Luthy v. Denny's, Inc. , 1989 Mo. App. LEXIS 1571 ( 1989 )

MANFORD, Judge,

dissenting.

I must respectfully dissent.

In my opinion, no submissible case was made in this case.

Simply applying the rationale of the majority opinion, the warning cones constituted no defect or dangerous condition if and while the floor was wet, but were somehow transformed into a defect or dangerous condition if the floor was dry. I am lost. The cones did not become an obstacle simply because the floor had dried.

Additionally, the evidence consisting of the defense witness’s statement, “I’ve never had anyone trip over them” was elicited or invited by cross-examination and hence, no foundation was necessary. In my opinion, McJunkins v. Windham Power Lifts, Inc., 767 S.W.2d 95, 100 (Mo.App.1989) is not applicable or controlling. I think the evidence was admissible.

I would reverse.