Maxwell v. City of Hayti

985 S.W.2d 920, 1999 Mo. App. LEXIS 79, 1999 WL 23199
CourtMissouri Court of Appeals
DecidedJanuary 22, 1999
DocketNo. 21983
StatusPublished
Cited by8 cases

This text of 985 S.W.2d 920 (Maxwell v. City of Hayti) 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
Maxwell v. City of Hayti, 985 S.W.2d 920, 1999 Mo. App. LEXIS 79, 1999 WL 23199 (Mo. Ct. App. 1999).

Opinion

PHILLIP R. GARRISON, Chief Judge.

Nonley Maxwell (“Plaintiff’) alleged that he fell on accumulated ice and snow on a sidewalk in the City of Hayti (“City”) on February 14, 1997. He settled a claim against an adjoining owner for $4,000, and then filed suit against City. In his petition, he alleged that snow which had fallen two to four days prior to his fall had frozen, leaving a slick and icy sidewalk that was not reasonably safe for the public; that City knew or should have known of the unsafe condition; and that City failed to use ordinary care to remedy the unsafe condition either by removing the ice, salting it, barricading it, or warning of the unsafe condition. A jury returned a verdict in Plaintiffs favor in the amount of $25,000, and the court entered judgment on that verdict after deducting the amount of the prior settlement. City appeals, contending, among other things, that the trial court erred in refusing to give its proffered jury instruction. We reverse.

City complains that the trial court erred in refusing to give the following not-in-MAI affirmative converse jury instruction:

You must not assess a percentage of fault to [City] if you believe that, at the time Plaintiff fell, there existed throughout [City] a general condition of ice, and the condition of said [City’s] sidewalk was not a special, isolated condition.

An affirmative converse instruction is one which presents a hypothetical ultimate issue which, if true, would defeat a plaintiffs claim. Hiers v. Lemley, 834 S.W.2d 729, 734 (Mo. banc 1992). Such an instruction must be supported by independent evidence, and is appropriate where the verdict director assumes as true or omits a disputed ultimate issue. Id. at 734-35.1

A city has a non-delegable duty to maintain its sidewalks in a reasonably safe condition for use by the public or to warn of dangers and defects in those sidewalks. Schweizer v. City of Maplewood, 784 S.W.2d 842, 843 (Mo.App. E.D.1990). The parties here seem to agree, however, that a possessor of land has no duty to remove snow or ice on outside areas where the snow or ice accumulated naturally as a result of general weather conditions within the community. See Willis v. Springfield Gen. Osteopathic Hosp., 804 S.W.2d 416, 419 (Mo.App. S.D. 1991). This general rule applies to a variety [922]*922of possessors of land including municipal corporations. Id. In fact, Plaintiff admits in his brief “ that a city has no duty to remove snow and ice that accumulates naturally on a city sidewalk as a result of general weather conditions of snow and ice,” citing Walsh v. City of St. Louis, 346 Mo. 571, 142 S.W.2d 465, 466 (1940).

City correctly points out that instructions substantially similar to its proffered instruction were given in cases such as Ellis v. Jurea Apartments, Inc., 875 S.W.2d 203 (Mo.App. S.D.1994); Willis, 804 S.W.2d 416; and Carden v. Lester E. Cox Medical Center, 519 S.W.2d 338 (Mo.App. S.D.1975). Each of those cases were affirmed on appeal. In Willis, we said that a similar instruction properly submitted the fact issue of whether the accumulation of ice was the product of a general condition in the area or an isolated condition unique to the location of the fall. 804 S.W.2d at 423. In Carden, we held that a similar instruction was appropriate to thoroughly instruct on all the factual issues. 519 S.W.2d at 342. In Ellis, the giving of a similar instruction was held not to be plain error. 875 S.W.2d at 206-207.

Plaintiff argues, however, that his verdict-directing instruction patterned after MAI 31.16 “correctly submitted to the jury [City’s] duty and submitted all ultimate facts necessary for a jury to return a verdict in favor of plaintiff.”2 He also argues that City’s affirmative converse instruction “does not set forth an ultimate fact that was omitted from plaintiffs verdict-directing instruction, but merely submits to the jury evidentiary detail already subsumed within plaintiffs verdict-directing instruction with regard to a city’s duty to use ordinary care to make the city’s sidewalks reasonably safe.” This argument is effectively refuted by Willis, where a similar verdict-directing instruction was given, yet this Court approved the giving of an affirmative converse instruction substantially similar to that in issue here.

The main issue in this ease, however, revolves around whether there was substantial evidence to support City’s tendered instruction, i.e. whether there was substantial evidence that the condition of the sidewalk where Plaintiff fell was the product of a general condition in the area or one which was isolated. In considering whether an instruction was supported by the evidence, we view all the evidence in the light most favorable to the party offering the instruction, and give that party the benefit of all favorable inferences reasonably drawn therefrom and disregard evidence to the contrary. Kilgore v. Linville, 733 S.W.2d 62, 63 (Mo.App. E.D. 1987). See also Oldaker v. Peters, 817 S.W.2d 245, 251-52 (Mo. banc 1991).

In this case, City presented the testimony of Cleat Stanfill, an employee of the Department of Commerce, whose job was to gather weather statistics in Pemiscot County. Mr. Stanfill’s job included recording temperatures, current conditions, rainfall, snow fall, and ice accumulation at 5:30 A.M. each day at a location three miles east of City. He testified that on February 14, 1997 (the day of Plaintiffs fall), his readings indicated that the temperature was 30 degrees; that there had been snow, sleet and rain in the last 24 hours; and that there was three inches of snow on the ground.

Plaintiff also introduced climatological records for Kennett and Portageville, Missouri. We take judicial notice of the geographical location of cities in the State and the approximate distance between them. Walsh v. Table Rock Asphalt Construction Co., 522 S.W.2d 116, 118, n. 1 (Mo.App. Spfd.1975). Accordingly, we judicially know that Kennett is approximately 17 miles west and Portageville is approximately 15 miles north of City. The climatological records demonstrated that Kennett had 4 inches of snow and ice in the 48 hours prior to 7:00 A.M. on February 14, 1997, at which time [923]*923there was 4 inches of snow and ice on the ground. The records also indicated that at 8:00 A.M. on February 14, 1997, Portageville had 5 inches of snow or ice on the ground and there had been 6.1 inches of snow, ice pellets or hail during the preceding 24-hour period.

Although both the climatological records and Mr.

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Bluebook (online)
985 S.W.2d 920, 1999 Mo. App. LEXIS 79, 1999 WL 23199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maxwell-v-city-of-hayti-moctapp-1999.