Rogger v. Voyles

• Decision Date: 27 September 1990
• Docket Number: No. 16637,16637
• Citation: 797 S.W.2d 844
• Parties: Robert L. ROGGER, Sondra Rogger, and Tosha Rogger, Plaintiffs-Respondents, v. Leonard A. VOYLES and Jane Lowe, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 844

797 S.W.2d 844

Robert L. ROGGER, Sondra Rogger, and Tosha Rogger Plaintiffs-Respondents, v. Leonard A. VOYLES and Jane Lowe, Defendants-Appellants.

No. 16637.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 27, 1990.

Motion for Rehearing and/or Transfer

to Supreme Court Denied Oct. 12, 1990.

Application to Transfer Denied Nov. 20, 1990.

Connie J. Clark, Kevin C. Shelton (appearing under Supreme Court Rule 13), Osage Beach, for plaintiffs-respondents.

Ronald R. McMillin, Carson & Coil, P.C., Jefferson City, for defendants-appellants.

PREWITT, Judge.

Plaintiffs sought damages as a result of personal injuries to plaintiff Tosha Rogger. Following nonjury trial, judgment was entered in favor of plaintiff Tosha Rogger and against defendants for $373,219 and in favor of plaintiffs Robert L. Rogger and Sandra Rogger and against defendants for $16,478. Defendants appeal. ¹

Before considering the merits of this matter, we are met with two motions filed by plaintiffs, a motion to dismiss the appeal for failure to comply with Rule 84.04 and a motion to strike "surplus pleadings" in the legal file. Both were taken with the case. Although there may be some violations of Rule 84.04, they are not serious enough to justify the drastic remedy of dismissing the appeal. The motion to dismiss the appeal is denied.

Plaintiffs' motion to strike refers to certain pleadings, irrelevant to the issues presented, being included in the legal file. It also notes that documents relating to Judge Franklin's appointment as circuit judge and later as associate circuit judge are included in the legal file just before the circuit clerk's certification but the clerk does not certify that they were part of the circuit court file. We are not asked to take any action with regard to the latter documents. Those documents should not have been included in the legal file, although the facts shown thereon are agreed to by the parties.

At the time the legal file is prepared, an appellant may not know the full extent of the legal issues to be presented and the documents necessary to present those issues. It is not unusual that the legal file contains pleadings not relevant to the issues presented. However, plaintiff is technically correct that these pleadings are irrelevant to any issues presented. See Rule 81.12(b). The motion to strike is therefore sustained.

Defendants, in their brief, raise three points relied on. We discuss them in the order raised. Defendants assert in their first point that the trial court erred in overruling their motion for dismissal after plaintiffs' counsel's opening statement and in denying defendants' motion for judgment at the close of plaintiffs evidence and at the close of all the evidence. Defendants contend plaintiffs "neither pleaded nor proved an actionable case of negligent supervision of an underaged driver by entrusting her with a motor vehicle in that they made no allegations nor offered any evidence that the underage driver's incompetency in the operation of the motor vehicle was the proximate cause of her harm or that appellants knew or should have known of brake problems so as to make her injuries foreseeable under the circumstances."

In construing plaintiffs' petition to determine if they plead a claim for which relief can be granted on negligent supervision, and if there was evidence to support it, certain principles are applicable. To determine if a pleading states a cause of action, the petition is taken as true and every favorable inference which may be reasonably drawn from the facts pleaded is considered in favor of plaintiff. Cuba's United Ready Mix v. Bock Concrete, 785 S.W.2d 649, 650 (Mo.App.1990).

A motion for judgment at the close of the evidence, like a motion for a directed verdict, is a drastic action which should be sustained only when plaintiffs fail to show sufficient evidence from which the trier of facts could find for them. In determining if a submissible case was made, the evidence and reasonable inferences thereof are viewed most favorable to the plaintiffs. See Mercer v. Thornton, 646 S.W.2d 375, 376 (Mo.App.1983); Ogle v. Webb, 623 S.W.2d 582, 583-584 (Mo.App.1981); Wilson v. Missouri-Kansas-Texas R. Co., 595 S.W.2d 41, 44 (Mo.App.1980).

The principal facts are not in dispute. On September 30, 1981, Tosha Rogger, age 13, was visiting her maternal grandfather, defendant Leonard A. Voyles, on his farm in Camden County. Jane Lowe resided there with him. On that date, with both defendants' permission and knowledge, Tosha had been driving alone, off and on for approximately six-and-one-half hours, a 1971 Jeepster motor vehicle. She noticed that its brakes had not been operating properly. While operating the vehicle alone on a gravel road which went through the farm, she lost control of it, and it struck a ravine. She suffered serious personal injuries when her face hit the steering wheel. She testified that she lost control because the brakes did not work. Previous to that date, she had not driven a full-sized motor vehicle. She had driven a "go kart" on the farm when she was six or seven.

Plaintiffs' petition alleged defendants were negligent in several respects in allowing Tosha Rogger to drive while under their supervision, including that she had no previous driving experience, and that they failed to give her sufficient directions on how to properly and safely operate it. The petition stated that as a direct and proximate result of that negligence she was injured. As plaintiffs contend, it is a reasonable inference from the matters alleged that Tosha's lack of driving experience and direction was the proximate cause of her injuries. Cf. Golden v. National Utilities Co., 356 Mo. 84, 201 S.W.2d 292, 298 (1947).

Three elements must exist for a case of actionable negligence: (1) a duty owed by defendant to protect plaintiff from the injury complained, (2) a failure to perform that duty, and (3) injury proximately caused by that failure. Lavo v. Medlin, 705 S.W.2d 562, 564 (Mo.App.1986). "The concept of duty depends upon the issue of reasonable foreseeability." Id.

Defendants cite cases regarding "negligent entrustment" for the proposition that Tosha's injuries must have been proximately caused by her incompetency in the operation of the vehicle. The elements for a "negligent entrustment" case are set forth in Evans v. Allen Auto Rental and Truck Leasing, Inc., 555 S.W.2d 325, 326 (Mo. banc 1977), and Ransom v. Adams Dairy Co., 684 S.W.2d 915, 920 n. 5 (Mo.App.1985).

The cases regarding negligent entrustment are situations where a third party was injured by the minor's negligence, not for injuries to the minor. Thus, we do not consider them persuasive or relevant except as they might state certain general principles of tort law such as proximate cause.

Defendants had a duty to exercise reasonable or ordinary care in the supervision of Tosha. Swain v. Simon, 699 S.W.2d 769, 773 (Mo.App.1985). Ordinary care may require more vigilance and caution when a child is involved if there is a potentially dangerous situation of which a supervisor is or should be aware. Id.

Defendants rely upon Swain, and although we agree with the general principles cited above, we are not fully in agreement with certain statements made in the case. It states that "[t]he breach of that duty, however, involves whether a reasonable person could have foreseen that the injuries of the type suffered would likely occur under the circumstances. [Smith v.] Archbishop of St. Louis, supra, [632 S.W.2d 516 (Mo.App.1982) ] at 521." Swain at 773-774. "Likely" and "probably" are synonymous. General Adjustment Bureau, Inc. v. General Ins. Adjust Co., 381 F.2d 991, 993 (10th Cir.1967); People v. Randall, 711 P.2d 689, 692 (Colo.1985); Yeske v. Avon Old Farms School, Inc., 1 Conn.App. 195, 470 A.2d 705, 710 (1984).

We do not agree that foreseeability requires that an incident of this type "would likely occur", it is enough that a reasonable person would recognize that it could or might occur and that steps should be taken to prevent it. "[F]oreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct." 3 Harper, James and Gray, The Law of Torts, § 18.2 at 657-659 (2d ed. 1986).

"The reasonable anticipation of danger is an essential element of actionable negligence; and whether negligence exists in a particular situation depends on whether or not a reasonably prudent person would have anticipated danger and provided against it." Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976). See also Prosser and Keeton on the Law of Torts 170-171 (5th ed. 1984); Smith v. Tennessee Valley Authority, 699 F.2d 1043,...