Thwing v. Reeder, 73875

• Decision Date: 08 December 1998
• Docket Number: No. 73875,73875
• Citation: Thwing v. Reeder, 987 S.W.2d 347 (Mo. App. 1998)
• Parties: Timothy M. THWING, James Thwing and Geri Thwing, Plaintiffs-Appellants, v. Paul D. REEDER, Barbara Smith, Troy Smith and Trevor Smith, Defendants-respondents.
• Court: Missouri Court of Appeals

Page 347

987 S.W.2d 347

Timothy M. THWING, James Thwing and Geri Thwing, Plaintiffs-Appellants, v. Paul D. REEDER, Barbara Smith, Troy Smith and Trevor Smith Defendants-respondents.

No. 73875.

Missouri Court of Appeals,

Eastern District,

Division Five.

Dec. 8, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 4, 1999.

Application to Transfer Denied

April 27, 1999.

W. Scott Pollard, Florissant, MO, for appellants.

Brinker & Doyen, L.L.P., Scott C. Harper & Aaron I. Mandel, Clayton, MO, for respondents.

CHARLES B. BLACKMAR, Senior Judge.

The facts we state are based on sworn and uncontested documentation in the record. Barbara Smith and her teenage sons hosted a keg party at their residence, expecting fifteen or twenty guests. Each guest was obliged to pay three dollars to get a cup for beer. After the party began Barbara left to visit a neighbor and was not present during the incidents hereafter described.

Soon thereafter, a group of party crashers appeared, one of whom was Paul Reeder. The teenage hosts asked the intruders to leave, and they were in the process of complying. As Reeder was leaving the premises, he and plaintiff Timothy Thwing, a guest at the party, had some words, after which Reeder pulled out a gun and shot him, inflicting painful wounds. Timothy and his parents then filed suit against Reeder and the three Smiths, alleging negligence in several particulars. The trial judge sustained the Smith defendants' motion for summary judgment, certifying the judgment as final for purposes of appeal. Timothy and his parents appeal. We affirm.

The requirements for summary judgment, with special reference to summary judgment against the party having the burden of proof, are exhaustively discussed in ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation, 854 S.W.2d 371 (Mo.banc 1993). Initially, a Missouri plaintiff is obligated to file a petition stating facts that, if proved, demonstrate the presence of each essential element of a claim recognized by the law. Until a summary judgment rule was adopted in 1959 a plaintiff who filed a sufficient petition was entitled to go to trial. With summary judgment, now established in Rule 74.04, a defendant may seek to demonstrate that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's claim, making use of pleadings, affidavits, depositions and judicial admissions. When a properly supported motion is filed the plaintiff may not rest on the allegations of the pleadings, but must specifically respond by filing counter affidavits or referring the court to record materials demonstrating the presence of genuine fact issues. In ruling on the motion, however, the court must construe the movant's submission strictly, giving the opposing party the benefits of all conflicts in the submissions and of all reasonable inferences in support of the claim. The motion may be sustained only if it clearly appears from the record that there are no genuine issues of fact.

The present plaintiffs base their claim on negligence. As to Barbara Smith, the only allegations of the petition are as follows:

8. That Defendant Barbara Smith gave permission to Defendants Troy and Trevor Smith to have a party on the premises, and Defendant Barbara Smith knew that a large number of minors and young adults would be invited, and she knew or should have known that other uninvited and/or unwelcome persons would try to get into the party.

Barbara Smith 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 of a loaded shotgun. That case differs from this one because of the allegation of the host's knowledge of the danger. Furthermore, that case was ruled on a motion to dismiss, and the court indicated that the plaintiff might not be able to make a case when the evidence was presented.

In Smith v. Gregg, 946 S.W.2d 807 (Mo.App.S.D.1997), the Southern District held that the mere hosting of a teenage drinking party did not constitute actual negligence, even though alcoholic beverages were consumed illegally. We have been cited to no contrary cases from Missouri or elsewhere. The plaintiffs have pointed to no substantial evidence of any other negligence on the part of Barbara Smith, and summary judgment was properly entered in her favor.

The allegations of negligence on the part of Troy and Trevor Smith are identical, reading as follows:

19. The shooting and Plaintiff Timothy Thwing's subsequent injuries were the direct and proximate result of the negligence and carelessness of Defendant Troy Smith as follows:

a. Defendant Troy Smith attempted to take a loaded handgun away from Defendant Paul D. Reeder.

b. Defendant negligently and carelessly reached for or hit the arm of Defendant Paul D. Reeder.

Both Troy and Trevor Smith submitted affidavits denying any attempt to take a gun from Reeder, or any touching of Reeder. Reeder at his sentencing hearing testified under oath that somebody grabbed his hand but that he did not know who had done so. Timothy Thwing testified on deposition that he could not say that anybody had touched Reeder. The plaintiffs do not point to anything else in the record supporting a finding of touching or attempting to take a gun from Reeder. Thus, plaintiff cannot show that the allegations of paragraph 19(a) and (b) as to Troy, or the identical...