Kellog v. Kellog, 74760

Decision Date27 April 1999
Docket NumberNo. 74760,74760
Citation989 S.W.2d 681
PartiesScott KELLOG, Plaintiff/Appellant, v. Kenneth KELLOG, Jr., Defendant/Respondent.
CourtMissouri Court of Appeals

James E. Lownsdale, Brandenburg & Lownsdale, St. Louis, for appellant.

Jon R. Sanner, Brinker & Doyen, L.L.P., St. Louis, for respondent.


In this case plaintiff, Scott Kellog, did not file his claim to recover damages for negligence against his stepfather, defendant Kenneth Kellog, Jr., until over six years after his damages were sustained. The trial court entered summary judgment in defendant's favor on the ground that the action was barred by the five year statute of limitations applicable to personal injury actions, Section 516.120 RSMo (1994). It further found that plaintiff failed to raise a genuine issue of fact that he was "mentally incapacitated", as that term is used in the tolling statute, Section 516.170 RSMo (1994), for the two years following his injury. Plaintiff appeals, primarily contending that genuine issues of fact remain on the question of his mental incapacity. We affirm.

Plaintiff filed an action on April 11, 1996 to recover damages from multiple defendants 1 for negligence and medical malpractice. He alleged that he was a hemophiliac and that while he was in defendant's care, defendant sent him outside to get firewood where he slipped on ice and fell, causing him to bleed continuously. He suffered an infection while being treated at St. Louis University Medical Center which required the amputation of his right leg in March, 1990. He alleged that defendant was negligent in sending him outside, in failing to clear the ice, and in failing to promptly seek medical assistance for him. Plaintiff also alleged that the statute of limitations should be tolled because his injuries kept him from recognizing, prosecuting, or protecting his legal rights.

Defendant moved for summary judgment on the grounds that plaintiff's cause of action was barred by the applicable statute of limitations and that plaintiff was not "mentally incapacitated" so as to toll the statute of limitations under Section 516.170. The trial court granted the motion. It determined that plaintiff did not present sufficient evidence to raise a question of fact on the issue of mental incapacity. It further found plaintiff's affidavits to be based on conclusions and not on facts which would allow a finder of fact to determine that plaintiff was mentally incapacitated.

I. Propriety of Summary Judgment on the Issue of "Mentally Incapacitated"

For his first point plaintiff argues the trial court failed to adequately define, interpret, and apply the term "mentally incapacitated" as used in Section 516.170 RSMo (1994). Plaintiff contends that, no matter what definition of "mentally incapacitated" is used, the record established plaintiff was "mentally incapacitated" so as to invoke the tolling provisions of Section 516.170. For his second point plaintiff asserts that the trial court overlooked and ignored genuine issues of material fact which precluded summary judgment on the issue of mental incapacity. Considered together, these points raise two issues: the meaning of the term "mentally incapacitated" and whether the undisputed facts in the summary judgment record supported a finding that plaintiff was not "mentally incapacitated" as a matter of law.

A. Meaning of "Mentally Incapacitated"

The legislature did not define the term "mentally incapacitated" as used in Section 516.170. We are thus guided by the rule that "[w]ords and phrases shall be taken in their plain or ordinary and usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import." Section 1.090 RSMo (1994); Bartareau v. Executive Business Products, Inc., 846 S.W.2d 248, 249 (Mo.App.1993).

Prior to its 1983 revision, Section 516.170 provided:

If any person entitled to bring an action in sections 516.100 to 516.370 specified, at the time the cause of action accrued be either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution under a sentence of a criminal court for a less term than for his natural life, such persons shall be at liberty to bring such actions within the respective times in sections 516.100 to 516.370 limited after such disability is removed.

The Missouri Supreme Court interpreted "insane" as used in this version of Section 516.170 as follows: "Unsoundness of mind has been judicially declared to be synonymous with 'insanity.' It exists where there is an essential privation of the reasoning faculties, or where a person is incapable of understanding and acting with discretion in the ordinary affairs of life." Fendler v. Roy, 331 Mo. 1083, 58 S.W.2d 459, 464 (1932). In Fiandaca v. Niehaus, 570 S.W.2d 714, 717 (Mo.App.1978), we held, "[t]hat a person is old, infirm, has a weakened mind, impaired mental capacities and is subject to influence and domination by her children does not establish that she is insane."

In 1983 the Missouri legislature made a comprehensive revision of the probate code as it relates to guardianship. 2 The bill changed the nomenclature of guardianship proceedings in Chapter 475 by omitting stigmatizing vocabulary and replacing those terms with "incapacitated" and "disabled". 3 The definitions of the new terms provided a functional approach to the guardianship process based upon a person's specific abilities and disabilities. 4

The bill also removed stigmatizing language in numerous other statutes which previously used terms such as "incompetent" and "insanity" and substituted forms of the word "incapacity." 5 In Section 516.170, the statute at issue in this case, the term "mentally incapacitated" was substituted for the word "insane."

At the time it substituted "mentally incapacitated" in Section 516.170, the legislature also made mental incapacity a condition which made a person ineligible to vote, Section 115.133.2; operated as a waiver of a person's right to a jury trial in civil actions, Section 510.190.4; qualified a person for guardianship, Section 475.030.1; made a person incompetent to testify, Section 491.060; was a ground for removal of a personal representative, Section 473.140; and required that a guardian ad litem be appointed for a person interested in the probate of a will, Section 473.083.2. The legislature has also used "mentally incapacitated" to describe the condition which entitled a child to child support after emancipation, Section 452.340.4; or excused a child from attending school, Section 167.031.1(1).

Also, at the time the term "mentally incapacitated" was added to Section 516.170, Black's Law Dictionary defined "mental incapacity" the same way the Missouri Supreme Court had previously defined "insanity": "Such is established when there is found to exist an essential privation of reasoning faculties, or when a person is incapable of understanding and acting with discretion in the ordinary affairs of life." BLACKS LAW DICTIONARY 889 (5th ed.1979).

In discussing the current version of Section 516.170, our supreme court has described mentally incapacitated persons as those who, although they have a right to file a suit, have a disability which prevents meaningful access to the courts. Wheeler v. Briggs, 941 S.W.2d 512, 515 (Mo. banc 1997). "The legislature, in recognition of this practical inability to bring suit, included mentally incapacitated persons in the tolling provisions of Section 516.170...." Id.

In light of the above, we conclude that the substitution of "mentally incapacitated" for "insane" did not substantively change this statute. See Estate of Brown v. Fulp, 718 S.W.2d 588, 590 (Mo.App.1986) (construing substitution of "mentally incapacitated" for "insane" in the 1983 revision to The Dead Man's Statute, Section 491.010 (1983 Supp.)). Therefore, a plaintiff who seeks to toll a limitations period due to mental incapacity must set forth facts which show that plaintiff was deprived of an ability to reason or was unable to understand and act with discretion in the ordinary affairs of life, which disability prevented plaintiff from bringing suit.

B. Propriety of Summary Judgment on Issue of Mental Incapacity

In his motion for summary judgment, defendant set out facts, supported by his affidavit and references to plaintiff's deposition, which showed that plaintiff was not mentally incapacitated. Defendant alleged plaintiff's ability to handle his affairs, care for himself, get a driver's license, attend college, and obtain employment during the five years after his injury. Defendant further averred that plaintiff had lived in defendant's household continuously until 1993 and that he was unaware that plaintiff had ever suffered or been treated for any mental or psychological illness or disability. Specifically, with respect to the two years after the injury, defendant referenced plaintiff's deposition testimony that, although he did not leave his house during those two years, he bathed, he made out a grocery list which he gave to his mother along with his food stamps so she could get groceries for him, he prepared his own meals in his room, he fed himself, and he sometimes joined the family for meals.

Because defendant met his burden and showed the existence of facts necessary to support the bar of the statute of limitations, plaintiff could not rest upon the mere allegations or denials in his pleading, but his response, by affidavits or as otherwise provided in Rule 74.04, had to set forth specific facts showing that there existed a genuine issue for trial. ITT Com. Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04(e). As the party claiming the exemption, plaintiff had the burden of showing exemption from the operation of the statute of limitations. Woodruff v. Shores, 354 Mo. 742,...

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