Hogate v. American Golf Corp.

MARY R. RUSSELL, Presiding Judge,

dissenting.

I respectfully dissent in that I disagree with the majority’s holding that Robert Hogate (“Hogate”) exceeded the scope of any invitation to him as an invitee and that he was a trespasser to whom American Golf Corporation (“AGC”) owed no duty. I find the evidence was such that a reasonable juror could have found that AGC owed a duty to Hogate as an invitee or as a foreseeable trespasser.

As stated by the majority, the standard of review of a trial court’s denial of a motion for judgment notwithstanding the verdict (“JNOV”) is whether the plaintiff has made a submissible case. Coggins v. Laclede Gas Co., 37 S.W.3d 385, 338 (Mo.App.2000). A submissible case requires substantial evidence for every fact essential to liability. Holley v. Caulfield, 49 S.W.3d 747, 750 (Mo.App.2001). Substantial evidence is that which, if true, has *51probative force upon the issues, and from which the trier of fact can reasonably decide a case. Coggins, 37 S.W.3d at 338. Whether evidence is substantial and whether inferences drawn are reasonable is a question of law. Id. at 339.

In determining whether a plaintiff has made a submissible case, we view the evidence in the light most favorable to the plaintiff, and give the plaintiff the benefit of all reasonable and favorable inferences to be drawn from the evidence. Holley, 49 S.W.3d at 750. We presume that the plaintiff’s evidence is trae and disregard any of the defendant’s evidence that does not support the plaintiff’s case. Id.; Coggins, 37 S.W.3d at 339.

Moreover, we will not overturn a jury verdict unless there is a complete absence of probative facts to support it. Coggins, 37 S.W.3d at 339. If reasonable minds can differ on the question before the jury, we will not disturb the verdict. Id. We will not, however, supply missing evidence or give the plaintiff the benefit of unreasonable, speculative, or forced inferences. Id. The evidence and inferences must establish every element and not leave any issue to speculation. Id. Finally, we note that granting a motion for JNOV is a drastic action, and it should only be done when reasonable persons could not differ on the correct disposition of the case. Id. (emphasis added).

AGC argues that it did not owe Hogate a duty because he exceeded the scope of his invitation in that he did not pay to use the golf course and, as a result, was an unforeseeable trespasser on the fairway when he was injured. Although Hogate acknowledges that he was aware that part of the golf course was located on Art Hill, he counters that he was an invitee because his use of the hill was among the many uses for which Forest Park was open to the public and because nothing alerted him that he had left the park and entered an area exclusively occupied by the golf course and reserved for its paying customers. See Carter v. Kinney, 896 S.W.2d 926, 928-29 (Mo. banc 1995).

The facts as viewed in the light most favorable to the verdict are as follows. The fourth fairway runs across Art Hill in Forest Park, which is open to the general public for many activities.1 At the time of his accident in early April 1996, Hogate testified there were no golfers on the fourth hole, but he saw people engaged in many activities on Art Hill, including playing football, walking, flying kites, fishing, playing with their pets, and sitting on blankets. When his bicycle hit the rope alongside the fairway, Hogate had just bicycled down Art Hill and across the fourth fairway.

No fence or other type of marker or border indicated to park patrons where the public property ended and the golf course began. AGC claimed at trial that two signs at the top of Art Hill alerted park patrons that they were in proximity to the golf course. The signs were located near the top of the hill, approximately two-tenths of a mile from each other. They were near two circular driveways on either side of the art museum, between the museum and the lake. The photographs presented to the jury depicted heavily rusted signs warning that a golf course lay ahead and restricting the course to golfers with paid permits. Hogate’s testimony indicated that one of the signs was bent inward so as to obscure the text. He testified that he had not seen the signs on the day of his accident, but he did see them approximate*52ly a month later when he returned to photograph the scene.

From this evidence, reasonable jurors could conclude that Hogate was an invitee as, at the time of the accident, he was still in the park in a public area. He testified that he did not see the golf course’s signs and that he saw other people on Art Hill involved in many different activities aside from golf. There was no evidence of a barrier or other demarcation that could have alerted Hogate that he was entering an area forbidden to him as a cyclist.

Furthermore, the evidence supports a finding that the ropes and stakes did not constitute an open and obvious condition on the land so as to absolve AGC from liability. Hogate testified that, although he was keeping a careful lookout as he was riding, he did not see the ropes when he looked down Art Hill. He said he did not see the ropes until he and his bike were entangled in them.

AGC’s general manager at Forest Park, Jeff Raffelson (“Raffelson”), explained AGC’s maintenance policy regarding ground repair ropes. He said AGC’s policy required all ground repair stakes to be painted at the top. The stakes were to have holes drilled in them approximately four inches from the top where the rope would be strung, and the ropes were to hang between the stakes at approximately two feet above the ground.

Raffelson admitted that most of the stakes near the accident site were unpainted and that none of the stakes had holes drilled through them. The ropes were wrapped around the stakes as low as one inch from the ground in some places. Further, he testified that the rope at the accident site was touching the ground in some places and was eight inches off the ground at most, which was inconsistent with AGC’s maintenance policy.

The jury saw pictures of the construction and saw a piece of the yellow rope that had been strung to the wooden stakes. The jurors could have reasonably concluded the ropes and stakes did not present an open and obvious danger to someone bicycling at 15 to 22 feet per second. The jury evidently believed Hogate’s testimony and found that his injuries were not a result of his negligence as it assessed AGC with 100 percent of the liability and did not assess him with any comparative fault in the $100,000 judgment.

Assuming that Hogate was not an invitee, I find that he was still owed a duty by AGC as he was a foreseeable trespasser on the golf course at the time of his injury. Generally, a landowner owes no duty to a trespasser. Seward v. Terminal R.R. Ass’n of St. Louis, 854 S.W.2d 426, 428 (Mo. banc 1993). In order to impose liability on a landowner for his injuries, a trespasser must demonstrate that he falls within an exception to the general rule. Id. The rule precluding liability for trespassers is not based on the wrongful nature of the trespasser’s conduct, rather it is based on the landowner’s inability to foresee the trespasser’s presence and protect him from injury. Id. As such, the exceptions to the general rule arise from facts indicating that the landowner should reasonably anticipate harm to trespassers. Id.

Section 335 of the Restatement (Second) of Torts (1965) contains a pertinent exception to the general rule. Although it is unclear whether this section has been rejected or accepted in Missouri, Seward, 854 S.W.2d at 429, the majority opinion discusses its applicability. The exception provides that possessors of land who are aware of constant trespassers aré liable to them in some circumstances for bodily harm caused by artificial conditions. Whether AGC owed these trespassers a *53duty depends upon its awareness of their existence on the golf course.

Raffelson agreed ¡that the golf course’s fourth hole was unique as compared to the rest of the course in that it was located in a highly trafficked area of the park. Raf-felson admitted that people routinely engaged in a myriad of activities on Art Hill, including flying kites, picnicking, balloon racing, jogging, walking, and bicycling. In fact, when Raffelson was asked, “[AGC employees] certainly knew the uses being made of Art Hill, didn’t they?” he replied, “Yes, we did.”

Based on the testimony and photographic evidence presented to the jurors, they could have reasonably inferred from the location of the signs on Art Hill that AGC purported to control the entirety of the hillside, especially given that no evidence was introduced as to the boundaries of its leasehold. Raffelson’s admission of his knowledge of the various activities on Art Hill, which the signs proclaimed were part of the golf course, indicates that AGC was aware of the constant non-golfers trespassing on the course at the fourth fairway.

Jurors could have reasonably determined that AGC’s failure to follow its safety protocol resulted in an unsafe artificial condition that was likely to cause death or serious bodily harm to park patrons, that AGC failed to warn them of this condition, and that they were unlikely to discover the condition without a warning. Furthermore, although a comparative fault instruction was submitted to the jurors, they attributed no fault to Hogate. As such, there was sufficient evidence for the jurors to conclude Hogate was a foreseeable trespasser who was owed a duty by AGC such that it was hable for his injuries.

I find that AGC owed a duty to Hogate and that it breached that duty. The trial court properly denied AGC’s motion for JNOY. The judgment of the trial court should be affirmed.

. During voir dire, many venirepersons indicated familiarity with Art Hill and stated what activities they had participated in or had observed on the hill.