Dunlap v. Howard, 44375

• Decision Date: 23 February 1982
• Docket Number: No. 44375,44375
• Citation: 629 S.W.2d 664
• Parties: Allen DUNLAP, William Dunlap and Joy Dunlap, Appellants, v. William "Red" HOWARD, Charles Sickinger, Jerry Sanders and Skelly Oil Company, Respondents.
• Court: Missouri Court of Appeals

Page 664

629 S.W.2d 664

Allen DUNLAP, William Dunlap and Joy Dunlap, Appellants, v. William "Red" HOWARD, Charles Sickinger, Jerry Sanders and Skelly Oil Company, Respondents.

No. 44375.

Missouri Court of Appeals, Eastern District, Division Three.

Feb. 23, 1982.

William W. Eckelkamp, Eckelkamp, Eckelkamp & Wood, Washington, for appellants.

Arthur L. Smith, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, for respondents.

REINHARD, Presiding Judge.

Plaintiffs appeal from an order of summary judgment entered in favor of defendant Skelly Oil Company (Skelly), designated final for purposes of appeal, pursuant to Supreme Court Rule 81.06. We affirm.

In Counts I and II of plaintiffs' six count petition, Allen Dunlap sought damages from William "Red" Howard for injuries Dunlap received while both were customers at Al and Jerry's Skelly service station in Pacific, Missouri. Allen Dunlap alleged that on March 8, 1975, Howard either negligently or intentionally fired a pistol striking him in the face, permanently paralyzing him from the neck down. In Count III, plaintiffs William and Joy Dunlap, Allen's parents, sought damages from "Red" Howard for past and future medical expenses and for loss of their son's companionship.

Counts IV, V, and VI constituted claims against defendants Charles Sickinger and Jerry Sanders d/b/a as "Al and Jerry's Skelly Station" and Skelly Oil Company, as owner of the station. In paragraphs 4, 5 and 6 of Count IV, Allen alleged that:

As a direct and proximate result of the carelessness and negligence of the Defendants ... "Red" Howard, a known felon, was permitted on the premises and the said ... "Red" Howard shot Plaintiff ... with a pistol.

That Defendants, through their advertising, had invited Plaintiff to their place of business.

That Defendants owed a duty to make said premises safe for Plaintiff Allen Dunlap, but they carelessly and negligently failed to do so.

In Count V, William and Joy Dunlap sought damages for past and future medical expenses and loss of their son's companionship. In Count VI, Allen sought punitive damages from the defendants.

Skelly filed a motion for summary judgment as to Counts IV, V, and VI. In support of its motion, Skelly relied on the affidavit of R. A. Carlson, Division Manager, its lease with Sickinger and Sanders, and the pleadings. Skelly stated that it had leased the premises to Charles Sickinger on September 15, 1974 and was not in possession or control of the premises at the time of the incident. Skelly alleged there was no genuine issue of material fact. Plaintiffs' attorney filed a counter affidavit. The trial court granted Skelly's motion and denominated it final for purposes of appeal. Rule 81.06. See, State ex rel. Schweitzer v. Greene, 438 S.W.2d 229, 231 (Mo.banc 1969).

In ruling on a motion for summary judgment, the trial court and the appellate court must scrutinize the record in the light most favorable to the parties against whom the motion was filed and to accord to such parties the benefit of every doubt. Summary judgment may only be rendered where it is made manifest by the pleadings, depositions and admissions on file, together with any affidavits that there is no genuine issue of material fact. Rule 74.04(c). A genuine issue of fact exists for the purpose of avoiding a summary judgment whenever there is the slightest doubt as to the facts. The burden rests upon the movant to show by "unassailable proof" that there is no genuine issue of fact. Edwards v. Heidelbaugh, 574 S.W.2d 25, 26-27 (Mo.App.1978). When a party to litigation is confronted by a proper motion for summary judgment under Rule 84.04 that party must come forward with specific facts which demonstrate that a material issue does, in fact, exist, otherwise he is vulnerable to the harsh and drastic remedy of summary judgment. 574 S.W.2d at 28.

Under most circumstances, a lessor of land is not subject to liability for injuries to his tenant or his invitees caused by dangerous conditions. Warner v. Fry, 360 Mo. 496, 228 S.W.2d 729 (1950). An exception to this rule exists for premises leased for a "public use" which involves the admission of a large number of patrons of his lessee. Warner v. Fry, 228 S.W.2d 729, 730 (Mo.1950); Brown v. Reorganization Investment Co., 350 Mo. 407, 166 S.W.2d 476 (1942). Plaintiffs contend the Skelly station was a "public use" and consequently comes within the exception above. Assuming, without deciding that allowing a known felon on the premises is an unsafe condition, we think it evident under Missouri law, leasing for a "public use" applies only to public exhibitions and entertainments. Liability based on this theory has no application to the ordinary commercial establishment.

In Warner v. Fry, the Supreme Court said:

(A) leasing for a "public use," ... contemplates the assembly of a large number of persons at the same time on the premises, either upon one or several occasions or continuously throughout the period of a lease.... (W)e hold that the "public use" rule does not apply to ordinary commercial establishments, open to the patronage of such persons as may be attracted thereto as customers, the primary purpose of which is not to assemble large groups at the same time. 228 S.W.2d at 731.

All of the facts from the pleadings, affidavits and interrogatories before the court establish that Al and Jerry's service station was an "ordinary commercial establishment." There were no facts which suggest otherwise. Consequently, there is no genuine issue of material fact on this point.

As an alternative basis for liability, plaintiffs contend that a service station lease is of such a peculiar nature that if it is determined the lessor controls the lessee, he will be held liable. Brenner v. Socony Vacuum Oil Co., 236 Mo.App. 524, 158 S.W.2d 171 (1942). See, 83 ALR2d 1282. Such liability is based on the lessee being the agent or servant of the lessor. 158 S.W.2d at 174. Plaintiff's petition, however, neither directly nor indirectly alleges Sanders or Sickinger were agents or employees of Skelly, precluding recovery on that basis.

Moreover, even if plaintiffs had alleged that Sanders and Sickinger were Skelly's agents or employees, the trial court correctly ruled the motion for summary judgment. The test under those circumstances is whether Sickinger and Sanders were "subject to the control or right to control of the defendant in the operation of the filling station in question at...