United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiffs Motion for
Partial Summary Judgment (ECF No. 61). These matters are
fully briefed and ready for disposition.
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).
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).
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).
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).
Motion for Summary Judgment Standard
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.
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.
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 U.S.at 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)).
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 ...