Joyce v. Nash, WD

• Decision Date: 02 February 1982
• Docket Number: No. WD,WD
• Citation: Joyce v. Nash, 630 S.W.2d 219 (Mo. App. 1982)
• Parties: Bud JOYCE and Eleanor G. Joyce, Appellants-Respondents, v. Charles NASH, d/b/a Thunderbird Trailer Sales and Thunderbird Trailer City, Appellant-Respondent. 32004.
• Court: Missouri Court of Appeals

Page 219

630 S.W.2d 219

Bud JOYCE and Eleanor G. Joyce, Appellants-Respondents, v.Charles NASH, d/b/a Thunderbird Trailer Sales and Thunderbird Trailer City, Appellant-Respondent.

No. WD 32004.

Missouri Court of Appeals, Western District.

Feb. 2, 1982.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied March 2, 1982.

David E. Larson & W. Robert King, Morris, Larson, King, Stamper & Bold, Kansas City, for Bud & Eleanor Joyce.

Don B. Roberson, Kansas City, for Charles Nash, et al.

Before SHANGLER, P. J., and WASSERSTROM and CLARK, JJ.

SHANGLER, Presiding Judge.

The plaintiffs Joyce, husband and wife, had judgment for damages against Nash, doing business as Thunderbird Trailer Sales, etc., on a theory that the defendant negligently locked them in the business compound after regular hours so that they were assailed by guard dogs unleashed by the defendant.The petition was for actual and punitive damages.The jury returned compensatory awards of $3,000 for the husband and $7,000 for the wife, but no exemplary damages.The litigants cross-appeal.

The plaintiffs contend the refusal to submit punitive damages by the instructions tendered was error.The defendant contends that the instructions under which the jury returned actual damages submitted strict liability rather than negligence, and so were error.

The evidence taken most favorably to the verdicts for the plaintiffs shows that the Joyces were on the Thunderbird premises in response to a newspaper advertisement by the defendant for the sale of a motor home.The plaintiff telephoned Thunderbird to inquire as to the motor home advertised and to display interest in a purchase.The telephone communicant, an employee, disclosed the price and advised that an appointment was not necessary because the business was "open late every night."A day or so later, at about 7:30 p. m., the husband, wife and daughter drove the family pickup truck to the Thunderbird lot to inspect the motor home advertised in the newspaper.That place of business was a compound completely enclosed by a fence topped with barbed wire.The Joyces drove through the west gate and noticed the motor home they came to see.The office structure was directly ahead.The lights were on inside and Joyce could see people in the office through the front plate glass window.(The defendant Nash acknowledged that from the office interior a person could see any vehicle enter through the west gate.)A sign in the window announced: "Yes, We're Open."There were two cars parked by the office structure, but no sign warned about dogs.Nor did any sign designate an area for customers to park.

The plaintiffs parked the pickup, got out, awaited the appearance of a salesperson, and after several minutes went by without event, they walked over to the motor home of their interest.The door was unlocked so they entered and inspected the interior.The keys were in the ignition, so the husband started the engine to the accessories.It was a very hot night and the generator was not operable, so the Joyces emerged and attempted to start the air-conditioner from an outside manual switch on the other side of the motor home.The first dog appeared then.It came up to the daughter (a mongoloid), and a second animal commenced to converge.The three of them gained the shelter of the pickup and, by then, five or so large canines kept them at siege by their vicious and angry antics.Joyce drove the pickup to the office, noticed the cars were gone, sounded the horn, and then noticed the gate was chained and padlocked.

The three of them remained enclosed in the cab of the truck.The dogs responded to every movement by lunges and claw scratches against the doors.It was not safe to open the vehicle door.They contrived to remain totally quiet for a number of minutes, and that calmed both the child and the animals.Thus, Joyce was able to extend himself out of the truck by one foot on the armrest and another foot on the seat to attempt to flag down passersby.By this time about an hour elapsed.A motorcyclist stopped.Joyce tossed him coins to call the police, but that attempt did not succeed.A second effort to extricate the Joyces also failed.A third person managed to gain a police response.They found the Joyces in the truck, the windows up, the dogs lunging at the side of the vehicle.The police soon concluded that the animals were too dangerous to consider an incursion onto the premises for a rescue.They called the fire department.The police rattled the fence at a distance point to engage the dogs while the firefighters slung a ladder over the fence onto the truck bed for the rescue.The maneuver was made more difficult because the child did not easily understand directions.Two and one-half hours elapsed between the impoundment and the rescue of the Joyces.

The next morning the Joyces returned to the Thunderbird premises to retrieve the pickup truck.The defendant Nash was reluctant to allow the repossession and was skeptical of the account of the event.After some unpleasantness, Joyce was allowed to drive the truck away.

The defendant Nash disclaimed any knowledge of the presence of the Joyces or the truck on the compound at the time he locked and left the premises at 7:55 p. m. that evening.That night, as every other, the defendant Nash and his wife conducted the normal procedure of inspection of the premises before the gate was locked.The normal course was to lock the east gate first.Nash then parked his car in the west gate to prevent entry to any vehicle.In the meanwhile, Ms. Nash makes certain that each trailer door is closed, and then proceeds to west gate to await the husband.He has fed the dogs by this time, but waters them just before he leaves, and releases them onto the grounds from the kennel.His final precaution is to make a tour of the lot with a dog or two, for the animals to detect anything amiss.He determines for himself that each door is closed, walks through the office, and locks the doors.The final act is to lock the west gate.

The petition of the plaintiffs Joyce stated three counts: (1) false imprisonment, (2) negligent failure to warn of dangerous and defective conditions on the premises or to make them safe for business invitees, (3) negligent failure to determine that there were no persons on the premises before the guard dogs were let loose and the gates locked.The petition alleged that, as to each cause of action, the conduct of the defendant Nash was reckless and willful and claimed punitive damages.The Joyces, husband and wife, submitted only Count III by instructions duplicate except for the plaintiff designation:

Your verdict must be for the plaintiff(s), (Bud Joyce-Eleanor G. Joyce), if you believe:

First, defendant locked the plaintiff(s) in the compound, or defendant released the dogs while the plaintiff(s) were inside the defendant's premises, and

Second, in any one or more of the above respects defendant was thereby negligent, and

Third, as a direct result of such negligence the plaintiff(s) sustained damage

Unless you believe the plaintiff(s) are not entitled to recovery by reason of Instruction(s) Number 4 (and 7).

Instructions Number 4 and 7 submitted the failure of the husband and wife, respectively, to inform the defendant of their presence (etc.) as contributory negligence.

The defendant contends that the verdict directors do not postulate for an award that the defendants knew, or in the exercise of reasonable care, should have known, the plaintiffs were on the premises when Nash locked the gates or released the dogs-and so submit not a theory of negligence, but of strict liability.We agree.

The law imposes a duty upon a person to act so as to avoid unreasonable risk of harm to another.Hamilton v. Ross, 304 S.W.2d 812, 814(1, 2)(Mo.1957).Actionable negligence results, therefore, from the failure of a person under the duty of reasonable care, to protect the other injury.Nichols v. Blake, 418 S.W.2d 188, 190(5, 6)(Mo.1967);Restatement (Second) of the Law of Torts§ 281(1965).The law expects an actor under duty of care to another to conform conduct to the standard of a reasonable person-that is to say, negligence is a departure from the measure of conduct the community expects for the protection of others against unreasonable risk of harm.Restatement (Second) of the Law of Torts§ 283, Comments b and c (1965).Thus, the standard of care the law exacts is external and objective: what an ordinarily careful and prudent person would do under the particular circumstances.Crowder v. Vandendeale, 564 S.W.2d 879, 882(6)(Mo. banc 1978);Bullock v. Sklar, 349 S.W.2d 381, 387(10)(Mo.App.1961);Restatement (Second) of the Law of Torts§ 285(1965);57 Am.Jur.2d, Negligence§ 1(1971).Thus, it is the likelihood that the conduct of the actor-under the circumstances-will injure another that gives rise to the duty to exercise due care.Green v. Kahn, 391 S.W.2d 269, 275(4)(Mo.1965).In that perspective, therefore, anticipation or foreseeability that injury will follow conduct constitutes an essential element of actionable negligence.Donovan v. Union Electric Company, 454 S.W.2d 623, 626(4, 5)(Mo.App.1970).In even more conclusive terms: "The foreseeability of injury is the touchstone of the quality of the act as negligent.This is the basis of liability."1 Dooley, Modern Tort Law§ 3.10(1977).In pith, the sum of negligence is the failure to observe a standard of reasonable prudence and foresight.Taylor v. Dale-Freeman Corporation, 389 S.W.2d 57,...