Employee testified on her own behalf. She is a very pleasant, welleducated lady who I find to be very credible. She was born in Ireland and came to the United States at the age of 16 to enter a convent. She has spent the last 26 years working as a professor at the Missouri State University where she teaches Latin, Greek and Hebrew, along with other classical classes. She testified that in addition to her classroom work she spends several hours a day doing other work activities, including grading papers, responding to students' emails as well as other various tasks. Employee testified that she has to walk a lot on the campus of Missouri State University while performing her job. She testified she parks in the parking lot on the corner of Grand and National. Pictures of her parking lot were admitted into evidence as Exhibits 23, 24, and 25. Employee testified she parks far away in the parking lot to give herself more exercise. She also testified that during the school year she walks more at work and for work than she does personally. However, she also walks personally, sometimes going to the mall to walk if the weather is bad.
Employee testified she typically goes back to England and Ireland every other summer. She most recently went to England, Ireland and Israel the summer of 2017, just months after sustaining her accident, which is the subject of this workers' compensation claim. On that excursion she traveled by herself, flying from Springfield to Chicago to Heathrow to Dublin to Tel Aviv, and then back in the same order.
Employee testified that during the school year outside of work she does other normal household activities, including laundry and shopping, housekeeping and lecturing occasionally. She also attends church on a daily basis, going to Holy Trinity Catholic Church every day of the week except Wednesday, when she attends at St. Elizabeth Ann Seaton Church. Employee testified she typically does her grocery shopping at Walmart located on South Campbell.
Employee:
Injury No
On the date of the injury, Employee left Missouri State University campus and had driven to the Glen Isle Center where she went to the post office on some sort of personal errand. While she was at the Glen Isle Center she decided to visit some colleagues from Missouri State University whose offices were located in the Glen Isle Center. After leaving the post office she drove her car across the parking lot of the Glen Isle Center to the other end to be near the door of the Missouri State University offices. At the time she was going into the Missouri State offices she was going to talk with Guy Weber regarding something work related.
After parking her car and exiting her car Employee tripped on a parking island in the parking lot of the Glen Isle Center while walking toward the Missouri State University offices. Pictures were offered into evidence of the area near where Employee fell, including Employee's Exhibits 16 - 19, and 22. Employer also offered Exhibits showing where Employee fell, which include particularly the last page of Exhibit A, which was taken the day of Employee's fall by a responding officer. Through Employee's expert, Bruce Moore, further pictures of the area where Employee fell were offered as Exhibit 37. Through Employer's expert, Wes Wright, further pictures of the parking lot in which Employee fell were offered as Exhibit DD.
In looking at the picture taken most closely in time to the actual fall, Employee believes that she fell behind the gray car depicted on the fourth page of Employer's Exhibit A. Showing another angle of the same area, specifically where she fell, is picture 4 in Employee's Exhibit 37. Employee testified she was walking behind what is the red car in this picture and tripped over the portion of the parking island painted in yellow sticking out farther than the bumper of the red car depicted in picture 4 of Employee's Exhibit 37. Employee testified she did not see the parking island, or sidewalk as she called it, and lost her balance and fell onto the parking island. She testified she hit her foot against the curb and fell. She testified she did not see the curb and in the fall she broke her wrist. After the fall she looked at her arm, saw her broken wrist, and fainted.
Employee was taken by ambulance to Mercy Hospital where she later underwent surgery the next day for her broken wrist.
The undersigned observed the scar on Employee's wrist, should benefits be awarded in this case, and the undersigned determined three weeks of disfigurement would be assessed for the scar on Employee's wrist.
Employee testified currently she does not use her left hand very much. She has difficulty holding some things and now has trigger finger in the long
Employer:
Injury No
finger on her left hand. She testified the weakness in her left wrist is greater than the pain and she has had no pain in the last three weeks, although it does hurt from time to time. She testified that her 2 lb . prayer book is difficult for her to hold at times, and she does not use her left hand or wrist very much. Employee testified she is right hand dominate.
Employee identified some of the pictures offered into evidence by her counsel, including the picture of St. Elizabeth Ann Seaton Church where she worships on Wednesdays as well as other days occasionally, and the picture of her home. Employee testified with respect to Dillard's. She does not typically shop there, but may have parked in the parking lot near Dillard's to get to the mall where she walks sometimes. She further testified she occasionally goes to the Bank of America and may have been at the Bank of America portrayed in Employer's Exhibit CC on occasion.
Employee identified Employer's Exhibit B as being an email chain from her whereby she answered specific questions related to her fall on February 27, 2017, two weeks after her fall. She testified that in answer to the question as to if she was carrying anything at the time, she answered she was carrying only her handbag, which she testified was personal. In answer to the question of whether or not she was in a hurry, she admitted she was not in a hurry and answered as such in February 2017. In answer to the question as to whether weather was a factor in her fall, she answered in February 2017 that weather was not a factor, and agreed with that at the hearing as well. In answer to the question as to "what do you think caused your fall?" she agreed she answered "I lost my balance as I turned to head towards the building" And in answer to the question of "Was there anything defective in the area?" she agreed she answered "No! I missed a small curb that was clearly marked" (Employer's Exhibit B). She testified similarly on both issues at the hearing.
Employee testified she uses the United States Post Office at Glen Isle Center on occasion for personal needs when the post office on the Missouri State University campus is closed or does not have what she needs.
Employee also testified she shops at the Walmart on South Campbell. Pictures of the parking lot at that Walmart were offered as Employee's Exhibits 29-32, and Employer's Exhibits G and F. Employee also admitted to having utilized the Urgent Care Clinic at Smith Glynn Callaway Clinic. Exhibits showing Smith Glynn Callaway Clinic's parking lot was admitted as Employer's Exhibits H-L. Employee also testified she banks at the U.S. Bank on North Glenstone. Pictures of this parking lot were entered into evidence as Employer's Exhibits M and N.
Employee also testified she attends church and other functions at St. Elizabeth Ann Seaton Catholic Church, pictures of their parking lot were put into evidence as Employee's Exhibits 26-28, and Employer's Exhibits O-S. Employee also testified she attends church daily, with the exception of Wednesdays, at Holy Trinity Catholic Church. She testified Employer's Exhibits T-Z depicted the parking lot at Holy Trinity Catholic Church.
Employee testified she goes to the U.S. Post Office on Glenstone, the U.S. Bank on Glenstone, the Walmart Super Center on Campbell and Walnut Lawn, Smith Glynn Callaway Clinic on South National, St. Elizabeth Ann Seaton Catholic Church, and Holy Trinity Catholic Church in her normal non-employment life. Employee testified she drives herself wherever she goes.
Employee called Bruce Moore, professor of architecture at Drury University, as an expert in her case. Mr. Moore has two degrees. One is a bachelor of science in architecture, and the other is a master of architecture. He currently teaches architecture and specifically a design studio which is application based at Drury University. He has been a professor for approximately
34 years.
Mr. Moore testified he is familiar with areas of parking lot and building codes that have a requirement to do with egress, specifically how to get safely away from a building. Mr. Moore testified he has experience with parking lots and the level of safety that they exhibit.
Mr. Moore testified "the path" and the condition of "the path," include how level it is, if there any changes in the slope of it, what is the color and the placement of color, is there contrast, how noticeable are any changes in the surface, and how visible are placements of any changes in the surface level.
Mr. Moore testified a level pathway can have no more than $1 / 4 inch of difference in it. If there is greater than 1 / 4$ inch it needs to have some sort of treatment on it, unless it is a curb or a step. He testified if it is greater than 1 inch incline it would need to have a ramp.
Mr. Moore testified about Exhibit 37, which are pictures he took of the parking area where Employee fell. These were taken in April 2018. He testified the islands depicted in the picture, and particularly the parking island where Employee fell, are put in parking lots to coordinate movement and help with traffic and pedestrian flow. He believes photo 4 of Exhibit 37 shows best where he understands Employee fell. He understands she fell on the far end of the island as she was walking towards the building. He testified
Employec:
Injury No
that the curb was treated with high contrast of bright yellow paint. He said that the middle portion of the island was mechanically built, but the ends of the island which curve were made by hand.
Looking particularly at picture 4 of Exhibit 37, Mr. Moore testified that the edge of the curb near where Employee fell is at an angle instead of going straight up and down like the mechanical portions of the curb do, as seen best on picture 7. He also did measurements of the curb and found, as depicted in pictures 13-16, that the side of the parking island closest to the building was 6 inches tall, as seen in pictures 13 and 14 , yet the far end of the curb and the side of the curb furthest away from the building, as depicted in pictures 15 and 16 , was 7 inches tall. Mr. Moore did admit that the pictures and the measurements he took, depicted in pictures 13-16, were done with him holding the tape measure and holding the camera, and that the camera did not sit on a specific stand or anything that would hold the camera at the same level in each picture. Mr. Moore also admitted that it appeared particularly in picture 15 that the tape measure was held much further away from the curb than it was in pictures 13 and 14 . He further agreed that angling of the camera and placement of the tape measure could have some effect on the measurements depicted in the pictures.
Mr. Moore testified he did not believe there were more parking islands in the parking lot where Employee fell than in any other parking lot. He also testified that more parking islands in a parking lot typically lead to a safer parking lot. Mr. Moore testified that the one inch height difference in the area of the parking island curb where Employee fell was unusual and unexpected.
On cross-examination, Mr. Moore testified parking islands are not unusual. He also testified the angle at the end of the parking lot curb, as depicted in picture 4 of Employee's Exhibit 37, would be kinder to cars should a car cross over the parking island. He testified there is no specific requirement as to the height of curbing or a parking island in Springfield, although most are generally 6 inches and are certainly 6 inches if they are public works projects.
Mr. Moore testified that the coloring and contrast on the parking island curb in the area where Employee fell was reasonable and very bright. Mr. Moore testified he did not know why Employee fell or if the difference between the 6 inches versus 7 inches that he noted in the height of the parking island contributed to her fall at all. He agreed that hypothetically if she did not see the curb and fell because of that, it would not matter if the curb was 6 or 7 inches tall.
Employee:
Mr. Moore testified he did not observe any other parking lots or curbs that Employee may encounter in her daily life. In reviewing Employer's Exhibits C-Z, which were the pictures of the parking lots Employee goes to in her non-employment life, Mr. Moore found safety issues with all. Particularly in Exhibits F and G from Walmart, he noticed that the curbs on the parking islands were not contrasted at all. He also testified the parking islands in the Walmart lot where Employee shops would be less safe for pedestrians in a lot of ways than where Employee fell.
In reviewing Employer's Exhibits H-L, the pictures from Smith Glynn Callaway Clinic, Mr. Moore testified the curbs and parking islands, while well contrasted in color, have problems. Particularly the islands shown in Employer's Exhibits J and K are not a safe installation, in his opinion, given how they specifically slope to the ground.
Mr. Moore was particularly taken aback by Employer's Exhibits N and M, which show the parking island curbs at the bank where Employee personally banks. While noting that the parking islands are planted to try to discourage egress across the parking islands, the curbs themselves are in very bad shape, particularly as shown in Employer's Exhibit M where a piece of curb is completely displaced. He testified this parking lot and these islands are particularly less safe than that in the parking lot where Employee fell, and are indeed not safe.
In reviewing Employer's Exhibits O-S, which are pictures taken of the parking lot at St. Elizabeth Ann Seaton Church, Mr. Moore pointed out none of the parking islands have color contrast and that, indeed, the parking apron which goes down from the curb onto the ground is the same color as the curb itself, which causes concern. He also testified it appeared that perhaps the end curbs on the parking islands, particularly noted in Employer's Exhibit P, are like the parking island where Employee fell and appear to be sloped down to the ground instead of straight up and down. Mr. Moore testified that there are deficiencies in the parking islands at St. Elizabeth Ann Seaton Church equally, if not worse, than those he found at the parking lot where Employee fell.
In reviewing Employer's Exhibits T-Z, which depict the parking islands found at Holy Trinity Catholic Church and is the church where Employee goes six days a week, Mr. Moore testified that particularly Exhibit U shows no contrast whatsoever in the curbing around the island versus the ground, which is a problem. He noted it appears that the only contrast on any of the parking island curbs at Holy Trinity Catholic Church are where there is a fire lane as depicted by Employer's Exhibits V, W and Y. He also noted a corner