Nonetheless, landowners may be liable to invitees even when a dangerous condition is open and obvious as a matter of law “if the landowner should anticipate that the risk of harm exists even if the invitee exercises due care.” Hellmann v. Droege's Super Market, Inc., 943 S.W.2d 655, 659 (Mo.Ct.App. 1997) (en banc). In particular, in Hellmann, the Missouri Court of Appeals recognized “a landowner still bears a measure of liability where he should recognize that a person will proceed to encounter an open and obvious hazard because the benefits for the invitee and the property owner make it foreseeable.” Id.
" 679 S.W.2d at 307. In Hellmann v. Droege's Super Market, Inc., 943 S.W.2d 655 (Mo.Ct.App. 1997) (en banc), the Missouri Court of Appeals held the fact that a grocery store's icy parking lot was icy was open and obvious. 943 S.W.2d at 658. Finally, in Peterson v. Summit Fitness, Inc., 920 S.W.2d 928 (Mo.Ct.App. 1996), the plaintiff was swimming in a rectangular swimming pool that sat four feet off the floor.
When we review a motion for directed verdict, we view "the evidence and all inferences to be made from it in the light most favorable to the plaintiff."Hellmann v. Droege's Super Market, Inc., 943 S.W.2d 655, 657 (Mo. App. E.D. 1997). "We disregard all evidence and inferences to the contrary to determine if plaintiff made a submissible case." Id. Only if reasonable minds cannot differ as to the proper verdict should a court order a directed verdict.
The standard of care applicable is a question of law for the courts. Hellmann v. Droege's Super Mkt., Inc., 943 S.W.2d 655, 658 (Mo. App. E.D. 1997). Whether a defendant's conduct fell below that standard of care is a question of fact for the jury.
"Whether or not the landowner should have anticipated that an invitee would be harmed, despite an open and obvious hazard, is a matter for the jury." Hellmann v. Droege's Super Mkt., Inc., 943 S.W.2d 655, 659 (Mo.App.E.D.1997). Section 343A states: "A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, (unless the possessor should anticipate the harm despite such knowledge or obviousness)."
Seward v. Terminal R.R. Ass'n, 854 S.W.2d 426, 428 (Mo. banc 1993). The prevailing party is entitled to the benefit of all reasonable inferences favorable to the verdict, while any unfavorable inferences are disregarded. Garrett v. Overland Garage Parts, Inc., 882 S.W.2d 188, 190 (Mo. App. E.D. 1994); Hellmann v. Droege's Super Market, Inc., 943 S.W.2d 655, 657 (Mo. App. E.D. 1997). "In determining whether the evidence was sufficient to support a jury instruction, the evidence is viewed in the light most favorable to the offering party, and we give the offering party the benefit of all reasonable inferences" (citations omitted). Id.
Landowners are entitled to expect that its invitees will “exercise ordinary perception, intelligence and judgment, discover [an] obvious condition, appreciate the risk it presented, and take the minimal steps necessary to avert a tragedy.” Hellmann v. Droege's Super Market, Inc., 943 S.W.2d 655, 659 (Mo.App.1997).
Missouri courts define an open and obvious condition as one that is conspicuously noticeable. See Hellmann v. Droege's Super Market, Inc., 943 S.W.2d 655, 657-68 (Mo. Ct. App. E.D. 1997) (whether ice on a parking lot is open and obvious given winter storms the week before is a jury issue); Harris, 857 S.W.2d at 227 (sloping road leading to lake is open and obvious); Seymour v. Lakewood Hills Ass'n, 927 S.W.2d 405, 410 (Mo. Ct. App. 1996) (tree located in the middle of the road was "clearly visible from the end of the street" even though driver backed truck into tree); Heffernan v. Reinhold, 73 S.W.3d 659, 666 (Mo. Ct. App. 2002) (twelve-foot deep and fifteen-foot wide ditch is open and obvious). The invitee does not need to actually see the condition for it to be open and obvious.
"[W]hen the dangerous condition is so open and obvious that the invitee should reasonably be expected to discover it and realize the danger, a possessor of land does not breach the standard of care owed to invitees ‘unless the possessor should anticipate the harm despite such knowledge or obviousness .’ " Harris v. Niehaus , 857 S.W.2d 222, 226 (Mo. banc 1993) (emphasis added) (quoting Restatement (Second) of Torts, § 343A(1) (1965) );see alsoHuxoll v. McAlister's Body & Frame, Inc. , 129 S.W.3d 33, 36-37 (Mo. App. 2004) ; Holzhausen v. Bi-State Dev. Agency , 414 S.W.3d 488, 498 (Mo. App. 2013) ; Hellmann v. Droege's Super Mkt., Inc. , 943 S.W.2d 655, 659 (Mo. App. 1997) (finding that, while an icy parking lot was an open and obvious condition, the defendant supermarket should have anticipated risk to customers and had a duty to warn or remedy the situation). Comment f to § 343A recognizes:
Id. The exception to the "open and obvious danger" rule applies where a landowner should foresee that invitees, even if using reasonable care, would not appreciate the danger associated with the risk or would be unable to protect themselves from it. Id. at 227; Hellman v. Droege's Super Mkt., Inc., 943 S.W.2d 655, 658-59 (Mo. App. 1997). The facts here do not fit within this exception.