Scheibel v. Hillis

Decision Date12 January 1976
Docket NumberNo. 59000,59000
CitationScheibel v. Hillis, 531 S.W.2d 285 (Mo. 1976)
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, 2plaintiff alleges that on or about February 14, 1972, in the residence of defendantBetty 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, 1972defendant 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.SeeRestatement (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 reasonable inferences fairly deductible from the facts stated.

In Charlton v. Jackson, supra, plaintiff recovered judgment against...

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137 cases
  • Thompson v. Tuggle
    • United States
    • Missouri Court of Appeals
    • Febrero 07, 2006
    ...not Glennco, were responsible for all maintenance and repairs. Thompson cites Scheibel v. Hillis, 531 S.W.2d 285, 290 (Mo.banc 1976), which reversed the dismissal of a negligence petition. The defendant in Scheibel kept a loaded shotgun in her house and the plaintiff was shot by a third person in the defendant's house. Id. at 287. The instant case is distinguishable from Scheibel for two different reasons. First, the defendant in Scheibel,accidental shooting death occurred inside the home as opposed to a common area, and the lease provided that the Tuggles, not Glennco, were responsible for all maintenance and repairs. Thompson cites Scheibel v. Hillis, 531 S.W.2d 285, 290 (Mo.banc 1976), which reversed the dismissal of a negligence petition. The defendant in Scheibel kept a loaded shotgun in her house and the plaintiff was shot by a third person in the defendant's house. Id. at 287. The instant290 (Mo.banc 1976), which reversed the dismissal of a negligence petition. The defendant in Scheibel kept a loaded shotgun in her house and the plaintiff was shot by a third person in the defendant's house. Id. at 287. The instant case is distinguishable from Scheibel for two different reasons. First, the defendant in Scheibel, unlike Glennco, had control over the premises because it was her residence. Id. at 287. Second, the defendant...
  • Chase Elec. Co. v. Acme Battery Mfg. Co., 57927
    • United States
    • Missouri Court of Appeals
    • Octubre 23, 1990
    ...law entitling plaintiff to relief. Lowrey v. Horvath, 689 S.W.2d 625, 626 (Mo. banc 1985). A petition need only allege ultimate facts, not the facts or circumstances by which the ultimate facts will be established. Scheibel v. Hillis, 531 S.W.2d 285, 290 (Mo. banc 1976). Furthermore, an appellate court may draw those reasonable inferences fairly deducible from the facts stated in the petition. Stiffelman v. Abrams, 655 S.W.2d 522, 525 (Mo. banc 1983). With these...
  • Smith v. Republic Servs., Inc.
    • United States
    • U.S. District Court — Eastern District of Missouri
    • Septiembre 13, 2017
    ...v. Bross, 73 S.W.3d 651, 657 (Mo. Ct. App. E.D. 2002). "[W]hether 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. 1976). Plaintiff's Complaint does not assert facts establishing the elements of a negligence claim nor does it allege that defendants failed to use reasonable care or breachedany duty owed to plaintiff. The Complaint...
  • Thwing v. Reeder
    • United States
    • Missouri Court of Appeals
    • Diciembre 08, 1998
    ...admitted that she gave permission for the party and knew that beer would probably be served. There is no evidence that she was present at the party when the crashers arrived or when Timothy was shot. The plaintiffs cite Scheibel v. Hillis, 531 S.W.2d 285 (Mo.1976), in which the Court held that a petition sufficiently alleged negligence against a homeowner. The homeowner had invited a person of known violent and unstable disposition into a house in which the guest knew the location...
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8 books & journal articles
  • Section 4.37 Motion to Make More Definite and Certain
    • United States
    • Civil Trial Practice Deskbook The Missouri Bar
    ...specific. The fact that a plaintiff might be compelled by court order following a motion to make more definite and certain does not mean that the petition does not state a cause of action. Scheibel v. Hillis, 531 S.W.2d 285 (Mo. banc 1976), appeal after remand, 570 S.W.2d 724. (Mo. App. E.D. 1978). A failure to move for more definite and certain waives any deficiencies in matters of particularity. Layton v. Pendleton, 864 S.W.2d 937 (Mo. App. W.D. 1993); May Dep’t...
  • Section 13.17 Private Residence
    • United States
    • Tort Law Deskbook The Missouri Bar
    ...were sufficient to state a cause of action against a residence owner. In essence, the petition in Scheibel v. Hillis, 531 S.W.2d 285 (Mo. banc 1976), alleged that: · the plaintiff sustained serious injuries as the result of being shot with a 12-gauge shotgun owned by the defendant and fired by another on her premises; · the defendant had full knowledge of the fact that this third person was of a wanton and brutal nature; and · the defendant was negligent in keeping a loaded shotgun...
  • Section 34 Pleadings Must Be Detailed and Specific
    • United States
    • Professional Liability Deskbook The Missouri Bar
    ...specific pleading in the petition. Scheibel v. Hillis, 531 S.W.2d 285 (Mo. banc 1976), was distinguished in Thwing v. Reeder, 987 S.W.2d 347 (Mo. App. E.D. 1998) (Blackmar, J.), in which a party guest was shot by a party crasher. The victim then sued the hosts of the key party for negligence, relying on appeal on Scheibel. The court held that Scheibel involved an invited person of known violent and unstable disposition in a house in which the guest knew the location of a...
  • Section 33 How Much Knowledge Is Required?
    • United States
    • Professional Liability Deskbook The Missouri Bar
    ...work in an abuse case because it is hard to imagine an accidental sexual attack. Plainly, the more events reported to the supervisor and the more egregious they are, the more likely counsel will establish the required mental state. Compare Conroy v. City of Ballwin, 723 S.W.2d 476, 479 (Mo. App. E.D. 1986) (accidental shooting did not create third-party liability), with Scheibel v. Hillis, 531 S.W.2d 285, 289–90 (Mo. banc 1976) (third-party liability established for intentional...
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