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Wilson v. Kal Motel, Inc.

Court of Appeals of Missouri, Western District, Third Division

July 25, 2017

KIMBERLY WILSON, Appellant,
v.
KAL MOTEL, INC., Respondent.

         APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE CHARLES H. MCKENZIE, JUDGE.

          Before: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge.

          VICTOR C. HOWARD, JUDGE.

         Kimberly Wilson appeals from the judgment in favor of the defendant, KAL Motel, Inc., following a jury trial on her negligence claim against the motel. In her sole point on appeal, she contends that the trial court erred in instructing the jury on the proper standard of care. The judgment is affirmed.

         Wilson filed a negligence suit against KAL Motel alleging that while an invitee spending the night on property controlled by the defendant, she was injured when she was bitten by a brown recluse spider and incurred medical expenses, disfigurement, and impairment. Wilson alleged, inter alia, that the defendant failed to implement safety rules for conditions of which it knew or "in the exercise of ordinary care should have known" and "failed to use ordinary care to reduce or eliminate an unreasonable risk of harm created by premises condition which it knew about or in the exercise of ordinary care should have known about."

         At trial, the court gave the following verdict directing instruction (No. 6) patterned after MAI 22.05 (Tenant Injured on Premises Reserved for Common Use):

         Your verdict must be for plaintiff if you believe:

First, there were brown recluse spiders in the Crown Lodge Motel rooms and as a result the motel rooms were not reasonably safe, and
Second, defendant knew, or by using ordinary care could have known, of this condition, and
Third, defendant failed to use ordinary care by not performing adequate pest control measures to address brown recluse spiders in the Crown Lodge Motel rooms, and
Fourth, as a direct result of such failure, plaintiff sustained damage.

         It also gave Instruction No. 7 patterned after MAI 11.05 (Ordinary Care):

The phrase "ordinary care" as used in these instructions means that degree of care that an ordinarily careful person would use under the same or similar circumstances.

         The court refused Wilson's Instruction A, which substituted the phrase "the highest degree of care" for the phrase "ordinary care" in the verdict director. It also refused her Instruction B, patterned after MAI ...


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