Ray v. Gabbard

886 S.W.2d 696, 1994 Mo. App. LEXIS 1696, 1994 WL 591971
CourtMissouri Court of Appeals
DecidedNovember 1, 1994
DocketNo. WD 48551
StatusPublished
Cited by5 cases

This text of 886 S.W.2d 696 (Ray v. Gabbard) 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
Ray v. Gabbard, 886 S.W.2d 696, 1994 Mo. App. LEXIS 1696, 1994 WL 591971 (Mo. Ct. App. 1994).

Opinion

KENNEDY, Presiding Judge.

This is an appeal by defendant homeowners Lonnie Ray and Cynthia Ray from an order granting a new trial, after a jury trial and verdict in their favor. The plaintiffs were Jackie Gabbard, a child when she was injured, and her parents, Roy and Peggy Gabbard. Their claims grew out of Jackie’s injuries in a fall from the stairs at the Rays’ house.

[697]*697The Rays filed a third-party petition bringing in Darla Sehieber as third-party defendant. Rule 52.11(a). The jury returned verdicts finding against the defendants Ray on their third-party petition, and finding no fault either on the part of defendants Cynthia and Lonnie Ray or on the part of third-party defendant Darla Sehieber.

Plaintiffs filed a motion for a new trial on the sole ground the verdict was against the weight of the evidence. The trial court granted the motion for new trial on that ground, and defendants Cynthia Ray and Lonnie Ray have appealed. They say the court erred in failing to grant their pre-trial motion for summary judgment against third-party defendant Darla Sehieber; in denying their motion for a directed verdict against plaintiffs at the close of all the evidence; and in granting the new trial on the ground that the verdict was against the weight of the evidence.

The facts as shown by the evidence are as follows:

Plaintiff Jackie Ann Gabbard was three and one-half years old. On the evening of her injury (April 3, 1992), her parents, who were plaintiffs Roy and Peggy Gabbard, had left Jackie with her aunt, Darla Sehieber, at Darla’s residence. Darla, who was Peggy Gabbard’s sister, had often kept Jackie before. Darla had in her care that evening six children, including her own four children, a four-year-old girl named Tracy, and Jackie. Darla and the six children went to the Ray house, and went in. Darla was related to defendant Lonnie Ray and was a frequent visitor to the Ray house. Defendant Lonnie Ray acknowledged she had a standing invitation to enter the house.

The Rays’ was a hospitable house. They had adapted the basement to recreational purposes. They had installed a pool table there, and kept children’s toys there. Children and adults freely came into the house and down the stairs into the recreation area. Children regularly went up and down the stairs who were as young as nine months, up to the age of 15 or 16 years.

Three-and-a-half-year-old Jackie was descending these stairs, followed by four-year-old Tracy, and, behind Tracy, Darla herself. Jackie fell to the right, off the fourth step from the bottom, on to the concrete basement floor. She sustained injuries to her head and shoulder.

This staircase furnished the only access to the basement area. The only light on the stairs was from the kitchen. The light cast shadows and obscured areas of the stairway. The stairs were less than three feet in width, narrower than regular stairs. There was no handrail on the left; there had been one there when the Rays moved into this house in 1990, but they had removed it and had not replaced it. There was a handrail on the right, the side from which Jackie fell. The stairs were steep. They descended at a 45-degree decline, when, according to an expert witness, frequently used stairs should not slope more than 35 degrees. The steepness of the stairs was caused by shallow horizontal treads — eight inches, instead of the standard 11 inches. The risers varied in height more than the permissible three-eighths inch. The handrail was a single rail, which was 36 inches in height at the top of the stairs, and was 42 inches in height (measured from the stair treads) at the bottom. The handrail was supported by a single standard at the top and one at the bottom. There was no guard in the opening between the two standards, the handrail and the stairs; it was completely open. Lonnie frequently cautioned people who used the stairs to take care, and to hang on to their children as they negotiated the stairs.

Defendants argue that the court erred in granting a new trial on the ground the verdict was against the weight of the evidence. The court has the discretionary power to grant one new trial (but only one, see Rule 78.02) on the ground the verdict was against the weight of the evidence. Rule 78.02; Torre Specialties, Inc. v. Coates, 832 S.W.2d 914, 918 (Mo.App.W.D.1992); Landis v. Sumner Mfg. Co., 750 S.W.2d 466, 470 (Mo.App.W.D.1988). While the court has never said the trial court’s discretion is absolute in granting a new trial on the ground the verdict is against the weight of the evidence, no case has been cited or found in which the court has reversed the granting of a motion [698]*698for new trial on this ground. We will content ourselves to say again that the trial court has the widest discretion to grant a new trial on this ground, See, e.g., Robertson v. Cameron Mut. Ins. Co., 855 S.W.2d 442, 446 (Mo.App.W.D.1993); Wiedower v. ACF Indus., Inc., 763 S.W.2d 333, 336 (Mo.App.E.D.1988), and we find no abuse of discretion here.

Defendants’ contention that the court erred in granting a new trial because the verdict was against the weight of the evidence raises the question whether the plaintiffs made a submissible case against defendants. Cunningham v. Bellerive Hotel, Inc., 490 S.W.2d 104, 107 (Mo.1973); Resco Constr. Co. v. Dawson Cabinet Co., 656 S.W.2d 324, 326 (Mo.App.S.D.1983). If the plaintiffs made no submissible case against defendants, then defendants are entitled to have the order granting the motion for new trial reversed and the verdict and judgment reinstated.

The plaintiffs made a submissible case against defendants Ray. Jackie, as a social guest, was a licensee. See, Salanski v. Enright, 452 S.W.2d 143 (Mo.1970); Wells v. Goforth, 443 S.W.2d 155, 156 (Mo. banc 1969) (overruled in part on other grounds); Wolfson v. Chelist, 284 S.W.2d 447 (Mo.1955); Harriman v. Smith, 697 S.W.2d 219, 221 (Mo.App.E.D.1985); Brown v. Lesh, 604 S.W.2d 636 (MoA.pp.E.D.1980). The defendants’ duty toward her is stated as follows at Restatement (First) of Torts, Sec. 342 (1934) (adopted by Wells, 443 S.W.2d at 158):

A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he
(a) knows of the condition and realizes that it involves an unreasonable risk to them and has to believe that they will not discover the condition or realize the risk, and

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Bluebook (online)
886 S.W.2d 696, 1994 Mo. App. LEXIS 1696, 1994 WL 591971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ray-v-gabbard-moctapp-1994.