                               Missouri Court of Appeals
                                          Southern District
                                              Division Two


AMANDA MEDLOCK and                                    )
SAM MEDLOCK,                                          )
                                                      )
         Plaintiffs-Appellants,                       )
                                                      )
vs.                                                   )        No. SD32776
                                                      )
ST. JOHN'S HEALTH SYSTEM, INC.,                       )        Filed April 4, 2014
and ST. JOHN'S CLINIC, INC.,                          )
                                                      )
         Defendants-Respondents.                      )

             APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                      Honorable Daniel W. Imhof, Associate Circuit Judge

AFFIRMED

         Amanda Medlock and Sam Medlock, her husband (collectively “the Medlocks”),

appeal the trial court’s grant of summary judgment against them and in favor of St.

John’s Health System, Inc., and St. John’s Clinic, Inc. (collectively “St. John’s”), on their

petition alleging premises liability and loss of consortium. The Medlocks’ petition stems

from an incident that occurred when Amanda1 slipped and fell on an “icy sidewalk”

outside the Smith-Glynn Callaway Clinic (“Smith-Glynn”) in Springfield, Missouri, a




1
  The use of Amanda Medlock’s first name in this opinion is for clarity of reference and is not intended to
indicate any disrespect or familiarity.
facility owned and operated by St. John’s. Finding that summary judgment was

appropriate, we affirm.

                       Uncontroverted Facts and Procedural Background

           On January 26, 2009, Amanda, accompanied by Heather Pickett, took Amanda’s

daughter to Smith-Glynn for a pediatrician appointment. During their drive from the

Fordland, Missouri, area to Smith-Glynn, Amanda observed that freezing rain started to

fall as they entered Springfield and continued to fall upon their arrival at Smith-Glynn at

around 3:00 p.m. At that time, ice had accumulated on the cars in the parking lot;

however, ice had not yet formed on the parking lot itself or the sidewalk leading to the

entrance of Smith-Glynn, which instead was merely wet.

           Amanda entered Smith-Glynn without incident, and the scheduled appointment

lasted between an hour and an hour and fifteen minutes. Freezing rain was falling outside

Smith-Glynn following the appointment, as Amanda and Pickett exited the building.

Pickett noticed ice accumulating on the sidewalk. St. John’s had a policy addressing ice

and snow removal2; however, according to Pickett’s observations, no salt or anything else

had been applied to the ice at that time. While traversing the sidewalk, Pickett warned

Amanda, who had not observed the condition of the sidewalk, that there was ice and that

it was slick. At about the time of Pickett’s warning, Amanda slipped and fell on the ice.

           The Medlocks filed suit against St. John’s, alleging that St. John’s “failed to use

ordinary care in making the property reasonably safe[.]” Specifically, the Medlocks

2
    This policy provided:
           All sidewalks, outside stairs, driveways and parking facilities are cleared with snow
           removing equipment whenever snow and ice are present, or as instructed by the Director
           of Maintenance and Engineering. During winter months as weather dictates, areas are
           inspected for ice, snow, and slippery spots. Whenever areas are found they are
           immediately treated with salt, chemical ice melts, nitrogen, or sand. The primary goal for
           facility upkeep is patient, visitor and employee safety with additional functions including
           convenience and facility appearance.


                                                       2
alleged that St. John’s failed to (1) properly remedy the icy sidewalk, (2) warn of the icy

sidewalk, and/or (3) barricade the icy sidewalk. By way of its answer, St. John’s

affirmatively alleged that it “owe[d] no duty to remove, warn, or barricade against any

accumulation of ice on which [Amanda] alleges she fell because such ice was a natural

accumulation as a result of the general weather conditions in the community.”

       St. John’s filed a motion seeking summary judgment. In its suggestions in

support, St. John’s argued that the undisputed facts showed that the alleged icy sidewalk

was solely the result of a natural accumulation of ice. Under Richey v. DP Properties,

252 S.W.3d 249, 251–52 (Mo.App. 2008), and Milford v. May Department Stores Co.,

761 S.W.2d 231, 232 (Mo.App. 1988), St. John’s contended that it had no duty to

remediate against a natural accumulation of ice.

       The trial court granted St. John’s motion for summary judgment and entered

judgment accordingly. The Medlocks now timely appeal.

                 Applicable Principles of Review and Governing Law

       For summary judgment to be appropriate, the moving party—St. John’s in this

case—must have demonstrated that there is no dispute as to the material facts and that it

was entitled to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid–Am.

Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). More specifically, “[a]

‘Defending Party,’ as that term is used in Rule 74.04(b), may establish a right to

summary judgment by showing ‘that there is no genuine dispute as to the existence of

each of the facts necessary to support the movant’s properly pleaded affirmative

defense.’” Buchheit, Inc. v. Tiller-Cohen Farm, L.P., 391 S.W.3d 888, 890 (Mo.App.

2013) (quoting ITT Commercial Fin. Corp., 854 S.W.2d 371 at 381).




                                             3
       As relevant here, “[t]he premises liability theory of negligence provides that a

landowner owes an invitee the duty to use reasonable and ordinary care to prevent injury

to the invitee as the result of a dangerous condition existing on the premises.” Cossey v.

Air Sys. Int'l, Inc., 273 S.W.3d 588, 590 (Mo.App. 2009). However, Missouri

recognizes an exception to this general duty of care, which is informally known as the

“Massachusetts rule.” Willis v. Springfield Gen. Osteopathic Hosp., 804 S.W.2d 416,

419 (Mo.App. 1991). Under this exception, “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. A duty to exercise ordinary care does

exist, however, where one is obligated to remove snow and ice either by agreement or a

course of conduct over a period of time. Id.

                                        Discussion

       At the outset, we note that counsel for the Medlocks quite commendably

acknowledged during oral argument that the record in this case does not compel reversal

of the trial court’s grant of summary judgment, unless we abrogate the Massachusetts

rule. We agree.

       Under the Milford case, cited by and relied upon by St. John’s, “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[.]” Milford, 761 S.W.2d at 231 (affirming judgment

notwithstanding the verdict in favor of defendant in “slip and fall” case). Here, the

uncontroverted facts reveal that freezing rain was falling upon Amanda’s arrival at

Smith-Glynn. Ice had not yet formed on the sidewalk in question at that time. Between

an hour to an hour and fifteen minutes later, freezing rain continued to fall, and, as she

left the building, Pickett observed ice on the sidewalk where Amanda ultimately slipped


                                               4
and fell. The record contains no evidence that this ice was caused by anything other than

the ongoing freezing rain or that it was altered in any way from its natural state.3 As

stated by the Milford court:

         To 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. A duty cannot impose an “obligation which is not
         within the actor’s ability to perform, since it relates to the actor’s conduct
         over which as such he had control.”

Milford, 761 S.W.2d at 232 (quoting RESTATEMENT (SECOND) OF TORTS § 4, comment a

(1965)).

         Milford supports the conclusion that St. John’s had no duty to make the icy

sidewalk upon which Amanda slipped and fell safe under circumstances where the ice

had formed as a result of freezing rain that had not yet abated. 4 See id. at 232. Further,

the Medlocks concede that under Richey, 252 S.W.3d at 252, St. John’s was not

obligated to remove the ice by virtue of its snow and ice removal policy alone.5


3
  St. John’s alleged in its statement of uncontroverted facts that there were no indentations, footprints, or
changes of any kind to ice upon which Amanda ultimately slipped and cited Pickett’s deposition testimony
in support. In their response, the Medlocks denied St. John’s allegation, alleging that “[Pickett] was
walking in front of [Amanda] on the sidewalk where [Amanda] fell, so the ice contained at least the
changes cause by [Pickett’s] footprints.” In support of this allegation, the Medlocks cited the deposition
testimony of Amanda and Pickett, wherein both testified in some fashion that Pickett was walking ahead of
Amanda immediately prior to her fall. As conceded by counsel for the Medlocks however, this testimony
offers no support to the proposition that Pickett changed the natural characteristics of the ice by walking on
it and that Amanda slipped on the exact location allegedly altered by the footsteps of Pickett. See generally
Loyd v. Levin, 413 S.W.2d 540, 543-44 (Mo.App. 1967) (discussing pleading and proof requirements in
order for footprints to give rise to a duty to remove snow). Therefore, the Medlocks have raised no genuine
factual dispute with the aforementioned allegation. See ITT Commercial Fin. Corp., 854 S.W.2d at 378
(“‘Genuine’ implies that the issue, or dispute, must be a real and substantial one—one consisting not
merely of conjecture, theory and possibilities.”).
4
  We see no meaningful factual distinction between Milford and the instant case regarding the fact that the
“slip and fall” in Milford occurred on an open-air parking lot rather than, as with the instant case, an open-
air sidewalk.
5
  The existence of a snow removal policy alone does not create a duty to remove snow or ice. Richey, 252
S.W.3d at 252 (citing Gorman v. Wal-Mart Stores, Inc., 19 S.W.3d 725, 732 (Mo.App. 2000)). Unlike the
situation in Maschoff v. Koedding, 439 S.W.2d 234 (Mo.App. 1969), mentioned by the Medlocks in their
reply brief, Amanda had no contacts with St. John’s whereby St. John’s could be found to have contracted
to remove ice or snow from the Smith-Glynn premises. Compare Maschoff, 439 S.W.2d at 237, with
Willis, 804 S.W.2d at 422. Further, the summary judgment record contains no evidence that St. John’s
undertook any action to alter the condition of the ice outside Smith-Glynn. Here, the summary judgment


                                                      5
Therefore, as a matter of law, St. John’s was under no duty to exercise reasonable and

ordinary care to prevent Amanda’s fall.

         While this outcome under the Massachusetts rule as it has been applied in

Missouri was conceded by the Medlocks’ counsel during oral argument, he made clear

that the thrust of the Medlocks’ appeal was to offer this Court an invitation to discard the

Massachusetts rule. The better approach, he argues, is to extend the general duty to use

reasonable care to prevent injury to the removal of all accumulations of snow and ice,

without regard to whether they occurred “naturally as a result of general weather

conditions within the community.”6

         In considering this invitation, we recognize that the Massachusetts rule has a

long-standing, well-established history in Missouri law. What we have referred to as the

Massachusetts rule made its debut in Woodley v. Bush, 272 S.W.2d 833 (Mo.App. 1954),

a landlord-tenant case. See also Maschoff v. Koedding, 439 S.W.2d 234, 237 (Mo.App.

1969) (attributing the adoption of the Massachusetts rule in Missouri to Woodley).

Shortly thereafter, in Everett v. Wallbrun, 273 S.W.2d 751 (Mo.App. 1954), the rule was

expanded to include invitors and employers. In adopting this rule, the Woodley court

noted that, as recognized by our Supreme Court, municipalities already enjoyed the

following duty-of-care exception:

         “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.”


record only contained evidence that St. John’s had a policy to remove snow and ice, which, as already
stated, was insufficient to invoke the exception to the Massachusetts rule. See Richey, 252 S.W.3d at 252.
6
  Many of the policy arguments advanced by counsel for the Medlocks in support of this argument can be
found in the decision Papadopoulos v. Target Corp., 930 N.E.2d 142 (Mass. 2010), wherein the supreme
court of the state for which the Massachusetts rule was informally named abrogated its version of the rule.


                                                     6
Woodley, 272 S.W.2d at 835 (quoting Walsh v. City of St. Louis, 142 S.W.2d 465, 466

(Mo. 1940)).

       As observed in Woodley and reiterated and expanded upon in Everett,

municipalities, landlords, invitors, and employers all share the same duty with respect to

their property—to exercise reasonable and ordinary care to remedy dangerous conditions.

See Woodley, 272 S.W.2d at 835; Everett, 273 S.W.2d at 752–53. Therefore, “[t]he

degree of care required being the same in the case of landlord, municipal corporation,

invitor, and employer, it follows that the liability of one is no greater than that imposed

upon the other.” Everett, 273 S.W.2d at 753. Relying upon Walsh in its analysis, the

court concluded that “[t]he hazards which all are required to protect against must be to

some extent greater than those common to the general community[.]” Id.

       As the foregoing makes clear, the Massachusetts rule, as applied in Missouri,

harmonizes the liabilities of landlords, municipalities, invitors, and employers—all of

which share the same general duty of care. The passage of time has not made this

rationale any less sound today than it was when Woody and Everett were decided in

1954. In our view, if the Massachusetts rule were to be reconsidered as it applies to

invitors, as in this case, such reconsideration should also include examination of the

municipalities exception upon which the rule’s adoption was based. However, this Court

has no authority to review the exception for municipalities as laid out in Walsh, 142

S.W.2d at 466, because we are bound by the pronouncements of our Supreme Court. See

MO. CONST. art. V, § 2. We, therefore, decline the Medlock’s invitation to discard the

Massachusetts rule. The Medlocks’s point on appeal is denied.

                                          Decision

       The judgment of the trial court is affirmed.


                                              7
GARY W. LYNCH, J. - Opinion author

DON E. BURRELL, J. - concurs

MARY W. SHEFFIELD, J. - concurs




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