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Alvis v. Morris

Court of Appeals of Missouri, Southern District, First Division

May 30, 2017

KEITH ALVIS, Plaintiff-Appellant,
v.
STACY MORRIS and GERALD MORRIS, Defendants-Respondents.

         APPEAL FROM THE CIRCUIT COURT OF BARTON COUNTY Honorable James R. Bickel

          OPINION

          DON E. BURRELL, J.

         Keith Alvis ("Plaintiff") is attempting to appeal from the summary judgment entered in favor of Stacy Morris and Gerald Morris ("Defendants"). Because Plaintiff's "STATEMENT OF FACTS" is not based on the parties' Rule 74.04 statements of undisputed material facts and responses thereto ("SUMF"), we have no choice but to dismiss Plaintiff's appeal.[1]

         Background

         Plaintiff filed a three-count tort claim for money damages against Defendants and Plaintiff's employer, Buehler Farms, LLC ("Employer"[2]), for bodily injuries Plaintiff suffered while cutting down trees on Defendants' property. Defendants filed separate answers to the petition that denied any liability, and the parties engaged in the discovery process. Four months after filing their answers, Defendants filed a joint motion for summary judgment on the ground that "Plaintiff cannot make a submissible case against Defendants based upon either the inherently dangerous activity exception or joint and several liability due to a joint venture" (the theories of liability asserted against Defendants in Plaintiff's petition).

         Defendants' motion included a "STATEMENT OF UNCONTROVERTED MATERIAL FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT" that consisted of 20 numbered paragraphs supported by references to Plaintiff's petition and deposition testimony. Plaintiff filed a response to those numbered statements that admitted 15 of the asserted material facts and denied the other five. One of those denials is deemed admitted by its failure to reference any supporting evidence. See Rule 74.04(c)(2). The others were either non-responsive to the claimed uncontroverted material fact or were based on inadmissible hearsay. Plaintiff also filed a separate "SUPPLEMENTAL STATEMENT OF UNCONTROVERTED MATERIAL FACTS" that included six paragraphs of alleged additional material facts remaining in dispute (supported by references to depositions and a federal OSHA report) as permitted by Rule 74.04(c)(2), accompanied by a "MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT[.]"

          In accordance with Rule 74.04(c)(3), Defendants responded with a reply to Plaintiff's alleged additional material facts remaining in dispute by admitting that a deponent had provided the testimony cited by Plaintiff, denying three other numbered paragraphs, and objecting to the admissibility of the OSHA report. They also filed a "REPLY TO PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT[.]"

         On July 15, 2016, the trial court entered its "SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS MORRIS" on the following grounds:

THE COURT FINDS as a threshold matter, that cutting trees on farm land does not involve some peculiar risk of harm abnormal to activities usual to rural communities, and therefore, as a matter of law, is not inherently dangerous. Thus that except [sic] to non-liability of land owners to employees of independent contractors does not apply.
THE COURT FURTHER FINDS Defendants did not retain any input into the manner in which the tree cutting was performed. Therefore they did not have an equal right to control the operation and were not in a joint venture with [Employer]. Thus that exception to non-liability of land owners to employees of independent contractors does not apply.

         This appeal timely followed the entry of the judgment.

         Analysis

         The following are Plaintiff's two points relied on (adjusted from all-capitalization but otherwise quoted verbatim):

I. The trial court erred in granting [Defendants'] motion for summary judgment on the issue of inherently dangerous activity because the issue of whether [Plaintiff] was involved in an "inherently dangerous activity" at the time of his injury was a genuine issue of material fact in that [Plaintiff] was at the time of his injuries engaged in commercial logging and was cutting the tree at ground level and therefore there is sufficient evidence from which a trier of fact could reasonably find that [Plaintiff]'s ...

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