Answer contained the following affirmative
• “[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.
Defendants and Roland Management plead the same affirmative
defense in their respective answers. See [Doc. 190,
pp. 8-9]; [Docs. 199-204].