O'Brien v. Mansfield
| Decision Date | 28 January 1997 |
| Docket Number | No. WD,WD |
| Citation | 941 S.W.2d 582 |
| Parties | Charles O'BRIEN, et al., Appellants, v. Ronald W. MANSFIELD and Denise L. Kaiser, Respondents. 51620. |
| Court | Missouri Court of Appeals |
Harold A. Walther, Columbia, for Appellants.
Peggy D. Richardson, Andereck, Evans, Milne, Peace & Baumhoer, Jefferson City, for respondent Manfield.
Ann P. Hagan, Mexico, for respondent Kaiser.
Before ELLIS, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.
Ronald Mansfield's truck sideswiped a car driven by Charles O'Brien when Mr. Mansfield drove over the center line of a two-lane highway, seriously injuring Mr. O'Brien and his daughter Stephanie. At the time of the accident, Denise Kaiser was driving in front of Mr. Mansfield in another vehicle. The O'Briens sued both Mr. Mansfield and Ms. Kaiser, asserting that they were racing and that they could thus be held jointly liable for the O'Briens' injuries even though Ms. Kaiser was not involved in the accident itself. The trial court granted Ms. Kaiser's motion for summary judgment, holding that only speculation and conjecture supported the claim that Ms. Kaiser and Mr. Mansfield were racing. The O'Briens appeal. We affirm for the reasons stated by the trial court.
At approximately 11:15 p.m. on the evening of July 6, 1990, Mr. O'Brien and his daughter Stephanie were traveling southbound on a two-lane stretch of Route B north of Columbia, Missouri when a pick-up truck driven by Ronald Mansfield swerved into their lane and crashed into the left front of their car, seriously injuring them.
Mr. Mansfield and his girlfriend Ms. Kaiser had just left Columbia, where Mr. Mansfield was checking into having a scratch repaired on his truck. Mr. Mansfield's truck was a customized 1964 Chevrolet truck. Mr. Mansfield had restored the truck by adding "wheely bars" and a special paint scheme that included flames running along its sides. Mr. Mansfield had displayed the truck in several auto shows.
Before leaving Columbia, Mr. Mansfield had stopped for gas. Then he and Ms. Kaiser each began to drive their own vehicles north on Route B out of Columbia toward Mr. Mansfield's home in Centralia, Missouri. Apparently evidence was presented below, but not included in the record on appeal, that Ms. Kaiser's car left the gas station in front of Mr. Mansfield's truck.
It is known that at this point on Route B there are four-lanes and traffic signals to control the substantial traffic. Outside Columbia, the road eventually narrows to two lanes of traffic. The record is also clear that by the time the two vehicles were within a mile of the two-lane portion of the road where the accident later occurred, Mr. Mansfield's truck was in the lead. Thus, if Ms. Kaiser had left the gas station first, Mr. Mansfield must have moved ahead of her either in the traffic in the city, or later after the road became two lanes. Neither Mr. Mansfield nor Ms. Kaiser recalls if or when this occurred, and no other witnesses on this issue have been identified. It is known, however, that Ms. Kaiser passed Mr. Mansfield about one mile before the accident, and thereafter remained in her lane. Her car and that of the O'Briens went by each other, each in their proper lane, without incident. Ms. Kaiser learned of the collision only because she looked back and saw it in her rear-view mirror.
Mr. O'Brien and his daughter Stephanie alleged that Mr. Mansfield negligently caused the accident by being on the wrong side of the road, by failing to keep a careful lookout, and by racing. They alleged that Ms. Kaiser negligently contributed to cause the accident by racing with Mr. Mansfield and by failing to keep a careful lookout. Mr. O'Brien also sought recovery from Safeco, his automobile insurer, under the underinsured motorist provisions of his policy. Mr. O'Brien's wife, Clara O'Brien, joined the suit by bringing a consortium action against both Mr. Mansfield and Ms. Kaiser.
Mr. and Mrs. O'Brien settled their claims against Mr. Mansfield and Safeco, but not their claims against Ms. Kaiser. Their daughter, Stephanie, has not settled her claims against either Mr. Mansfield or Ms. Kaiser. Ms. Kaiser filed a motion for summary judgment in which she alleged that she should be granted summary judgment on all of the O'Briens' claims against her because they have failed to present evidence that she was racing with Mr. Mansfield at the time of the crash and thus have failed to show a basis for holding her jointly liable for their injuries.
Most of the evidence relied on by the O'Briens comes from the testimony of Stephanie O'Brien and Ms. Kaiser, as the injuries to both Mr. O'Brien and Mr. Mansfield have prevented them from recalling any details of the accident. Stephanie stated that prior to the accident she and her father had seen the lights of Mr. Mansfield's truck swerving back and forth between the northbound passing lane and the driving lane, and that they commented to each other about this erratic driving. As her father's car and Mr. Mansfield's truck drew closer together, Stephanie said she noticed Ms. Kaiser's car for the first time.
Stephanie made contradictory statements as to the location of Ms. Kaiser's car. At one point she said that Ms. Kaiser was behind Mr. Mansfield at the time of the accident. Later she said that when she first saw Ms. Kaiser's car it was behind Mr. Mansfield's truck, but that Ms. Kaiser pulled up even with Mr. Mansfield for a "very short period of time" and then passed him on the right while Mr. Mansfield was in the passing lane. Stephanie said that Ms. Kaiser's car remained in its own lane throughout.
Stephanie said that she did not know how fast Ms. Kaiser was traveling, but that she estimated that Mr. Mansfield was travelling between eighty and ninety miles per hour at the time of the accident. She also specifically testified that she did not get the impression that Ms. Kaiser and Mr. Mansfield were racing.
Ms. Kaiser absolutely denied racing with Mr. Mansfield. She testified at her deposition that she had passed Mr. Mansfield only once, using the passing lane to do so, and that this occurred approximately one mile before the accident took place. She said that she thereafter remained in her own lane. She denied speeding, but she also indicated she was going between 55 and 60 miles per hour, which would constitute speeding.
The trial court took Ms. Kaiser's motion under advisement but allowed the O'Briens to present expert testimony to support their claims against Ms. Kaiser. The O'Briens' expert did later offer an opinion that Ms. Kaiser was speeding, but he specifically declined to offer an opinion as to whether she and Mr. Mansfield had been racing. Following review of this expert testimony, the trial court found that any inference of racing would be based on speculation, and entered summary judgment for Ms. Kaiser. The trial judge certified this ruling as final for purposes of appeal.
Under Rule 74.04, the purpose of summary judgment is to permit the trial court to enter judgment without delay in cases when there is no genuine factual dispute and the movant is entitled to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.1993); Becker v. Setien, 904 S.W.2d 338, 343 (Mo.App.1995). A genuine factual dispute exists when the record contains competent evidence of two plausible, but contradictory accounts of the essential facts. ITT Commercial Fin. Corp., 854 S.W.2d at 382.
Defendants may show they are entitled to summary judgment by either: (1) negating an essential element of the plaintiff's claim; (2) establishing all the elements of an affirmative defense; or (3) showing that after an adequate period of discovery the plaintiff has not produced, and will not be able to produce, evidence sufficient to allow the trier of fact to find any one of the elements of the claim. Id. at 381. Once the movant has made the required showing 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 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. Id. at 378; Beyerbach v. Girardeau Contractors, Inc., 868 S.W.2d 163, 165 (Mo.App.1994); Wood & Huston Bank v. Malan, 815 S.W.2d 454, 457 (Mo.App.1991).
Our review of the decision to grant summary judgment is essentially de novo. ITT Commercial Fin. Corp., 854 S.W.2d at 382. We view the record in the light most favorable to the non-moving party and the non-moving party is entitled to all reasonable inferences from the record, taking as true all facts not contradicted by the movant. Id.
The parties recognize that in Missouri and elsewhere persons participating in a race on a public highway may be held jointly liable for injuries caused during the pendency of the race by one of the race participants. 1 Missouri will impose such liability even in the absence of an express agreement to race and even where the activity of the defendants would fall outside the technical definition of "racing" so long as the plaintiff shows that the tortfeasor and the defendant were "jointly engaged in committing a tort ... [by using the highway] in a manner not consistent with its use by others." Gay v. Samples, 227 Mo.App. 771, 773, 57 S.W.2d 768, 769 (1933).
The O'Briens argue that they satisfied this standard by presenting evidence that Ms. Kaiser and Mr. Mansfield were both speeding...
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