Premises Liability: The Return Of The Rule Of Law?

by | February, 2023 | Legal News

In Missouri, one of the essential elements a Plaintiff must plead (and prove) in a premises liability case is that there exists on the premises a “dangerous condition” and as a result the premises are not “reasonably safe.”

Typically, if any condition on the land is even remotely involved in causing an accident, usually a fall, it is almost impossible to obtain summary judgment no matter how innocuous the condition.  However, the United States 8th Circuit Court of Appeals in Hodge By & Through Farrow v. Walgreen Co., 37 F.4th 461 (8th Cir. 2022) clarified the Missouri law with a well-written opinion finding as a matter of law there was no evidence of an actual “dangerous condition” on the property.

Missouri courts have gone so far as to find warning cones, placed in an area that was once wet, become a dangerous condition once the floor is dry. Luthy v. Denny’s, Inc., 782 S.W.2d 661, 663 (Mo. Ct. App. 1989). A plastic shopping bag on a parking lot has also been branded as “dangerous.” Forrest v. Schnucks Markets, Inc., 791 S.W.2d 447, 450 (Mo. Ct. App. 1990). In fact, the author is aware from personal experience that there is an unreported Missouri Eastern District Court of Appeals Opinion finding that a cardboard endcap, placed at the front of a grocery store aisle, holding household batteries, is a dangerous condition that poses an unreasonable risk of harm to shoppers…

Deviating from the illogical findings we usually see, and highlighted above, in Hodge it was claimed the plaintiff tripped and fell as he entered a Walgreen’s in Republic, Missouri, because there was a “lip” formed at the junction of the parking lot pavement and the brick sidewalk. Walgreens argued that there was no meaningful height difference between the pavement and the sidewalk and one witness testified that where the pavement met the sidewalk, the heights were “pretty much the same level.” Even though there were catastrophic injuries, the Judge entered summary judgment for Walgreen’s finding the ‘lip” was not a dangerous condition and there was no evidence proving otherwise.

Plaintiff Hodge argued that “the fact that he tripped on the lip at an uneven surface created an inference that the lip was involved in the fall and may have become a dangerous condition”, and he should be permitted to submit this claim to the jury.   However, the Court adopted Walgreens’ argument that “it can only be inferred that Hodge fell on the lip of the brick portion of the sidewalk but there is nothing from these facts to infer the lip was dangerous.”

The moral of this story: logic and reason do, in fact, prevail – at least on occasion.