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Reed v. Western Oil, Inc.

United States District Court, E.D. Missouri, Eastern Division

September 22, 2017

JOSEPH REED, Plaintiff,
WESTERN OIL, INC., Defendant.



         This matter comes before the Court on Plaintiffs Motion for Partial Summary Judgment (ECF No. 61). These matters are fully briefed and ready for disposition.

         BACKGROUND [1]

Defendant Western Oil, Inc. ("Defendant") owned and operated a Petro Mart gas station at 1200 Main Street, Union, Missouri (hereinafter "Petro Mart") on August 22, 2014. (Plaintiffs Statement of Uncontroverted Material Facts in Support of His Motion for Partial Summary Judgment ("PSUMF"), ECF No. 62, ¶l). On April 19, 2014, twenty cases of Nestle Purse Life Water ("cases of water") were delivered to the Petro Mart. (PSUMF, ¶2). Each case of water contained twenty .5 liter 16.9 ounce bottles. (PSUMF, ¶3). The cases of water were delivered straight from the vendor and displayed in front of the Petro Mart on the sidewalk. (PSUMF, ¶¶4-5). The cases of water initially were ordered by Defendant's corporate office, and later maintained and restocked by the Petro Mart's manager and employees. (PSUMF, ¶6). Only Defendant and its employees had control of the placement and stocking of the display of water cases. (PSUMF, ¶7). The display of water cases was maintained from April 9, 2014 through August 2014. (PSUMF, ¶8). Defendant's custom and practice was to maintain front sidewalk displays year round, beginning with water in the spring and windshield solvent and salt in the fall. (PSUMF, ¶9). Defendant would also display propane and firewood on the front Petro Mart sidewalk. (PSUMF, ¶10).

         Each 16.9 ounce bottle of water measured 2.6 inches. (PSUMF, ¶ll). The Petro Mart sidewalk measured 60 inches wide, from the wall of the store to the edge of the front sidewalk. (PSUMF, ¶l 2). The display of water extended 36.4 inches into the sidewalk. (PSUMF, ¶l 3). A clearance of 23.6 inches on the sidewalk remained in front of the Petro Mart for customers to enter the Petro Mart. (PSUMF, ¶14). There was no alternate means for a customer to enter the Petro Mart, except through the front door. (PSUMF, ¶l 5). The Petro Mart had two handicapped ramps on either side of the sidewalk, which lead up to the only entrance to the Petro Mart. (PSUMF, ¶16). The other end of the sidewalk also contained water extending into the sidewalk, which narrowed the sidewalk. (PSUMF, ¶17). The Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101, et seq., requires a minimum clearance width of 36 inches for a designated accessible route into a business. (PSUMF, ¶18). A sidewalk clearance of 23.6 inches is a violation of the ADA. (PSUMF, ¶19).

         Plaintiff is confined to his wheelchair for mobility and is permanently disabled. (PSUMF, ¶20). On August 22, 2014, Plaintiffs wheelchair slipped off the Petro Mart sidewalk, while passing in front of the Display, when he tried to enter the Petro Mart. (PSUMF, ¶21). Plaintiff broke his left femoral heard in his hip/leg as a result of his August 22, 2104 fall from the Petro Mart sidewalk. (PSUMF, ¶22). Plaintiffs wheelchair width from the left hand rim to the middle of the right rear tire is 23.5 inches. (PSUMF, ¶24).

         Defendant was aware of the ADA before August 22, 2014. (PSUMF, ¶25). The ADA applied to Defendant's Petro Mart on August 22, 2014. (PSUMF, ¶26).


         A. Motion for Summary Judgment Standard

         The Court may grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The substantive law determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly preclude summary judgment. Id. Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

         A moving party always bears the burden of informing the Court of the basis of its motion. Celotex Corp., 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not the "mere existence of some alleged factual dispute." Fed.R.Civ.P. 56(e); Anderson, Ml U.S. at 248. The nonmoving party may not rest upon mere allegations or denials of his pleading. Id.

         In passing on a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor.Celotex Corp., 477 U.S. at 331. The Court's function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Anderson, 477 249. '"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" Torgerson, 643 F.3d at 1042 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

         B. Discussion

         Plaintiff argues that this Court should grant Plaintiffs Motion for Partial Summary Judgment on the claim of per se violation of the ADA. To establish a claim of negligence per se based on the violation of a statute or ordinance, a plaintiff must plead the following four elements: (1) a violation of the statute or ordinance; (2) the injured plaintiff was a member of the class of persons intended to be protected by the statute or ordinance; (3) the plaintiffs injury is of the type the statute or ordinance was designed to prevent; and (4) the violation of the statute or ordinance was the proximate cause of the injury. Blackwell v. CSF Properties 2 LLC,443 S.W.3d 711, 716 (Mo.Ct.App. 2014) (citing Mediq PRN Life Support Servs., Inc. v. Abrams,899 S.W.2d 101, 107 (Mo.Ct.App. 1994)). Plaintiff alleges that the statute or ordinance violated by Defendant is the ADA. Plaintiff maintains that there are no genuine issues of ...

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