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Martinez v. Kilroy Was Here LLC

Court of Appeals of Missouri, Eastern District, Fifth Division

April 3, 2018

JANET MARTINEZ, KURT VOLK, KELLY HENDRICKS, BARBARA ESTIVO, JOHN DESOUSA, JEFF MAXVIL, TAMMY HINDS, and SHELLY GOODMAN, Respondents,
v.
KILROY WAS HERE LLC, Appellant, WILLIAM HINDS, Plaintiff, KILROY'S FAMILY CAFE, ARTHUR W. RANDALL and BRENDA G. RANDALL, Defendants.

          Appeal from the Circuit Court of the City of St. Louis 1222-CC02394 Honorable John J. Riley, J.

          OPINION

          James M. Dowd, Chief Judge

         This 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.

         On 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 affirm.

         Factual and Procedural Background

         The 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.

         On 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.

         During 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.

         Between 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

         The 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).

         Point I: Premises Liability

         In its 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 disagree.

         To make 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 ...


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