Strickland v. Taco Bell Corp.
| Decision Date | 02 February 1993 |
| Docket Number | No. 61480,61480 |
| Citation | 849 S.W.2d 127 |
| Parties | Daphne STRICKLAND, et al., Plaintiffs-Appellants, v. TACO BELL CORPORATION, et al., Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Brandenburg, Kaveney & Lownsdale, James E. Lownsdale, St. Louis, for plaintiffs-appellants.
Newman, Goldfarb, Freyman & Stevens, P.C., Mayer S. Klein, St. Louis, for defendants-respondents.
Plaintiffs Jenifer, Victoria, and David Strickland, the natural children of Michael Strickland, through their mother and next friend, Daphne Strickland, appeal from a summary judgment entered by the Circuit Court of the City of St. Louis for defendant-respondent, Taco Bell Corporation. Appellants' father, Michael Strickland, died from complications to injuries sustained after falling down on the premises at one of respondent's restaurants. Before the case went to trial, defendants filed a motion for summary judgment. On January 10, 1992, the motion was sustained.
Appellants now appeal claiming the trial court erred in granting summary judgment asserting, when viewed in the light most favorable to the plaintiff, the record supports appellants' theories of negligence. For their second point, appellants claim that genuine disputes of material fact exist which should have precluded the trial court's entry of summary judgment for respondent. Appellants' final point contests the form of respondent's summary judgment motion, stating that it was, among other things, conclusory. We reverse in part and affirm in part.
On the night of July 15, 1988, Michael Strickland (Decedent) went to the Big Apple Club in Manchester where he met a co-worker. Decedent spent the evening drinking and dancing. After the club closed at 1:30 a.m., Decedent walked across the parking lot to a Taco Bell, entered the restaurant and ordered two burrito supremes from the restaurant's night manager, Steven Faulkner (Manager). Decedent received the burritos and exited the restaurant.
At approximately 2:00 a.m. on the morning of July 16, two female patrons entered the restaurant and informed Manager that a large man was leaning against the exterior wall of the building. Manager exited the restaurant through the front door and observed a large African-American man approximately six feet six inches tall leaning against the front wall of the Taco Bell. Manager recognized the man as Decedent who had ordered two burritos from him a half hour earlier. Manager observed that Decedent had apparently regurgitated his two burrito supremes and that some of the food matter stained Decedent's shirt.
Manager described Decedent as he leaned against the wall as "glassy eyed" and "not totally in the here and now." Manager asked Decedent whether he needed anything. Decedent did not respond to his inquiry. As Manager stood with Decedent in front of the restaurant, Decedent began to slowly slide down the wall from a standing position until he was on his haunches. Decedent then listed to one side and eventually toppled over. Manager assisted Decedent into a sitting position and left him. Manager re-entered the restaurant in order to serve drive-up customers who were part of the "bar rush" at 2:00 a.m.
There is no evidence of Decedent's activities from 2:00 a.m. until about 3:45 a.m. when Moreese Strong drove up and parked his car in the Taco Bell parking lot. Strong was married to a Taco Bell employee, and he was waiting for her to go off duty. Strong noticed Decedent, who had regained a standing position, leaning against the exterior wall of respondent corporation's restaurant. Decedent's eyes were closed as he leaned against the wall. As Strong waited for his wife, he witnessed Decedent begin to lean to his left. Decedent's leftward movement continued, and he fell to the pavement. Strong stated that Decedent did not break his fall with his arms but rather Decedent's shoulder hit the pavement, violently jarring his head. Strong signalled to the workers in the Taco Bell to come out. Manager emerged from the restaurant and saw Decedent lying on the pavement. The pavement was damp around the area of Decedent's fall.
It is uncertain whether Decedent asked Strong for assistance in getting up. Nevertheless, Manager and Strong, who were both much smaller than Decedent, stood on either side of Decedent and moved him to a nearby cement patio table. The two men carried Decedent to a bench beside the patio table and placed Decedent's arms on the table. Decedent's head came to rest on his hands which were on the table. While Decedent was assisted by Manager and Strong from the pavement to the bench he was unable to support his entire weight, although his conversation with Manager and Strong indicated that he was conscious.
Manager asked Decedent if he could call an ambulance or the police. Decedent said that he did not want the police called but gave Manager a number to call. Manager dialed the number at least once and received no answer.
Manager and Strong abandoned Decedent on the patio bench. Strong departed with his wife around 4:15 a.m. When he left, Decedent was still on the bench. Manager departed the premises around 4:15 a.m. Manager checked on Decedent before he left, and observed that Decedent was making a snoring noise. Decedent was still on the bench when both departed.
Marie Bobb, the day manager, arrived at Taco Bell the next morning and discovered Decedent lying on the pavement beside the patio bench on which he had been sleeping the night before. She called the police. Two police officers responded, and two paramedics were called to the scene soon after the police arrived. When the paramedics arrived they noticed Decedent's head was propped up on the leg of one of the police officers. The paramedics observed Decedent situated on the pavement in a position that was indicative of paralysis. They administered a series of tests which confirmed their suspicions and immobilized Decedent who stated he had no feeling below his upper chest. Decedent had an abrasion on his head. Later it was determined that Decedent had fractured a cervical vertebrae which left him a quadriplegic. Decedent lived for eight weeks in the hospital. Decedent's death certificate indicated the cause of death was complications from a fracture of the cervical vertebrae.
It was respondent corporation's policy during the period of time in question to serve intoxicated patrons in its restaurants, and Manager stated in his deposition that nine out of ten customers who enter a Taco Bell after 11:00 p.m. on any night are intoxicated. Respondent also had a policy of assisting injured people on its premises which was interpreted by Manager to mean calling 911 if an injury did occur. Marie Bobb, the day manager of the Taco Bell, understood respondents Corporation's policy to be one in which a potentially injured party was asked if they needed help, and if the party requested aid, assistance was called. In a document entitled rule number five directed employees to The direction at the bottom of the safety rules stated that they were to be posted in a conspicuous place. In the "First Aid" chapter of respondent Corporation's administrative reference manual, there are several guidelines for first aid preparedness and procedure. In a manual section designated "Training Employees," the first aid objective emphasized is the acronym "PLAN." The four basic rules are: (1) Protect employee/customer from further injury or aggravated illness by avoiding unnecessary movement; (2) Let others call for help and provide transportation; (3) Assist victim immediately; (4) Notify your supervisor.
Additional facts will be developed as necessary.
Appellants contest the sufficiency of respondents' summary judgment motion, and respondents contest in their brief the timeliness of appellants' suggestions in opposition to respondents' summary judgment motion. Appellants complain that the affidavit filed by respondent in support of its motion for summary judgment is conclusory and as such, will not support a motion for summary judgment. A review of respondent's motion along with their supporting affidavit indicates that it is sufficiently particular. The affidavit in support of respondent's motion is based on personal knowledge and was properly before the court.
Respondent suggests that summary judgment was properly granted because respondent's affidavit was unopposed in that appellants' affidavit was not filed in a timely fashion. The record indicates otherwise. Appellants' affidavit was filed on January 9, 1992, one day before the summary judgment motion was heard by the trial court. "Prior to the day of the hearing the adverse party may serve opposing affidavits." Rule 74.04(c). The rule is clear that the affidavit of the party opposing summary judgment may be served at any time prior to the date of the hearing. Respondents' contention is without merit.
When reviewing a ruling on a motion for summary judgment an appellate court scrutinizes the record in the light most favorable to the party opposing the motion. Gast v. Ebert, 739 S.W.2d 545, 546 (Mo. banc 1987). The party opposing the motion receives the benefit of all favorable inferences to be drawn from the evidence. Id. Rule 74.04(c) permits summary judgment only when there is no genuine issue of material fact and places the burden of persuasion on the moving party to demonstrate a lack of genuine issues. Germania Bank v. Thomas, 810 S.W.2d 102, 105 (Mo.App.1991). A fact is material if it is "of such legal probative force as would control or determine the litigation." Id. (quoting Ware v. St. Louis Car Co., 384 S.W.2d 287, 290 (Mo.App.1964)). In order to...
To continue reading
Request your trial
-
Ballard v. Nat'l Football League Players Ass'n
...2002). "Unique among the elements of negligence is duty because the existence of a duty is a question of law." Strickland v. Taco Bell Corp., 849 S.W.2d 127, 131 (Mo.Ct.App.1993).The Players contend that the Defendants owe a duty independent from the duty of fair representation. They allege......
-
Morrison v. Kubota Tractor Corp., WD
...671 (Mo.App.1985). In a negligence action, whether a duty exists is entirely a question of law for the court. Strickland v. Taco Bell Corp., 849 S.W.2d 127, 131-32 (Mo.App.1993); Aaron v. Havens, 758 S.W.2d 446, 447 (Mo. banc 1988). In their first point, the Morrisons argue the trial court ......
-
Gunnett v. Girardier Bldg. and Realty Co.
...which make up the law; and it must be determined only by the court. Keeton, supra section 37 at 236; Strickland v. Taco Bell Corp., 849 S.W.2d 127, 131 (Mo.App. E.D.1993). No universal test for duty has ever been formulated. Keeton, supra section 53 at 358. As Keeton commented, the statemen......
-
Ferguson v. Trans World Airlines, Inc., Civ.A. 1:98CV2887CAP.
...730 S.W.2d 547 (1987). Here, the defendant, a common carrier, owed a duty of the highest degree of care. See Strickland v. Taco Bell Corp., 849 S.W.2d 127, 131-32 (1993) (holding that recognizing whether a duty exits is a question of law for the court to With respect to the defendant's brea......