# Cain v. Missouri Highways & Transportation Commission

> Supreme Court of Missouri · December 4, 2007 · 239 S.W.3d 590

URL: https://www.frixlaw.com/law-library/cases/9758248

## Case

- **Full name:** Hortense CAIN, Respondent, v. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Appellant
- **Court:** Supreme Court of Missouri
- **Decided:** December 4, 2007
- **Citations:** 239 S.W.3d 590; 2007 Mo. LEXIS 169; 2007 WL 4235427
- **Precedential status:** Published
- **Opinion:** Concurring in part by Teitelman
- **Judges:** Michael A. Wolff
- **Cited by:** 14 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/9758248

## Opinion text

RICHARD B. TEITELMAN,
Judge, concurring in Part and dissenting in Part.
I respectfully dissent from the majority opinion with respect to the analysis of the jury instruction issue. On the remaining issues, I concur.
As the majority points out, the MAI instruction at issue requires a description *598 of the dangerous condition that made the public entity’s property unsafe. The MAI provides that “oil on the gymnasium floor” and “the table saw was unguarded” are examples of proper descriptions of an alleged dangerous condition. The dangerous condition described in the contested instruction was that “the tree was being cut down....” Just as oil on the gymnasium floor creates a dangerous condition because it may cause someone to slip and fall, the process of cutting down a tree creates a dangerous condition for the simple reason that it might fall on someone. In this case, the dangerous condition that resulted in Ms. Cain’s injury was, as the instructions plainly provided, the fact that “the tree was being cut down.... ”
The majority concludes that the fact that the tree was being cut down does not sufficiently describe the dangerous condition, but indicates that the instruction would pass muster if it had allowed the jury to find that the tree was in a dangerous condition after the notch cuts and back cuts were made. While instructing the jury as to the particular cuts used to fell the tree would be more factually precise, such precision is unnecessary as it serves only to cloud the reality that the dangerous condition in this case was the fact that “the tree.was being cut down.” Whether the sawyers employed notch cuts or back cuts or any other kind of cut, and regardless of whether these cuts were made correctly or not, the danger to Ms. Cain resulted from the fact that the tree was in the process of being cut down and was, therefore, likely to fall. The jury instructions in this case accurately described the actual dangerous condition, and there is no reasonable probability that the instruction “misdirected, misled, or confused the jury.” See, Hein v. Oriental Gardens, Inc., 988 S.W.2d 632, 634 (Mo.App.1999). The judgment should be affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9758248. Public record. Not legal advice.