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Mothershead v. Greenbriar Country Club6/22/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of St. Louis County, Hon. Stephen H. Goldman
Opinion Vote: AFFIRMED. Crane and Mooney, JJ., concur.
Opinion:
Angela M. Mothershead (plaintiff), mother of Jedidiah C. Mothershead (decedent), appeals from the trial court's granting of summary judgment in favor of defendants, Greenbriar Hills Country Club, Inc. (Greenbriar), and Intex Recreation Corporation (Intex) in an action for wrongful death of her sixteen year old son resulting from a snow sledding accident.
On appeal, plaintiff contends that the trial court erred in (1) granting Greenbriar's motion for summary judgment because it (a) disregarded pleadings setting forth undisputed facts that Greenbriar had knowledge that persons regularly entered the premises to ride sleds in a particular area; (b) disregarded Missouri law holding that, by virtue of Greenbriar's knowledge, decedent was either an invitee or a trespasser to whom Greenbriar owed a duty; and (c) disregarded pleadings setting forth disputed facts that Greenbriar breached its duty to decedent as an invitee or a trespasser, that a dangerous condition existed at the twelfth hole, that Greenbriar had knowledge of this condition, that the condition was not open and obvious to decedent, that Greenbriar knew or should have known it was not open and obvious, and that Greenbriar failed to use ordinary care to remove, remedy, or warn of the dangerous condition at the twelfth hole; (2) granting summary judgment in favor of Intex because, as a matter of law, it was for a jury and not a Judge to determine whether the Sno-tube was in a defective condition and unreasonably dangerous when put to its anticipated use and whether the defective design of the Sno-tube was the proximate cause of decedent's death; and (3) that the undisputed facts set forth in the pleadings demonstrate that, as a matter of law, Intex failed to provide an adequate warning of the Sno-tube's dangerous characteristics; moreover, jury questions remained concerning whether an alternative warning would have changed the decedent's behavior and whether the lack of an adequate warning was the proximate cause of the decedent's demise. We affirm.
Plaintiff's motion to strike Greenbriar's and Intex's points relied on as being in violation of Rule 84.04(d) was ordered taken with the case. Although we find that the points do not comply with Rule 84.04(d), we are able to glean from the points and argument sections of the brief the issues being raised by plaintiff. However, we do not condone the failure to comply with Rule 84.04(d) but, in the interest of resolving the case on its merits, we deny the motion.
Our standard of review of a grant of summary judgment is to review the record in the light most favorable to the party against whom judgment was rendered. ITT Commercial Finance v. Mid-Am Marine, 854 S.W.2d 371, 376 (Mo.banc 1993). Our review is essentially de novo. Id.
Greenbriar, a country club located on the border of the cities of Kirkwood and Des Peres, contains an eighteen-hole golf course on which there are numerous hills. In the late afternoon of January 19, 1994, the decedent and two friends, Steve Tellez and Brian Cizek, went to Greenbriar to ride their sleds. The depositions of Tellez and Cizek establish that upon entering Greenbriar's property they noticed that the hill where they first wanted to ride their sleds was blocked by orange snow fencing. They left the property and re-entered elsewhere by knowingly walking through other private property. They proceeded to a hill at the twelfth hole of the golf cours
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