Dales S. Hutson v. BOT Investment Company

Premises liability case in which Plaintiff, an invitee,
fell on Defendants' property.

BOT Investment Company (BOT), a real estate development firm,
built a retail store in Salem, Missouri, and then leased it to
Wal-Mart Stores East, Inc. (Wal-Mart).[fn2] The leased premises
included a building, paved parking lot, and an adjacent "grassy
area" where, on November 25, 1988, Plaintiff fell.

The day after Thanksgiving, Plaintiff went shopping at
Wal-Mart's Salem store with his children (Andrew, age nine, and
Andrea, age two). Plaintiff parked his car on Wal-Mart's
parking lot near the edge of the lot so that the passenger side
of Plaintiff's car was within four or five inches of the curb.
Consequently, anyone entering or exiting the vehicle on the
passenger side had to step into an adjacent unpaved area.
Plaintiff testified that this adjacent unimproved land contained
a lot of "grassy areas and . . . weeds" and that there were
"different types of debris scattered . . . around that area."

When Plaintiff and his children returned to their car after
shopping, Plaintiff placed their purchases in the back seat of
the car via the driver's-side rear door. Plaintiff then walked
around the car to the curb with Andrea, intending to place
Andrea in the car on the passenger's side. As Plaintiff
approached the curb, he looked down "to see if there was any
obstructions or anything in the way." He then picked up Andrea,
glanced "down for a brief second," and stepped over the curb
with his right foot. When Plaintiff transferred his weight to
his right foot in the grass, something moved under his foot and
caused him to fall. Except for his right foot - which was
prevented from rotating freely by the curb - Plaintiff's body
was partially turned when he fell. As he fell, Plaintiff felt a
long rip and tear in his right ankle, and he immediately
experienced great pain.

Afterward, as Plaintiff lay on the ground trying to figure out
what had happened, he observed "an old . . . 16-ounce Pepsi
bottle" nearby. He explained that the bottle appeared to have
been imbedded in the ground "a half inch to an inch deep" and
hidden under grass where he could not see it. Plaintiff
concluded he had "kicked it . . . from underneath the grass" as
he "came off of the curb."

The jury returned a verdict for Plaintiff, set his damages at
$100,000, and assessed him with twenty percent of the fault.
The jury found that Plaintiff's wife did not suffer damages as a
result of Plaintiff's injury.

Unknown

Unknown

Affirmed in part and reversed and remanded in part by the Missouri Court of Appeals. Note: The date shown above is not the trial date but the date of the appellate court decision.