COA reverses summary judgment for city in sidewalk fall case

A genuine factual issue existed as to whether an unguarded step on a sidewalk constituted a dangerous condition and whether the danger presented by the step was open and obvious, the Western District Court of Appeals ruled on November 25, reversing summary judgment in favor of a city.

On June 19, 2019, Tina Hursman visited a lawyer’s office located at 501 South Ohio Avenue in Sedalia, at the corner of Fifth Street and Ohio Avenue.

The sidewalk in front of the lawyer’s office has a step-down in the middle of the sidewalk, running parallel to the curb. The step-down runs for approximately ten feet and is approximately five inches in height at its highest point.

Placed in the sidewalk to accommodate a wheelchair ramp, which declines to street level below the step, the step was marked with yellow or white paint.

Hursman left the office and walked toward the intersection of Fifth Street and Ohio Avenue. She testified that she always walked with her head up, looking forward, so that she could watch for pedestrians and traffic.

Not noticing the step, Hursman lost her balance, causing her to fall to the ground and sustain physical injuries.

Hursman sued the City of Sedalia, which owns and maintains the sidewalk where she fell.

Two other corners at the Fifth Street and Ohio Avenue intersection have wheelchair ramps which are configured with a step-down similar to the one on the southeast corner where Hursman fell. The City installed guardrails at the other two corners to prevent pedestrians from walking over the step; the drop-off on the southeast corner does not have a similar guardrail.

The City moved for summary judgment, arguing that Hursman could not establish that the City had notice of the dangerous condition on its sidewalk and that any dangerous condition was open and obvious.

In opposing the motion, Hursman presented an affidavit from a safety expert who opined that the change in elevation where Hursman fell was dangerous and not reasonably safe. Specifically, the safety expert opined that the city had not used ordinary care to address the hazardous condition of its sidewalk, because a reasonable property owner would use a handrail.

The trial court granted the city’s motion for summary judgment and Hursman appealed.

In an opinion authored by Judge Alok Ahuja and joined by Judges Mark D. Pfeiffer and Thomas N. Chapman, the court reversed.

“The circuit court erred in granting summary judgment on the basis that the undisputed facts established that the sidewalk was not in a dangerous condition,” the court wrote. “The affidavits of Hursman, and of her Safety Expert, created a genuine factual issue as to whether the unguarded step on the sidewalk constituted a dangerous condition.”

As a matter of law, the court could not say that any danger presented by the step in the middle of the sidewalk was eliminated by the yellow paint on the step’s edge.

“The City would certainly be entitled to argue to a jury that the step was not dangerous because the paint provided sufficient warning,” the court said. “Hursman presented evidence, however, which creates a genuine factual issue whether the yellow paint was sufficient to discharge the City’s duty to exercise ordinary care to render its sidewalk reasonably safe.”

Similarly, the trial court erred when it found that summary judgment was warranted because the danger presented by the step was open and obvious.

Missouri courts have recognized that defects in a walking surface are not necessarily open and obvious, even though those defects would be visible to anyone who was looking down, the court noted.

In light of this case law and the evidence which Hursman presented indicating that a reasonable pedestrian might not see the step or the yellow paint lining it, the court held that the trial court erred in holding that the danger presented by the step was open and obvious as a matter of law.

The City also contended that the undisputed facts established that Hursman’s fall did not directly result from the drop-off in the sidewalk.

Yet the City’s own statement of incontrovertible material facts quoted a passage from Hursman about how she fell, which was backed by Hursman’s own affidavit.

Nor was the court persuaded by the City’s argument that it had no notice of the condition of the sidewalk.

“The defect at issue, however, was not a transitory condition caused by a foreign substance or recent damage; the defect on which Hursman relies was an inherent part of the sidewalk designed and built by the City,” the court wrote. “Given the City’s regular inspections and painting of the step; its recognition that the step created a risk of falls; and Safety Expert’s testimony that a reasonable landowner would recognize that the City’s safety measures were insufficient, a genuine factual issue was presented as to whether the City had notice of the dangerous condition in sufficient time to remedy it.”

The court reversed summary judgment in favor of the City.

Christopher L. Heigele of Fisher Patterson Sayler & Smith in Kansas City, who represented the City of Sedalia, said he enjoyed the oral argument held at Westminster College, but declined to comment on the decision.

Kansas City attorney John E. Turner of Turner & Sweeny, who represented Hursman, did not respond to a request for comment.

The case is Hursman v. The City of Sedalia, No. WD87919