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Dieterich v. Pickett6/17/2003
Opinion Vote: REVERSED AND REMANDED.
Ellis, P.J., and Holliger, J., concur.
Opinion:
Marilyn Dieterich appeals from the circuit court's judgment granting summary judgment in favor of respondent John Pickett. Dieterich's petition alleged she was a business invitee and suffered substantial injuries and losses from a fall caused by a defective covering on a water runoff pit at Pickett's self-service car wash. Dieterich asserts three points of error on appeal. Each of those points concern the trial court's determination that an open and obvious condition existed that relieved Pickett of his duty to protect her against such condition. She claims that there were insufficient facts to allow a finding of an open and obvious condition. She further claims that the trial court erred by failing to recognize the comparative fault standard to be applied post-Gustafson v. Benda and failing to recognize that Pickett had a greater duty to business invitees, particularly as an operator of a self-service type of business, but because this court finds the condition of the grate was not open and obvious as a matter of law, the judgment is reversed and the cause remanded for further proceedings.
Factual and Procedural History
On April 4, 1998, Marilyn Dieterich visited the Road Runner Car Wash in Kirksville, Missouri, which was then owned by John Pickett. Before entering into the car wash bay, Dieterich vacuumed her car. Since her floor mats were removed to vacuum, she walked them into the bay to hang on the hooks on the wall. Her car remained near the vacuum station. After hanging two mats on one of the walls, she turned around and began walking to the other wall to hang the remaining two mats. As she walked across the drainage grate in the floor of the car wash bay, her right foot fell through. As a result of the fall, Dieterich sustained injuries that resulted in a pin being placed in her arm and the partial loss of use of her arm.
Dieterich filed her petition alleging that Pickett negligently maintained his property and failed to post warning notices. She claimed that Pickett owed a duty to her as a business invitee to maintain his property in a safe condition and "to post warnings for any dangerous condition that was not blatantly obvious." In his answer, Pickett asserted as an affirmative defense that Dieterich was "comparatively negligent" in that "the condition of the grate was open and obvious and [Dieterich's] fall, if any, was a result of her complete inattention to her surroundings."
Pickett subsequently filed a motion for summary judgment asserting that " he Grate at defendants place of business was of such 'open and obvious' nature that reasonable use of perception by Plaintiff would have revealed that the grate would have been dangerous to walk across." The trial court entered its Findings, Conclusions and Judgment granting Pickett's motion for summary judgment, finding that the dangerous condition was open and obvious and that Pickett had no duty to warn Dieterich of the condition. This appeal follows.
Standard of Review
On appeal from the grant of a motion for summary judgment, this court's review is essentially de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). " his court applies the same criteria as the trial court in determining whether summary judgment was properly granted." Richardson v. QuikTrip Corp., 81 S.W.3d 54, 56 (Mo. App. 2002) . Only where there is no genuine issue of material fact and the movant is entitled to judgement as a matter of law will an entry of summary judgment be upheld. Id. The evidence and all reasonable inferences
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