SPRINGFIELD — Missouri Court of Appeals Southern District judges were split on whether a personal injury plaintiff gave proper notice to the city of Springfield after tripping, falling and injuring herself on a meter hole four years ago.
In a 2-1 decision, the court reversed and remanded the case arising in Greene County Circuit Court in favor of plaintiff Annie Henson.
Trial court Judge Jason Brown had granted summary judgment to the city of Springfield in a suit Henson filed on May 7, 2015, over the incident, which allegedly occurred on May 10, 2013.
The city argued that it was entitled to judgment as a matter of law because Henson failed to give notice of her alleged injury within 90 days of the incident, as required by state statute 82.210.
Among other things, the statute requires a report be made to the city for injuries occurring out of defects in the condition "of any bridge, boulevard, street, sidewalk or thoroughfare," the ruling states.
Henson appealed on a single point. She claimed Brown erred in granting summary judgment to the city because there was a dispute as to a material fact – the location of the alleged injury – which would prevent the city from getting judgment as a matter of law.
Henson further claimed that she was injured due to a meter hole located on a "grassy/dirt berm" near the street, whereas the city argued the meter hole was "in" or "on" the street, the ruling states.
Ultimately, Brown ruled that the grassy berm area constituted a thoroughfare under the statute and that "there is no legal nor practical difference in the written notice required under section 82.210 whether the water meter hole was located in ... the street pavement, the sidewalk, or, on the grassy area in between," the ruling states.
The majority on the panel, Judges Nancy Steffen Rahmeyer and William Francis Jr., held that "the water meter hole and grassy/dirt berm were not part of the street or sidewalk that bordered the berm, and the grassy/dirt berm was not a thoroughfare."
"As a result, there was a genuine issue as to the location where Plaintiff was injured that prevented Defendant City from being entitled to judgment as a matter of law under section 82.210," Rahmeyer wrote.
Judge Daniel Scott dissented from the majority, finding the statute was applicable in Henson's case
He wrote that for liability purposes "grassy strips" have long been treated as part of a sidewalk or street.
Scott also found that "when a city paves street right-of-way for vehicles flanked by walkways, the developed result from edge to edge (including any curbs, gutters, bikeways, and sidewalks, whether or not paved all the way to the curb) constitutes a 'thoroughfare' for vehicular and pedestrian traffic."