Larry Brandes vs. Bothwell Regional Health Center

LARRY BRANDES, ) ) Appellant, ) ) WD87735 v. ) ) OPINION FILED: BOTHWELL REGIONAL ) NOVEMBER 12, 2025 HEALTH CENTER, ) ) Respondent. )

Appeal from the Circuit Court of Pettis County, Missouri The Honorable Jeff A. Mittelhauser, Judge

Before Division Two: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge and Cynthia L. Martin, Judge

Larry Brandes ("Brandes") appeals from the trial court's entry of summary judgment in favor of Bothwell Regional Health Center ("Bothwell"). Brandes argues that the trial court erroneously granted summary judgment on the basis of an unpled affirmative defense, and that in any event, genuine issues of material fact remained in dispute preventing the entry of judgment as a matter of law. Finding no error, we affirm.

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Factual and Procedural History 1

On February 12, 2020, at approximately 7:15 a.m., Brandes's wife ("Wife") fell on ice at her daughter's home in Sedalia, Missouri. It was snowing at the time. Wife was transported by ambulance to Bothwell, a non-profit hospital created and organized by the City of Sedalia. Brandes was not with Wife when she fell, but was at home. Brandes was off work due to the weather conditions. Shortly after hearing about Wife's fall, Brandes cleared the snow off of his truck and drove in wintery road conditions to Bothwell. Brandes parked in a lot at Bothwell, and began walking toward the entrance. Brandes claims he fell on a sidewalk leading to the entrance. Brandes then walked into Bothwell's emergency room. Brandes told an employee at the front desk that someone needed to "put some rock salt on those sidewalks" in order to "take care of the snow and stuff on the sidewalk where [he] fell." Brandes received medical treatment in Bothwell's emergency room for injuries he claims he sustained from the fall. Sixteen months later, Brandes filed a lawsuit against Bothwell. In his petition, Brandes asserted a single claim of negligence based on a theory of premises liability. The petition alleged that Bothwell waived sovereign immunity under the dangerous

1 "When reviewing the entry of summary judgment, we view the record in the light most favorable to the party against whom the judgment was entered and accord the non- movant all reasonable inferences from the record." Montgomery v. Coreslab Structures (Missouri), Inc., 697 S.W.3d 766, 769 n.2 (Mo. App. W.D. 2024) (quoting Cox v. Callaway Cnty. Sheriff's Dep't, 663 S.W.3d 842, 845 n.1 (Mo. App. W.D. 2023)). The facts are drawn from the uncontroverted facts in the summary judgment pleadings. Id.

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condition exception described in section 537.600.1(2). 2 The petition alleged that Brandes "slipped on ice and snow that [Bothwell] had failed to clean, causing [Brandes] to slip and fall," and that the parking lot was in a dangerous condition because of the ice and snow that had not been cleaned. Bothwell filed its answer, and among other things, denied it owed a duty to Brandes. In addition, Bothwell asserted as an affirmative defense that "[a]ny alleged hazardous condition was open and obvious to [Brandes]." 3

In accordance with Rule 74.04(b), 4 Bothwell filed a motion for summary judgment, a statement of uncontroverted facts, and suggestions in support of the motion for summary judgment (collectively "Motion for Summary Judgment"). The Motion for Summary Judgment argued that, because the uncontroverted facts established that Bothwell's premises in particular, and the City of Sedalia in general, were covered in naturally accumulated snow and ice, the Massachusetts Rule 5 applied so that at the time

2 All statutory references are to RSMo 2016 as supplemented through the date of Brandes's petition unless otherwise noted. 3 Bothwell's answer also set forth a counterclaim against Brandes seeking payment for medical services rendered. Bothwell later dismissed its counterclaim without prejudice. 4 All rule references are to Missouri Court Rules, Volume 1--State, 2023 unless otherwise noted. 5 Our Supreme Court adopted the Massachusetts Rule in Walsh v. City of St. Louis, 142 S.W.2d 465 (Mo. 1940), a case in which a plaintiff sought damages against the City of St. Louis for personal injuries resulting from a fall caused by an icy sidewalk. The Court held as follows: A city is not required to remove snow and ice from its sidewalks where such condition is general throughout the city. It is, however, the duty of the city to exercise reasonable care to keep its sidewalks free from dangerous conditions, which are not classed as a generally dangerous condition, produced by natural causes such as snow and ice. Where snow accumulates

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Brandes fell, Bothwell owed no duty to remove the snow and ice from its premises. The Motion for Summary Judgment asserted that, because Bothwell was under no duty to remove snow and ice from its premises, Brandes could not prevail on his premises liability claim as a matter of law. As required by Rule 74.04(c)(2), Brandes filed a response to Bothwell's Motion for Summary Judgment ("Response to the Motion for Summary Judgment"). Brandes's Response to the Motion for Summary Judgment claimed that there remained three genuine issues of material fact in dispute pertinent to whether Bothwell owed Brandes a duty to clear its premises of ice and snow: (1) whether it was snowing when Brandes fell; (2) whether the sidewalk where Brandes fell was in a condition general to the community; and (3) whether Bothwell assumed a duty to clear its premises of ice and snow by agreement or a course of conduct. The Response to the Motion for Summary Judgment also asked the trial court to extend the time to respond to afford Brandes additional time to conduct discovery regarding Bothwell's snow and ice removal policies. Following a hearing, the trial court stayed the Motion for Summary Judgment to permit additional discovery. After conducting additional discovery, Brandes filed

on the sidewalk to such an extent that it produces a dangerous condition, not common to the general condition throughout the city, it is the duty of the city to exercise reasonable care to remedy such dangerous condition. Id. at 466 (quoting Harding v. City of St. Joseph, 7 S.W.2d 707, 711 (Mo. App. 1928)). The Massachusetts Rule was later expanded so that it applied equally to landlords, municipal corporations, invitors, and employers. See Everett v. Wallbrun, 273 S.W.2d 751, 753 (Mo. App. 1954) (recognizing that, because "[t]he degree of care required being the same in the case of landlord, municipal corporation, invitor, and employer," the Massachusetts Rule applied equally to each category).

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supplemental facts in opposition to the Motion for Summary Judgment ("Supplemental Facts"). The Supplemental Facts described Bothwell's snow and ice removal policy as described by the hospital's director of facilities during a deposition, and argued that the policy constituted the assumption of a duty to remove snow and ice from Bothwell's premises as of the time of Brandes's fall. On December 17, 2024, the trial court granted the Motion for Summary Judgment ("Judgment"). The Judgment detailed the uncontroverted facts which supported the entry of judgment, including the following:

1. On February 12, 2020, [Wife] fell on ice, injuring herself at her

daughter's house in Sedalia, Missouri around 7:15 a.m.

1. It was actively snowing at the time of Angela's fall, and the snow did not

cease until some point between [Wife's] fall and the release of both [Wife] and [Brandes] from the hospital later that day. [Brandes] denies this fact but the testimony cited by [Bothwell] in support of this statement demonstrates that it was snowing at 6:30 a.m. when [Wife] drove to her daughter's home, it was snowing at 7:15 a.m. when she fell, it seemed to her as if it took "forever" for the ambulance to arrive, that the snow continued to fall in her face as she waited for the ambulance, it was snowing when she entered the hospital, and that it had stopped snowing by the time she left the hospital.

1. [Brandes] was not with [Wife] at the time of her fall, but was home, off

from work for the day, due to weather conditions. [Brandes] denies this fact and also denies the further assertion that [he] was off work not only because of the weather conditions but also because of the weather "forecasted for the Sedalia area." [Brandes's] deposition testimony cited by [Bothwell] in support of this statement demonstrates that he was off work because it snowed. This deposition testimony further demonstrates that the forecast had been for three inches of snow, although this testimony does not specifically state that the forecast was part of the reason he was not at work. That is, his testimony was that he was off work because of the actual weather conditions, not the predicted weather.

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1. [Brandes] drove to Bothwell Regional Health Center in his truck through

wintery road conditions immediately after learning of his wife's fall and admission to Bothwell Regional Health Center. Plaintiff denies that he drove in "wintery road conditions," asserting that he did not have to engage his four-wheel drive or use his windshield wipers, that he did not think they got much snow, and the streets did not need to be plowed. However, the deposition testimony cited by [Bothwell] in support of this proposition demonstrates that [Brandes] saw there was wet snow, that he had to clear snow from his windshield, that there was "slush" on the roads, and that he did not think it had snowed three inches. [Brandes's] deposition testimony supports [Bothwell's] statement that [Brandes] drove from his home to the hospital through slush on the roads and after clearing snow from his vehicle. The statement that he drove through "wintery road conditions" is a fair summary of this testimony.

1. [Brandes] claims he fell while attempting to enter the hospital to visit his

wife.

1. Both [Brandes] and his wife testified that nothing had been done to clear

the sidewalk where [Brandes] fell. [Brandes] denies this fact, speculating that something might have been done, without their knowledge, to clear the sidewalk. In his deposition, [Brandes] testified that after he made it into the emergency room after falling, he said "someone needs to get out there and put some rock salt on those sidewalks," that "they needed to get somebody out there and take care of the snow and stuff on the sidewalk where I fell," and that "something needs to be done." The uncontroverted facts identified in the Judgment were supported by citation to the summary judgment record. Based on the identified uncontroverted facts, the trial court concluded that Brandes's "injury was caused by slipping on [Bothwell's] sidewalk which was made slick by snow or by snow and ice. This brings the situation within the Massachusetts Rule." The trial court observed that pursuant to the Massachusetts Rule, Bothwell "ha[d] no duty to clear its sidewalks of ice and snow which have accumulated from general weather conditions within the community." The Judgment summarized the uncontroverted

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material facts that established that "the accumulation of snow or ice on the sidewalk outside Bothwell Regional Health Center was part of weather conditions general to the community and not unique to [Bothwell's] sidewalks." The trial court then addressed an exception to the Massachusetts Rule where a property owner has assumed a duty to remove snow by agreement or a course of conduct. The trial court concluded that Bothwell's snow removal policy was insufficient as a matter of law to create a duty to remove snow; that there was no evidence that Bothwell had a contract or other agreement for snow removal that would qualify as an assumption of duty to remove snow; and that even if Bothwell had started removing snow on its premises before Brandes fell, the Massachusetts Rule would still apply to the sidewalk where snow removal had not begun. The trial court entered judgment in favor of Bothwell because Bothwell did not owe Brandes a duty to remove the naturally accumulated snow and ice on the sidewalk where Brandes fell as a matter of law. Brandes appeals. Standard of Review We review an appeal from the grant of a motion for summary judgment de novo. Montgomery v. Coreslab Structures (Missouri), Inc., 697 S.W.3d 766, 770 (Mo. App. W.D. 2024). "Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Id. (quoting Cox v. Callaway Cnty. Sheriff's Dep't, 663 S.W.3d 842, 847 (Mo. App. W.D.

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2023)). A defending party seeking summary judgment demonstrates its right to judgment as a matter of by establishing any of the following: (1) facts negating any one of the claimant's elements necessary for judgment; (2) that the claimant, after an adequate period of discovery, has not been able to--and will not be able to--produce sufficient evidence to allow the trier of fact to find the existence of one of the claimant's elements; or (3) facts necessary to support [a] properly pleaded affirmative defense. Id. "In determining whether the entry of summary judgment was appropriate, we review the record in the light most favorable to the party against whom judgment was entered, and give the non-movant the benefit of all reasonable inferences from the record." Cox, 663 S.W.3d at 847. However, our review is limited to those facts established through Rule 74.04(c)'s numbered-paragraphs-and-responses framework. Montgomery, 697 S.W.3d at 770. While Bothwell, as the moving party, bore the burden to establish that summary judgment was appropriate before the trial court, Brandes, as the appellant, bears the burden to overcome the presumption on appeal that the Judgment is correct. City of De Soto v. Parson, 625 S.W.3d 412, 416 (Mo. banc 2021). Analysis Brandes raises three points on appeal. First, Brandes alleges that the trial court erroneously granted summary judgment in favor of Bothwell because the Massachusetts Rule was not pled as an affirmative defense in Bothwell's answer. Second, Brandes alleges that the trial court erroneously granted summary judgment in favor of Bothwell because genuine issues of fact in dispute preclude finding that the Massachusetts Rule

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applies. Third, Brandes alleges that even if the Massachusetts Rule applies, the uncontroverted facts establish that Bothwell assumed a duty to remove the naturally accumulated snow or ice on the sidewalk because of its snow removal policy. Before addressing the merits of the points on appeal, we begin with a general discussion of the Massachusetts Rule. The Massachusetts Rules Operates to Negate the Essential Element of a Duty Owed in a Premises Liability Case

To prevail on a claim of negligence based on premises liability, "the plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and the defendant's failure proximately caused injury to the plaintiff." A.R.R. v. Tau Kappa Epsilon Fraternity, Inc., 649 S.W.3d 1, 8 (Mo. App. W.D. 2022) (quoting L.A.C. ex rel. D.C. v. Ward Parkway Shopping Ctr. Co., 75 S.W.3d 247, 257 (Mo. banc 2002)). Whether a duty is owed is purely a question of law that must be determined by the trial court. Parr v. Breeden, 489 S.W.3d 774, 782 (Mo. banc 2016). Whether a duty is owed will naturally "depend[] on the particular facts and circumstances of each case." Id. However, the trial court's responsibility is to determine "whether the facts pleaded or proven show 'the existence of a relationship between the plaintiff and defendant that the law recognizes as the basis of a duty of care.'" O'Donnell v. PNK (River City), LLC, 619 S.W.3d 162, 167 (Mo. App. E.D. 2021) (quoting Bunker v. Ass'n of Mo. Elec. Coops., 839 S.W.2d 608, 611 (Mo. App. W.D. 1992)). The duty owed in a premises liability case depends on the "relationship between the parties" at the time of the injury. Anslinger v. Christian Hosp. Ne.-Nw., 687 S.W.3d

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180, 184 (Mo. App. E.D. 2024). Here, Brandes asserted in his petition that he was an invitee on Bothwell's premises. Generally, a possessor of land owes an invitee the duty to make safe both known dangers and dangers that should have been known. Ford v. Ford Motor Co., 585 S.W.3d 317, 332 (Mo. App. W.D. 2019); Scholdberg v. Scholdberg, 578 S.W.3d 831, 835-36 (Mo. App. W.D. 2019). However, the general duty of care owed to invitees does not extend to naturally accumulated snow or ice, "informally known as the Massachusetts [R]ule." Medlock v. St. John's Health Sys., Inc., 426 S.W.3d 35, 38 (Mo. App. S.D. 2014). Pursuant to the Massachusetts Rule, "an invitor has no duty to remove snow or ice on outside areas where the snow or ice accumulated naturally as a result of general weather conditions within the community." Id. (quoting Willis v. Springfield Gen. Osteopathic Hosp., 804 S.W.2d 416, 419 (Mo. App. S.D. 1991)). The Massachusetts Rule is "reasonable[,] for where the condition is one general to the community it creates a natural hazard to everyone who ventures out at such time. The condition is brought about by no one and no one's efforts can appreciably lessen the danger present." Woodley v. Bush, 272 S.W.2d 833, 835 (Mo. App. 1954). The Massachusetts Rule will not operate to negate a duty owed, however, "where one is obligated to remove snow and ice either by agreement or a course of conduct over a period of time." Medlock, 426 S.W.3d at 38 (citing Willis, 804 S.W.2d at 419). Here, the trial court found that the uncontroverted facts required application of the Massachusetts Rule to negate a duty owed by Bothwell to Brandes, and that Bothwell had not otherwise assumed a duty to remove naturally accumulating snow and ice by

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agreement or a course of conduct. Brandes challenges these conclusions in his three points on appeal. Point One: The Massachusetts Rule Is Not an Affirmative Defense Brandes's first point on appeal asserts that the trial court erred in granting Bothwell's Motion for Summary Judgment because Bothwell did not plead the Massachusetts Rule as an affirmative defense in its answer, and the grant of summary judgment cannot be based on an unpled affirmative defense. Bothwell argues that Brandes failed to preserve this claim of error because he never raised a concern with the trial court that summary judgment was precluded because the Massachusetts Rule was not pled as an affirmative defense. Bothwell alternatively argues that its answer properly invoked the Massachusetts Rule as an affirmative defense by asserting that "[a]ny alleged hazardous condition was open and obvious to [Brandes]." Despite extensive briefing in the trial court in connection with Bothwell's Motion for Summary Judgment, Brandes never argued that Bothwell could not secure summary judgment because the Massachusetts Rule was an unpled affirmative defense. That is logically explained, however, by the fact that Bothwell's Motion for Summary Judgment did not characterize the Massachusetts Rule as an affirmative defense, and instead sought summary judgment because the Massachusetts Rule rendered Brandes unable to establish an essential element of his claim for negligence--a duty owed. In fact, Brandes's Response to the Motion for Summary Judgment acknowledged that Bothwell's "sole argument is that summary judgment should be granted because there is no duty." A defending party can establish a right to summary judgment if it can demonstrate that a

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plaintiff will be unable to establish an essential element of the plaintiff's claim. Montgomery, 697 S.W.3d at 770. Though the Motion for Summary Judgment did not seek judgment based on an affirmative defense, and instead relied on the theory that Brandes could not establish an essential element of his claim of negligence, the Judgment described the dispositive issue in the case to be whether "the uncontroverted material facts show that [Bothwell] has established the affirmative defense known as the Massachusetts Rule in situations where injuries result from falling in icy or snowy conditions." The Judgment's characterization of the Massachusetts Rule as an affirmative defense is the likely genesis behind Brandes's newly asserted contention that summary judgment was improvidently granted based on an unpled affirmative defense. However, Brandes has not identified any authority that has directly addressed whether the Massachusetts Rule is an affirmative defense. 6 As such, the issue is one of first impression.

6 Brandes alleges that Medlock v. St. John's Health System, Inc., 426 S.W.3d 35, 37-38 (Mo. App. S.D. 2014), stands for the proposition that the Massachusetts Rule is an affirmative defense. However, the referenced passage in Medlock represents nothing more than the Southern District's regurgitation of the general principle that a "defending party" can establish a right to summary judgment by showing that each of the facts necessary to support a properly pleaded affirmative defense are uncontroverted. The Southern District did not engage in a discussion about whether the Massachusetts Rule is an affirmative defense, and cannot be read to have expressly or impliedly analyzed that question. That is especially so as the Southern District's focus in Medlock was on whether the Massachusetts Rule should be abrogated, as the plaintiff acknowledged that "the record . . . does not compel reversal of the trial court's grant of summary judgment, unless [the Southern District] abrogates the Massachusetts Rule." Id. at 38. The Southern District declined that invitation. Id. at 39-40.

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"An affirmative defense is defined as a defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's claim, even if all the allegations in the complaint are true." Doe by T.N. v. First Baptist Church of Pierce City, 705 S.W.3d 88, 92 (Mo. App. S.D. 2025) (quoting Ressler v. Clay Cnty., 375 S.W.3d 132, 140 (Mo. App. W.D. 2012)). In other words, "[a]n affirmative defense seeks to defeat or avoid [the] plaintiff's cause of action, and alleges that even if [the] plaintiff's petition is true, [the] plaintiff cannot prevail because there are additional facts and arguments that permit the defendant to avoid legal responsibility." Ressler, 375 S.W.3d at 140-41. An affirmative defense must be set forth in a responsive pleading. Rule 55.08. An affirmative defense that is not timely and properly pled is waived, which generally precludes reliance on the affirmative defense to secure summary judgment. 7 Whitlow v. Whitlow, 714 S.W.3d 453, 455-56 (Mo. App. S.D. 2025) (citing Rule 55.08). In contrast, "[a] matter that merely negates an element of the plaintiff's prima facie case is not an affirmative defense that must be pleaded in the defendant's answer." Doe by T.N., 705 S.W.3d at 92 (quoting Varsalona v. Ortiz, 445 S.W.3d 137, 141 (Mo. App. W.D. 2014)). Instead, a defendant may file a pleading that generally denies the plaintiff's ability to prove its prima facie case. Varsalona, 445 S.W.3d at 141.

7 Though we need not further address this point, there is mixed authority for overcoming the bar to granting summary judgment based on an unpled affirmative defense where the defenses is effectively "tried" by consent because the non-movant failed to timely complain. See Poger v. Mo. Dep't of Transp., 501 S.W.3d 37, 43 (Mo. App. E.D. 2016); Hanff v. Hanff, 987 S.W.2d 352, 357 (Mo. App. E.D. 1998). But see Whitlow v. Whitlow, 714 S.W.3d 453, 456-57 n.5 (Mo. App. S.D. 2025).

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As detailed supra, the Massachusetts Rule operates to negate a land possessor's general duty of care to remove snow or ice in outside areas where the snow or ice has accumulated naturally as a result of general weather conditions within the community. See Medlock, 426 S.W.3d at 38. When a defendant asserts, as Bothwell did here, that the condition of the premises was general to the community and was a result of natural accumulation, the defendant's position is that the plaintiff cannot, as a matter of law, demonstrate that the defendant had a duty to clear the premises of snow or ice. Such a position is not an affirmative defense as it is not asserting that even if the allegations in Brandes's petition are true, Brandes cannot prevail because additional facts permit Bothwell to avoid liability. Instead, Bothwell's reliance on the Massachusetts Rule constitutes a direct challenge to Brandes's ability to make a prima facie case of premises liability, and in particular, to establish that Bothwell had a duty to protect Brandes from injury. See A.R.R., 649 S.W.3d at 8. The efficacy of this conclusion is analogously demonstrated by settled jurisprudence addressing operation of the public duty doctrine and the express and implied primary assumption of risk doctrines. Each of these doctrines has been held not to constitute an affirmative defense, and to be instead reflective of a factual scenario where no duty of care is owed. See Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 193 (Mo. banc 2014) (holding that "'[l]ike express assumption of the risk, primary implied assumption of the risk . . . is really a principle of no duty . . . and so denies the existence of any cause of action,'" and as such is "'not really an affirmative defense'") (quoting W. Page Keeton, PROSSER AND KEETON ON TORTS at 496-97 (5th ed.

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1984), and Krause v. U.S. Truck Co., 787 S.W.2d 708, 711-12 (Mo. banc 1990)); Southers v. City of Farmington, 263 S.W.3d 603, 612 (Mo. banc 2008) (holding that "[t]he public duty doctrine is not an affirmative defense, but rather delineates the legal duty the defendant public employee owes the plaintiff," and that "[t]he applicability of the public duty doctrine negates the duty element required to prove negligence, such that there can be no cause of action . . . . "); Krause, 787 S.W.2d at 712 (holding that "[p]rimary assumption of the risk is not really an affirmative defense; rather it, indicates that the defendant did not even owe the plaintiff any duty of care"); Moore v. City of O'Fallon, 681 S.W.3d 715, 724 (Mo. App. E.D. 2023) (noting that the pubic duty doctrine does not operate as an affirmative defense, but "negates the duty element of a negligence or recklessness claim"). Though the difference between an affirmative defense and a legal doctrine which negates a duty of care may seem subtle, the distinction is in fact readily discernible. An affirmative defense "merely impacts liability, but does not destroy the underlying tort," while facts negating the existence of a duty owed destroy the underlying tort. See, e.g., Southers, 263 S.W.3d at 612 (distinguishing between the public duty doctrine which operates to negate the existence of a tort because a plaintiff is unable to establish a duty owed, and the official immunity doctrine which is an affirmative defense because it operates to protect a defendant from liability notwithstanding an intact underlying tort); Moore, 681 S.W.3d at 724 (holding that "[o]fficial immunity is an affirmative defense which protects officials from liability without destroying the underlying tort, while the public duty doctrine leaves the plaintiff unable to prove a negligence . . . claim by negating the duty element").

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Accordingly, the trial court did not err in granting the Motion for Summary Judgment based on an unpled affirmative defense because the Massachusetts Rule is not an affirmative defense. The Judgment's mistaken characterization of the Massachusetts Rule as an affirmative defense is superfluous as it does not impact the trial court's ultimate conclusion that the uncontroverted facts demonstrate that Bothwell did not owe Brandes a duty, an essential element of Brandes's claim of negligence. Point One is denied. Point Two: The Uncontroverted Facts Establish that the Snow and Ice on the Sidewalk Outside the Hospital Accumulated Naturally as a Result of General Weather Conditions Brandes's second point on appeal asserts that the trial court committed error in applying the Massachusetts Rule to conclude that Bothwell owed no duty to clear the sidewalk where he fell of snow and ice. Brandes contends that genuine issues of fact in dispute precluded a finding that the snow and ice on the sidewalk accumulated naturally as a result of general weather conditions within the community. Specifically, Brandes argues that: (1) there was no evidence that, at the time of Brandes's fall, snow or ice was falling; and (2) Bothwell did not prove that the condition of the sidewalk where Brandes fell was, at the time of the fall, in a condition general to the community. We address these contentions in turn. The Massachusetts Rule provides that an invitor owes no duty to an invitee to clear snow or ice so long as "the snow or ice accumulated naturally as a result of general weather conditions within the community." Medlock, 426 S.W.3d at 38 (quoting Willis, 804 S.W.2d at 419). In its statement, the Rule imposes no requirement that snow and ice

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be actively falling at the time of an accident causing injury. Instead, the Rule requires only that the condition of the invitor's outdoor space be impacted by "naturally accumulating" snow or ice. The intent is to impose no duty where the condition of an area is not of the invitor's making because the snow or ice is naturally occurring, and the outdoor space was in a condition consistent with general weather conditions in the community. See Walsh v. City of St. Louis, 142 S.W.2d 465, 466 (Mo. 1940) (highlighting the practicalities that underscore the Massachusetts Rule, which are grounded on a land possessor's ability to "remove entirely all the snow and ice . . . under [certain] climatic conditions"). Consistent with intent of the Massachusetts Rule, the trial court found that although Brandes argued in his Response to the Motion for Summary Judgment that there was no evidence that snow or ice was falling at the time of his fall, any dispute about that fact was not material. Brandes repeats the same argument on appeal, and relies on the following holding: "[A] property owner does not have a duty to remove, from its open-air parking lot, freezing rain, sleet, or snow, as it is falling" and "[t]o hold that a duty exists to make a parking lot safe as precipitation falls from the sky would be to create a duty which would be virtually impossible to perform." O'Donnell, 619 S.W.3d at 167 (quoting Milford v. May Dep't Stores, 761 S.W.2d 231, 232-33 (Mo. App. E.D. 1988)). Though O'Donnell and Milford confirm the absurdity of imposing a duty on a land possessor to render an outdoor space safe while precipitation continues to fall, they do not purport to impose an intractable limit on application of the Massachusetts Rule to only those situations where snow or ice is actively falling. There will always be a temporal gap between the cessation of wintry precipitation and its

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removal. The "virtual impossibility" of making an outdoor space safe referenced in O'Donnell and Milford is of equal application when snow and ice is no longer falling, so long as the naturally accumulated snow or ice condition of an outdoor space remains consistent with general conditions in the community. We therefore reject Brandes's contention that a dispute about whether snow or ice was falling at the very moment he fell prevented the entry of summary judgment in favor of Bothwell as a matter of law. All that matters is whether the sidewalk where Brandes claims to have fallen was impacted by naturally accumulated snow or ice, and was in a condition consistent with general conditions in the community. Brandes next argues that Bothwell did not prove that the condition of the sidewalk where he fell was in a condition general to the community. In furtherance of this contention, Brandes argues: (1) that there was no evidence about the time of his fall; (2) that there was no concrete evidence about the condition of the sidewalk on which he fell; and (3) that there was no undisputed evidence about the general weather conditions in the community. It is immaterial whether the uncontroverted facts establish the precise time that Brandes fell. It is uncontroverted that Wife fell on ice at 7:15 a.m., that Brandes left his house by 7:15 or 8:00 a.m. as soon as he learned about her fall, and that Brandes then drove to Bothwell where Wife had been transported and fell on his way inside. Though the Massachusetts Rule requires that the condition of the sidewalk at the time Brandes fell be consistent with conditions in the general community, there is no authority for the proposition that this standard can only be met if the precise time of an accident is known.

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Brandes next argues that there was no concrete evidence regarding the condition of the sidewalk at the time of Brandes's fall. Brandes's assertion is perplexing, as it is his petition which alleges that Brandes slipped on ice and snow that Bothwell failed to clean. Moreover, Brandes concedes that Bothwell's statement of uncontroverted material facts characterized the sidewalk as "slushy" and "snowy" at the time of his fall. The Judgment explicitly found that the uncontroverted facts established that "[Brandes's] injury was caused by slipping on [Bothwell's] sidewalk which was made slick by snow or by snow and ice," pointing to Brandes's deposition testimony during which he described walking into the emergency room and telling a Bothwell employee that "someone needs to get out there and put some rock salt on those sidewalks" and that the hospital "needed to get somebody out there and take care of the snow and stuff on the sidewalk where I fell." It is disingenuous for Brandes to contend that there is "no concrete evidence" of the condition of the sidewalk at the time of his fall. Finally, Brandes argues that there was no undisputed evidence of the weather conditions in the community. Brandes relies on case authority which properly observes that whether the condition of property is general to the community is a fact question. See, e.g., Hill v. Barry Cnty., 434 S.W.3d 115, 116 (Mo. App. S.D. 2014). But, this observation belies that every summary judgment motion involves fact questions. The issue is not whether a comparison of the condition of the sidewalk to the community as a whole is a fact question, and is instead whether that fact question is in genuine dispute as to prevent the entry of summary judgment as a matter of law. The Judgment explicitly found that uncontroverted facts established that the natural accumulation of snow or ice

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on the sidewalk where Brandes fell was general to the community at the time of Brandes's fall. Specifically, the trial court found uncontroverted that ice, snow, slush, or some combination of that wintery weather persisted: 1) on the road as [Wife] drove from her home to her daughter's home in Sedalia at 6:15 [a.m.]; 2) at [Wife's] daughter's home in Sedalia at 7:15 a.m. when [Wife] fell; 3) after 7:15 a.m. as [Wife] lay on the ground awaiting the arrival of paramedics; 4) between 7:15 a.m. and 8:00 a.m. when [Brandes] left his home in Sedalia to clean his vehicle's windshield so he could travel to the hospital; 5) on the streets between [Brandes's] home and Bothwell Regional Health Center, also between 7:15 a.m. and 8:00 a.m.; and 6) on the sidewalk outside Bothwell Regional Health Center at 8:00 a.m. Further, the Judgment found that the uncontroverted facts established that Brandes "was off work the morning of February 12, 2020[,] due to the weather." The trial court concluded that these uncontroverted facts establish that the natural accumulation of snow or ice on the sidewalk outside Bothwell "was part of weather conditions general to the community and not unique to the[] sidewalks." Brandes has not persuasively explained, by reference to the summary judgment record, how the trial court erred by characterizing the aforesaid facts as "uncontroverted." Nor has Brandes challenged that the facts identified by the trial court, if uncontroverted, support a finding that the condition of the sidewalk was consistent with the conditions in the general community. Instead, Brandes argues that, because he testified in his deposition that the snow was no longer falling when he left his home to drive to the hospital and did not need to use his vehicle's four-wheel drive or windshield wipers, the weather conditions in the area are in dispute. We have already explained that it is immaterial whether winter precipitation was falling at the time Brandes fell. It is equally

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immaterial whether Brandes had to use either his four-wheel drive or his wipers on the way to the hospital. Brandes does not controvert that the streets were, as the trial court found, impacted by snowy and slushy conditions, consistent with the condition of the sidewalk where Brandes fell. In other words, as the Judgment concluded, the uncontroverted evidence established that wintery precipitation that had naturally accumulated on the sidewalk where Brandes fell was the result of and consistent with the general weather conditions in the community. In an effort to overcome this conclusion, Brandes asserts that Bothwell was required to establish that the condition of the sidewalk where he fell was consistent with the general condition of other sidewalks in the area, and not more broadly with the general conditions in the community. Brandes cites no authority for this proposition, and it is denied. WCT & D, LLC v. City of Kansas City, 476 S.W.3d 336, 343 (Mo. App. W.D. 2015) ("[A]n appellant is required to provide relevant and available legal authority in the argument or explain why such authority is not available.") (quoting Mosley v. Grundy Cty. Dist. R-V Sch., 319 S.W.3d 510, 513 (Mo. App. E.D. 2010)). Point Two is denied. Point Three: Bothwell Did Not Assume a Duty to Remove Snow or Ice from the Sidewalk Where Brandes Fell Brandes's third point on appeal argues that if the Massachusetts Rule applies, the uncontroverted facts establish the exception to the Rule "where the property owner voluntarily assume[s] the duty to remove snow or ice either by agreement or through a course of conduct over a period of time." O'Donnell, 619 S.W.3d at 167. "On the

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summary judgment record before us, [Brandes] has failed to establish that either exception applies here." Id. at 168. As explained, the Massachusetts Rule negates a duty owed by the possessor of lands when naturally accumulated snow or ice is present on an outdoor space consistent with conditions general to the community. It thus follows that the Massachusetts Rule will no longer apply to negate a duty owed to an invitee when an outdoor space remains covered by naturally accumulating snow or ice after consistent conditions in the general community no longer exist. This is not an exception to the Massachusetts Rule, and instead describes the outer limits of the Rule's application. There will always be a temporal point following a wintery precipitation event after which a possessor of land can no longer claim that no duty is owed to an invitee to clear naturally accumulating snow and ice from outdoor spaces. In contrast, the exception to the Massachusetts Rule logically applies where the possessor of land voluntarily assumes a duty to an invitee to remove naturally accumulated snow or ice from an outdoor space even though the condition of the outdoor space is still consistent with conditions in the general community. As noted, a possessor of land can voluntarily assume a duty to remove naturally accumulating snow or ice though a duty to do so would not otherwise exist by agreement, or by a course of conduct over a period of time. Brandes does not argue that Bothwell voluntarily assumed a duty to remove snow or ice from the sidewalk where Brandes fell by contractual agreement. Instead, Brandes argues only that Bothwell voluntarily assumed a duty to remove naturally accumulating

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snow and ice on the sidewalk by a course of conduct. Brandes highlights the following uncontroverted facts: That Bothwell employs a director of facilities whose duties include taking care of Bothwell's facilities including snow removal;

That Bothwell's facilities and security teams are responsible for monitoring the parking lot and removing snow and ice; and

Sidewalks and main areas are areas of priority for snow removal that the facility and security teams try to get to first.

These uncontroverted facts do not establish the exception to the Massachusetts Rule as a matter of law. They do not describe a course of conduct over a period of time to undertake to remove naturally accumulating snow and ice while it still remains in a condition consistent with the conditions general to the community. In stark contrast, as we have already explained, the uncontroverted facts establish that at the time of Brandes's fall, the naturally accumulating snow or ice on the sidewalk was unaltered, and was in a condition that was general to the community. Because the exception to the Massachusetts Rule will only be a relevant inquiry where the natural accumulation of snow or ice on an outdoor space remains in a condition consistent with the general community, our courts have concluded that the "course of conduct" scenario for triggering the exception is only susceptible of proof where a possessor of land has "take[n] some willful action to alter the condition of the snow or ice on its premises." O'Donnell, 619 S.W.3d at 168 (citing Richey v. DP Props., LP, 252 S.W.3d 249, 252 (Mo. App. E.D. 2008) (finding no duty was assumed where defendant "did nothing to alter the condition of the steps where [plaintiff] fell")) (other citing

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references omitted). In fact, "no Missouri case has found the course-of-conduct exception to the Massachusetts Rule in the absence of actual alteration of the snow or ice on the part of the defendant." Id. The uncontroverted facts Brandes relies on do not establish that Bothwell had willfully undertaken to alter the condition of the naturally accumulated snow or ice on the sidewalk before Brandes fell. Brandes next highlights controverted facts in the summary judgment record that he claims are material to establishing the exception to the Massachusetts Rule. First, Brandes relies on the assertion in the Supplemental Facts that Bothwell's liability insurer concluded that Bothwell took reasonable actions by working diligently to treat areas of priority and keep areas of egress open. However, this "fact" does not establish when Bothwell "worked diligently" to keep areas of egress open, and thus does not address whether Bothwell had undertaken a course of conduct over a period of time to ensure that the sidewalk where Brandes fell was cleared of naturally accumulating snow or ice, though still in a condition general to the community. Instead, the controverted "fact" is supportive of application of the Massachusetts Rule as it emphasizes that despite employing diligent efforts, Bothwell had no duty to remediate the naturally accumulating condition of the sidewalk by the time of Brandes's fall because the sidewalk was in a condition general to the community. Next, Bothwell relies on the controverted assertions in the Supplemental Facts that "snow removal may have commenced at or around 7:00 a.m." on the day he fell, and that "the hospital was generally treated prior to different [Bothwell] facilities . . . because the hospital is open 24/7." But, the trial court found that even if true,

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there was no evidence that any snow removal efforts had begun where [Brandes] fell. It would be illogical to interpret the exception to the Massachusetts Rule to mean that when the possessor of premises with multiple large parking lots and many sidewalks begins to remove snow from one lot or sidewalk, it immediately loses the protection of this rule for all such areas under its control. (Emphasis in original.) The trial court reached this conclusion in reliance on the holding in Ellis v. Jurea Apartments, Inc., 875 S.W.2d 203, 207 (Mo. App. S.D. 1994), where the Southern District concluded that "[t]he fact that on the occasion when plaintiff fell, defendant had removed ice and snow at an entrance area to its manager's office did not establish a duty to remove ice from any other area." The trial court's conclusion was not legally erroneous. As noted, above, in the absence of actual alteration of the snow or ice on the sidewalk before Brandes fell, the "course of conduct" exception to the Massachusetts Rule is not established. At best, the controverted facts Brandes has highlighted establish that Bothwell had general snow removal policies. However, "[t]he existence of a snow removal policy alone does not create a duty to remove snow or ice." O'Donnell, 619 S.W.3d at 168 (quoting Medlock, 426 S.W.3d at 39 n.5). Brandes has not demonstrated that uncontroverted facts or controverted facts, if proven, establish that Bothwell voluntarily assumed a duty by a course of conduct over a period of time that would defeat application of the Massachusetts Rule. Point Three is denied.

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Conclusion The Judgment is affirmed. __________________________________ Cynthia L. Martin, Judge

All concur