United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
D. NOCE UNITED STATES MAGISTRATE JUDGE
action is before the Court following oral arguments, heard on
July 11, 2018, on the motion of defendant Target Corporation
for summary judgment. For the reasons discussed below, the
Court denies the motion.
Jammie Roberson commenced this action against defendant
Target Corporation in the Circuit Court of St. Louis County.
Defendant removed the case based upon 28 U.S.C. §§
1332(a)(1) and 1441(a).
motion states the following relevant facts. On July 25, 2016,
plaintiff entered defendant's store in Brentwood,
Missouri. She walked down the aisles looking for the item she
needed. As she walked, she was looking upwards at the signs
to point her towards the item she sought. She also glanced at
the shelving during her search. As she was looking at the
shelves and turning the corner, she was not paying attention
to the floor. She tripped on a silver metal endcap at the
bottom of the aisle shelving. The coloring of the area
beneath this endcap is red, white, and black. Plaintiff
alleges she sustained injuries due to the fall and has
incurred and will continue to incur medical expenses for
treatment of the injuries. Defendant argues it is entitled to
summary judgment because the endcap upon which plaintiff
tripped was open and obvious as a matter of law.
judgment is appropriate “if there is no dispute of
material fact and reasonable fact finders could not find in
favor of the nonmoving party.” Shrable v. Eaton
Corp., 695 F.3d 768, 770 (8th Cir. 2012); see
also Fed. R. Civ. P. 56(a). The party moving for summary
judgment must demonstrate the absence of a genuine issue of
material fact and that it is entitled to judgment as a matter
of law. Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986). A dispute is genuine if the evidence may prompt a
reasonable jury to return a verdict for either the plaintiff
or the defendant, and it is material if it would affect the
resolution of a case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 252 (1986); Rademacher v.
HBE Corp., 645 F.3d 1005, 1010 (8th Cir. 2011). If
reasonable minds could differ as to the import of the
evidence, then summary judgment is not appropriate.
Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986).
Missouri law, the plaintiff in a negligence action must
establish that the defendant owed her a duty of care, that
defendant breached that duty, and that this breach was the
proximate cause of plaintiff's injury. Lopez v. Three
Rivers Elec. Corp., 26 S.W.3d 151, 155 (Mo. banc 2000).
The duty owed by the owner of the premises to an invitee is
the exercise of reasonable and ordinary care to keep the
premises safe. Rycraw v. White Castle Systems, Inc.,
28 S.W.3d 495, 499 (Mo.Ct.App. 2000). To prove the defendant
did not exercise reasonable and ordinary care, an injured
invitee must prove four elements: (1) that there was a
dangerous condition on defendant's property that involved
an unreasonable risk; (2) that the defendant knew, or should
have known by using ordinary care, of this dangerous
condition; (3) that by not removing the danger or warning the
invitee about the condition, defendant failed to use ordinary
care; and (4) that the invitee was injured as a result of the
condition. Rycraw, 28 S.W.3d at 499. When the
condition is so open and obvious that it is reasonable to
expect the invitee would discover it and realize the danger,
a property owner does not breach the applicable standard of
care. Harris v. Niehaus, 857 S.W.2d 222, 226 (Mo.
1993) (en banc).
parties dispute whether the endcap was an open and obvious
condition. If it was, defendant did not breach the standard
of care owed to plaintiff.
courts define an open and obvious condition as one that is
conspicuously noticeable. See Hellmann v. Droege's
Super Market, Inc., 943 S.W.2d 655, 657-68 (Mo.Ct.App.
E.D. 1997) (whether ice on a parking lot is open and obvious
given winter storms the week before is a jury issue);
Harris, 857 S.W.2d at 227 (sloping road leading to
lake is open and obvious); Seymour v. Lakewood Hills
Ass'n, 927 S.W.2d 405, 410 (Mo.Ct.App. 1996) (tree
located in the middle of the road was “clearly visible
from the end of the street” even though driver backed
truck into tree); Heffernan v. Reinhold, 73 S.W.3d
659, 666 (Mo.Ct.App. 2002) (twelve-foot deep and fifteen-foot
wide ditch is open and obvious). The invitee does not need to
actually see the condition for it to be open and obvious.
See Crow v. Kansas City Power & Light Co., 174
S.W.3d 523, 537 (Mo.Ct.App. 2005) (overhead electric power
line was open and obvious even when plaintiff didn't
actually see it, because it was easily observable and would
have been reasonable for him to see); see also Peterson
v. Summit Fitness, Inc., 920 S.W.2d 928, 933 (Mo.Ct.App.
1996) (pool wall that was thirty feet long and four feet
above the ground open and obvious, even when plaintiff did
not see it before falling over it).
that make the condition less conspicuous militate against
finding that condition open and obvious. For example,
Missouri courts are less likely to find a condition open and
obvious if it is small, see Smith v. Callaway Bank,
359 S.W.3d 545, 547 (Mo.Ct.App. W.D. 2012) (lava rock the
size of a coin that plaintiff tripped over is not open and
obvious); or if it blends into its surroundings, see Lacy
v. Wright, 199 S.W.3d 780, 784 (Mo.Ct.App. 2006)
(finding concrete parking bumper not open and obvious because
it was the same color as the lot and partially covered with
snow); Underwood v. Target Corp., No. 1:12 CV 35
LMB, 2013 WL 6801260, at *4 (E.D. Mo. Dec. 23, 2013)
(condition not open and obvious as a matter of law when
plaintiff tripped over an endcap with a similar color to the
floor); or if the condition is in an area where invitees are
distracted by other activities or conditions, see Bartel
v. Central Markets, Inc., 896 S.W.2d 746, 748
(Mo.Ct.App. 1995) (uneven sidewalk outside grocery store not
open and obvious when customers come out laden with groceries
or other items).
relies on Underwood to oppose defendant's claim
that the endcap in this case was open and obvious as a matter
of law. In Underwood, this District Court found that
when a plaintiff was distracted and tripped over an endcap
that was short, small, the same color as the floor, and did
not have merchandise above it, the condition was not open and
obvious as a matter of law. 2013 WL 6801260, at *4. Like in
Underwood, the endcap here was short, small, and did
not have merchandise on it. Unlike Underwood, it was
a different color than the floor and surrounding shelves. But
the Court is not convinced that the greater contrast in color
alone renders the endcap open and obvious as a matter of law.
Given the smallness of the endcap, the lack of merchandise to
prompt plaintiff's attention to the condition, and the
distractions in the store, a jury could reasonably find that
the condition is not open and obvious. Accordingly, this
question should be submitted to the jury as the triers of
fact. See Hellman v. Droege's Super Market,
Inc., 943 S.W.2d at 659; Rebstock v. Evans
Production Engineering Co., Inc., No. 4:08 CV 01348 ERW,
2009 WL 3401262, at *5 (E.D. Mo. Oct. 20, 2009).
the Court's review of the record, there is a genuine
dispute over whether the endcap was open and obvious. The
resolution of this dispute is for a jury at trial.
IT IS HEREBY ORDERED that defendant's
motion for ...