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Phillips v. Drury Southwest, Inc.

Court of Appeals of Missouri, Eastern District, Third Division

August 1, 2017

DAVID PHILLIPS, Appellant,
v.
DRURY SOUTHWEST, INC., Respondent.

         Appeal from the Circuit Court of Cape Girardeau County Honorable Benjamin Lewis Filed: August 1, 2017

          OPINION

          Angela T. Quigless, P.J.

         David Phillips ("Phillips") appeals the trial court's summary judgment in favor of Drury Southwest, Inc., DSW Industries, Inc., and Drury Hotels Company, Inc. ("Drury, " collectively) on Phillips's suit for negligence stemming from a slip and fall on Drury's property. On appeal, Phillips argues the trial court erred in granting Drury's motion for partial summary judgment because there exists a genuine issue of material fact with respect to the issue of knowledge, in that there was sufficient evidence regarding Drury's actual or constructive knowledge of the dangerous condition. We reverse and remand.

         Factual and Procedural Background

         Phillips filed a petition against Drury, alleging he suffered physical and emotional injuries resulting from a slip and fall while using the first floor men's bathroom on Drury's property located at 351 South Silver Springs Road in Cape Girardeau. Phillips was an employee of AT&T, which leased office space in the building. Phillips alleged that, on January 19, 2012, he slipped and fell on liquid left on the bathroom floor. Phillips alleged that Drury "knew or had information from which [Drury], in the exercise of ordinary care, should have known that anyone entering the bathroom would be exposed to the dangers of the substance left on the floor."

         After Phillips was deposed, Drury filed a motion for partial summary judgment. Drury argued Phillips had not pled any facts in his petition or given any testimony that would establish Drury knew or had reason to know of any dangerous condition prior to his fall. Drury asserted Phillips testified he did not know what caused the liquid to be on the floor or how long it had been on the floor prior to his fall, and he had no knowledge of Drury knowing about any problem or condition in the bathroom prior to his fall.

         Phillips deposed Leonard Weber ("Weber"), a building maintenance worker for Drury, and obtained a signed affidavit from Adam Riley ("Riley"), an AT&T employee who also worked in the building. Thereafter, Phillips challenged Drury's motion for partial summary judgment, arguing Drury was not entitled to judgment as a matter of law. In support, Phillips relied on his own deposition testimony, the deposition testimony of Weber, and Riley's affidavit.[1] Following a hearing, the trial court granted Drury's summary judgment motion, finding there was no genuine issue of material fact as to the issue of knowledge. This appeal follows.

         Standard of Review

         Our review of a grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04.[2] Whether summary judgment was proper is a question of law, and we need not defer to the trial court's order granting summary judgment. ITT Commercial Fin. Corp., 854 S.W.2d at 376. We review the record in the light most favorable to the non-moving party and afford that party the benefit of all reasonable inferences. Id. We will uphold the grant of summary judgment on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377.

         A defending party-here, Drury-may establish a right to summary judgment by demonstrating: (1) facts negating any one of the elements of the non-movant's claim; (2) that the non-movant, after an adequate period of discovery, has not been able and will not be able to produce sufficient evidence to allow the trier of fact to find the existence of any one of the elements of the non-movant's claim; or (3) that there is no genuine dispute as to the existence of the facts necessary to support movant's properly pleaded affirmative defense. Id. at 381.

         Once the moving party has made a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law, the burden shifts to the non-movant-here, Phillips-to prove the existence of genuine issues of material fact. Id. The non-movant "may not rest upon the mere allegations or denials of the party's pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial." Rule 74.04(c)(2) (emphasis added); see also Strable v. Union Pac. R.R. Co., 396 S.W.3d 417, 425 (Mo. App. E.D. 2013).

         Where, as here, the trial court does not specify the reasons for its grant of summary judgment, we presume summary judgment was granted on the grounds specified in the moving party's motion. Metal Exch. Corp. v. J.W. Terrill, Inc., 173 S.W.3d 672, 676 (Mo. App. E.D. 2005).

         Discussion

         In his sole point on appeal, Phillips argues the trial court erred in granting Drury's motion for partial summary judgment because there exists a genuine issue of material fact with respect to the issue of knowledge, in that Phillips produced sufficient evidence on record ...


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