Western District revives negligence claim over sign left in parking lot

A genuine issue of material fact existed as to whether a parking company owed a duty of care to a plaintiff injured by a sign left in a parking lot, the Missouri Court of Appeals Western District ruled on January 13, reversing in part summary judgment for the parking company.

On Dec. 1, 2017, Cari Bossow-Murdock worked a shift at a bar in Kansas City. When her shift ended, at around 2:00 a.m. on the morning of December 2, she walked to her car in a nearby parking lot. She had not been drinking and had only her keys in her hand.

Shortly after Bossow-Murdock entered the parking lot and headed toward her car, she tripped over a metal sign that was lying flat in the lot, hitting her face on the ground and breaking both of her arms.

The parking lot was owned by the city and had been managed by Premier Parking Services, Inc. until midnight on Nov. 30, 2017, shortly before Bossow-Murdock was injured. The parking lot was available for specific patrons of the T-Mobile Center during certain entertainment events.

Bossow-Murdock filed suit against Premier, alleging one count of negligence. Premier filed two motions for summary judgment: one claimed that it owed Bossow-Murdock no duty because it did not own the parking lot, did not own the sign and was no longer operating the parking lot after Nov. 30, 2017, and that it was not liable because the sign in the parking lot was an open and obvious danger.

The second motion claimed that Bossow-Murdock’s claims were subject to a release that she signed with the city because Premier was the city’s agent.

As part of her response, Bossow-Murdock relied upon an affidavit from a witness who worked in the building that also housed the bar where she worked and who regularly parked in the lot where Bossow-Murdock was injured.

Premier moved to strike the affidavit, averring that many of the witness’s statements were not factual statements based on her own personal knowledge.

The trial court struck three paragraphs from the affidavit and denied summary judgment based on the release Bossow-Murdock signed with the city. The court did grant summary judgment on the basis that Premier did not owe Bossow-Murdock a duty.

She appealed.

Writing for a panel that included Judges Janet Sutton and W. Douglas Thomson, Judge Gary D. Witt affirmed in part and reversed in part.

The court agreed with Bossow-Murdock that genuine issues of material fact existed as to whether Premier caused a foreseeable danger by leaving the metal sign in the parking lot. The trial court found it undisputed that after the last event Premier used the sign on Nov. 21, 2017, it was stored behind the dumpsters in the parking lot.

But Premier relied only upon the affidavit of an individual who had no firsthand knowledge of the fact averred, the court said, despite Bossow-Murdock’s citation to a deposition to dispute the issue, where the individual was asked, “Do you know what happened to the sign after that [Nov. 21, 2017] event?” and responded, “I do not, no.”

“[T]here is a genuine issue of fact as to whether a Premier employee left the sign out, lying in the parking lot, where it was foreseeable that someone like [Bossow-Murdock] might trip over the sign and become injured,” the court wrote. “Premier’s employee who worked the parking lot on Nov. 21, 2017, had no recollection of putting the sign away following that event.”

Under general negligence theory, a duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury, the court explained, and this duty remained despite the fact that Premier had no control over the parking lot after Nov. 30, 2017.

When the pleaded facts allege that liability arises from a negligent act or omission, rather than a dangerous condition, the facts may support a claim of general negligence, the court added, and Bossow-Murdock’s alleged facts showed that Premier’s acts or omissions affirmatively created the dangerous condition.

Considering Bossow-Murdock’s argument that the trial court abused its discretion in striking parts of her witness’s affidavit, the court disagreed.

“The trial court found that some of Witness’s statements in the affidavit were not based upon her own knowledge but were instead based upon what she learned from her employer, who owned the building adjacent to the parking lot where [Bossow-Murdock] fell,” the court said. “Had Witness limited her statements to what she had personally observed, the statements would not have been properly stricken.”

Instead, the paragraphs included “significant speculation, hearsay and supposition,” the court said. “[W]hile we might have decided differently, it was not an abuse of the trial court’s discretion to strike these sentences, as Witness goes beyond her own observations.”

The court affirmed the trial court’s treatment of the affidavit.

Bossow-Murdock also appealed the trial court’s grant of summary judgment on the basis that the sign presented an open and obvious danger, but the court said the trial court didn’t actually rule on the issue. Rather, the trial court found no duty existed.

“We do note, however, that it was not established in the summary judgment record that the sign presented an open and obvious hazard as a matter of law,” the court said. “In this case, it cannot be said, as a matter of law, the sign lying flat on the ground was open and obvious or that Premier could not have anticipated someone tripping over the sign lying flat on the ground in an area that people use for ingress and egress, especially at night.”

Whether Bossow-Murdock behaved reasonably as she walked to her vehicle that evening is a question for the jury, the court said.

Finally, the court denied Premier’s appeal on the trial court’s decision that Bossow-Murdock’s claim was subject to a release she signed with the city.

The release Bossow-Murdock signed settling her claims against the city generally released the city, its employees, agents and servants. While Premier could arguably be considered an agent of the city, there was also a provision stating that “this settlement is not intended to apply to any other party-defendants named in the case — to wit, Premier Parking Services, Inc.”

Kansas City attorney James D. Walker, Jr., who represented Bossow-Murdock, was pleased with the reversal and the opportunity to try the case before a jury.

“The case came down to general negligence as opposed to premises liability negligence, which are different animals,” he said. “The important thing with general negligence is that it involves a duty and foreseeability of injury that is not based on the property itself.”

Brian J. Niceswanger of Evans & Dixon in St. Louis, who represented Premier, said his client plans on petitioning the Missouri Supreme Court for review.

“We respect the court’s opinion but disagree with its conclusion,” he said.

The case is Bossow-Murdock v. Premier Parking Services, Inc., No. WD87719.