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 Defendant Roland Management's Motion for
Summary Judgment, [Doc. 352]. For the following reasons,
Defendant's Motion is granted.
Background[1" name="FN1" id=
December 13, 2014, Plaintiffs' son Jack Lipp attended a
party at 507 South Fourth Street in Columbia, Missouri. At
some point in the evening, Lipp went onto a second-floor deck
on the south side of the property. After the balcony railing
gave way, Lipp fell 18 feet to the driveway. Lipp died on
December 25, 2014 as a result of his injuries.
Ginger C, LLC purchased the property at 507 South Fourth
Street on October 22, 2014. Defendant Roland Management has
provided property management services to various properties
owned by Ginger C for approximately three years. Mr. Roland
Nabhan, the sole Member and Manager of Roland Management, had
an agreement with Ginger C to manage, or at least to
maintain,  the property at 507 South Fourth Street.
Ginger C also hires other parties to perform repairs to the
property at 507 South Fourth Street, including the previous
owner of the property, Derrow Properties. A Derrow Properties
employee made a repair to the balcony railing on or about
September 24, 2014.
Ginger C purchased the property, three tenants occupied the
home under a lease agreement. Ginger C gave the tenants of
the Property a notice that if there were any maintenance
issues with the Property, the tenants could contact Mr.
Nabhan by phone or they could contact Ginger C's owner,
Nahkle Asmar. The lease agreement permitted the landlord or
its agent to inspect the premises for any damage or
destruction at all reasonable times and for the purpose of
making any necessary repairs. Both Mr. Nabhan and Mr. Asmar
had keys to the property.
crux of Plaintiffs' negligence claim is that the second
floor balcony railing was a dangerous condition that caused
Jack Lipp's death. Prior to December 13, 2014, Roland
Management contends that no one requested Mr. Nabhan to
inspect the property to determine whether there were any
repairs or safety issues which needed to be addressed nor did
anyone request Roland Management or Mr. Nabhan to make any
repairs to the balcony railing. [Doc. 352, p. 4]. Thus,
Defendant contends that “Roland Management and Mr.
Nabhan had no actual knowledge of the condition of the
balcony or balcony railing prior to the time Jack Lipp was
injured.” Id. Plaintiffs dispute these claims
and argue that even without a formal request, the condition
was open and obvious, particularly because Roland Management
attended any inspections done on the premises. [Doc. 406, pp.
Count III of Plaintiffs' Fourth Amended Complaint,
Plaintiffs allege Defendant Roland Management negligently
caused the death of Jack Lipp by failing to maintain the
balcony railing, failing to warn of the condition, and
failing to inspect or repair that condition. [Doc. 184');">184, pp.
24- 29]. Defendant moves for summary judgment on Count III,
arguing that Roland Management had no duty to protect Jack
Lipp from injury.
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.,
1 F.3d 813');">601 F.3d 813, 820 (8th Cir. 2010). “A judge's
function at summary judgment is not to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Hudson v.
Tyson Fresh Meats, Inc., 1');">787 F.3d 861, 868 (8th Cir.
2015) (citation omitted). “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., 10');">350 F.3d 810, 813
(8th Cir. 2003) (citation omitted).
legal issue in Defendant's Motion is whether or not
Roland Management owed a duty of care to Jack Lipp; if no
duty was owed, no duty could be breached, and Roland
Management cannot be liable for Lipp's injuries. Under
Missouri law, landlords are generally protected from
liability for personal injuries caused by a dangerous
condition existing on the leased premises. See Stephenson
v. Countryside Townhomes, LLC, 437 S.W.3d 380, 385 (Mo.
App. E.D. 2014), Caples v. Earthgrains, Co, 43
S.W.3d at 449 (Mo. App. E.D. 2001); Dean v. Gruber,
1');">978 S.W.2d 501, 503 (Mo. App. W.D. 1998). The recognized
exceptions to the rule include: (1) a hidden dangerous
condition; (2) where the injury occurs in a “common
area” used by two or more tenants and/or landlord and
tenants; and (3) where the landlord is contractually
obligated to make repairs and has retained sufficient control
over the premises. Caples, 43 S.W.3d at 449.
Roland Management neither owned nor occupied the property at
507 South Fourth Street, Roland Management owed a duty to
Lipp if it possessed the property at the time of his injury.
See Adams v. Badgett, 114 S.W.3d at 436 (Mo. App.
E.D. 2003). Missouri has adopted the Restatement (Second) of
Torts, which defines the term “possessor” as a
party “who is in occupation of the land with intent to
control it.” Restatement (Second) of Torts §
328E(a). Per that definition, a party may still possess
property it does not own. Bowman v. McDonald's
Corp., 16 S.W.2d 270');">916 S.W.2d 270, 285 (Mo.Ct.App. 1995),
overruled on other grounds by Richardson v. QuikTrip
Corp., 1 S.W.3d 54');">81 S.W.3d 54 (Mo.Ct.App. 2002) (“Ownership
is not a requirement for possession of the land in order to
establish liability under section[ ] 328E.”).
Missouri law, a party legally possesses a premises when (1)
it exercises its right to direct the use of the premises; or
(2) it exercises its right to admit people to the premises
and exclude people from it. Medley, 460 S.W.3d at
496-497. Roland Management contends it had no such rights.
cite cases for support that found landlords may be liable for
injuries sustained on the property. See, e.g.,
Lemm v. Gould, 190');">425 S.W.2d 190, 195 (Mo. 1968);
Stephenson v. Countryside Townhomes, LLC, 437 S.W.3d
380, 385 (Mo. App. E.D. 2014); Caples v. Earthgrains
Co.,43 S.W.3d 444, 450 (Mo. App. E.D. 2001). In their
Fourth Amended Complaint, Plaintiffs allege Roland Management
was the “de facto landlord” because it assumed
some maintenance responsibility for and had access to the
property. [Doc. 184');">184, p. 25]. But at the Summary Judgment
stage, although the moving party bears the burden of
establishing a lack of genuine issue of material fact,
Plaintiffs cannot rest on bare allegations in their
complaint. See Fed. R. Civ. Pro. 56; Kountze v.
Gaines, 13');">536 F.3d 813, 818 (8th Cir. ...