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Scholdberg v. Scholdberg

Court of Appeals of Missouri, Western District, Second Division

June 4, 2019

SHERRI L. SCHOLDBERG, Appellant,
v.
KURT SCHOLDBERG, Respondent.

          Appeal from the Circuit Court of Clay County, Missouri The Honorable Janet L. Sutton, Judge

          Before Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, Judge and Cindy L. Martin, Judge

          CYNTHIA L. MARTIN, JUDGE

         Sherri L. Scholdberg ("Ms. Scholdberg") appeals the trial court's grant of summary judgment in favor of Kurt Scholdberg ("Mr. Scholdberg") in Ms. Scholdberg's premises liability lawsuit. Ms. Scholdberg contends that Mr. Scholdberg's actual knowledge of the dangerous condition on his property which caused Ms. Scholdberg's fall remains a genuine issue of fact in dispute, preventing the entry of summary judgment as a matter of law. Because Ms. Scholdberg, a licensee on Mr. Scholdberg's property, produced no evidence from which a factfinder could infer that Mr. Scholdberg had actual knowledge of the dangerous condition on his property that caused Ms. Scholdberg's fall, the trial court did not err in entering summary judgment in favor of Mr. Scholdberg. We affirm.

         Factual and Procedural Background

         Mr. Scholdberg owns a home located in Gladstone, Missouri. Ms. Scholdberg[1]began living in Mr. Scholdberg's home in August 2014 because she had no car and needed to be able to walk to work. Ms. Scholdberg did not pay rent to Mr. Scholdberg.

         On April 22, 2015, Ms. Scholdberg leaned against a railing on the front porch of Mr. Scholdberg's home (the "top railing"). The top railing broke away, causing Ms. Scholdberg to fall.

         Ms. Scholdberg filed suit against Mr. Scholdberg alleging negligence on a premises liability theory. Mr. Scholdberg moved for summary judgment. Mr. Scholdberg alleged that Ms. Scholdberg was a licensee and could not establish that Mr. Scholdberg had actual knowledge that the top railing was in a dangerous condition, an essential element of Ms. Scholdberg's claim.

         The statement of uncontroverted facts accompanying Mr. Scholdberg's motion for summary judgment alleged that Ms. Scholdberg noticed nothing unusual about the top railing before her fall, and that Mr. Scholdberg did not install the top railing that caused Ms. Scholdberg's fall. Ms. Scholdberg admitted these uncontroverted facts, and admitted that she was a licensee.

         The statement of uncontroverted facts also alleged that Mr. Scholdberg did not know that the top railing was in a deteriorated condition; that at no point before Ms. Scholdberg's fall had Mr. Scholdberg installed, repaired, replaced, or modified the top railing; and that no one ever told Mr. Scholdberg that something was wrong with the top railing. These uncontroverted facts were supported by Mr. Scholdberg's affidavit, and by references to the transcript of Mr. Scholdberg's deposition.

         Ms. Scholdberg denied these uncontroverted facts. She alleged in response that a second railing of similar construction had once existed on stairs from the front porch down to the driveway (the "bottom railing"). The bottom railing had fallen over at some point, and Mr. Scholdberg asked Sean Scholdberg ("Sean")[2] to remove the bottom railing. When Sean did so, he discovered that the brackets connecting the bottom railing to the stairs were rusted. Sean testified in his deposition that the rust on the brackets was not visible before the bottom railing fell because the brackets were covered by a decorative sleeve that had to be pried up to observe the brackets. Sean testified in his deposition that although "the family" generally discussed making sure the top railing was safe for the grandkids, he never inspected the brackets on the top railing, and he does not know if Mr. Scholdberg ever inspected the top railing. Sean testified in his deposition that it was only after Ms. Scholdberg fell that it was determined that the top railing had rusted brackets. Ms. Scholdberg argued that these facts created a genuine issue of material fact in dispute about whether Mr. Scholdberg had actual knowledge that the top railing was in a dangerous condition.

         The trial court entered its judgment on May 16, 2018, granting Mr. Scholdberg's motion for summary judgment ("Judgment"). The trial court found that Ms. Scholdberg admitted she was a licensee on Mr. Scholdberg's property, and that as such, Mr. Scholdberg owed Ms. Scholdberg "the duty to make safe only those dangers of which he had knowledge." [L.F. Doc 24, p. 1] The trial court found that:

After an extended period of discovery, plaintiff has not produced any evidence that [Mr. Scholdberg] knew of the condition of the [top railing] prior to [Ms. Scholdberg's] fall. Therefore [Ms. Scholdberg] cannot prove a necessary element of her claim and summary judgment in [Mr. Scholdberg's] favor is appropriate and [Mr. Scholdberg's] motion for summary judgment should be granted.

[L.F. Doc. 24, p. 1]

         Ms. Scholdberg filed this timely appeal.

         Analysis

         Ms. Scholdberg raises a single point on appeal. She argues that whether Mr. Scholdberg had actual knowledge that the top railing was in a dangerous condition was a genuine issue of material fact in dispute, precluding the entry of summary judgment on her claim of premises liability as a matter of law.

         Appellate review of a trial court's grant of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "We review the record in the light most favorable to the party against whom the judgment was entered." Love v. Waring, 560 S.W.3d 614, 618 (Mo. App. W.D. 2018). "However, we take as true the facts set forth in support of the summary judgment motion unless contradicted by the non-movant's response." Id. (citing ITT, 854 S.W.2d at 376). "Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Id.

Where, as in this case, the movant is the defendant, the movant establishes the right to judgment as a matter of law by ...

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