Hogate v. American Golf Corp.

97 S.W.3d 44, 2002 Mo. App. LEXIS 2236, 2002 WL 31513309
CourtMissouri Court of Appeals
DecidedNovember 12, 2002
DocketED 80151
StatusPublished
Cited by13 cases

This text of 97 S.W.3d 44 (Hogate v. American Golf Corp.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hogate v. American Golf Corp., 97 S.W.3d 44, 2002 Mo. App. LEXIS 2236, 2002 WL 31513309 (Mo. Ct. App. 2002).

Opinions

CLIFFORD H. AHRENS, Judge.

American Golf Corporation (“AGC”) appeals from a judgment on a jury verdict in favor of Robert Hogate (“Hogate”) in a premises liability action. AGC claims that the trial court erred in denying its motion for judgment nothwithstanding the verdict because Hogate failed to prove a breach of duty by AGC, and Hogate failed to make a submissive ease against AGC. Finding no duty, we reverse.

In reviewing the denial of a motion for judgment notwithstanding the verdict, we consider whether the plaintiff made a submissive case. Coggins v. Laclede Gas Co., 37 S.W.3d 335, 338 (Mo.App.2000). In order to make a submissive case, plaintiff must present substantial evidence to establish every fact essential to liability. Id. “Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of facts can reasonably decide a case.” Id. A judgment notwithstanding the verdict is a drastic action, and should not be granted except where reasonable minds could not differ as to the correct outcome of the case. Id. We view the evidence in the light most favorable to the verdict and we presume that plaintiff’s evidence is true and disregard any of defendant’s evidence which does not support the verdict. Id.

On April 9, 1996, Hogate was riding his bicycle on Art Hill in Forest Park. He rode the bike down the hill and onto the fourth fairway of the Forest Park golf course. His bike came into contact with a yellow rope wMch was strung along a newly sodded area of the fairway, and Hogate fell, sustaining injuries. Hogate filed a premises liability suit against AGC and the City of St. Louis and subsequently dismissed the claim against the City of St. Louis. [47]*47Hogate proceeded to trial against AGC. AGC moved for a directed verdict at the close of Hogate’s case, as well as at the close of all evidence. These motions were denied. After the jury returned a verdict in favor of Hogate, AGC filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial or remitti-tur. The motions were not ruled upon by the trial court within ninety days, and were therefore deemed overruled on September 2, 2001. Rule 78.06. The present appeal followed.

In its first point relied on, AGC claims that the trial court erred in denying its motion for judgment notwithstanding the verdict because AGC did not breach any duty to Hogate. AGC argues that Hogate was a trespasser because he deviated from the scope of any invitation which might have been extended to him by AGC, and Hogate failed to prove that he fell within any exception to the general rule that possessors of land are not liable to trespassers for harm caused by unsafe conditions on the land.

Initially, Hogate argues that AGC’s argument fails because AGC failed to object to any instructions given to the jury, particularly the verdict director, which Hogate claims submitted his liability as an invitee. Hogate relies upon King v. Kansas City Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458, 466 (banc 1942) for his assertion that the failure to object to an instruction constitutes an admission that substantial evidence exists to support the instruction. While King does, in fact, stand for the proposition that the failure to object waives any assertion of error in giving the instruction, and admits that substantial evidence supports the giving of the instruction, there is no instructional error at issue here. Additionally, the court in King noted that a party’s failure to object to an instruction does not estop him from claiming that the verdict in accordance with such instruction was against the weight of the evidence. Id. Moreover, several decades after the decision in King, Rule 72.01 was adopted which addresses motions for directed verdict and for judgment notwithstanding the verdict. Rule 72.01 states specifically that whenever a motion for a directed verdict at the close of all the evidence is denied, the court is “deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motions.” In the present case, AGC filed a motion for directed verdict at the close of Ho-gate’s case, as well as at the close of all evidence. Both motions were denied. Thus, the trial court submitted the action to the jury subject to a later determination of the question of Hogate’s status and AGC’s resultant duty. Therefore, AGC’s failure to object to any instruction does not impact our decision.

We next address the issue of AGC’s liability as a possessor of land. “In Missouri, the status of the entrant on the land of another determines the duty of care owed by the possessor of land.” Mothershead v. Greenbriar Country Club, Inc., 994 S.W.2d 80, 86 (Mo.App.1999). An entrant’s status can be as a trespasser, a licensee, or an invitee. Id. A trespasser enters the land without consent or privilege. Id. A licensee enters the property with consent, but for his own purpose. Id. An invitee is a person who has been invited to enter the property with the expectation by the possessor of a material benefit from the visit. Carter v. Kinney, 896 S.W.2d 926, 928 (Mo. banc 1995). An entrant can also become an invitee when the possessor extends an invitation to enter the land to the public generally. Id. A possessor of land owes invitees “the duty to exercise reasonable care to protect them against both known dangers and those that [48]*48would be revealed by inspection.” Id. Generally, a possessor of land does not owe a duty of care to a trespasser. Id. This rule is based not upon the wrongful nature of the trespasser’s entry upon the land, but rather it is based upon the inability of the possessor of land to foresee the presence of the trespasser and guard against injury. Mothershead, 994 S.W.2d at 86.

Here, AGC argues that Hogate was a trespasser on the land when he ran his bike into the yellow rope, and therefore, AGC owed him no duty of care. According to AGC, Hogate exceeded the scope of any invitation which may have been extended to him by AGC. As discussed above, a person can be considered an invitee where the possessor of land extends an invitation to enter the land to the public in general. Carter, 896 S.W.2d at 928. An invitation was extended to the general public to enter Forest Park. Additionally, an invitation was issued to the general public to use the golf course, conditioned upon payment of the greens fees. However, any deviation from the scope of the invitation can reduce the status of an entrant and the duty of the possessor. Taylor v. Union Elec. Co., 826 S.W.2d 57 (Mo.App.1992). “Deviation from an invitation occurs when the entrant acts in a manner inconsistent with the scope of an express or implied invitation, thereby demonstrating a change in relationship between that person and the possessor.” Id. While Hogate is correct in his argument that there is substantial evidence to support the conclusion that he was an invitee to the park, the issue we must decide is whether he exceeded the scope of any invitation which might have been issued to him to enter the golf course.

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Hogate v. American Golf Corp.
97 S.W.3d 44 (Missouri Court of Appeals, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
97 S.W.3d 44, 2002 Mo. App. LEXIS 2236, 2002 WL 31513309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hogate-v-american-golf-corp-moctapp-2002.