Case: 4:22-cv-00002-SEP Doc. #: 105 Filed: 03/25/25 Page: 1 of 18 PageID #:
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`ROSEMARIE E. WADDY,
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`Plaintiff,
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` ) Case No. 4:22-cv-00002-SEP
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`v.
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`HIGHLAND VENTURES AND KEITH )
`HOODGLAND LIMITED PARTNERSHIP, )
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`Defendants.
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`MEMORANDUM AND ORDER
`Before the Court are Defendants’ Motion for Judgment as a Matter of Law, Doc. [83],
`and Motion for New Trial or Remittitur, Doc. [84]. The motions are fully briefed, and ready for
`disposition. See Docs. [90], [94], [95]. For the reasons set forth below, both motions are denied.
`BACKGROUND
`Plaintiff Rosemarie E. Waddy filed a complaint against Defendants Highland Ventures
`and Keith Hoodgland Limited Partnership after she was injured crossing a parking lot on
`Defendants’ property. See Doc. [21]. After a three-day trial, the jury returned a verdict in favor
`of Plaintiff. See Doc. [76].
`At trial, Plaintiff testified that on January 19, 2019, she was walking her dog across the
`parking lot connected to Family Video and Marco’s Pizza. Doc. [80] at 24, 34. Plaintiff decided
`to cut across the parking lot because it appeared safer to walk on than the sidewalk that had been
`impacted with snowplow snow. Id. at 34. Because the parking lot was covered in snow,
`Plaintiff could not see the pavement underneath. Id. Plaintiff noticed some cones in the parking
`lot, so she continued on a path approximately 10 feet to the right of the cones. Id. at 34-35.
`While walking, Plaintiff’s right foot became stuck. Id. at 36-37. When she tried to take a step
`with her left foot, she could not lift her right heel, causing her to slip and fall “violently.” Id. at
`36. When she looked down after her fall, Plaintiff noticed her foot was “dangling” and she
`“couldn’t do anything with it.” Id. at 37. Plaintiff testified that the “pain was unimaginable,
`horrific.” Id. at 38. Several days later, on January 22, 2019, Plaintiff went back to the parking
`lot with her husband “to see exactly where [she fell] and what was there.” Id. at 42. It was at
`that time that Plaintiff realized her foot had been stuck in a hole in the parking lot. Id. at 42-45.
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`Plaintiff admitted on cross-examination that she had seen the specific hole in the parking
`lot before January 20, 2019, and that she knew the holes in the parking lot were dangerous. Id. at
`100-02. But she went on to explain that the pavement was covered in snow and that she had not
`memorized the location of the specific holes. Id. at 101, 146. Plaintiff was also challenged on
`her testimony that she sustained her injury by stepping in the hole. Defendants submitted the
`case notes of several different doctors who all noted that Plaintiff had told them that she slipped
`and fell on the ice. See Exhs. [BO] at 17 (“presents with right ankle deformity and pain after
`slipping on the ice today”); [DF] at 1 (“Rosemarie was walking her dog when she slipped and
`fell on some ice fracturing her right ankle”); [DH] at 1 (“She broke her left ankle 1.5 months ago
`when she fell on ice while walking her dog.”); [DI] at 1 (“Back on 01/28/2019 Rosemarie was
`walking her dog when she slipped and fell on ice fracturing her right ankle.”); [DN] at 1 (“Back
`on [sic] January 2018, Rosemarie slipped and fell on ice while walking her dog fracturing her
`right ankle.”). Defendants also introduced a note by Plaintiff’s physical therapist that stated,
`“Veteran reports tripping over her dog in January 2019 at which point she fractured her R ankle.”
`Exh. [DC] at 178. Plaintiff testified that the notes did not reflect what she told the providers:
`that she injured herself when her foot got stuck in the hole causing her to slip on the ice. See
`Doc. [80] at 119-36.
`Plaintiff next called Dr. Miller, the doctor who performed Plaintiff’s surgeries, to testify
`about Plaintiff’s injury and the three different surgeries performed on Plaintiff’s foot. Dr. Miller
`described in great detail the extent of Plaintiff’s injury. See Doc. [78] at 11-14; see, e.g., id. at 11
`(“[Plaintiff’s foot] went towards the fibula when she injured it. And that pulled the medial
`malloelus off and broke the fibula as it went over. So the talus moved out of its normal location
`and broke those pieces as it went.”). She also described in great detail the intricacies of the first
`surgery performed on Plaintiff’s foot. Id. at 15-16; see, e.g., id. at 15 (“The procedure [was] to
`fix the medial and the lateral malloelus . . . with metal, so, in our case, plates and screws. And to
`fix the syndesmosis disruption, which is the ligaments . . . that were disrupted. And then to leave
`the posterior malloelus to heal on its own without surgery.”).
`Following the first surgery, Plaintiff was non-weightbearing for eight weeks. Doc. [80]
`at 46. Plaintiff testified that she was in “the worst pain ever,” and that her physical therapy
`sessions were “so painful,” “like somebody had tore apart [her] ankle, extreme pain, extreme
`achiness, nerve sensations, throbbing, burning, aching.” Id. at 47. Plaintiff explained that she
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`“kept begging” Dr. Miller to take out the hardware (plates and screws) from her ankle because it
`“seemed to be aggravating [her] ankle.” Id. at 47-48. Six months later she went to the ER
`because she was in so much pain. Id. at 48. She again asked to have the hardware taken out, but
`Dr. Miller told her that she needed to wait another six months to remove it. Id. Dr. Miller
`testified that she generally tells patient to wait a year to have their hardware removed because
`“some studies [ ] show that there’s a slightly higher risk of re-breaking the bone if the hardware
`is removed sooner in certain bones.” Doc. [78] at 18. During this six-month waiting period,
`Plaintiff arranged for ankle injections. Id.; see also Doc. [80] at 52. Dr. Miller explained that
`injections help control the pain, but also help determine where the pain is coming from. Doc.
`[78] at 18. Plaintiff ended up having surgery to remove the hardware in January 2020. Id. at 19.
`A couple weeks after the second surgery, Plaintiff “came back [to Dr. Miller] with a new
`concern about her wound.” Id. According to Dr. Miller, the wound appeared to be infected and
`the best way to take care of the infection would be to “clean it out in the operating room.” Id.
`Plaintiff testified that she became distressed after Dr. Miller told her the infection had reached
`the bone and that she might need a foot amputation. Doc. [80] at 53, 60-61. To remove the
`infection, Dr. Miller testified that they “scrape out any bone that doesn’t look like it’s viable or
`has an infection,” and then “clean it with special tools that are used for scraping and removing
`bone.” Doc. [78] at 20.
`Plaintiff testified that she continues to have pain in her ankle. Doc. [80] at 61-65. She
`uses a tactile machine on a “close-to-nightly basis” to help with pain and swelling and
`circulation, and she does “a lot of natural-type remedies,” physical therapy, and ice compression.
`Id. at 62-65. Plaintiff also testified extensively about the impact her injury has had on her ability
`to participate in social activities with her friends and family. See id. at 68-82. Cliff Waddy,
`Plaintiff’s husband, also testified about the ways his wife’s life has changed since her injury.
`During cross-examination, Defendants challenged Plaintiff on her alleged pain and
`suffering. Specifically, defense counsel asked several questions attempting to get Plaintiff to
`admit that Dr. Miller had never told Plaintiff that she should limit or restrict her activities. See,
`e.g., id. at 151 (Q. “She didn’t tell you that you couldn’t enjoy all the activities that you talked
`about with your husband and grandchildren; she didn’t tell you [ ] couldn’t do those things, did
`she?” A. “I’m not sure.”). Defense counsel also asked Dr. Miller whether she placed any
`restrictions or limitations on Plaintiff. Doc. [78] at 2-3. Dr. Miller responded that she did not
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`restrict Plaintiff from doing anything, but she did not know whether Plaintiff would be able to
`perform all the activities. Id. at 3. Dr. Miller also confirmed that Plaintiff had not contacted her
`or her office “since September of 2022 for treatment or scheduling additional visits or anything
`like that.” Id. at 6.
`Plaintiff also called Defendants’ Corporate Representative, a Highland Ventures
`employee of 28 years who was the Regional Vice President of Family Video at the time and
`location of Plaintiff’s injury. Doc. [88] at 4-5. The Corporate Representative testified that
`Defendant Keith Hoogland Limited Partnership technically owned the property where Plaintiff
`injured herself, but Defendant Highland Ventures was responsible for operating and maintaining
`the property. Id. at 7-8. He confirmed that Highland Ventures expects that non-patrons will
`walk on the pavement and on the property. Id. at 15. The Corporate Representative further
`confirmed that Highland Ventures understood that “as a corner property with no fencing or
`barricades up, that people might just be walking across it sometimes,” id. at 16, and that “it was
`important to maintain [the property] in good condition at all times because at any point in time
`anyone could be walking on it.” Id. at 17. But instead of hiring “companies that are specifically
`trained[] [and] designed . . . to manage commercial properties,” the Corporate Representative
`confirmed that Highland Ventures maintained the property by means of Family Video store
`policies that were supposed to be followed by store employees who were not “necessarily trained
`in commercial property management.” Id. at 25-26, 29.
`Plaintiff’s counsel then walked the Corporate Representative through several of the
`store’s policies. First, counsel pointed to the policy that employees should, on a daily basis,
`“[s]pend as much time as it takes to clean the parking lot, bushes, trash, cigarettes, etc.” Exh. [1]
`at 5. The Corporate Representative confirmed that there is also a policy to keep the “parking lot
`pavement [ ] in good condition,” so that when employees go out on a daily basis to clean up the
`parking lot, they are also expected to look for any unsafe conditions. Doc. [88] at 18-19.
`Counsel also pointed to the store policy that instructs managers to evaluate the parking lot
`biannually for things that need repair. Exh. [1] at 6 (“Evaluate the parking lot. Does it need
`striping or seal coating? Are there any potholes that need to be repaired? Call your Regional
`Manager to get it scheduled.”). Finally, Plaintiff’s counsel directed the Corporate Representative
`to the store’s Winter Maintenance policy, which required managers to contract with a company
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`to have the parking lot plowed after a snowfall, but that the lot should be plowed only if three or
`more inches of snow had fallen. Exh. [1] at 7.
`Counsel then asked the Corporate Representative a series of questions about the area
`where Plaintiff alleged to have fallen. The Corporate Representative described the area—a hole
`where four lines intersect—as having been “cross-cut.” Doc. [88] at 49. He explained:
`“Typically it’s when they’ve laid concrete, they cut joints that can expand or contract with the
`weather so that, you know, the concrete doesn’t come together and crack.” Id. at 50. The
`Corporate Representative confirmed that cross-cutting “create[s] certain potentially vulnerable
`points of the concrete in a sense that water can get in those seams.” Id. And if water gets in
`those seams over time, it can degrade the condition of the pavement. Id. The examination
`continued:
`Q. Okay. That this concrete where it’s cross-cut has degraded over a long period of time;
`right?
`A. I don’t know how long of a period of time, but –
`Q. Months, at least, probably years; right?
`A. Could be.
`Q. Fair to say, that’s what you’ve said before; right? Fair to say?
`A. Yes.
`Q. Meaning over this period of time that this pavement is degrading, all of that time if
`someone is following the policies of Family Video, theoretically they would be able to
`see it if they’re going out onto the parking lot looking for these things; right?
`A. They could see -- they could see what?
`Q. They could see pavement degrading over time?
`A. Yes.
`Q. Okay. And if it gets to a condition where it becomes unsafe, they’re supposed to do
`something about it?
`A. Correct.
`Q. So in that sense, Highland Ventures has, however long it takes for this to happen,
`weeks or months or maybe even years to observe a condition that’s getting like this;
`right?
`A. Correct.
`Q. And to do something about it?
`A. Correct.
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`Q. And they have employees that are specifically told to go out and walk on a daily basis
`to see the condition of this concrete, and that’s what they’re assigned to do; right?
`A. Yes.
`Q. And they’re doing it on days where there’s nothing covering the pavement; right?
`A. Correct.
`. . .
`Q. As we said, someone walking on the parking lot, if there’s the 3 inches of snow that
`Highland Ventures has allowed to be there, they wouldn’t see the pavement underneath
`the snow. That’s what you said before; right?
`A. Correct.
`Q. . . . As between that situation that we just said, someone walking on the parking lot
`with the snow there where they wouldn’t be able to see the condition underneath, versus
`Highland Ventures employees that are told to go out there on a daily basis, you would
`agree, sir, that Highland Ventures is in a better condition -- better position to see the
`condition of the parking lot; right?
`A. Yes.
`Id. at 51-53.
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`At the conclusion of Plaintiff’s case-in-chief, Defendants moved for judgment as a matter
`of law, arguing that Plaintiff’s admission that she knew the hole was there and that the hole was
`dangerous negated a fundamental element—i.e., that Defendant knew or had information from
`which Defendant, in the exercise of ordinary care, should have known that persons such as
`Plaintiff would not discover such a condition or realize the risk of harm. See Doc. [80] at 189-
`94. Defendants relied on Harris v. Niehaus, 857 S.W.2d 222, 227 (Mo. 1993), in which the
`Missouri Supreme Court stated, “where the danger is open and obvious as a matter of law and
`the risk of harm exists only if the plaintiff fails to exercise due care, the case is not submissible to
`the jury . . . .” The Court denied Plaintiff’s motion explaining:
`I think there is less certainty than you do, Mr. McChesney, about what Plaintiff knew,
`based on her testimony. I think she admitted -- my recollection is that she admitted
`knowing that there were holes in the parking lot and then answering that those holes
`could be dangerous. I don’t think she came out and said, I knew there was a hole there
`and it was dangerous, and yet I went on the parking lot anyway. And I think the jury
`could reasonably interpret her testimony to be saying something closer to the former than
`the latter.
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`In addition, the third element here is about what Defendant knew or had reason to know
`about persons like Plaintiff and the condition and whether or not they would discover it.
`That to me, while I agree that the fact that this plaintiff has admitted some knowledge of
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`an issue with the parking lot and that she knew -- I mean, I don’t want to put words in her
`mouth, but certainly a reasonable juror could interpret her testimony as suggesting that
`she had a sense that there might have been some risk walking onto that parking lot. How
`much risk, where, all of that I think is subject to interpretation.
`
`But even though she made admissions in that general, in that general area, which I think
`the jury could be justifiably a little confused about exactly what the nature of those
`admissions were, I don’t think that affects -- I think that goes to, as Plaintiff has argued,
`whether or not she could be found to have some role in the negligence and not to what
`Defendant knew or should have known. And I think the plaintiff’s case as to Defendant’s
`knowledge, which is really about what the corporate representative testified, is sufficient
`to send to a jury.
`Id. at 219-20.
`Defendants did not call any witnesses, and the case was submitted to the jury. The jury
`assessed 85 percent of the fault to Defendant Highland Ventures and 15 percent of the fault to
`Plaintiff and found that Plaintiff’s damages, disregarding any fault on the part of the Plaintiff,
`were $2,000,000.00. See Doc. [75]. Defendants now move for judgment as a matter of law, or
`in the alternative, a new trial or remittitur.
`LEGAL STANDARD
`Rule 50 of the Federal Rules of Civil Procedure states that, when ruling on a renewed
`motion for judgment as a matter of law, “the court may: (1) allow judgment on the verdict, if the
`jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of
`law.” Fed. R. Civ. P. 50(a)-(b). The Eighth Circuit has stated that “[j]udgment as a matter of
`law is appropriate only when the record contains ‘no proof beyond speculation to support the
`verdict.’” Am. Bank of St. Paul v. TD Bank, N.A., 713 F.3d 455, 462 (8th Cir. 2013)
`(quoting Wilson v. Brinker Int’l, Inc., 382 F.3d 765, 770 (8th Cir. 2004)) (additional citations
`omitted). Put differently, judgment as a matter of law “is appropriate ‘when all the evidence
`points one way and is susceptible of no reasonable inferences sustaining the position of the
`non-moving party.’” Hortica–Florists’ Mut. Ins. Co. v. Pittman Nursery Corp., 729 F.3d 846,
`854 (8th Cir. 2013) (quoting Ehrhardt v. Penn Mut. Life Ins. Co., 21 F.3d 266, 269 (8th Cir.
`1994)). A court ruling on a renewed motion for a judgment as a matter of law must:
`(1) resolve direct factual conflicts in favor of the nonmovant, (2) assume as true all
`facts supporting the nonmovant which the evidence tended to prove, (3) give the
`nonmovant the benefit of all reasonable inferences, and (4) deny the motion if the
`evidence so viewed would allow reasonable jurors to differ as to the conclusions
`that could be drawn.
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`Stults v. Am. Pop Corn Co., 815 F.3d 409, 418 (8th Cir. 2016) (quoting Jones v. Edwards, 770
`F.2d 739, 740 (8th Cir. 1985)). And in doing so, a court must “not make credibility
`determinations or weigh the evidence.” Meyers v. Starke, 420 F.3d 738, 741 (8th Cir. 2005)
`(quoting Kipp v. Mo. Highway & Transp. Comm’n, 280 F.3d 893, 896 (8th Cir. 2022)).
`Federal Rule of Civil Procedure 59(a)(1)(A) states that a court may grant a motion for a
`new trial after a jury trial “for any reason for which a new trial has heretofore been granted in an
`action at law in federal court.” A new trial is appropriate if there is a “clear showing that the
`outcome is ‘against the great weight of the evidence so as to constitute a miscarriage of justice.’”
`Weitz Co. v. MH Wash., 631 F.3d 510, 520 (8th Cir. 2011) (quoting Foster v. Time Warner
`Entm’t Co., 250 F.3d 1189, 1197 (8th Cir. 2001)). When considering whether the outcome is
`against the great weight of evidence, “[a] district court need not view the evidence in the light
`most favorable to the verdict; it may weigh the evidence and in doing so evaluate for itself the
`credibility of the witnesses.” United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980). “A
`new trial is [also] appropriate when the first trial, through . . . an excessive damage award[ ] or
`legal errors at trial, resulted in a miscarriage of justice.” Gray v. Bicknell, 86 F.3d 1472, 1480
`(8th Cir. 1996). Not every error requires granting a new trial; the “key question is whether a new
`trial should have been granted to avoid a miscarriage of justice.” Bass v. Gen. Motors Corp., 150
`F.3d 842, 845 (8th Cir. 1998).
`In reviewing Rule 59 motions, unlike Rule 50 motions, “the trial court can rely on its own
`reading of the evidence—it can ‘weigh the evidence, disbelieve witnesses, and grant a new trial
`even where there is substantial evidence to sustain a verdict.’” Waitek v. Dalkon Shield
`Claimants Tr., 934 F. Supp. 1068, 1092 (N.D. Iowa 1996) (quoting White v. Pence, 961 F.2d
`776, 780 (8th Cir. 1992)). “The authority to grant a new trial is confided almost entirely to the
`exercise of discretion on the part of the trial court.” Champeau v. Fruehauf Corp., 814 F.2d
`1271, 1274 (8th Cir. 1987) (cleaned up). But the court “may not usurp the role of the jury by
`granting a new trial simply because it believes other inferences and conclusions are more
`reasonable” than those drawn by the jury. Rustenhaven v. Am. Airlines, 320 F.3d 802, 805 (8th
`Cir. 2003).
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`I.
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`DISCUSSION
`Defendants are not entitled to judgment as a matter of law.
`Defendants submit that they are entitled to judgment as a matter of law because the hole
`in the parking lot (“the Condition”) was open and obvious as a matter law. As they did on their
`first motion for judgment as a matter of law, Defendants rely on Harris, 857 S.W.2d at 226, in
`which the Supreme Court of Missouri adopted the Restatement (Second) of Torts §§ 373 and
`343A(1) and held that “a possessor’s actions do not fall below the applicable standard of care if
`the possessor fails to protect invitees against conditions that are open and obvious as a matter of
`law.” The plaintiff in Harris tried to argue that the court’s decision in Cox v. J.C. Penney Co.,
`741 S.W.2d 28 (Mo. 1987) (en banc), “removed the issue of the plaintiff’s knowledge of an
`obviously dangerous condition as a[n] element of the plaintiff’s cause of action.” Harris, 857
`S.W.2d at 227. In Cox, the court held that the district court erred when it instructed the jury to
`find as a second element that “plaintiff did not know and by using ordinary care could not have
`known of this condition.” 741 S.W.2d at 29-30. The court “reasoned that the adoption of
`comparative fault placed in juries the requirement to assess the relative fault of the parties in tort
`actions and concluded that the second element of [the jury instruction] ‘pretermits jury
`assessment of respondent’s fault for failure to maintain the premises in a reasonably safe
`condition.’” Harris, 857 S.W.2d at 227 (quoting Cox, 741 S.W.2d at 30). The court in Harris
`explained that “[a] more crisp analysis in Cox would have pointed out that the second element of
`the instruction—that ‘plaintiff did not know and by the exercise of ordinary care could not have
`known of this condition’—hopelessly intermingles questions about the condition of the property
`with the plaintiff’s responsibility to keep a careful lookout.” Id. The Harris court went on to
`conclude that “Cox did not intend to abrogate the open and obviousness of a condition as a
`consideration for the court in determining a possessor of land’s standard of care. Quite simply,
`where the danger is open and obvious as a matter of law and the risk of harm exists only if the
`plaintiff fails to exercise due care, the case is not submissible to the jury—and the dilemma
`resolved in Cox is never reached.” Id.
`Defendants claim that the Condition was open and obvious as a matter of law and as
`such, the case should never have been submitted to the jury. Defendants point to several pieces
`of Plaintiff’s testimony to establish that the Condition was open and obvious.
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`Q. And with specific regard to the hole that you claim to be the cause of your injury in
`this case, would it be true to say that you had seen that hole before January 20 of the year
`2019?
`
`A. Yes
`
`. . .
`Q. But in any event, you knew before January 20 of the year 2019 that this specific hole
`was there and other holes on the lot; correct?
`A. Correct, but I didn’t memorize them.
`
`. . .
`Q. Yeah. You’ve indicated that you had previously seen this specific hole at issue in this
`case before January 20, 2019. You’ve also indicated that you, based upon your personal
`observations, knew that the holes in the parking lot were dangerous before January 20,
`2019. Now I’m just asking the same question with regard to this specific hole. Would it
`be true to say that since you had seen that hole before January 20, 2019, you knew that
`that hole specifically was dangerous?
`A. Correct
`
`. . .
`Q. And when you chose to walk across that parking lot -- and let’s just assume, just for
`the sake of this question, I’m not agreeing that this is how you fell; as you can tell, I
`probably have other -- when you started to walk across that parking lot, you knew that
`underneath that ice and snow there were dangerous holes; correct?
`A. I did not know their location.
`
`Q. Exactly. That’s my point. You knew that under the holes -- under the snow on that
`parking lot that at locations that were not clear to you, there were holes that were
`dangerous if you stepped in them; correct?
`A. Correct.
`Doc. [80] at 100-02, 143.
`The Court stands by its initial determination that Plaintiff’s testimony did not establish
`that the Condition was open and obvious as a matter of law. “Comment b of the Restatement,
`Section 343A(1) defines ‘obvious’ as when ‘both the condition and the risk are apparent to and
`would be recognized by a reasonable man . . . exercising ordinary perception, intelligence, and
`judgment.’” Smith v. The Callaway Bank, 359 S.W.2d 545, 547 (Mo. Ct. App. 2012). As noted
`by the Missouri Court of Appeals, cases in which courts have found that a condition was open
`and obvious “involved a natural or regular condition of land and/or a large physical structure.
`[See, e.g.,] Harris, 857 S.W.2d at 226-27 (road sloped down towards a lake was a ‘natural
`condition . . . open and obvious to all who would encounter it[ ]’); Hokanson v. Joplin Rendering
`Co., Inc., 509 S.W.2d 107, 111 (Mo. 1974) (the regular presence of a greasy floor in a plant with
`large vats of fatty grease was a ‘known or obvious’ danger); Crow v. Kansas City Power & Light
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`Co., 174 S.W.3d 523, 538 (Mo. [Ct.] App. 2005) ([o]verhead electrical power lines were open
`and obvious); Hopkins v. Sefton Fibre Can Co., 390 S.W.2d 907, 912 (Mo. [Ct.] App. 1965)
`(six-feet long dark brown dividers on light gray asphalt parking lot were an open and obvious
`condition).” Id. at 548. Such cases are readily distinguishable from the case at bar. Viewed in
`the light most favorable to the verdict, the evidence established that the snow made it impossible
`to see where the holes in the parking lot were located. Based on that evidence, the Court cannot
`conclude, as a matter of law, that the hole was “a dangerous condition so open and obvious that
`[Plaintiff] could be reasonably expected to discover it.” Callaway Bank, 359 S.W.2d at 549; see
`Eide v. Midstate Oil Co., 895 S.W.2d 35, 38 (Mo. Ct. App. 1995) (section of wooden fence was
`not open and obvious even though plaintiff admitted that she helped a manager move the fence
`section two months prior and admitted that she had previously mowed around the same section
`and “probably did” see the fence earlier on the day of the incident); Brown v. Morgan Cnty., 212
`S.W.3d 200, 204-05 (Mo. Ct. App. 2007) (staircase “somewhere between 2 to 3 degrees out of
`horizontal” was not open and obvious even though plaintiff had used the stairs “approximately
`100 times before her fall”); Privitera v. Coastal Mart, Inc., 908 S.W.2d 779, 781-82 (Mo. Ct.
`App. 1995) (“Even if one could say that the pop outs [in the parking lot] were so open and
`obvious that a reasonable person should have been expected to discover the condition and realize
`the danger as a matter of law, which we are expressly unwilling to say, the surface was so riddled
`with holes that [defendant] should have anticipated the harm and corrected the condition.”).
`Because the Condition was not open and obvious as a matter of law, the case was
`properly submitted to the jury and the jury was reasonable for assessing the relative fault of each
`party. See Cox, 741 S.W.2d at 30 (“Under comparative fault, we leave to juries the
`responsibility to assess the relative fault of the parties in tort actions.”). To that end, the Court
`instructed the jury that they must assess a percentage of fault to Plaintiff, whether or not
`Defendant was partly at fault, if they believed:
`First, Plaintiff knew that there were holes in the surface of the parking lot pavement of
`Defendant’s property and as a result the parking lot was not reasonably safe, and
`
`Second, Plaintiff entered the parking lot and was thereby negligent, and
`
`Third, such negligence directly caused or directly contributed to cause any damage
`Plaintiff may have sustained.
`
`
`
`11
`
`

`

`Case: 4:22-cv-00002-SEP Doc. #: 105 Filed: 03/25/25 Page: 12 of 18 PageID #:
`1662
`
`Doc. [74] at 7. The jury then carefully evaluated the evidence and assessed 15 percent of the
`fault to Plaintiff, presumably due to Plaintiff’s knowledge of the holes in the parking lot.
`Because the Condition was not open and obvious as a matter of law, and the jury was properly
`instructed on the issue of comparative fault, Defendants’ motion for judgment as a matter of law
`is denied.1
`Defendants are not entitled to a new trial or remittitur on the basis that the Court
`II.
`erred in overruling Defendants’ hearsay objection.2
`Defendants also move for a new trial or remittitur on the basis that the Court erred in
`overruling Defendants’ hearsay objection. On direct examination, Plaintiff’s attorney asked
`Plaintiff about a conversation she had with Dr. Miller. Doc. [80] at 53. Before Plaintiff
`answered, Defendants’ attorney objected to her anticipated testimony as inadmissible hearsay.
`
`1 While Defendants’ argument for judgment as a matter of law focuses on the “open and obvious”
`doctrine, they also mention that Plaintiff “assumed the risk when she decided to walk across the parking
`lot anyway.” Doc. [83] at 13. If Defendants take themselves to be arguing that assumption of risk is
`another basis on which they are entitled to judgment as a matter of law, that argument is unavailing for
`several reasons. First, they fail to provide any argument or authority for it. See Milligan v. City of Red
`Oak, 230 F.3d 355, 360 (8th Cir. 2000) (issue waived where it was “mention[ed] in passing” with no
`“argument or legal authority”). Second, Defendants did not take the opportunity at trial to ask the Court
`for an assumption of risk jury instruction. Compare Doc. [80] at 248-51 (the Court directing the parties to
`submit alternative versions of the assumption of risk jury instruction), with Doc. [74] (final jury
`instructions to which no party objected). And third, the evidence at trial did not establish that Plaintiff
`fully appreciated the degree and extent of the Condition. See Gamble v. Bost, 901 S.W.2d 182, 189 (Mo.
`Ct. App. 1995) (“The principle of assumption of risk is that the defendant cannot be liable for a danger to
`which plaintiff voluntarily exposed himself or herself, fully appreciating the degree and extent of the
`danger. If, on the other hand, a plaintiff has unreasonably failed to appreciate the danger, or is
`unreasonably careless in evaluating the need to proceed in spite of the danger, such a plaintiff has not
`voluntarily and consciously assumed the risk of being injured by a danger which is fully appreciated.”);
`Doc. [80] at 146 (“How was I to know exactly where the