Court of Appeals of Missouri, Western District, Second Division
SHERRI L. SCHOLDBERG, Appellant,
KURT SCHOLDBERG, Respondent.
from the Circuit Court of Clay County, Missouri The Honorable
Janet L. Sutton, Judge
Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, Judge
and Cindy L. Martin, Judge
CYNTHIA L. MARTIN, JUDGE
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
and Procedural Background
Scholdberg owns a home located in Gladstone, Missouri. Ms.
Scholdbergbegan 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.
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.
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.
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.
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.
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") 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.
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
[L.F. Doc. 24, p. 1]
Scholdberg filed this timely appeal.
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
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
Where, as in this case, the movant is the defendant, the
movant establishes the right to judgment as a matter of law