# Heffernan v. Reinhold

> Missouri Court of Appeals · February 5, 2002 · 73 S.W.3d 659

URL: https://www.frixlaw.com/law-library/cases/9718438

## Case

- **Full name:** Dianna HEFFERNAN, Individually and as Next Friend for Minors, Steven Heffernan and Keith Heffernan, Plaintiffs/Appellants, v. Frederick REINHOLD, Reinhold Development Corp., Mastodon Meadows Homeowners Association, Estate of Gary Rambo, Deceased, and Christopher T. Dawidowski and Kimberly A. Dawidowski, Defendants/Respondents
- **Court:** Missouri Court of Appeals
- **Decided:** February 5, 2002
- **Citations:** 73 S.W.3d 659; 48 U.C.C. Rep. Serv. 2d (West) 126; 2002 Mo. App. LEXIS 246; 2002 WL 171319
- **Precedential status:** Published
- **Opinion:** Concurring in part by Crandall
- **Judges:** Dowd, Crandall, Crane
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9718438

## How later opinions describe it (automated extraction)

- stating that proximate cause includes conduct that is causal in fact but it would be unreasonable to base liability upon that conduct because it is too far removed from the injury
- finding that our Court can only consider those issues and theories properly raised in a party’s motion for summary judgment and the responses thereto
- noting that appellate courts may 6 address “those issues properly raised in the defendants’ motions for summary judgment and the responses thereto”

## Opinion text

WILLIAM H. CRANDALL, JR., Presiding Judge,
concurring in part and dissenting in part.
I concur in the majority opinion, which affirms summary judgment in favor of Reinhold and the Dawidowskis. I am unable to join in the majority opinion regarding Mastodon Meadows Homeowners Association, and Rambo.
The majority states that the pivotal question is whether a twelve-foot deep and fifteen-foot wide ditch is an open and obvious condition as a matter of law. I believe, however, that we need to narrow the inquiry. Certainly the size of the ditch was open and obvious, but that was not the danger. The dangerous condition, herein, was the propensity for the ditch to collapse without proper shoring. I believe that whether that condition was open and obvious is a question of fact for the jury, thus precluding summary judgment.
As to Ray Heffernan’s statement, “This is crazy. This looks dangerous,” I cannot conclude, as a matter of law that means that he realized the danger of a collapse. It is more reasonable to conclude that Heffernan would not have gone in the ditch if he thought it would collapse. I believe, at the very least, Heffernan’s appreciation of the specific danger in question is a jury question.
As to Rambo, whether he had superior knowledge and thus owed a duty to Hef-fernan is, I believe, a jury question.
For the reasons stated, I concur in part and dissent in part.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9718438. Public record. Not legal advice.