Cari Bossow-Murdock vs. Premier Parking Services, Inc

CARI BOSSOW-MURDOCK, ) ) Appellant-Respondent, ) WD87719 ) consolidated with WD87745 ) V. ) OPINION FILED: ) JANUARY 13, 2026 PREMIER PARKING SERVICES, INC, ) ) Respondent-Appellant. )

Appeal from the Circuit Court of Jackson County, Missouri The Honorable Joel P. Fahnestock, Judge

Before Division One: Janet Sutton, Presiding Judge, Gary D. Witt, Judge and W. Douglas Thomson, Judge

Cari Bossow-Murdock ("Appellant") appeals the summary judgment of the Circuit Court of Jackson County, Missouri ("trial court"), in favor of Respondent Premier Parking Services, Inc. ("Premier"). On appeal, Appellant claims that the trial court erred in: (1) granting summary judgment because a genuine issue of material fact exists as to whether Premier owed a duty of care to Appellant after having left a sign in a dangerous place and/or allowing the sign to be put in a dangerous place, and Appellant's injury was foreseeable; (2) striking parts of a witness's ("Witness") 1 affidavit because some stricken

1 Pursuant to Missouri Supreme Court Operating Rule 2.02(c)(3), we do not include identifying information for witnesses other than parties.

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portions of Witness's affidavit were based on her personal observation and knowledge; (3) deeming her responses to the facts stated in Premier's motion for summary judgment as admissions because Appellant admitted or denied each fact and supported each denial with specific references to discovery, exhibits, or affidavits; and (4) granting summary judgment on the basis of the "open and obvious" defense, because genuine issues of material fact exist as to whether Appellant could reasonably be expected to discover the danger posed by a sign lying flat on the ground in a parking lot at night. Premier cross- appeals, claiming that the trial court erred in denying Premier's motion for summary judgment on the basis that Appellant's claims were covered by a release that she entered into with the City of Kansas City ("City"). We affirm the judgment of the trial court in part, reverse in part, and remand for further proceedings consistent with this opinion. Factual and Procedural Background 2

On December 1, 2017, Appellant worked a shift at a bar in Kansas City. After her shift ended, at around 2:00 a.m. on the early morning of December 2, she was walking to her car, which was parked in a nearby parking lot; she had not been drinking and had only her keys in her hand. Shortly after Appellant entered the parking lot and headed toward her car, she tripped over a metal sign that was lying flat in the parking lot, hitting her face on the ground and breaking both of her arms. Appellant believes she lost consciousness briefly. A co-worker, who had left the bar after Appellant, found

2 In our review of a summary judgment, we review the undisputed material facts established pursuant to Rule 74.04(c); we do not review the entire trial court record. Shelter Mut. Ins. Co. v. Hill, 688 S.W.3d 638, 641 n.1 (Mo. App. W.D. 2024).

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Appellant in the parking lot, helped Appellant get her bag and her phone from her car, and called an Uber for Appellant so that she could get home. Appellant, her sister, and her husband returned to the parking lot later that day or the next day to retrieve Appellant's vehicle, and they took some pictures of the sign and the lot; the sign had been moved up against the fence between the time of the fall and when the photos were taken the next day. Appellant filed suit against Premier, alleging one count of negligence. Premier filed two motions for summary judgment; one claimed that it owed no duty to Appellant because it did not own the parking lot, did not own the sign, and was no longer operating the parking lot after November 30, 2017, and claimed that it was not liable because the sign in the parking lot was an open and obvious danger. The other motion claimed that Appellant's claims were subject to a release that Appellant signed with the City because Premier was City's agent. Appellant's suggestions in opposition to the motions for summary judgment purported to admit or deny Premier's statement of facts, but some of her responses did not include "specific references to the discovery, exhibits or affidavits," as prescribed in Rule 74.04(2), but rather cited to her own statement of facts. Appellant also relied upon an affidavit from Witness, who worked in the building that also housed the bar in which Appellant worked and who regularly parked in the lot in which Appellant was injured. Premier moved to strike this affidavit, averring that many of Witness's statements were not factual statements based on her own personal knowledge but were legal conclusions or were statements based on hearsay.

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The trial court struck paragraph 6 of Witness's affidavit as hearsay. This paragraph recited what her boss told her about how Appellant was injured. The court also struck paragraph 7 of Witness's affidavit as being without foundation and based upon speculation. In paragraph 7, Witness averred that the parking sign was sometimes stored in an enclosed area where there was a dumpster, but other times the sign was left out in the parking lot or lying on the sidewalk. Witness also averred that Premier was responsible for leaving the sign out in the lot, which the trial court found to be speculative. Paragraph 12 was similarly stricken as it contained speculation and opinion regarding the ownership of the sign. The parties stipulated that the parking lot was owned by the City at the time of the injury and had been managed by Premier Parking until midnight on November 30, 2017, shortly before Appellant was injured. The parking lot was, among other uses, available for specific patrons of the Sprint Center venue, now T-Mobile Center, during certain entertainment events. The trial court's judgment denied summary judgment based on the release Appellant executed with City, finding that the specific provision that provided, "This settlement is not intended to apply to any other party-defendants in this case—to wit, Premier . . . " limited the general language that released all of City's "agents." Summary judgment was granted, however, on the basis that Premier did not owe Appellant a duty. The judgment recited its reasoning: It is undisputed that the last event [Premier] used the sign and worked at the parking lot was November 21, 2017. It is undisputed that [Premier] left the sign behind the dumpsters in the parking lot following its last use on

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November 21, 2017, did not use the sign after November 21, 2017, and was not using or possessing the sign on December 2, 2017, the day [Appellant] fell.

This appeal follows. Standard of Review We review the grant of summary judgment de novo. LaBranche v. Kansas City Pub. Schs., 671 S.W.3d 801, 807 (Mo. App. W.D. 2023). We view the record in the light most favorable to the non-moving party. Brown v. Morgan Cnty., 212 S.W.3d 200, 203 (Mo. App. W.D. 2007). We review the trial court's ruling striking an affidavit for abuse of discretion. Shiffman v. Kansas City Royals Baseball Club, LLC, 687 S.W.3d 443, 455 (Mo. App. W.D. 2024). Analysis Appellant's first point on appeal is that the trial court erred in granting summary judgment finding that Premier owed no duty to Appellant because genuine issues of material fact exist as to whether Premier caused a foreseeable danger to Appellant by leaving the metal sign in the parking lot. We agree and find that the trial court erred in finding a critical material fact to be undisputed that was properly disputed. The trial court found it undisputed that "the last event [Premier] used the sign and worked at the parking lot was November 21, 2017." It also found that it was undisputed that Premier "left the sign stored behind the dumpsters in the parking lot following its last use on November 21, 2017, did not use the sign after November 21, 2017, and was not using or possessing the sign on December 2, 2017, the day [Appellant] fell." The trial court first ruled that Appellant's failure to cite to the proper materials in her denials of

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Premier's statement of facts would serve as an admission of the facts, noting that "hearsay and documents lacking foundation cannot be used to defeat summary judgment." However, the judgment then deems Premier's fact 18, that Premier stored the sign behind the dumpster in the parking lot after the November 21 event, to have been admitted, despite Premier's reliance only upon the affidavit of a Premier Owner, who had no first- hand knowledge of the fact averred. 3 "Affidavits in support of summary judgment must be based on personal knowledge, set forth facts that would be admissible in evidence, and show affirmatively that the affiant is competent to testify on the matters stated therein." White v. Matthews, 506 S.W.3d 382, 390 (Mo. App. E.D. 2016) (citation modified). While Appellant's counsel noted Owner's affidavit's hearsay nature at oral argument on appeal, it does not appear that the hearsay nature of Owner's affidavit was argued before the trial court. However, Appellant did cite to Owner's deposition to dispute this factual issue. In paragraph 6 of her own Additional Statement of Uncontroverted Material Facts, Appellant expressly stated, "Premier Parking admits it does not know what happened with the Sign after the last event it worked at the parking lot in November 2017." In the excerpt of Owner's deposition that Appellant cited in her additional facts, Owner was

3 At oral argument, Premier argued that an employee of Premier who worked in the lot on November 21, 2017, testified at her deposition that, although she had no memory of that particular evening, she always returned the sign to the area behind the dumpster when she worked an event. This testimony, however, was not listed as support for this fact in Premier's motion for summary judgment; the fact lists only Owner's affidavit, which is not based upon his personal knowledge. Notably, Premier argued to the trial court that major portions of Appellant's Witness affidavit should be stricken because they were not based on personal knowledge, and the trial court properly struck those portions of that affidavit, but Premier relied on the portions of Owner's affidavit that suffered from the same deficiency.

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asked, "Do you know what happened to the sign after that [November 21, 2017] event?" He responded, "I do not, no." Furthermore, in the Owner's deposition, when asked whether there were occasions where the sign was not put away behind the dumpster, he answered, "Sure. If there was an event the next day or leading up to an event or double event like Disney on Ice where you'd have three events in one day, yeah, it could be taken down, and put up against the fence." The Owner was unaware of any metal signs having been stolen from behind the dumpster, and there was no evidence in the summary judgment record indicating that anyone other than a Premier employee would have left the sign out in the lot near the fence. The Owner also testified that a Premier employee inspected the lot every day that Premier managed the lot, which would have included up until November 30, 2017, the day before Appellant parked in the lot before her work shift that ended the early morning of December 2, 2017. And although the trial court struck paragraphs 6 and 7 of Witness's affidavit based upon hearsay and opinion, paragraph 7 did state that "to my observation over the years" the sign had sometimes not been stored away by the dumpster after events and was just left out. But even without Witness's affidavit, there is a genuine issue of material fact as to whether a Premier employee left the sign out, lying in the parking lot, where it was foreseeable that someone like Appellant might trip over the sign and become injured. Premier's employee who worked the parking lot on November 21, 2017, had no recollection of putting the sign away following that event. "In a negligence claim, the duty element is unique in that the existence of a duty is a question of law to be decided by the court." Atchley v. Mo. Highways & Transp.

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Comm'n., 697 S.W.3d 90, 94 (Mo. App. S.D. 2024). 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." Woodall v. Christian Hosp. NE- NW, 473 S.W.3d 649, 657 (Mo. App. E.D. 2015). This duty remains despite the fact, found and repeated by the trial court in its judgment, that Premier had no control over the parking lot after November 30, 2017. See Smith v. DeWitt & Assocs., 279 S.W.3d 220, 224 (Mo. App. S.D. 2009) (proof of control over the premises not required in general negligence, only in premises liability actions). "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." Woodall, 473 S.W.3d at 658. Therefore, Appellant's alleged facts must show that Premier's acts or omissions affirmatively created the dangerous condition. Although Appellant argues that the trial court used the premises liability standard for determining duty instead of the negligence standard, the judgment makes clear that the trial court rejected Premier's premises liability analysis in favor of the general negligence standard. And under a theory of general negligence, whether Premier owned or controlled the lot and/or the sign at the time of the injury is not the controlling issue; the issue is whether a Premier employee negligently left the sign in a location where it was reasonably foreseeable that someone walking in the lot may be injured. We find that Appellant's statement of additional uncontroverted material facts, supported by Owner's deposition testimony, creates a genuine issue of material fact. Accordingly, summary judgment due to the absence of duty was improperly granted.

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Appellant's Point I is granted. Appellant's second point on appeal is that the trial court abused its discretion in striking parts of Witness's affidavit. We disagree. Rule 74.04(e) requires that any affidavits submitted in support of or in opposition to a motion for summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." See also Scott v. Ranch Roy-L, Inc., 182 S.W.3d 627, 635 (Mo. App. E.D. 2005) (hearsay in summary judgment affidavits is inadmissible). 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 Appellant fell. The trial court also determined that some of Witness's statements were speculative in that Witness did not know who left the sign in the parking lot on various occasions. Had Witness limited her statements to what she had personally observed, the statements would not have been properly stricken, but paragraph 7 of the affidavit was worded as follows.

1. At the time when I heard that [Appellant] was injured when she tripped

on the Premier Parking sign, I remember not being surprised since I was aware of the fact that the parking lot manager, Premier Parking, had regularly and often left the Premier Parking Services sign (attached to this affidavit) laying flat in the parking lot and on the sidewalks both inside and outside the wrought iron fence. The sign continued to be left out in the parking lot up until the time at the end of November, early December 2017, when [Appellant] was injured. The sign was left out because Premier, to my observation over the years, did not properly store the sign in the enclosure at the back of the parking lot after the Sprint Center events were over the night before. They would sometimes get store it [sic] in the enclosed dumpster area after Sprint Center Events, but most of the time it

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seemed they just left it out. In the back of my mind I was afraid that someone was going to trip on that sign and be injured.

Although this paragraph does include some of Witness's personal observations, it also includes significant speculation, hearsay, and supposition. There is no effective way to strike just the portions of the paragraph that are properly offered in opposition to the motion for summary judgment and still have the paragraph make sense, and so the trial court was within its discretion to strike the entire paragraph. Appellant also objects to the trial court's having stricken paragraph 12 of Witness's affidavit, and argues that the following sentences should have been allowed to remain:

1. The sign had the Premier Parking Services logo affixed to the sign, and

this was the same logo affixed to the kiosk where Premier collected parking fees. I was never aware of any other company having anything to do with the sign.

Here, while 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, stating that Premier collected the parking fees, of which Witness failed to establish she had first- hand knowledge, and she discusses her "awareness" as to who "had anything to do with the sign." Appellant's Point II is denied. Appellant's third point on appeal is that the trial court erred in treating as admissions some of Appellant's responses to Premier's statement of uncontroverted facts it filed in support of its motion for summary judgment. As the trial court noted, Rule 74.04(c)(2) provides that a party responding to a motion for summary judgment must respond to each factual allegation, admitting or denying each, and supporting each denial

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not merely with allegations in her own pleading but with "specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial." Appellant's denials of several facts alleged in Premier's motion for summary judgment do not themselves include citations to discovery, exhibits, or affidavits, but to her own statement of facts. However, Appellant's responses do not merely cite generally to her "Statement of Additional Uncontroverted Facts." Instead, her responses cite to specific paragraphs of her Statement of Additional Uncontroverted Material Facts, and her own facts are properly supported by citations to underlying discovery materials, including specific page and line number citations for deposition transcripts. In these circumstances, although perhaps not strictly compliant with Rule 74.04(c)(4), we conclude that Appellant adequately responded to Premier's statement of facts by cross-reference to specific paragraphs of her own statement of facts, which were sufficiently supported. Point III is granted. Appellant's fourth point on appeal is that the trial court erred in granting summary judgment on the basis that the sign presented an "open and obvious" danger that Appellant should have avoided had she been using the appropriate degree of care. The trial court's judgment does not decide summary judgment on this basis; rather, it found no duty existed because it found it to be undisputed that Premier stored the sign away behind the dumpster after the November 21 event and did not use the sign thereafter until Appellant's injury. As stated above, we find that the trial court's conclusion that this material fact was undisputed to be erroneous, and Appellant has established a genuine

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issue of material fact as to whether Premier negligently left the sign out in the parking lot where it would be reasonably foreseeable that someone might trip over it and become injured. 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. Premier is correct that Missouri law provides, in cases based on premises liability, that "when the dangerous condition is so open and obvious that [an] invitee should reasonably be expected to discover it and realize the danger, a possessor of land does not breach the standard of care owed to invitees unless the possessor should anticipate the harm despite such knowledge or obviousness." Brown v. Morgan Cnty., 212 S.W.3d 200, 205 (Mo. App. W.D. 2007) (emphasis in original) (citation modified). Assuming the open-and-obvious exception applies to general negligence actions, courts note that this issue is "extremely fact intensive." Hellman v. Droege's Super Mkt., Inc., 943 S.W.2d 655, 658 (Mo. App. E.D. 1997). 4 Moreover, the open-and-obvious exception to liability does not apply when the possessor of the land "should anticipate the harm despite such knowledge or obviousness." Id. 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

4 Where an affirmative act by the defendant caused the dangerous condition, the case may be submitted under a general negligence theory and not on a theory of premises liability. Rider v. The Young Men's Christian Ass'n of Greater Kansas City, 460 S.W.3d 378, 390 (Mo. App. W.D. 2015). The liability of the actor should be determined in accordance with general principles of negligence, and a duty of care may be imposed regardless of the standards of premises liability. See, e.g., Griffith v. Dominic, 254 S.W.3d 195 (Mo. App. S.D. 2008); Daoukas v. City of St. Louis, 228 S.W.3d 30 (Mo. App. E.D. 2007). In these cases, liability was not based on a condition of the property, but on a specific act or omission of the defendant.

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anticipated someone tripping over the sign left lying flat on the ground in an area that people use for ingress and egress, especially at night. Although there were some lights in the lot, Appellant testified in her deposition that the lot was dark. Appellant had not been drinking, and she did not have anything in her hands other than her keys. There was a bus stop on the north end of the parking lot, and Appellant testified that bus riders and homeless people would sometimes congregate there. It is foreseeable that a person walking to her vehicle at 2:00 a.m. might be distracted and looking around the lot or toward her car and not solely down at her feet. Whether Appellant behaved reasonably as she walked to her vehicle that evening is a question for the jury. Anslinger v. Christian Hosp. Ne.-Nw., 687 S.W.3d 180, 186 (Mo. App. E.D. 2024). Further, if the open-and- obvious principles even apply to a general negligence claim, whether the sign lying on the ground was open and obvious becomes an issue of comparative fault for the jury to determine. Ford v. Ford Motor Co., 585 S.W.3d 317, 337-38 (Mo. App. W.D. 2019) (when the "open and obvious" nature of a condition cannot be resolved as a matter of law, the issue becomes one of comparative fault). While this was not the basis for the summary judgment, it was an alternative basis Premier argued in support of its motion. Due to the fact the trial court did not base its decision upon this issue, Appellant's Point IV is denied. Premier also raises one point on cross-appeal. It alleges the trial court erred in denying summary judgment on the basis that Appellant's claim against Premier was subject to a release she signed with City. We disagree.

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The release Appellant 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 is also a provision in the release that states, "this settlement is not intended to apply to any other party-defendants named in the case—to wit, Premier Parking Services, Inc. and [its purported successor parking company]." The trial court found, "The release language is clear and unambiguous that the release was not to include [Premier]. See, e.g., Hawes v. O.K. Vacuum & Janitor Supply Co., 762 S.W.2d 865, 867-68 (Mo. App. E.D. 1989) (when a release contains both general and specific language, the general language is limited accordingly)." We agree with the trial court's reading of the language of the release and application of O.K. Vacuum and general contract law and find no error here. Premier's cross-appeal is denied. Conclusion For the above-stated reasons, we affirm the trial court's judgment in part, reverse it in part, and remand for further proceedings consistent with this opinion.

__________________________________ Gary D. Witt, Judge

All concur