D&R Stonger v. Riggs

• Decision Date: 16 May 2000
• Citation: D&R Stonger v. Riggs, 21 S.W.3d 18 (Mo. App. 2000)
• Parties: (Mo.App. W.D. 2000) D & R Stonger by Next Friend, Randall Stonger, and Randall Stonger, Individually, Appellants, v. Gary and Brenda Riggs, Respondents. WD57417 0
• Court: Missouri Court of Appeals

21 S.W.3d 18 (Mo.App. W.D. 2000)

D & R Stonger by Next Friend, Randall Stonger, and Randall Stonger, Individually, Appellants, v. Gary and Brenda Riggs, Respondents.

WD57417

Missouri Court of Appeals Western District

05/16/2000

Appeal From: Circuit Court of Linn County, Hon. Gary E. Ravens

Counsel for Appellant: Robert Walter Wheeler

Counsel for Respondent: David Patrick Bub

Opinion Summary: Plaintiffs Derrik and Randall Stonger appeal summary judgment for Defendants Gary and Brenda Riggs.The Strongers assert a genuine issue of material fact exists as to whether the Riggs were negligent in entrusting their 14 year old son, Daniel, with a riding lawn mower and allowing him to drive it on a public road without adequate supervision, and whether this negligence proximately caused or contributed to cause injury to Derrik Stronger when Daniel ran into Derrik with the mower on the road.

Division II holds: The trial court erred in finding no genuine issue of material fact existed as to the Riggs' negligence and in granting summary judgment to the Riggs.Although generally parents are not liable in damages for the torts of their minor children, there are five situations in Missouri where parents may be held liable for torts by their child.Two of these recognize a cause of action for parental negligence when a parent has entrusted to a child either (1) an instrument which because of its nature is so dangerous that it creates an unreasonable risk to others in the hands of a child, or (2) an instrument likely to be dangerous because of the known propensities of the child.Even if the mower was not a dangerous instrument per se when being used, with proper instruction, to cut lawns, under the facts here, the mower was being operated as a motorized vehicle on a public road by a 14-year-old child without a license.In such circumstances, a trier of fact might find that, while a child could safely operate such mower to mow lawns with proper instruction or supervision, he could not be expected to do so on a public road without creating an unreasonable risk to pedestrians or other vehicles that could be anticipated to be present on a lawn, as opposed to a road.This is particularly true where, as here, the law prohibits a 14-year-old from driving a motorized vehicle on a public road.Here, the Riggs entrusted to their unlicensed son a self-propelled, motorized lawn mower and permitted him to drive the mower unsupervised and without instruction on a public road.A jury could find that the Riggs were negligent in so permitting.

Laura Denvir Stith, Presiding Judge

Plaintiffs-Appellants, Derrik and Randall Stonger(the Stongers), appeal the judgment of the trial court sustaining the motion of Defendants-Respondents, Gary and Brenda Riggs(the Riggs), for summary judgment.The Stongers assert that the trial court erred in granting summary judgment because a genuine issue of material fact exists as to whether the Riggs were negligent in entrusting their 14 year old son, Daniel, with a riding lawn mower and allowing him to drive it on a public road without adequate supervision, and whether this negligence proximately caused or contributed to cause injury to Derrik Stronger when Daniel ran into Derrik with the riding lawn mower on the public road.We agree with the Stongers that a genuine issue of material fact exists as to the Riggs' negligence in entrusting the riding lawn mower to their son, and, accordingly, reverse the grant of summary judgment and remand for further proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL BACKGROUND

The facts, considered in a light most favorable to the Stongers, are as follows:

On May 14, 1998, Daniel Riggs, then 14 years old, left his home in Marceline, Missouri on a riding lawn mower.At his mother's request, Daniel was driving the lawn mower on a public road to the church where Daniel's father was the pastor.The church was located approximately two miles away from Daniel's home.His father had requested that Daniel mow the church lawn since, as pastor, he was responsible for maintaining it.Daniel had never read the instruction manual for the mower or been given specific training or instruction as to how to work the mower or how to drive the mower on a public road.His mother followed him in her car for a portion of the distance to the church, but, at some point along the way to the church, Daniel's mother passed him in her car and went ahead of him to the church.

After Daniel was left driving the mower alone on the road, he saw three boys riding bicycles on the road at the bottom of a hill.One of the boys was Derrik Stonger, who was then 10 years old.As Daniel reached the bottom of the hill and began to ascend the hill on the mower, Derrik started riding his bicycle up the hill as well, in front of Daniel and the mower.According to Daniel, Derrik was riding his bicycle slowly, and Daniel believed that Derrik was doing so intentionally as a means of taunting Daniel.In any event, as a response to this perceived insult, Daniel drove the mower as fast as possible.In doing so, Daniel ran into Derrik with the mower.While the blade of the motor was not operating, Derrik was knocked off the bicycle and sustained numerous injuries, including bruises, abrasions, and emotional distress.

On December 14, 1998, Derrik, by his father, Randall Stonger, as next friend, and Randall Stonger, individually, filed a Petition for damages alleging negligence against Daniel's parents, Gary and Brenda Riggs, as well as against Daniel individually.The Petition asserted: (1) the Riggs knew, or, by the exercise of ordinary care should have known, that an accident was imminent and, essentially, that their negligence in failing to properly supervise, train, educate and control their son Daniel resulted in the collision which injured Derrik, and (2) Daniel carelessly and negligently operated the riding lawn mower in such a manner that he ran over Derrik, resulting in Derrick's injuries.

On April 7, 1999, the Riggs filed a motion for partial summary judgment, asserting that the Stongers failed to establish a submissible case against the Riggs (the parents) in that no evidence demonstrated that they knew or believed or had reason to know that Daniel would operate the riding lawn mower negligently, tortiously, violently, recklessly, carelessly, or with negligent disregard for the safety of others.On June 21, 1999, the trial court sustained the Riggs' motion for summary judgment on the claims against the two of them.On June 22, 1999, the Stongers dismissed, without prejudice, their claim against Daniel personally.The Stongers appeal the summary judgment as to the Riggs.

II.STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings, discovery and affidavits reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.Rule 74.04(c);ITT Commercial Fin. Corp. v. Mid-Am. Marine Supp. Corp., 854 S.W.2d 371, 380(Mo. banc 1993).Once the movant has demonstrated that no genuine issue of material fact exists, the burden shifts to the non-movant to show that there is a genuine dispute as to the material facts supporting the movant's right to summary judgment.Id. at 381-82.A genuine issue of material fact exists if there is a dispute that is real, not merely argumentative, imaginary or frivolous.Id. at 382.Mere speculation and conjecture are not enough to create a genuine issue of material fact.Id. at 378.

"The propriety of summary judgment is purely an issue of law which we review de novo on the record submitted and the law."Bonds v. Missouri Dep't of Mental Health, 887 S.W.2d 418, 421(Mo. App. W.D.1994).We review the record in the light most favorable to the party against whom summary judgment entered, but will affirm if the judgment is sustainable as a matter of law under any legal theory.ITT Commercial, 854 S.W.2d at 376.

III.LEGAL ANALYSIS

In their sole point on appeal, the Stongers assert the trial court erred in granting the Riggs' motion for summary judgment because there was a substantial question of material fact as to whether the Riggs were negligent in entrusting the riding lawn mower to their son Daniel without adequate supervision, and in failing to properly instruct their son in the operation of the mower by having him read the mower's owner's manual.

It is well-settled in Missouri, as in other jurisdictions, that, unless altered by statute, parents are not liable in damages for the torts of their minor children merely because of their status as parents.Murphy v. Loeffler, 39 S.W.2d 550, 555(Mo.1931).The Riggs recognize that an exception to this rule exists where parents have knowledge of their child's dangerous propensities, but nonetheless fail to act reasonably in attempting to restrain the child from injuring another.SeeNational Diary Products Corp. v. Freschi, 393 S.W.2d 48, 54(Mo. App. E.D.1965).As the Riggs note, however, there is no evidence on this record that Daniel had ever shown any dangerous or vicious tendencies in the past.Therefore, they successfully argued below, and claim in this Court, there is no basis on which they can be held liable for Daniel's allegedly improper conduct toward Derrik.Accordingly, they argue, we should affirm the trial court's grant of summary judgment.

We disagree.While it is true that parents can be held liable for their child's acts where they know of the child's dangerous propensities yet fail to reasonably control the child, that is only one of a number of situations which have been recognized as exceptions to the general rule that a parent will not be held liable for torts committed by the child.National Dairy notes the following five situations in which parents may be held liable for the torts of their child under Missouri law:

(1) Where the relationship of master and servant exists and the child is acting within the scope of his authority...