## Facts

- Grace Lindsay, age 88, went to a restaurant operated by Mazzio’s Corp. (doing business as Zio’s Italian Kitchen) with her daughter, Thelma Wissinger, on December 6, 1998.
- A hostess escorted them to a table in the back; Lindsay walked behind Wissinger.
- As Lindsay turned left toward the table area, she slipped and fell, suffering a dislocated and fractured left shoulder.
- Lindsay did not see any substance on the floor.
- Immediately after the fall, a nearby customer stated that the floor was wet at the spot where Lindsay fell.
- While waiting for an ambulance, Lindsay heard Wissinger say, “Well, this floor is wet,” and described Wissinger as frantic.
- In a later deposition, Wissinger testified she did not remember seeing anything on the floor and did not remember making (or hearing) any statement that the floor was wet.
- Lindsay sued for negligence alleging, among other things, that the floor was wet and extremely slick; the trial court granted summary judgment for the restaurant based on deposition evidence.

## Issues

1. Whether Lindsay’s testimony recounting Wissinger’s out-of-court statement that the floor was wet was inadmissible hearsay or admissible as a prior inconsistent statement usable as substantive evidence.
2. Whether, considering that statement as evidence, a genuine dispute of material fact existed on whether a wet, dangerous condition caused the fall, precluding summary judgment.

## Decision

- The Missouri Court of Appeals reviewed the summary judgment ruling de novo.
- The court held that Wissinger’s alleged contemporaneous statement that the floor was wet was admissible as a prior inconsistent statement, despite her later claimed lack of memory.
- With that evidence considered, the record supported a reasonable inference that the floor where Lindsay fell was wet and caused her fall.
- The court reversed the summary judgment and remanded for further proceedings.

## Legal Principles

- Summary judgment is proper only if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law; evidence and reasonable inferences are viewed in the nonmovant’s favor.
- In a premises-liability negligence claim, the plaintiff must present evidence supporting the existence of a dangerous condition and causation; at summary judgment, proof need only show a triable factual dispute.
- A witness’s prior inconsistent statement, including inconsistency created by a later claimed lack of memory, may be admitted as substantive evidence under Missouri law in appropriate circumstances.
- A plaintiff’s inability to personally observe the hazardous condition does not defeat the claim if other admissible evidence supports a reasonable inference that the condition existed at the place and time of the fall.

## Conclusion

The appellate court held that the daughter’s prior inconsistent statement describing the floor as wet was admissible as substantive evidence and, when credited along with the contemporaneous observation of a nearby customer, created a genuine issue of material fact on the presence of a wet and dangerous floor, requiring reversal of summary judgment and remand.


Lindsay v. Mazzio's Corp., 136 S.W.3d 915 (Mo. Ct. App. 2004)