Scheibel v. Hillis

Decision Date12 January 1976
Docket NumberNo. 59000,59000
Citation531 S.W.2d 285
PartiesDennis SCHEIBEL, Plaintiff-Appellant, v. Betty HILLIS et al., Defendants, Betty Hillis, Defendant-Respondent.
CourtMissouri Supreme Court

Joyce P. Hayes, St. Louis, Hayes & Hayes, St. Louis, for appellant.

Kemper R. Coffelt, St. Louis, Heneghan & Roberts, St. Louis, for defendants-respondent.

SEILER, Chief Justice.

The question presented is whether plaintiff's petition in a case where plaintiff was shot by a third person with a weapon kept by defendant in her house states a claim upon which relief can be granted. The trial court held it did not, 1 which was affirmed by the court of appeals, St. Louis district. We transferred the case on application of plaintiff, Art. V, Sec. 10, 1945 Missouri Constitution. We reverse and remand.

Borrowing the language of the court of appeals reducing the petition to its simplest terms, 2 plaintiff alleges that on or about February 14, 1972, in the residence of defendant Betty Hillis, plaintiff was shot in the right leg with a 12 gauge, single-barrel shotgun, owned by the defendant and fired by one Richard James Joyner; that defendant with full knowledge of prior particular acts of Joyner of a mischievous, wanton and brutal nature, and wanton and willful acts of violence against other persons did keep in her possession said loaded shotgun; that prior to February 14, 1972 defendant notified Joyner of such possession; that said weapon was kept in a place where defendant knew or should have known that Joyner was likely to use it so as to create an unreasonable risk of harm to plaintiff and other persons; that defendant failed to give plaintiff any warning or notice of Joyner's dangerous and violent propensities and character, wanton disposition and threats of which defendant knew or should have known, and of the fact that she kept a loaded shotgun as protection from Joyner; and that as a direct and proximate result of the foregoing negligence and carelessness of defendant, together with Joyner's firing of said weapon at plaintiff with the intention of inflicting great bodily harm and injury, plaintiff suffered severe and painful injuries and other loss and damages.

A petition seeking damages for actionable negligence must allege 'ultimate facts' which, if proven, show (1) existence of a duty on the part of the defendant to protect the plaintiff from injury, (2) failure of defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure. Stevens v. Wetterau Foods, Inc., 501 S.W.2d 494, 498 (Mo.App.1973); Wise v. Towse, 366 S.W.2d 506, 510 (Mo.App.1963).

A duty to exercise care not only may be imposed by a controlling statute or ordinance or assumed by entering into a contractual relationship, but it may be imposed by common law under the circumstances of a given case. Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52, 55 (1952). As to the duty owed to invitees, licensees and trespassers by an owner-occupier of land, the significance of the status largely disappears once the presence of the visitor becomes known, and a uniform duty, that of reasonable care, is owed to each as to the activities conducted on the premises. Penberthy v. Penberthy, 505 S.W.2d 122, 126 (Mo.App.1973). Negligence depends upon the surrounding circumstances and the particular conduct involved, because an act or omission which would clearly be negligent in some circumstances would not be negligent in others. Tharp v. Monsees, 327 S.W.2d 889, 893--4 (Mo.banc 1959); Zuber v. Clarkson Construction Co., supra, 251 S.W.2d at 55. The circumstances may even be such that an otherwise innocent act will become negligent because of the expectable action of a third person. Zuber v. Clarkson Const. Co., supra at 55. It has been said that where an instrumentality is rendered dangerous to persons rightfully in its proximity by the act of a third person which act might have been reasonably anticipated by the person responsible for the instrumentality, failure to take appropriate precautions to avoid injury constitutes negligence. Triplett v. Shafer, 300 S.W.2d 528, 531 (Mo.App.1957); Zuber v. Clarkson Const. Co., supra, 251 S.W.2d at 55. This is true whether the third person's act is innocent, negligent, intentionally tortious or criminal. Zuber v. Clarkson Const. Co., supra, at 55.

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. Hodges v. American Bakeries Company, 412 S.W.2d 157, 162 (Mo.banc 1967); Price v. Seidler, 408 S.W.2d 815, 822 (Mo.1966). Restatement (Second), Torts, Sec. 302B, comment e, note D requires that a reasonable man must anticipate and guard against the intentional or criminal misconduct of others where he has brought into contact or association with others a person whom he 'knows or should know to be peculiarly likely to commit intentional misconduct, under circumstances which afford a peculiar opportunity or temptation for such misconduct.' Factors to be considered in determining whether or not one is required to take precautions in the above described situation include the known character, past conduct and tendencies of the person whose conduct causes the harm, the opportunity or temptation which the circumstances may afford him for such misconduct, together with the gravity of the harm which may result. See Restatement (Second), Torts, Sec. 302B, comment f.

There is a duty 'to prevent injury to such persons as may, within the range of reasonable probability, be exposed to injury' from an indiscreet and reckless party with a firearm. Charlton v. Jackson, 183 Mo.App. 613, 167 S.W. 670, 671 (1914). With respect to the problem of proximate causation, if the foreseeable likelihood that a third person may act in a particular manner is one of the hazards which makes a person negligent, such an act of a third party, whether innocent, negligent, intentionally tortious or criminal, does not prevent that person from being liable for the harm caused thereby. Zuber v. Clarkson Const. Co., supra, 251 S.W.2d at 55.

The court of appeals concluded plaintiff was endeavoring to allege actionable negligence on the part of defendant Hills in failing to anticipate and guard against the intentional and criminal misconduct of Joyner and had succeeded in establishing that defendant owed plaintiff a duty of reasonable care at defendant's residence, with which we agree. However, the court of appeals concluded further that facts were not alleged from which it could be found that defendant as a reasonably prudent person should have anticipated the intentional and criminal interference of Joyner; that the allegation that defendant kept a loaded shotgun as protection from Joyner in a place known to him, 'with full knowledge of prior particular acts of defendant Joyner of a mischievous, wanton and brutal nature, and wanton and wilful acts of violence against other persons, which acts were likely to result in probable consequence of injury to others' was no more than a conclusion and hence the petition does not authorize a finding that defendant should have reasonably anticipated and guarded against the intervening criminal act of Joyner, that the acts themselves were not described but merely characterized in general adjectival terms, and therefore the petition did not state a cause of action.

We disagree, bearing in mind that in considering the sufficiency of a petition on a motion to dismiss, we are to give the averments a liberal construction and accord the petition those...

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