United States District Court, W.D. Missouri, Western Division
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
D. SMITH, SENIOR JUDGE, UNITED STATES DISTRICT COURT
is Defendant Wal-Mart Stores East, LP's Motion for
Summary Judgment. Doc. #49. As explained below, the Court
finds that there are genuine disputes of material facts.
Accordingly, the Court denies Defendant's motion for
owns and operates a Walmart store in Richmond, Missouri. On
December 17, 2015, Plaintiff went to this store for
groceries. Plaintiff testified the ground was wet when she
got out of her car and walked into Walmart, and it was also
raining when she left the store. Upon exiting the store,
Plaintiff pushed a shopping cart toward her vehicle.
Plaintiff approached her vehicle, she noticed a pool of water
had formed around a low and uneven grade around a landscaping
island. Plaintiff walked around the edge of the pool of
water, but then “hit something slick” with her
right foot, slipped, and fell on her back. Doc. #50-1, at 10.
While on her back, Plaintiff looked around and saw that it
was “shiny on the edge” of the pool of water.
Doc. #51-4, at 4. Plaintiff alleges her fall resulted in
injuries and medical expenses.
September 7, 2016, Plaintiff filed this negligence suit
against Defendant. Plaintiff contends Defendant failed to
keep the parking lot in a reasonably safe condition.
Specifically, Plaintiff alleges that “[d]ue to the
uneven grade of the parking lot, and unknown to Plaintiff,
water had pooled in a low area of the parking lot and formed
ice.” Doc. #15, at 2. Plaintiff alleges in part that
Defendant “failed to use ordinary care to remove the
ice, to barricade around the ice, and to warn of the
ice[.]” Doc. #15, at 3.
now moves for summary judgment. Defendant argues any ice or
water accumulation was caused by natural weather conditions,
and it had no duty to remove the accumulation. Doc. #50, at
4-6; See, e.g., Alexander v. Am. Lodging,
Inc., 786 S.W.2d 599, 601 (Mo.Ct.App. 1990) (recognizing
that “invitors...are not required to remove snow or ice
which accumulates naturally and is a condition general to the
community.”). Defendant also argues it did not assume
any duty through action or otherwise. Doc. #50, at 6-7.
Plaintiff argues her claim is based on the defective
construction of Defendant's parking lot, not existing
weather conditions, and genuine disputes of material facts
remain. Doc. #51, at 1-2.
moving party is entitled to summary judgment on a claim only
if there is a showing that “there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Williams v. City
of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986).
“[W]hile the materiality determination rests on the
substantive law, it is the substantive law's
identification of which facts are critical and which facts
are irrelevant that governs.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Wierman v.
Casey's Gen. Stores, 638 F.3d 984, 993 (8th Cir.
2011) (quotation omitted). In applying this standard, the
Court must view the evidence in the light most favorable to
the non-moving party, giving that party the benefit of all
inferences that may be reasonably drawn from the evidence.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 588-89 (1986); Tyler v. Harper, 744
F.2d 653, 655 (8th Cir. 1984). However, a party opposing a
motion for summary judgment “may not rest upon the mere
allegations or denials of the…pleadings, but…by
affidavits or as otherwise provided in [Rule 56], must set
forth specific facts showing that there is a genuine issue
for trial.” Fed.R.Civ.P. 56(e).
prove a negligence claim, Plaintiff has to establish the
existence of a duty, a breach of that duty, and damages
caused by that breach. The existence of a duty is purely a
question of law.” Paikowsky v. Davidson Hotel
Co., No. 08CV783, 2010 WL 2628379, at * 4 (E.D. Mo. June
25, 2010); see also Hansen v. Ritter, 375 S.W.3d
201, 208 (Mo.Ct.App. 2012). Pertinent to this case, “an
owner or occupier of private property generally has no duty
to remove snow or ice that has accumulated naturally on
outside areas as a result of general conditions within the
community.” Wilson v. Siegel-Robert, Inc., No.
10-CV-56, 2011 WL 4857866, at * 2 (E.D. Mo. Oct. 13, 2011).
“To hold that a duty exists to make a parking lot safe
as precipitation falls from the sky would be to create a duty
which would be virtually impossible to perform.”
Milford v. May Dep't Stores Co., 761 S.W.2d 231,
232 (Mo.Ct.App. 1988).
landowner may, however, have a duty to make an area safe if
it “artificially creates, through negligence or
affirmative action, a condition that makes passage
unsafe.” Cooper v. Capital Invest., LLC, 204
S.W.3d 331, 335 (Mo.Ct.App. 2006). Additionally, once a
landowner attempts to remove naturally accumulating snow or
ice, case law imposes “a duty to exercise ordinary care
to remove the snow and ice to make the common area reasonably
safe.” Alexander, 786 S.W.2d at 601; see
also Gorman v. Wal-Mart Stores, Inc., 19 S.W.3d 725, 732
reviewing the record, the Court finds Defendant's
arguments in support of summary judgment are not supported by
the record. In opposing Defendant's motion, Plaintiff
states “Defendant attempts to frame Plaintiff's
claim as a claim for ‘then-existing weather
conditions.' Defendant mischaracterizes Plaintiff's
claim. Plaintiff's claim is defendant negligently allowed
a structural defect in its south parking lot to exist which
allowed water to pool, creating a dangerous winter ice
hazard. Defendant knew or should have known of this dangerous
condition in time to remove, barricade or warn of the
danger.” Doc. #51, at 14-15.
presents sufficient evidence to support her structural defect
claim. In particular, “the testimonies of [Wilber]
McCoy, the store's general manager, and cart-pushers
[Jacob] Koelzer and [Tristan] Wallace, [arguably] establish
the condition of the south parking lot had not changed in the
several months before and the several months after the
Incident. Those facts lay a sufficient foundation for a jury
to infer the flooding in the low spot around the landscaping
island occurring after the Incident ‘pretty much every
time it rained' or ‘there was a decent rain'
(PSAMF at ¶¶ 38 and 47), also occurred on many
occasions before the Incident and Wal Mart was negligent in
failing to remedy, barricade or warn of the dangerous
condition before Plaintiff was injured.” Doc. #51, at
18. For similar reasons, the Court agrees with Plaintiff that
a jury could also find that “the ice located at the
location of the pooled water around the landscaping island
was not a condition general to the community[.]” Doc.