Warren v. Paragon Technologies Group, Inc. , 1997 Mo. LEXIS 63 ( 1997 )

BENTON, Judge.

Defendants Paragon Technologies Group, Inc. and Coast Federal Mortgage Corporation appeal the trial court’s refusal to enforce a non-liability clause in a lease. The Court of Appeals transferred the ease to this Court due to the general interest and importance of the question presented. Mo.Const. art. V, sec. 10; Rule 83.02. Reversed and remanded.

I.

Plaintiff Marilyn Warren lived in an apartment complex managed by defendant Paragon and owned by defendant Coast Federal. Twice in January 1991, Warren slipped and fell on an icy sidewalk near her apartment.

In their amended answers, defendants alleged that the non-liability clause in the lease barred plaintiff’s claim. Plaintiff filed no reply. At trial, the entire evidence on this affirmative defense was the introduction of the lease, and plaintiff’s testimony that she signed it.

A jury found the defendants liable, awarding Warren $88,000. Following the denial of their motion for judgment notwithstanding the verdict, defendants appealed.

II.

The circuit judge concluded that the non-liability clause was void as against public policy. This ruling — entered before the Alack v. Vic Tanny International of Missouri, Inc. decision—is erroneous. 923 S.W.2d 330, 337 (Mo. banc 1996). Releases of future negligence are not void as against public policy, though they are disfavored and strictly construed. Id. at 334. To release a party from its own future negligence, exculpatory language must be “clear, unambiguous, unmistakable, and conspicuous.” Id. at 337. Although the validity of a non-liability clause is a question of law for the court, id., the court can reach this question only after the parties comply with the applicable pleading and evidence requirements.

III.

Defendants pled that the non-liability clause was a release. Release is an affirmative defense that must be pled in an answer. Rule 55.08. Once the defendants made this affirmative defense in their amended answers, the plaintiff was required to file a reply if she intended to assert an affirmative avoidance. Rule 55.01. “[A] reply should be filed when a plaintiff desires to avoid or affirmatively attack new and affirmative matter alleged in the answer.” Jaycox v. Brune, 434 S.W.2d 639, 547 (Mo.1968). A reply is

required to assert an avoidance,' which is an affirmative defense to an affirmative defense. ... Rule 55.01 provides that “[a] defense constituting an affirmative avoidance to any matter alleged in a proceeding pleading must be pleaded.” This sentence was added to the rule to conform with Jaycox v. Bruñe.

Mary Coffey, 15 Missouri Practice 295 (2d ed.1997), citing Rule 55.01 Committee Note (1974). The rationale of this pleading rule is clear: “it is necessary to the fair and orderly administration of justice to plead new matter affirmatively, and to give notice to the opposing party so that he or she may be prepared on that issue. It is ... incumbent upon plaintiff to raise the issue by timely objection.” Coffey, 15 Missouri Practice at 369-70.

Where a reply is required but not filed — and the defendant does not object— the case proceeds as if plaintiff made a general denial of the affirmative defense. See Mahurin v. St. Luke’s Hosp., 809 S.W.2d 418, 421 (Mo.App.1991). If the case is tried without a reply to the affirmative defense, on appeal the matter is treated as if a reply traversing the defense has been filed in accordance with the evidence. Id.

Plaintiff Warren was required to file a reply if she sought an avoidance of the affirmative defense. Pleading the unenforceability of a non-liability clause is asserting an avoidance. Warren never made this assertion by means of a reply. Therefore, this Court reviews the ease as if Warren made a reply in accordance with the evidence at trial.

IV.

A defendant has the burden to prove all affirmative defenses. Mochar Sales Co. v. Meyer, 373 S.W.2d 911, 914 (Mo.1963). The key to the affirmative defense of release is that an agreement was, in fact, reached. See Powers v. Kansas City Public Service Co., 334 Mo. 432, 66 S.W.2d 840, 845-46[5] (1933); cf. Crowder v. Vandendeale, 564 S.W.2d 879, 881 n. 4 (Mo. banc 1978).

The evidence here established (1) a five legal-sized-page, single-spaced, form lease, and (2) plaintiffs signature. Parties are presumed to read what they sign. See Farmland Industries, Inc. v. Bittner, 920 S.W.2d 581, 584 (Mo.App.1996); Mason v. Mason, 873 S.W.2d 631, 634-35 (Mo.App.1994); Taylor & Martin, Inc. v. Hiland Dairy, Inc., 676 S.W.2d 859, 871-72 (Mo.App.1984); Mercantile Trust Co. v. Carp, 648 S.W.2d 920, 924 (Mo.App.1983); Wired Music, Inc. v. Great River Steamboat Co., 554 S.W.2d 466, 469 (Mo.App.1977); Sanger v. Yellow Cab Co., Inc., 486 S.W.2d 477, 481 (Mo.1972); Wallach v. Joseph, 420 S.W.2d 289, 294 (Mo.1967); Lynch v. Webb City School District No. 92, 418 S.W.2d 608, 617 (Mo.App.1967); Bearden v. Countryside Casualty Company, 352 S.W.2d 701, 707 (Mo.App.1961); Haman v. Pyramid Life Ins. Co., 347 S.W.2d 449, 454 (Mo.App.1961); Woolfolk v. Jack Kennedy Chevrolet Company, 296 S.W.2d 511, 515 (Mo.App.1956); Smith v. Githens, 271 S.W.2d 374, 378 (Mo.App.1954); Poe v. Illinois Cent. R. Co., 339 Mo. 1025, 99 S.W.2d 82, 89 (1936); Yerxa, Andrews & Thurston v. Viviano, 44 S.W.2d 98, 99 (Mo.1931); Brennecke v. Ganahl Lumber Co., 329 Mo. 341, 44 S.W.2d 627, 630 (1931). Plaintiff Warren was presumed to notice each provision of the lease she signed, which, in the absence of other evidence, demonstrates that an agreement was reached on the release. On this record, defendants met their burden on the affirmative defense, and judgment notwithstanding the verdict should have been granted. Reversal is required.

V.

An appellate court should reverse a plaintiffs verdict without remand only if it is persuaded that the plaintiff could not make a submissible case on retrial. Moss v. National Super Markets, Inc., 781 S.W.2d 784, 786 (Mo. banc 1989). “The preference is for reversal and remand.” Id. Because the trial here occurred before the Alack decision, Warren should have the opportunity to plead, or introduce evidence on, an avoidance of the defendants’ affirmative defense. See Dietz v. Humphreys, 507 S.W.2d 389, 392 (Mo.1974).

VI.

Since this Court is permitting a remand, the defendants’ alternative ground for outright reversal must be addressed. Defendants contend that judgment notwithstanding the verdict should have been granted because they assumed no duty to clear snow and ice from the sidewalk where Warren slipped. Defendants do not dispute that “where a portion of the demised premises is reserved by the landlord for use in common by two or more tenants, ... a duty is imposed ... to exercise ordinary care to keep that portion of the premises in a reasonably safe condition and is liable for damages for personal injuries to the tenant or a member of the tenant’s family resulting from a failure to perform that duty.” Fitzpatrick v. Ford, 372 S.W.2d 844, 849 (Mo.1963); see also Aaron v. Havens, 758 S.W.2d 446, 447 (Mo. banc 1988). Instead, defendants argue (and Warren does not dispute) that there is an exception to this general rule for natural accumulations of ice and snow that are general to the community. See Ellis v. Jurea Apartments, 875 S.W.2d 203, 208-09 (Mo.App.1994); Willis v. Springfield Gen. Osteopathic Hosp., 804 S.W.2d 416, 422 (Mo.App.1991); Alexander v. American Lodging, 786 S.W.2d 599, 601 (Mo.App.1990); Maschoff v. Koedding, 439 S.W.2d 234, 236 (Mo.App.1969); Woodley v. Bush, 272 S.W.2d 833, 834-35 (Mo.App.1954).

Even under this exception, however, a landlord must make common premises safe from ice and snow where the landlord has, by agreement or course of conduct, obligated itself to do so. Uptergrove v. Housing Authority of Lawson, 935 S.W.2d 649, 655 (Mo.App.1996); Maschoff, 439 S.W.2d at 236. The apartment manager testified that it was the apartment’s policy and practice to have maintenance employees remove ice and snow from all sidewalks around the complex. This testimony was sufficient to establish a duty to remove the ice and snow reasonably. Whether the efforts taken were reasonable was a factual question for the jury. The trial judge properly upheld the verdict on this ground.

VII.

The judgment of the trial court is reversed and the case remanded for a new trial.

PRICE, LIMBAUGH, COVINGTON and HOLSTEIN, JJ., concur. ROBERTSON, J., concurs in result in separate opinion filed. WHITE, J., dissents in separate opinion filed.