Hays v. Royer

• Decision Date: 18 December 2012
• Docket Number: No. WD 74772.,WD 74772.
• Citation: 384 S.W.3d 330
• Parties: Brody HAYS, et al., Appellants, v. Francis M. “Pete” ROYER, et al., Respondents.
• Court: Missouri Court of Appeals

384 S.W.3d 330

Brody HAYS, et al., Appellants,
v.
Francis M. “Pete” ROYER, et al., Respondents.

No. WD 74772.

Missouri Court of Appeals,
Western District.

Sept. 18, 2012.
Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 25, 2012.
Application for Transfer Denied Dec. 18, 2012.

[384 S.W.3d 331]

Daniel J. Baylard, Blue Springs, MO, for Appellants.

Joseph J. Roper and Michael L. Belancio, Kansas City, MO, for Respondents.

Before DIV III: VICTOR C. HOWARD, Presiding Judge, and KAREN KING MITCHELL and CYNTHIA L. MARTIN, Judges.

KAREN KING MITCHELL, Judge.

This is a negligent entrustment case. The issue is whether an entrustee may have a viable claim against the entrustor when no third party was injured and when the entrustee's claim is dependent upon his own negligence (and not some independent negligent act of the entrustor). The Restatement view is that, in a state in which contributory negligence does not bar the plaintiff's claim, an entrustee may state a cause of action against the entrustor, and previous cases from this court have implicitly so recognized. Accordingly, we hold that such a claim does exist, and the circuit court therefore erred in dismissing the petition on the ground that it failed to state a claim.

Facts and Procedural Background ¹

While intoxicated, Scott Hays drove and wrecked a company van. Hays died in the

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accident, but no other person and no other vehicle were involved. The van Hays was driving was owned and/or controlled by Respondents, Francis “Pete” Royer, Barbara Royer, Royer's Incorporated, and Royer Hays Funeral Services, LLC (collectively, “Royer”). Hays worked for Royer and was part owner of Royer Hays Funeral Services.

Appellant Brody Hays is Scott Hays's minor son, and Appellant Heather Hays was Scott Hays's wife. Brody Hays and Heather Hays filed a petition, asserting a wrongful death claim against Royer and alleging that Royer had negligently entrusted the van to Scott Hays. The petition alleged that Royer knew or should have known that Hays was an unsafe driver in that he was habitually intoxicated. Pete Royer had “meetings, discussions, and conferences” regarding Hays's drinking problem. In the past, Royer's employees had had to wake Hays after he had passed out from intoxication. Royer knew that Hays had received inpatient treatment for alcoholism but that the treatment had not cured him. Royer knew that Hays had drunk beer at work and had driven the company van after drinking. In short, Royer knew that Scott Hays “would habitually keep and consume alcohol while operating” the company van.

On the day of the accident, Hays drove the company van to a bar, where he became intoxicated. The accident occurred on his way home from the bar.

Royer filed a motion to dismiss the petition, arguing that it failed to state a claim upon which relief could be granted. Specifically, Royer argued that, under Missouri law, there is no duty to protect an adult from his own voluntary consumption of alcohol. The circuit court granted the motion to dismiss and entered a judgment accordingly. Brody Hays and Heather Hays appeal.

Standard of Review

On appeal from the circuit court's grant of a motion to dismiss for failure to state a claim, we apply de novo review, Weber v. St. Louis Cnty., 342 S.W.3d 318, 321 (Mo. banc 2011), which means that the same standard that applied below applies here. Self v. Midwest Orthopedics Foot & Ankle, P.C., 272 S.W.3d 364, 366 (Mo.App. W.D.2008). We review the petition “in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001) (quoting Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993)).

Analysis

In their sole point on appeal, the Hayses argue that the circuit court erred in dismissing the petition in that it states a claim for negligent entrustment because a person who negligently entrusts a motor vehicle to another may be held liable for the entrustee's injuries, even when no third party was injured, when the entrustor should have known that the entrustee would drive while intoxicated. We agree.

The wrongful death statute provides as follows:

Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled

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such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:

(1) By the spouse or children....

§ 537.080.1 ² (emphasis added). Any defense that would have applied to the decedent's underlying cause of action applies against the claim asserted under the wrongful death statute. § 537.085. Thus, any defense that would have precluded Hays from recovering from Royer also precludes Brody Hays and Heather Hays from recovering from Royer. Id.

I. A cause of action for negligent entrustment may be maintained by the entrustee.

Negligent entrustment is a variant of the common law tort of negligence.

To make a prima facie case on a negligence theory, a plaintiff must plead and prove: (1) a legal duty on the part of the defendant to use ordinary care to protect the plaintiff against unreasonable risk of harm; (2) a breach of that duty; (3) a proximate cause between the breach and the resulting injury; and (4) actual damages to the plaintiff's person or property.

O.L. v. R.L., 62 S.W.3d 469, 474 (Mo.App. W.D.2001).

The requisite elements of a claim for negligent entrustment are:

(1) the entrustee was incompetent by reason of age, inexperience, habitual recklessness or otherwise; (2) the entrustor knew or had reason to know of the entrustee's incompetence; (3) there was entrustment of the chattel; and (4) the negligence of the entrustor concurred with the conduct of the entrustee to cause the plaintiff's injuries.

Hallquist v. Smith, 189 S.W.3d 173, 175–76 (Mo.App. E.D.2006).

a. An entrustor of chattel has a common law duty to the entrustee.

“As with all negligence claims, the threshold question is whether the defendant owed the injured party a duty of care.” O.L., 62 S.W.3d at 474.

In support of his argument that, in Missouri, an entrustor of chattel has no duty to protect an adult from injury resulting from his own voluntary consumption of alcohol, Royer cites us to out-of-state cases that have disallowed claims for negligent entrustment made by the entrustee. Bailey v. State Farm Mut. Auto. Ins. Co., 881 N.E.2d 996, 1003 (Ind.Ct.App.2008); Lydia v. Horton, 355 S.C. 36, 583 S.E.2d 750, 753–54 (2003); Shultes v. Carr, 127 A.D.2d 916, 512 N.Y.S.2d 276, 277 (1987). But other jurisdictions have reached a contrary result on the question of liability for first party negligent entrustment claims. See Casebolt v. Cowan, 829 P.2d 352, 361 (Colo.1992) (finding that a claim of first party negligent entrustment of chattel can be maintained); Gorday v. Faris, 523 So.2d 1215, 1218–19 (Fla.Ct.App.1988) (same); Blake v. Moore, 162 Cal.App.3d 700, 208 Cal.Rptr. 703, 705–08 (Cal.App. 5th Dist.1984) (same).

Royer also argues that a duty to protect another from his own self-imposed injuries arises only in custodial situations regarding children, mental patients and

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prisoners. Royer cites several cases that found a duty in such situations. But the fact that the courts have found a duty to use ordinary care to protect a person of limited capacity who is entrusted to the care of the alleged tortfeasor, does not preclude the existence of a duty in other situations. Factors considered by the courts in determining whether a duty exists include, but are not limited to, the foreseeability and likelihood of injury. See Miles ex rel. Miles v. Rich, 347 S.W.3d 477, 483 (Mo.App. E.D.2011) (stating that “[t]he question of whether a duty exists ‘depends upon a calculus of policy considerations' ” including foreseeability as the paramount factor) (quoting Lough v. Rolla Women's Clinic, Inc., 866 S.W.2d 851, 854 (Mo. banc 1993)); Kettler v. Hampton, 365 S.W.2d 518, 522 (Mo.1963) (stating that “[o]rdinarily, the duties imposed by the law of negligence arise out of circumstances and are based on foreseeability or reasonable anticipation that harm or injury is a likely result of acts or omissions.”).³ Factors considered by courts in determining whether a duty exists in a negligent entrustment context include “the risk involved [and] the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct.” Casebolt, 829 P.2d at 356 (quoting Smith v. City and Cnty. of Denver, 726 P.2d 1125, 1127 (Colo.1986)).⁴

Apart from the issue of whether public policy mandates that we not recognize such a duty (which we discuss below), we think the petition alleged sufficient facts to proceed with the claim that Royer owed a duty of care to Hays. We know that Royer had a “duty” not to entrust a vehicle to someone who it knew or should have known would drive it while intoxicated. See Hallquist, 189 S.W.3d at 176–77...