Stewart v. Reynolds

84 S.W.3d 569, 2002 Mo. App. LEXIS 1976, 2002 WL 31122087
CourtMissouri Court of Appeals
DecidedSeptember 26, 2002
DocketNo. 24587
StatusPublished
Cited by3 cases

This text of 84 S.W.3d 569 (Stewart v. Reynolds) 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
Stewart v. Reynolds, 84 S.W.3d 569, 2002 Mo. App. LEXIS 1976, 2002 WL 31122087 (Mo. Ct. App. 2002).

Opinion

PER CURIAM.

Sally Stewart (Plaintiff) sued Jack and Wanda Reynolds (“Reynolds”) and the City of Reeds Spring (“City”) for damages for injuries sustained when she fell after leaving Reynolds’ store in Reeds Spring, Missouri. After Plaintiff presented her case and rested, the court directed a verdict favorable to Reynolds, but denied City’s motion for a directed verdict. Ultimately, the jury found for Plaintiff and against City. The court entered judgment on the jury’s verdict, and City appealed. In urging reversal, City claims:

(1) the trial court erred by directing a verdict for Reynolds and against Plaintiff as a jury issue existed about whether the accident site was public or private, and
(2) the evidence established that the hole in the concrete that caused Plaintiff to fall was so open and obvious as to mandate a finding for City as a matter of law.

Finding no merit in these claims, we affirm.

FACTS

On July 10, 1998, Reynolds operated a retail business at two sites, one on the east side of South Street (Highway 13) in Reeds Spring, Missouri, and the other directly across the street on the west side. A pedestrian crosswalk had been laid out with paint on the asphalt-covered part of South Street, i.e., where motor vehicles traveled and parallel parked. With reference to the Reynolds’ stores, the walkway [571]*571ran from the sidewalk edge in front of one store to the sidewalk edge in front of the other store.

At about 4:00 p.m. on July 10, Plaintiff first visited the Reynolds’ store on the east side of South Street and then headed toward Reynolds’ west-side store. The sidewalk in front of the east store was concrete, six to eight feet in width, and approximately twelve to fourteen inches above the level of the street. Virtually all of the sidewalk is within the platted right-of-way of South Street or Highway 13. As Plaintiff and her minor daughters walked out the front door of the east store onto the sidewalk, the pedestrian crosswalk was slightly to their right. Accordingly, she and her daughters turned right and walked on the sidewalk toward the crosswalk area. After walking approximately ten feet, they encountered a concrete step-down or lowered concrete area. The concrete step-down or lowered area is a notch in the sidewalk approximately four to five feet long, approximately twenty-two to twenty-six inches wide, and approximately five to eight inches deep indented in the street side of the sidewalk. It provides a convenient step-down distance of approximately five to eight inches from the sidewalk to the lowered area and approximately nine to ten inches from the lowered area to the street.1 This lowered area was located so that after stepping down onto it, a person wanting to cross the street could simply walk from the floor of the step onto the street parking area where the walkway was painted and proceed across the street. In other words, the City provided a crosswalk extending from the notch to the west side of South Street.

Plaintiff testified that as she approached the step or lowered area, she “noticed grass on it” but “did not see the hole” in the bottom of it because of “[a]ll the grass.” As Plaintiff stepped down onto the floor of the step, her right foot hit “[o]n the edge of what we now know [was a] deep hole.”2 Her foot rolled to the right and she fell. As a result, she sustained what a treating physician later described as a “double ligament ankle tear.” The extent of Plaintiffs injuries is not in dispute.

At trial, City put in evidence a plat of the “Town of Reed’s Spring,” recorded in 1903 in the Stone County Recorder’s office. The plat was signed by persons who declared they were dedicating the streets and alleys “for the use of the public forever.” The plat portrayed South Street as 60 feet wide, with what is now Reynolds’ east-side property (Lot 5, Block 7) fronting on South Street. A witness, Gary W. Brown, testified that the entire width of South Street was consumed by the two travel lanes of the state highway, the shoulders of the highway (used for parallel parking on either side of the street), and the sidewalk adjoining the shoulders of the highway. As he described it, a measurement thirty feet east from the centerline of South Street would terminate “[j]ust about at the [Reynolds’] building.” Photographic exhibits revealed that the lowered concrete area abutted the parallel-parking portion of the street and was several feet west of the front of Reynolds’ building.

[572]*572When Plaintiff rested, both City and Reynolds moved for a directed verdict. After hearing arguments on the motions, the trial court first recapped the evidence about South Street, i.e., that it was 60 feet wide and the roadway, shoulder parking, and sidewalks consumed the 60-foot area dedicated for street purposes. The court next recounted that City had disavowed “having maintained, built or erected the sidewalks.” Even so, the court found that “these are, in fact, public sidewalks.” The court then ruled Reynolds’ motion as follows: “I ... find that there was no special use ... made by ... Reynolds [relating to the accident site] because there’s no showing that they did anything. And therefore, I’m ... sustaining] the Motion for a Directed Verdict on behalf of the ... Reynolds.”

The trial court denied City’s motion for directed verdict, and ultimately City opted to rest without presenting evidence. The jury returned a verdict for Plaintiff of $160,000 and apportioned five percent fault to Plaintiff and ninety-five percent fault to City. Judgment was rendered accordingly, and City’s appeal followed.

We provide additional facts below when relevant to our discussion of City’s claims of trial court error.

DISCUSSION AND ANALYSIS

Point I: Alleged Error In Directing A Verdict For Reynolds

We reproduce City’s first point as follows:

“The Trial Court erred in granting ... Reynolds’ Motion for Directed Verdict by finding, as a matter of law, that the sidewalk in front of ... [Reynolds’ east-side store] is a public sidewalk, because the evidence was sufficient to make a submissible case on whether the lowered concrete area where Plaintiff was injured is private, rather than public, in that there was evidence that [City] has never accepted the lowered concrete area as a public walkway and that the public has not used the lowered concrete area.” (Emphasis supplied.)

In sum, City argues that sufficient evidence was adduced to present a fact question as to the status of the accident site, i.e., whether the lowered concrete area had been dedicated to and accepted by the public or was a privately-owned area. With that as its premise, City avers the trial court erred in directing a verdict for Reynolds, apparently on the theory that leaving Reynolds in the lawsuit was the only way that the public or private status issue could be submitted to the jury. We disagree.

First, we note that Plaintiff never alleged or attempted to prove that the accident site was on private property or that Reynolds owed her the general duty owed invitees by property owners or possessors when invitees are on business premises.3 Plaintiff apparently recognized what the record shows, namely, that the thing which caused her injury (the lowered concrete area with the hole in it) was not on Reynolds’ property.

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Related

Savory v. Hensick
143 S.W.3d 712 (Missouri Court of Appeals, 2004)
Gibson v. State
168 S.W.3d 72 (Missouri Court of Appeals, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
84 S.W.3d 569, 2002 Mo. App. LEXIS 1976, 2002 WL 31122087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-reynolds-moctapp-2002.