Plaintiff appeals from the judgment entered on a jury verdict in favor of defendant building owner in a slip and fall case. Plaintiff contends that the trial court erred in directing a verdict in defendant’s favor at the close of plaintiffs case on his claim that loose yellow caution tape caused his fall and in submitting an improper verdict director on his negligence per se claim. We affirm.
Plaintiff, Ralph Arnold Burns, Jr., 1 and his wife, Olivia Catherine Busken Burns, filed a lawsuit against a commercial building owner, now known as Frontier II Properties Limited Partnership (“defendant”), and Sarofim Realty Advisors, Inc. (“Sarofim”) (jointly, “defendants”). Plaintiff sought damages for personal injuries suffered as a result of a fall down the garage steps while carrying a box. Mrs. Burns sought damages for a loss of consortium, which claim was dismissed because of her subsequent death.
Plaintiff alleged that defendants were negligent in creating or allowing three conditions that led to his fall. The first was that defendants had allowed yellow warning tape tied to the stairway to become loose, and his feet became entangled in it. Next, he alleged that the center of the bottom tread of the stairs was canted three degrees from horizontal and there was a variation in the height of adjacent risers exceeding permissible limits under the Building Officials and Code Administrators (“BOCA”) code regulations in effect in Clayton, Missouri. Third, he alleged that the treads of the stairway and platform failed to have a slip-resistant surface required by BOCA.
On January 22, 2002, plaintiff dismissed Sarofim and proceeded to trial against de
Under his first point, plaintiff argues that the trial court erred in granting the motion for directed verdict because he adduced sufficient evidence to make a sub-missible case that the yellow caution tape caused his fall. To establish an owner’s premises liability under plaintiffs theory of negligence, an injured invitee must show: (1) a dangerous condition existed on defendant’s premises which involved an unreasonable risk; (2) the defendant knew or by using ordinary care should have known of the condition; (3) the defendant failed to use ordinary care in removing or warning of the danger; and (4) the plaintiff sustained injuries as a result of such condition.
Rycraw v. White Castle Systems, Inc.,
The trial court gave two reasons for granting defendant’s motion for directed verdict: that there was insufficient evidence to show that the tape caused plaintiffs fall and that there was no evidence indicating defendant had notice of a defective condition created by the tape. We do not reach the issue of whether the trial court erred in determining that plaintiff failed to make a submissible case on causation because plaintiff did not challenge the trial court’s finding that plaintiff failed to make a submissible case on notice, another essential element. Plaintiffs failure to make a submissible case on notice is fatal to plaintiffs premises liability claim. Because plaintiff has not challenged this finding, we must deny this point.
See Kratky v. Musil,
For his second point plaintiff contends that the trial court submitted an erroneous verdict director on his second theory of negligence, which was a claim of negligence per se. The court gave an instruction based on the elements contained in MAI 22.03 that described the BOCA Code violation in the first element and eliminated the third element (that defendant failed to use ordinary care), but retained the second element that required the jury to find that defendant had actual or constructive notice of the alleged defective condition. Plaintiff argues that the trial court should have given an instruction limited to the elements contained in MAI 17.17, the verdict director for per se negligence arising from an improper vehicle turn.
Negligence per se arises when the legislature pronounces in a statute what the conduct of a reasonable person must be, whether or not the common law would require similar conduct,
Monteer v. Prospectors Lounge, Inc.,
When a case based on negligence per se is submitted to the jury, the standard of care is omitted because the statutory violation itself constitutes a breach of the standard of care.
If an instruction requires the jury to find propositions which, if true, establish that defendant was negligent per se, or as a matter of law, then the instruction is valid without the additional requirement that the propositions, if found, constitute negligence. In such case the law draws the conclusion, for if the jury find them no other result than negligence could be found.
Calderone v. St. Joseph Light & Power Co.,
MAI illustrates such a submission in motor vehicle cases. In the two model instructions based on negligence per se, MAI 17.11 and MAI 17.18, the element “defendant was thereby negligent,” which appears in the other motor vehicle instructions based on negligence, is omitted. Although there are no MAI instructions for negligence per se in other kinds of actions, when negligence per se is the basis of liability in those actions, the MAI instruction for that action is still applicable; only the element of negligence, or breach of the standard of care, is removed.
See, e.g., Calderone,
The trial court did not err in submitting a verdict director that included the element of notice. Point two is denied.
The judgment of the trial court is affirmed.
Notes
. Virginia Ann McNally Burns, the personal representative of the estate of Ralph Arnold Burns, Jr., is substituted as the appellant in place of plaintiff, Ralph Arnold Burns, Jr., who died on March 1, 2003.
. Several underlying questions are not before us. First, plaintiffs theory of negligence per se was not based on a violation of a statute but a violation of an ordinance adopting the BOCA Code. In order for negligence per se to be based on an ordinance, the ordinance must be consistent with common law.
Mediq PRN Life Support Services, Inc. v. Abrams,