Hockensmith v. Brown

• Decision Date: 23 July 1996
• Docket Number: No. WD,WD
• Citation: 929 S.W.2d 840
• Parties: James R. HOCKENSMITH and Laresa Hockensmith, Appellants, v. Gary D. BROWN, Maria Brown, and Ronnie Brown, Respondents. 51051.
• Court: Missouri Court of Appeals

Page 840

929 S.W.2d 840

James R. HOCKENSMITH and Laresa Hockensmith, Appellants, v. Gary D. BROWN, Maria Brown, and Ronnie Brown, Respondents.

No. WD 51051.

Missouri Court of Appeals,

Western District.

July 23, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 27, 1996.

Application to Transfer Denied

Oct. 22, 1996.

Eddie Gene Dougherty, Kansas City, for appellants.

Matthew Rau, Kansas City, for respondents.

HANNA, Presiding Judge.

James R. and Laresa Hockensmith appeal from an order of the circuit court granting summary judgment in favor of defendants, Gary D. and Maria Brown (parents), and their son, Ronnie Brown (Brown).

In March 1991, Brown was arrested on drug charges. One month later, he was placed in an outpatient drug and alcohol rehabilitation program.

On September 20, 1991, Brown was 17 years old. He went to a high school football game with his parents' permission. He then went to a party at the home of Joseph and Sheila Bullin, without his parents' permission. While at the party, he drank a large quantity of alcohol, became violent, and struck two individuals, including Mrs. Bullin. He left the party and went to the QuikTrip convenience store located on Barry Road near Interstate 29 in Platte County, where the altercation with the plaintiff took place.

That evening, shortly before midnight, plaintiff, James Hockensmith, a police officer, stopped at the QuikTrip to buy a cup of coffee before reporting for roll call at the North Patrol Division of Kansas City. Officer Hockensmith was wearing his police uniform, equipped with the department issued side-arm and "Cap Stun" (pepper spray). He was driving a marked patrol car. However, because he had not yet reported for duty, Officer Hockensmith was without his department issued walkie-talkie, bullet-proof vest, and police baton.

As Hockensmith got out of his patrol car, he saw Brown yelling and screaming at someone in the parking lot, and generally causing a public disturbance. He approached Brown to investigate the situation and defuse the disturbance. The officer asked Brown what the problem was and Brown replied, "Make them give me back my nine millimeter." Hockensmith asked Brown to repeat himself, which he did. In response to Brown's comment, Hockensmith turned and looked at the other people in the parking lot to determine whether they were a possible source of danger. While Hockensmith's attention was diverted, Brown struck him in the right eye and ran into the QuikTrip store. Hockensmith pursued Brown into the store, fearing that he might present a danger to the store patrons. Hockensmith intended to apprehend and arrest him.

Once inside the store a scuffle ensued. Brown taunted Hockensmith, "dancing around like a prize fighter" saying, "Come on, come on." In the course of the melee, Brown struck Hockensmith at least twice on the side of the face. Hockensmith attempted to immobilize Brown with the "Cap Stun." During the altercation, Hockensmith ordered the store's assistant manager to call for back up on an "assist the officer" call. Eventually, a store patron helped Hockensmith subdue Brown. Brown was arrested for assaulting a law enforcement officer. ¹

The Hockensmiths filed an amended petition against Brown, his parents, and Joseph and Sheila Bullin for damages sustained by Hockensmith. ² Three counts were against Brown: ordinary negligence (count I); assault and battery (count II) ³; and willful, wanton, and reckless negligence (count VII). Three counts were against his parents: ordinary negligence (count III); statutory damages under § 537.045, RSMo 1994, (count IV); and willful, wanton, and reckless negligence (count VIII). Count VI, brought by Ms. Hockensmith, was against all defendants and alleged loss of services and consortium arising out of her husband's injuries.

Brown and his parents moved for summary judgment on the grounds that the Hockensmiths' claims for ordinary negligence were barred by the firefighter's rule, and the intentional assault and battery count was barred by the two-year statute of limitations. § 516.140, RSMo 1994. They further argued that the claims for statutory damages and loss of services were derivative of the above stated counts and, therefore, must also fail. The summary judgment motion was submitted to the court on the pleadings, depositions, and affidavits of the parties involved. At a hearing, Brown and his parents asserted that the alleged conduct did not amount to willful, wanton, or reckless negligence. The trial court granted summary judgment in favor of Brown and his parents on all counts. The Hockensmiths appeal.

Appellate review of the propriety of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is viewed in the light most favorable to the party against whom summary judgment was entered, and that party is afforded the benefit of all reasonable inferences that may be drawn from the evidence. Id. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true, unless contradicted by the non-moving party's response to the summary judgment motion. Id. Summary judgment will be affirmed on appeal if the reviewing court determines that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. General Motors Corp. v. Kansas City, 895 S.W.2d 59, 61 (Mo.App.), cert. denied, 516 U.S. 909, 116 S.Ct. 277, 133 L.Ed.2d 197 (1995).

The Hockensmiths first contend that the trial court erred in granting summary judgment in favor of Brown and his parents as to the ordinary negligence claims in that the firefighter's rule does not apply to the facts of this case.

In their claim for ordinary negligence against Brown (count I), the Hockensmiths alleged that Brown was negligent in the following respects:

(a) Consuming alcoholic beverages as a minor;

(b) Consuming alcoholic beverages knowing his propensities for violence while under the influence of alcohol;

(c) Entering a public place under the influence of alcohol when he knew or should have known that he was incapable of controlling his actions;

(d) Failing to warn the Plaintiff and others of his propensity for violence while under the influence of alcohol;

(e) Failing to warn Defendants, J.L. and Sheila Bullin, of his age as a minor when offered alcoholic beverages;

(f) Failing to warn Defendants, J.L. and Sheila Bullin, of his propensity for violence while under the influence of alcohol; and

(g) Swinging his arm and striking the Plaintiff James R. Hockensmith in the face.

A petition seeking damages for actionable negligence must allege "ultimate facts," which, if proven, show: (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) the failure of the defendant to perform that duty; and (3) an injury to the plaintiff resulting from such failure. Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976).

A thorough review of the record shows that Brown's conduct can only be described as an intentional assault and battery. The allegations asserted in count I do not give rise to triable issues of negligence.

In his deposition, Hockensmith testified that Brown struck him in the right eye while outside the QuikTrip store. He further testified that, in the store, Brown was "dancing around like a prize fighter" saying, "Come on, come on." Brown then struck Hockensmith two more times in the right eye.

Additionally, a QuikTrip employee witnessed Brown's abusiveness, obstreperousness, and his resistance to Hockensmith's efforts to subdue him. In his statement to the police, he stated that he was watching Hockensmith talk to Brown when "[t]he next thing I knew, was I saw him swing and hit the officer in the face with his fist." He further stated that he saw Hockensmith try to restrain Brown, who "struck Hockensmith in the face a couple more times."

Moreover, Brown pleaded guilty to the felony charge of first degree assault of a law enforcement officer, § 565.081, thereby admitting that he "knowingly cause[d] or attempt[ed] to cause serious physical injury to a law enforcement officer."

The theories of negligence and intentional tort are contradictory and mutually exclusive. Jones v. Marshall, 750 S.W.2d 727, 728 (Mo.App.1988). Evidence of an act purposely done negates negligence. Id. A plaintiff cannot recover under a negligence theory if the only evidence is that of an intentional tort. Id. The only evidence presented by the Hockensmiths that would support an inference of negligence was a self-serving letter written by Brown to Hockensmith. In this letter, Brown claimed that he lost control by drinking a large quantity of alcohol that night, and he did not remember what happened.

While we view the record in the light most favorable to the party against whom summary judgment was rendered, the inconsistency between Brown's plea of guilty to the charge of assault of a law enforcement officer and his self-serving statement that he lost control and cannot remember what happened does not create a genuine issue of fact. Hockensmith's claim that Brown did not intend to hit him is without merit. "Where the 'genuine issues' raised by the nonmovant are merely argumentative, imaginary or frivolous, summary judgment is proper." ITT Commercial Fin. Corp., 854 S.W.2d at 382.

We have searched the record for some evidence that supports the Hockensmiths' negligence theory, however, the evidence shows that Brown deliberately and purposefully struck Hockensmith, and no abstruse process of reasoning can torture it into an act of negligence. Jones, 750 S.W.2d at 728. Having pleaded simple negligence, the Hockensmiths cannot recover when the only evidence is an assault and battery, an intentional tort. Miller v. Kruetz, 643 S.W.2d 310, 313-14 (Mo.App.1982). Point denied.

The Hockensmiths next allege that the trial court erred in...