Cook, v. Smith

• Decision Date: 03 October 2000
• Citation: 33 S.W.3d 548
• Parties: (Mo.App. W.D. 2000) . Amanda Cook, Appellant, v. David Smith, Respondent. Case Number: WD58116 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

33 S.W.3d 548 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Amanda Cook, Appellant, v. David Smith, Respondent.

Case Number: WD58116

Missouri Court of Appeals Western District

Handdown Date: 10/03/2000

Appeal From: Circuit Court of Callaway County, Hon. Ellen S. Roper

Counsel for Appellant: Roger G. Brown

Counsel for Respondent: Erwin L. Milne

Opinion Summary:

This appeal arises from a directed verdict granted to the defendants stemming from a personal injury which occurred at a party on the defendants' premises. The directed verdict was based on one count of premises liability for an artificial condition of land and one count of negligent supervision.

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.

Court holds:

(1) An all-terrain vehicle is not an artificial condition of land for purposes of premises liability law. The judgment as to premises liability is affirmed.

(2) The plaintiffs had established a duty under the negligent supervision claim because of the specificity of the invitation, the age of the guests, the number of the guests, the nature of the party, and the defendants' knowledge of defective brakes on the all-terrain vehicle. The judgment as to negligent supervision is reversed and remanded for a new trial.

Opinion Author: Harold L. Lowenstein, Judge

Opinion Vote: The judgment as to premises liability is affirmed. The judgment as to negligent supervision is reversed and remanded for a new trial. Stith and Newton, JJ., concur.

Opinion:

This appeal arises from a directed verdict granted Defendants David and Ginger Smith (Smiths) in a personal injury case involving one count of premises liability based on an artificial condition of land and one count of negligent supervision. Plaintiff Amanda Cook (Cook) is a sixteen-year-old girl who was invited to the Smiths' farm for a party with their daughter, Sarah Smith, and several other members of her high school volleyball team. When a guest began to drive the Smiths' All-Terrain Vehicle (ATV) without permission, Cook climbed aboard. An accident resulted, allegedly because of faulty brakes on the ATV, and Cook was seriously injured. Neither of the Smiths was home at the time of the accident.

FACTUAL AND PROCEDURAL HISTORY

On August 27, 1994, the Smiths hosted a party and bonfire at their farm in Callaway County for twenty-five to thirty-five members of Sarah's high school volleyball team. Among those invited was Cook. No adults were present at the time the party began, around 5 p.m. Ginger Smith arrived about three hours later; David Smith was out of town. At the time of the accident only the Smiths' children were home: Sarah, age sixteen, and Justin, age fourteen.

The Smiths kept a three-wheel ATV on their property, which Justin used that evening to haul supplies to a pasture for the bonfire. Justin testified that the rear brake on the ATV was "faulty." He said that though the ATV would stop after about five feet when the front brake was applied, the rear brake would not stop the vehicle until about twenty feet.

When Justin left the ATV running that evening to tend to the bonfire, a guest, Laura Farris (Farris), began driving the ATV. Farris had never before driven an ATV and did not know that the brakes were faulty. She drove the ATV around the pasture and returned to the site of bonfire. Plaintiff Cook then climbed aboard as a passenger, and the two of them drove away from the bonfire and toward the Smiths' house. There was disputed testimony as to whether Farris had Sarah's permission to drive the ATV. Ginger Smith testified that had she been there, she would not have permitted any of the girls to ride the ATV. Justin testified that he waved his hands and yelled to Farris and Cook to return the ATV, but to no avail.

On a path to the house, Farris and Cook encountered Sarah, who was driving a tractor-type vehicle. To avoid hitting Sarah, Farris turned the vehicle but headed toward a creek. As the two approached the creek, Farris turned the steering wheel all the way to the left and applied the brakes, but the ATV continued to go straight, went over the embankment and dropped six or seven feet into the dry creek bed. Cook sustained numerous injuries, including seven broken ribs, a collapsed lung, torn cartilage in her chest, severe bruises, a concussion, a gash on the head, and a permanently enlarged right breast. She continues to suffer from pain in her ribs and from back spasms.

Cook sued on two theories: premises liability and negligent supervision. With regard to the premises liability claim, Cook argued that the ATV was a defective artificial condition of land and thus the Smiths breached their duty to either warn her or make the ATV safe. As to the negligent supervision claim, Cook argues that the Smiths breached their duty of ordinary care by failing to provide adult supervision to the teenage group.

At the close of Plaintiff Cook's evidence, the trial court granted the Smiths' motion for a directed verdict only as to the premises liability claim on the basis that the ATV was not a condition of the land. At the close of all of the evidence, the trial court granted a directed verdict to the Smiths on the negligent supervision claim on the basis that Cook failed to make a submissible claim. On appeal Cook contests both rulings.

STANDARD OF REVIEW

In reviewing a directed verdict granted for a defendant, an appellate court views the evidence and permissible inferences most favorably to the plaintiff, disregards contrary evidence and inferences, and determines whether the plaintiff made a submissible case. Thong v. My River Harbor, Inc. 3 S.W.3d 373, 377 (Mo. App. 1999)(quoting Schumacher v. Barker, 948 S.W.2d 166, 168 (Mo. App. 1997)). Directing a verdict is a drastic measure. Id. A presumption therefore is made in favor of reversing the trial court's judgment sustaining a motion for directed verdict unless the facts and inferences therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to a result. Id.

I. Premises Liability

Plaintiff Cook argues in her first point that the trial court erred in granting the directed verdict as to premises liability. In this point, two questions arise: the legal status of Cook, and the duty owed to her with respect to the land.

In Missouri, the duty owed to a plaintiff in a premises liability action generally depends upon the status of the plaintiff at the time of the injury. Cochran v. Burger King Corp, 937 S.W.2d 358, 361 (Mo. App. 1996)(citing Carter v. Kinney, 896 S.W.2d 926, 928 (Mo. banc 1995). Moreover, "the particular standard of care that society recognizes as applicable under a given set of facts is a question of law." Id. There are three broad categories of plaintiffs recognized in premises liability cases: (1) trespassers; (2) licensees; and (3) invitees. Id.

The parties argue a great deal in their briefs about the legal status of Plaintiff Cook. Cook contends that she was an invitee; the Smiths contend that she was a licensee. In Carter v. Kinney, the Supreme Court of Missouri clarified Missouri's distinction between the two and stated that "social guests are but a subclass of licensees." 896 S.W.2d at 928. The Carter case involved a church member who opened up her house to other members of her church for bible study. Id. at 927. The Court noted that "the fact that an invitation underlies a visit does not render the visitor an invitee for purposes of premises liability law." Id. at 928 The Court also cited an earlier decision noting that the status of invitee arises in two situations: where the invitation was rendered with a "material benefit motive," or where the invitation was extended to the "public generally or to some undefined portion of the public" Id. (quoting Wolfson v. Chelist, 284 S.W.2d 447, 450 (Mo. 1955)).

The facts indicate that Plaintiff Cook, along with several others, was invited to the Smiths' home to unite their daughter's volleyball team. The court finds no "material benefit motive" in such a purpose. Id. Moreover, the guests at the party were an ascertainable group: twenty-five to thirty-five members of a high school athletic team. As such, this court finds that the invitation was neither to "the public generally [nor] to some undefined portion of the public" so as to render the guests invitees. Id.

The next question for the court is what duty the Smiths owed Cook as a licensee. Missouri follows the Restatement, Law of Torts, First section 342 (1934). Gray v. Russell, 853 S.W.2d 928, 930 (Mo. banc 1993); Wells v. Goforth, 443 S.W.2d 155, 158 (Mo. banc 1969). That section states:

A possessor of land is subject to liability for bodily injury caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he

(a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and

(b) invites or permits them to enter or remain upon the land, without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to warn them of the condition and the risk involved therein.

The pivotal issue in this point is whether an ATV is an artificial condition of land. Cook argues that the only requirement for a condition to be artificial is that it be on ("thereon") the land. She relies heavily on Weigers by Evans v. Fitzpatrick, 766 S.W.2d 126, 129 (Mo. App. 1989), which held that a metal ladder brought onto land was an artificial condition of land for purposes of the attractive nuisance doctrine. Because the attractive nuisance doctrine was not pleaded and because there is little similarity between a ladder and a motorized vehicle, this court finds Weigers inapplicable.

Conditions of land generally are in the nature of "hidden dangers, traps, snares, pitfalls, and the like." Jones v....