Court of Appeals of Missouri, Eastern District, Fifth Division
JANET MARTINEZ, KURT VOLK, KELLY HENDRICKS, BARBARA ESTIVO, JOHN DESOUSA, JEFF MAXVIL, TAMMY HINDS, and SHELLY GOODMAN, Respondents,
KILROY WAS HERE LLC, Appellant, WILLIAM HINDS, Plaintiff, KILROY'S FAMILY CAFE, ARTHUR W. RANDALL and BRENDA G. RANDALL, Defendants.
from the Circuit Court of the City of St. Louis 1222-CC02394
Honorable John J. Riley, J.
M. Dowd, Chief Judge
case arose on April 28, 2012 when a tent measuring 40 feet by
60 feet and erected by bar owner Kilroy Was Here, LLC
("Kilroy") on its premises near Busch Stadium for
the purpose of hosting customers following a midday St. Louis
Cardinals professional baseball game broke free from its
moorings due to high winds during a severe thunderstorm,
striking and killing Albert Goodman ("Decedent")
and seriously injuring several others. Respondents sued
Kilroy for personal injury and wrongful death and submitted
the case to the jury on three theories: premises liability,
general negligence, and negligence per se. At trial, Kilroy
moved for a directed verdict, which was denied by the court,
and the jury reached a general verdict in favor of each
Respondent. The trial court denied Kilroy's timely motion
for judgment notwithstanding the verdict and entered judgment
on the jury's verdict.
appeal, Kilroy contends the trial court erred because there
was insufficient evidence to support Respondents'
premises liability and negligence per se claims.
Specifically, in Point I Kilroy asserts there was no
substantial evidence that Kilroy had actual or constructive
knowledge the tent was not reasonably safe. And in Point II,
Kilroy claims there was insufficient evidence that Kilroy had
notice the tent did not comply with St. Louis City Ordinance
68788, § 109.3.1, Note A (the "City
Ordinance") requiring that the tent be able to withstand
90-mile-per-hour winds. We disagree on both points and
and Procedural Background
following facts are undisputed: Kilroy, owned by Arthur and
Brenda Randall and their two adult children, Andrea Bugg and
Arthur Randall, Jr., operates Kilroy's Sports Bar,
located at 729 South 7th Street in downtown St.
Louis, Missouri, which is immediately south of Busch Stadium
where the Cardinals play. In April 2012, Kilroy obtained a
permit to temporarily install the tent on its parking lot for
use on days when the Cardinals played at home. Kilroy
obtained an occupancy permit for the tent after three
inspections by officials from the City of St. Louis.
April 28, 2012, the Cardinals had a home game beginning at
approximately noon. The weather was sunny throughout the
game. Janet Martinez, Kurt Volk, Kelly Hendricks, Barbara
Estivo, John Desousa, Jeff Maxvill, Tammy Hinds, and Al
Goodman all attended the game and afterward went to
Kilroy's and gathered under the tent. Inside the tent,
Kilroy sold alcoholic beverages and had a DJ playing music
and conducting trivia games.
the Cardinals game and afterward, a severe thunderstorm
developed in central Missouri and moved east-to-southeast
across the state toward the City of St. Louis. The National
Weather Service issued warnings of the storm's approach,
and local television stations interrupted regularly-scheduled
programming with warnings about the storm. Kilroy did not
warn its guests of the approaching storm system or take any
action to evacuate the tent.
3:41 p.m. and 3:46 p.m., high winds from the storm reached
Kilroy's parking lot, lifted the tent from its moorings,
and caused the serious injuries and death giving rise to this
case. AI Goodman was killed, and Janet Martinez, Kurt Volk,
Kelly Hendricks, Barbara Estivo, John Desousa, Jeff Maxvill,
and Tammy Hinds suffered various injuries including head
lacerations, concussions, broken ribs and spines, collapsed
lungs, fractured jaws, and nerve damage.
standard of review for the denial of a motion for judgment
notwithstanding the verdict (JNOV) is essentially the same as
the standard for the denial of a motion for directed verdict.
City of Harrisonville v. McCall Serv. Stations, 495
S.W.3d 738, 748 (Mo.banc 2016) (citing All Am. Painting,
LLC v. Fin. Solutions & Assocs., Inc., 315 S.W.3d
719, 723 (Mo.banc 2010)). When reviewing a circuit
court's denial of a motion for JNOV, we must determine
whether the plaintiff made a submissible case by offering
evidence to support every element necessary for liability.
Id. (citing Smith v. Brown & Williamson
Tobacco Corp., 410 S.W.3d 623, 630 (Mo.banc 2013)).
Evidence is viewed in the light most favorable to the
jury's verdict, giving the plaintiff all reasonable
inferences and disregarding all conflicting evidence and
inferences. Id. (citing Smith, 410 S.W.3d
at 630). We reverse the jury's verdict for insufficient
evidence only where there is a complete absence of probative
fact to support the jury's conclusion. Id.
(citing Smith, 410 S.W.3d at 630).
I: Premises Liability
first point on appeal, Kilroy claims that there was
insufficient evidence presented at trial to support the
jury's verdict on Respondents' claims of premises
liability. Specifically, Kilroy contends that the record
contains no substantial evidence that Kilroy had actual or
constructive knowledge the tent was not reasonably safe. We
a submissible case for premises liability, a plaintiff must
adduce substantial evidence that (1) a dangerous condition
existed on the premises that involved an unreasonable risk;
(2) the landowner knew, or by using ordinary care should have
known, of the condition; (3) the landowner failed to use
ordinary care in removing or warning of the danger; and (4)
as a result, an invitee was injured. Griffith v.
Dominic,254 S.W.3d 195, 198 (Mo.App.S.D. 2008). As with
any claim of general negligence, the question whether a duty
is owed in a premises liability case is determined by whether
a reasonably prudent person ...