Zeller v. Scafe

• Decision Date: 06 September 2016
• Docket Number: C/w WD 79033,WD 79016
• Parties: Sabrina Zeller, Appellant, and Kristen Kantner, Appellant, v. Cameron Scafe, Respondent.
• Court: Missouri Court of Appeals

498 S.W.3d 846

Sabrina Zeller, Appellant,andKristen Kantner, Appellant,

v.Cameron Scafe, Respondent.

WD 79016

C/w WD 79033

Missouri Court of Appeals, Western District.

OPINION FILED: September 6, 2016

Hans H. van Zanten, Kansas City, MO, for appellant Kristen Kantner.

Matthew J. O'Connor, Kansas City, MO, for appellant Sabrina Zeller.

John F. Cooney and Kevin E. Myers, St. Louis, MO, for respondent.

Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

Cynthia L. Martin, Judge

Sabrina Zeller (“Zeller”), plaintiff ad litem for her deceased son Cody Turner (“Turner”), appeals from the trial court's judgment dismissing her petition against Cameron Scafe (“Scafe”). Kristen Kantner (“Kantner”) appeals from the trial court's judgment dismissing her cross-petition against Scafe. Zeller and Kantner (collectively “Appellants”) argue on appeal that the trial court's dismissal of their claims against Scafe was erroneous because each stated a claim for negligence per se given Scafe's violation of section 311.310.¹ We affirm.

Factual and Procedural History

When reviewing the dismissal of a petition for failure to state a claim, we treat the facts alleged in the petition as true and construe those facts liberally in favor of the plaintiff. Gordon v. City of Kansas City, 450 S.W.3d 793, 795 n. 1 (Mo.App.W.D.2014).

We summarize the relevant facts, consistent with this standard.

On May 12, 2012, Turner attended a “keg party” at Scafe's house in Oak Grove. Brian Beebe, Jr. (“Beebe”), Amy Greenstreet (“Greenstreet”), and Kantner were also at the party. Scafe knowingly allowed Beebe and other minors in attendance to consume intoxicating liquor and knowingly failed to stop Beebe and other minors from consuming intoxicating liquor, a class B misdemeanor pursuant to section 311.310.2.

At approximately 6:30 a.m., Beebe, Kantner, and Turner left the party in a Jeep Wrangler loaned to them by Greenstreet. Turner initially drove the vehicle but became fatigued. Turner moved to the console of the vehicle, and Beebe took over driving the vehicle. At approximately 7:30 a.m., Beebe failed to negotiate a curve. The vehicle skidded off the roadway, struck an embankment, and overturned. Beebe panicked and fled the scene on foot. Beebe contacted his grandfather, Jerry Nussbaum (“Nussbaum”), and asked Nussbaum to pick him up.²

Turner was thrown from the vehicle. Turner suffered a head injury, multiple skull fractures, and epidural and subdural hematomas, but was alive immediately following the accident. Kantner was trapped by her seatbelt in the vehicle. Despite her injuries, Kantner was able to call emergency services and run to a nearby residence for help. Turner was air transported to a nearby hospital, where he was pronounced dead.

Zeller, as plaintiff ad litem for Turner, filed a petition for damages arising from Turner's death and then later filed a first amended petition (“Petition”).³ Zeller asserted a claim for wrongful death against Scafe based on a theory of negligence per se given Scafe's violation of section 311.310.2. Zeller also asserted claims for negligence and wrongful death against Kantner on the theory that she did not prevent Beebe from operating the vehicle.

Kantner filed a cross-petition and then an amended cross-petition (“Cross-Petition”).⁴ The Cross-Petition alleged a claim of negligence against the decedent, Turner, because he turned over operation of the vehicle to an obviously intoxicated Beebe. The Cross-Petition also asserted a claim for negligence per se against Scafe based on his violation of section 311.310.2.

Scafe filed motions to dismiss Zeller's and Kantner's claims against him for failure to state a claim upon which relief can be granted, arguing that Missouri law does not recognize a cause of action, by legislation or at common law, against social hosts who provide alcoholic beverages to minors. Kantner filed a motion to dismiss Zeller's claims against her because Missouri law does not impose a duty on passengers to prevent the operation of a motor vehicle by another.

The trial court granted Kantner's motion to dismiss Zeller's claims against her. The trial court also granted Scafe's motions to dismiss Zeller's and Kantner's claims against him.

Zeller appealed. We dismissed the appeal for want of a final judgment because Kantner's claim against Turner remained pending before the trial court. See Zeller v. Scafe, 455 S.W.3d 503 (Mo.App.W.D.2015). Kantner then voluntarily dismissed the claim against Turner.

Zeller and Kantner appeal the trial court's judgment dismissing their claims against Scafe.⁵

Standard of Review

We review the trial court's grant of a motion to dismiss de novo. Davison v. Dairy Farmers of Am., Inc., 449 S.W.3d 81, 83 (Mo.App.W.D.2014).

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.

Coons v. Berry, 304 S.W.3d 215, 217 (Mo.App.W.D.2009). “[T]o avoid dismissal, the petition must invoke substantive principles of law entitling the plaintiff to relief and ultimate facts informing the defendant of that which plaintiff will attempt to establish at trial.” Id. at 217–18.

Analysis

Zeller and Kantner urge the same point on appeal. The Appellants assert that the trial court erred in dismissing their negligence per se claims against Scafe because the factual allegations in the Petition and Cross-Petition establish that Scafe violated section 311.310.2 which imposes criminal liability on an owner or occupier of property who allows a person under the age of twenty-one years to drink, or fails to stop said person from drinking, intoxicating liquor on the property. We agree that the factual allegations in the Petition and Cross-Petition, taken as true, establish that Scafe violated section 311.310.2. However, the issue presented is whether these factual allegations invoke substantive principles of law entitling the Appellants to relief. More specifically stated, we must determine whether Scafe's violation of section 311.310.2 supports civil liability based on the theory of negligence per se.

Appellants concede that it has been long settled under Missouri law that a social host who furnishes alcohol to an intoxicated guest or a minor has no civil liability to the intoxicated guest, the minor, or to an injured third party. See Coons, 304 S.W.3d at 218–22 (summarizing the historical development of the law foreclosing civil liability for social hosts based on theories of both common law negligence and negligence per se ). The issue of social host liability was addressed as a matter of first impression in Harriman v. Smith , 697 S.W.2d 219, 220 (Mo.App.E.D.1985), in which the court considered: (1) whether common law negligence supports a cause of action against a social host; and (2) whether a social host's violation of section 311.310 constitutes negligence per se.

With respect to the theory of common law negligence, the Harriman court relied on the difference between a social guest who occupies the status of a licensee and a business invitee. Id. at 221. “While differences between invitees, licensees, and trespassers with respect to the duty owed them by the possessor of land largely disappears once the presence of the visitor is known and a uniform duty, that of reasonable care, is owed to each as to the activities on the premises, distinctions based on status still remain.” Id. (citation omitted). A social host, unlike business dispensers of intoxicating beverages, “realizes no pecuniary gain from serving alcoholic beverages to a guest,” and a social host has far less control and expertise in identifying intoxication than business dispensers. Id. Thus, the Harriman court concluded that any extension of common law negligence principles to impose a duty on social hosts should be made by the legislature, not the courts, because the legislature is better equipped to “reasonably measure the widespread repercussions from extending 'dramshop' liability to the social host.” Id. at 222. Specifically, the Harriman court held that “difficulties in ... imposition of a duty of inquiry upon social hosts ... persuad[e] us to defer decision making to the legislature.” Id.

The Harriman court also considered whether section 311.310 (RSMo 1978 ), a statute imposing criminal penalties on “any licensee” and “any person” who sells, vends, gives away, or otherwise supplies intoxicating liquor to minors or intoxicated persons, provides a statutory standard of care for social hosts supporting a theory of negligence per se. Id. at 222–23. The court held:

In looking at the general scheme of The Liquor Control Law under which [section] 311.310 falls, the obvious intent of the legislature is the control of liquor licensees in the dispensing and sale of alcohol. In the context of the entire act and its stated purposes, the apparent intention is to regulate the commercial sale of liquor, not its use in a social setting. ... Section 311.310 is broken into two distinct parts: one dealing with liquor licensees; the other, with “any person.” Although in Sampson v. W.F. Enterprises, Inc., the court relied upon [section] 311.310 to impose civil liability on tavern owners, [611 S.W.2d 333, 337 (Mo.App.W.D.1980) ], nothing indicates the extension of civil liability to a social host who would be within the second part of the statute.

Furthermore, legislative failure to define and expound on the duties of non-business dispensers under the Liquor Control Law is indicative of its intent that they not be held civilly liable under [sect

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