The opinion
In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
MARY BETH FRYMAN, ) No. ED112690
)
Appellant, ) Appeal from the Circuit Court
) of Cape Girardeau County
v. ) Cause No. 20CG-CC00321
)
THE BOARD OF REGENTS OF ) Honorable Benjamin F. Lewis
SOUTHEAST MISSOURI STATE )
UNIVERSITY, )
)
Respondent. ) Filed: December 31, 2024
Introduction
Mary Beth Fryman sued The Board of Regents of Southeast Missouri State University
alleging claims of premises liability and negligence for a fall she suffered while walking up a set
of stairs on the Board’s property. The circuit court sustained the Board’s motion for summary
judgment, finding that the Board was immune from liability because the uncontroverted material
facts demonstrated that the alleged dangerous condition did not cause Fryman’s injury. The
circuit court’s judgment is reversed, and the case is remanded for further proceedings.
Background
While visiting Southeast Missouri State University with her daughter, Fryman was
walking up a flight of stairs when an unknown woman came up the stairs behind her quickly.
When Fryman attempted to move out of the woman’s way, Fryman tripped over her feet, and
fell. Fryman sued the Board, alleging that the steps were in a dangerous condition because they
were uneven, unmarked, steep, dark, unequal in height, slippery, and had no handrails.
After discovery, the Board filed a motion for summary judgment arguing it was entitled
to judgment as a matter of law because it was immune from liability pursuant to § 537.600,
RSMo 2016. 1 The Board argued that, because Fryman failed to provide any substantial evidence
that the stairs were in a “dangerous condition,” its sovereign immunity was not waived. In
support of its motion, the Board relied on an affidavit from one of its maintenance workers who
opined that each step was “within standard tolerances in construction practices.”
Fryman responded to the motion with an affidavit from her own expert, who opined that
the stairs were in a dangerous condition for seven distinct reasons, including that they had no
handrails and were uneven. The expert’s affidavit also stated that the dangerous conditions of the
stairs caused Fryman’s fall and injuries. The circuit court entered summary judgment in the
Board’s favor focusing on proximate causation rather than whether there could have been a
dangerous condition. The circuit court’s ruling relied on Fryman’s testimony that she fell after
tripping on her own feet. The court determined Fryman’s actions to be the sole cause of the fall
and as a result, found that the alleged dangerous condition could not be a cause of Fryman’s fall.
The circuit court, therefore, determined that because the dangerous condition did not cause her
fall, sovereign immunity was not waived.
Standard of Review
This Court reviews the grant of summary judgment de novo. Brockington v. New
Horizons Enters., LLC, 654 S.W.3d 876, 880 (Mo. banc 2022). “Summary judgment is proper
only if the moving party establishes that there is no genuine issue as to the material facts and that
1
All statutory references are to RSMo 2016.
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the movant is entitled to judgment as a matter of law.” Id. (quoting Green v. Fotoohighiam, 606
S.W.3d 113, 115 (Mo. banc 2020)). “The record below is reviewed in the light most favorable to
the party against whom summary judgment was entered, and that party is entitled to the benefit
of all reasonable inferences from the record.” Glendale Shooting Club, Inc. v. Landolt, 661
S.W.3d 778, 782 (Mo. banc 2023) (quoting Brockington, 654 S.W.3d at 880).
Analysis
Fryman raises seven points on appeal, all relating to the circuit court’s entry of summary
judgment. The primary argument in each of the seven points is that the circuit court erred in
entering summary judgment either because the issue of causation was not raised in the Board’s
motion or because genuine issues of material fact preclude the entry of summary judgment.
Because of the similarity of the points, this Court addresses them all at once.
The Board moved for summary judgment on the basis that the stairs were not in a
dangerous condition, and as a result, the Board was entitled to sovereign immunity. In response,
Fryman’s expert opined that the stairs were in a dangerous condition for seven distinct reasons,
including that they had no handrails and were uneven. Fryman’s expert’s affidavit also stated
that the dangerous conditions of the stairs caused Fryman’s fall and injuries. The circuit court
reasoned that, although Fryman’s expert’s opinions might be material to a finder of fact in
determining whether the Board’s property was in a dangerous condition at the time of the injury,
those opinions did not establish that the injury directly resulted from an allegedly dangerous
condition. As a result, the circuit court determined the Board had sovereign immunity.
“Sovereign immunity is a common law judicial doctrine barring suit against a
government or public entity.” Allen v. 32nd Jud. Cir., 638 S.W.3d 880, 886 (Mo. banc 2022).
“[S]overeign immunity applies to the government and its political subdivisions unless waived or
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abrogated or the sovereign consents to suit.” Id. (quoting Metro. St. Louis Sewer Dist. v. City of
Bellefontaine Neighbors, 476 S.W.3d 913, 921 (Mo. banc 2016)). The legislature has waived
sovereign immunity in situations where a plaintiff can establish:
the property was in dangerous condition at the time of the injury, that the injury
directly resulted from the dangerous condition, that the dangerous condition
created a reasonably foreseeable risk of harm of the kind of injury which was
incurred, and that either a negligent or wrongful act or omission of an employee
of the public entity within the course of his employment created the dangerous
condition or a public entity had actual or constructive notice of the dangerous
condition in sufficient time prior to the injury to have taken measures to protect
against the dangerous condition.
Section 537.600.1(2).
“A ‘dangerous condition’ refers to defects in the physical condition of a public entity’s
property.” Benoit v. Missouri Highway & Transp. Comm’n, 33 S.W.3d 663, 667 (Mo. App.
2000). A “physical defect in the sovereign’s property and injuries directly stemming from that
defect will subject the sovereign to tort liability.” Allen, 638 S.W.3d at 888 (quoting State ex rel.
Div. of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 616 (Mo. banc 2002)). “A
sovereign may also be subject to liability if the plaintiff was harmed by a ‘physical deficiency in
the state’s property which constituted a ‘dangerous condition.’’” Id. (quoting Alexander v. State,
756 S.W.2d 539, 542 (Mo. banc 1988)).
Fryman provided evidence of a physical deficiency in the stairs directly resulting in her
injury. Specifically, Fryman provided evidence from an expert that the stairs were defectively
designed and that the defect directly caused her injuries. If believed by a jury, these facts would
establish the necessary findings for a waiver of sovereign immunity. The Board has provided
countervailing evidence on both of these points. As a result, a genuine issue of material fact
exists that precludes summary judgment.
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Nevertheless, the Board argues that it should be entitled to sovereign immunity as a
matter of law because Fryman’s injuries did not directly result from a dangerous condition of the
stairs. Rather, she testified that she tripped over her own feet after being startled by a woman
coming up the stairs behind her. In support, the Board relies on Dale By and Through Dale v.
Edmonds, 819 S.W.2d 388 (Mo. App. 1991) and Patterson v. Meramec Valley R-III School
District, 864 S.W.2d 14 (Mo. App. 1993).
In Dale, a student and her mother brought suit against the school board for injuries the
student sustained on the school’s playground when she was hit in the eye by a piece of debris
thrown by her classmate. 819 S.W.2d at 389. Because the student’s injury was the “direct result
of the intentional conduct” of the classmate, the circuit court found “[t]he injury suffered by
plaintiff … was not the result of a defect in the School District’s property as contemplated by §
537.600 RSMo.” Id. As a result, the school was granted sovereign immunity.
In Patterson, a student was injured when a classmate struck them in the head with a piece
of asphalt. 864 S.W.2d at 15. The school was sued on the theory that the school knew or should
have known of the deteriorated pavement and broken asphalt and that if it was not left in that
condition, the student would not have been injured. Id. The circuit court dismissed the case
finding the injury was not caused by a physical defect of the property but by the intervention of
the classmate. Id. at 16-7.
The Board argues that the woman coming up the stairs behind Fryman should be likened
to the thrown asphalt and debris in Dale and Patterson. But those cases are distinguishable.
Fryman provided evidence that she fell on stairs that are alleged to have been in a defective
condition. Her testimony that she fell on her own two feet is not necessarily inconsistent with her
theories regarding the defects in the stairs, particularly given the expert affidavit connecting the
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fall to condition of the stairs. And unlike the plaintiffs in Dale and Patterson, Fryman provided
evidence that she fell on the alleged dangerous condition as it actually existed.
Fryman’s case is more analogous to Williams v. Missouri Highway & Transp. Comm’n,
16 S.W.3d 605 (Mo. App. 2000). In Williams, the plaintiff neared an intersection and noticed
that the traffic signals were out in all directions. Id. at 607. Upon reaching the intersection, she
stopped, and after determining that it was safe to proceed, entered the intersection. Id. As she
entered the intersection, another driver struck her. Id. at 607-08. The plaintiff sued the Missouri
Highway Transportation Commission alleging her injuries were proximately caused by the
dangerous condition of MHTC’s property. Id. at 608. MHTC moved for summary judgment on
the basis that the plaintiff’s claim was barred by sovereign immunity. Id. at 609. MHTC argued
that the plaintiff’s injuries were caused by the other driver’s negligence. Id. at 611. The court
reasoned that even if the other driver was negligent, the driver’s negligence alone was not
sufficient to negate the causation element of the dangerous condition exception. Id. at 612. This
Court held that “a public entity may be sued, under a waiver of sovereign immunity,
concurrently with another party at fault.” Id.
The same reasoning applies here – testimony of the woman’s actions may provide
evidence of another potential cause of Fryman’s fall but it does not eliminate the possibility that
one of the alleged deficiencies caused her fall. “The negligence of the defendant need not be the
sole cause of the injury, as long as it is one of the efficient causes thereof, without which injury
would not have resulted.” Hensley v. Jackson Cnty., 227 S.W.3d 491, 496 (Mo. banc 2007)
(quoting Oldaker v. Peters, 869 S.W.2d 94, 100 (Mo. App. 1993)). Because the record “contains
competent evidence of two plausible, but contradictory, accounts of the essential facts” a genuine
issue of material fact exists. Williams, 16 S.W.3d at 613. Whether the woman’s presence is a
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cause of Fryman’s fall is a factor for the jury to weigh in determining fault. Allen, 638 S.W.3d at
889.
Accordingly, the circuit erred in granting judgment as a matter of law because genuine
issues of material fact exist regarding the cause of Fryman’s injuries.
Conclusion
The circuit court’s judgment is reversed, and the case is remanded.
John P. Torbitzky, P.J.
Robert M. Clayton III, J., and
Michael S. Wright, J., concur.
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