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McKinney v. H.M.K.G. & C.11/4/2003
Opinion Vote: REVERSED.
Spinden, P.J., and Holliger, JJ., concur.
Opinion:
Opinion:
I. FACTUAL AND PROCEDURAL BACKGROUND
This case involves a question of premises liability. At issue is a landlord's duty to a tenant's business invitee for injuries sustained on the leased premises. After respondent Danielle McKinney fell over a ledge inside of the XO Club in Kansas City, she brought an action against the club's owner and against the appellant, who owns the building in which the club is located. Ms. McKinney asserted claims against these defendants for common law negligence, negligence per se, and punitive damages. The negligence per se claim was based upon the failure to comply with a provision of the Kansas City building code that governs the height of guardrails. While the code specifies a guardrail at least 42 inches high, the guardrail in this case was less than 30 inches high.
At the close of Ms. McKinney's evidence and at the close of all the evidence, the trial court denied appellant's motions for directed verdict on the common law negligence and negligence per se claims. The trial court granted defense motions for a directed verdict on the punitive damages claim, however. Ms. McKinney ultimately chose to submit only the negligence per se claim to the jury, which returned a verdict in her favor against both defendants. Appellant thereafter filed a motion for judgment notwithstanding the verdict. The trial court denied the motion.
Appellant raises one point on appeal. He contends that the trial court erred in denying his motions for directed verdict and his motion for judgment notwithstanding the verdict because a landlord is not liable to a tenant's business invitees for injuries caused by defects on the premises unless the landlord exercises control over the premises. Appellant contends that he did not exercise sufficient control over the premises as a matter of law to fall within the exception to the general rule against liability. We agree and reverse the judgment of the trial court.
II. STANDARD OF REVIEW
When we review the trial court's rulings on a motion for directed verdict and a motion for judgment notwithstanding the verdict, the question before us is whether the plaintiff made a submissible case. See Hogate v. Am. Golf Corp., 97 S.W.3d 44, 46 (Mo. App. E.D. 2002); Newcomb v. St. Louis Office for Mental Retardation & Developmental Disabilities Res., 871 S.W.2d 71, 73 (Mo. App. E.D. 1994).
To make a submissible case, the plaintiff "must present substantial evidence of every fact necessary to establish the liability of the defendant; and it is a judicial function to determine whether negligence can be inferred from the facts and whether the plaintiff's evidence establishes a submissible case." Newcomb, 871 S.W.2d at 73. "The existence of a duty is a matter of law and is thus a question for the court." Id.
In determining whether the plaintiff made a submissible case, " e view the evidence in the light most favorable to the verdict and we presume that plaintiff's evidence is true and disregard any of defendant's evidence which does not support the verdict." Hogate , 97 S.W.3d at 46.
III. LEGAL ANALYSIS
The violation of an ordinance is negligence per se where there is in fact a violation of the ordinance; the person injured is within the class of persons intended to be protected by the ordinance; the injury is of the type that the ordinance was designed to prevent; and the violation of the ordinance is the proximate cause of the injury. Mediq PRN Life Support Servs., Inc. v. Abrams , 899 S.W.2d 101, 107 (Mo. App. E.D. 19
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