Court of Appeals of Missouri, Eastern District, Southern Division
from the Circuit Court of Cape Girardeau County Honorable
Benjamin F. Lewis
LAWRENCE E. MOONEY, JUDGE
plaintiff, Kathy Christian, appeals the summary judgment
entered by the Circuit Court of Cape Girardeau County in
favor of the defendant, St. Francis Medical Center, in this
suit involving personal injuries the plaintiff suffered when
she fell on the defendant's premises. Given the record
before us, we are unable to determine as a matter of law that
the curb on which the plaintiff fell is an open and obvious
condition. We conclude that, under the circumstances present
here, whether the curb was an open and obvious condition is a
question of fact for the jury to determine.
and Procedural Background
September 2012, the plaintiff drove her employer's
minivan to the defendant's premises to pick up a client
following the client's medical treatment at the hospital.
The patient drop-off and pick-up area consisted of a two-way
curved drive past the hospital doors. A canopy, or awning,
stretched over the drive, supported on the far side of the
drive opposite the hospital doors by a wide, wall-like pillar
that stood on a traffic island. The curb was not painted to
contrast with the drive. The plaintiff had been to the
patient drop-off and pick-up area of the hospital on several
occasions, including earlier that day when she transported
her client to the hospital. She had, however, always stopped
or parked adjacent to the curb to her right, near the
hospital doors. She testified in her deposition that she had
never noticed the curb or the island on which the pillar
the plaintiff arrived at the hospital, traffic at the pick-up
and drop-off area was heavier than she had encountered on
other occasions. As the plaintiff approached the area in the
right-hand lane nearer the hospital doors, a valet motioned
to her to pull into the left lane, or oncoming traffic lane,
and to park at the curb. The plaintiff parked to her left in
the hospital driveway, which she had never done before;
listened to the valet give instructions about leaving . the
van with the keys in it for valet parking; and opened the van
door. As she exited, the plaintiff stumbled on the adjacent
curb, which she maintains she did not see and which the valet
did not warn her about, causing her to fall and suffer a
compound fracture to her femur.
trial court granted summary judgment in favor of the
defendant without explanation. The plaintiff appeals,
claiming the trial court erred in granting the
defendant's motion for summary judgment because genuine
issues of material fact remain in dispute.
judgment allows a trial court to enter judgment for the
moving party where the party demonstrates a right to judgment
as a matter of law based on facts about which there is no
genuine dispute. ITT Commercial Fin. Corp. v. Mid-Am.
Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc
1993). Our review is essentially de novo. ITT, 854
S.W.2d at 376. When considering an appeal from summary
judgment, we review the record in the light most favorable to
the party against whom the court entered judgment.
plaintiff sues a possessor of land for injuries arising out
of an unreasonably dangerous condition on that land, the
relationship between the possessor of the land and the
plaintiff determines the standard of care owed the plaintiff.
Crow v. Kansas City Power & Light Co., 174
S.W.3d 523, 534 (Mo. App. W.D. 2005). An "invitee"
enters the premises of another with the consent of the
possessor for some purpose of benefit or interest to the
possessor, or for the mutual benefit of the invitee and the
possessor. Lacy v. Wright, 199 S.W.3d 780, 783 (Mo.
App. E.D. 2006). Here, the parties do not dispute that the
plaintiff was the defendant's invitee.
impose liability on the possessor of the premises, the
invitee must show that: 1) a dangerous condition existed on
the premises that was not reasonably safe; 2) the possessor
knew of the condition, or through the use of ordinary care
should have known of it; and 3) the possessor failed to use
ordinary care to remove, remedy, or warn of the dangerous
condition. Id. Accordingly, the possessor of land
has the duty to warn of dangerous conditions that an invitee
is not likely to discover. Bruner v. City of St.
Louis, 857 S.W.2d 329, 332 (Mo. App. E.D. 1993). An open
and obvious danger dispenses with the duty to warn invitees
unless the possessor should anticipate that an invitee will
suffer harm despite her constructive knowledge of the
condition. Lacy, 199S.W.3d at 783.
plaintiff asserts the trial court erred in granting summary
judgment. Given the record before us, we cannot conclude as a
matter of law based on facts about which there is no genuine
dispute, that the far curb, which was similar in color to the
driveway, was so open and obvious that the defendant could
reasonably rely on an invitee to see and appreciate the risk
of danger as she exited her vehicle at the direction of the
defendant's valet while parking in the oncoming traffic
lane amidst congested traffic conditions. Id. at
784. In determining whether the curb constituted a dangerous
condition, the jury could ...