Missouri Law on Negligent Supervision

by Daniel N. McPherson¹

This article examines cases discussing the cause of action of negligent failure to supervise and compares those cases which have successfully stated such a cause of action with those that have not.

Over the past 20 years, Missouri's appellate courts have attempted to define the issue of when someone can be held liable for negligent failure to supervise. The duty to supervise has been said to be a narrow one,² but recent decisions have given some indication that the courts are willing to take a more expansive look at when such a duty arises. This is especially true in cases involving injury to minors.

The seminal case discussing the duty to supervise is Smith, Etc. v. Archbishop of St. Louis. A second grade teacher in a St. Louis Catholic school had kept a lit candle on her classroom desk during the month of May in honor of the Virgin Mary.³ At the same time, her class was preparing to stage a play, and the 8-year-old plaintiff was trying on a crepe paper and tissue paper "bluebird" costume when she got too close to the candle and the costume caught fire.⁴ The little girl suffered burns over almost a quarter of her body, required extensive and painful medical treatment and physical therapy, and was left with permanent physical and emotional scars.⁵ Suit was brought against the Archdiocese of St. Louis on the theory that it breached a duty of care to supervise the plaintiff, and the jury returned a verdict in favor of the plaintiff for $1,250,000.⁶

The Missouri Court of Appeals for the Eastern District gave a concise summary of what is required to make a submissible case of negligent supervision. It started by noting that "[n]egligent supervision, like any other tort, involves a breach of a duty defendant owes plaintiff which causes plaintiff to suffer damages."⁷ The "plaintiff need not show that the very injury resulting from defendant's negligence was foreseeable, but merely that a reasonable person could have foreseen that injuries of the type suffered would be likely to occur under the circumstances."⁸ The court went on to say that the duty to supervise is narrow and "[t]he defendant is not an insurer of plaintiff's safety . . . nor is defendant required to maintain a constant vigil over every" person under their supervision.⁹ Rather, the defendant's duty is "to exercise reasonable or ordinary care in the supervision of [the] plaintiff."¹⁰ The court went on to note that "[t]he exercise of ordinary care where children are involved, however, requires more vigilance and caution than might the exercise of ordinary care where adults are concerned."¹¹ That "is particularly true when a potentially dangerous condition exists that the supervisor is or should be aware of it."¹² Noting that the question of whether a defendant has breached its duty of ordinary care turns on the facts of each particular case, the court found that there was substantial evidence supporting the jury's finding that the teacher had breached her duty.¹³

Since the Smith case first articulated the standards for negligent supervision, attorneys have tried to apply the theory to a variety of factual situations, and both they and the courts have struggled to define the nature of the duty and the parameters of when the duty arises. The largest group of reported cases involve injury to minors, but claims have also been made for negligent supervision of adults, particularly failure to supervise in a professional or employment relationship. This article will look at the various contexts in which a duty to supervise has been found to either exist or not exist, how attempts to link negligent supervision claims to related areas of law have fared, and how insurance policies have been construed to either provide or exclude coverage for negligent supervision claims.

I. Duty to Supervise Child

A key to successfully stating a claim of negligent supervision of a child is to properly define the nature of the duty. Two maxims need to be remembered. First, "the duty to supervise runs not to an activity, but rather to an individual."¹⁴ Second, the decisive factor in finding a duty to supervise turns on "the obligation and ability to supervise and control the child, not the instrumentality that causes the harm."¹⁵ This has also been stated as requiring "the existence of a relationship between the plaintiff and defendant that the law recognizes as . . . [imposing] a duty of care."¹⁶

Therefore, claims for negligent supervision have failed where the petition alleged a failure to supervise an activity, such as a party.¹⁷ The more basic trap, however, is the failure to properly define a relationship that gives rise to a duty. Certain relationships, like family, teacher and babysitter, will clearly give rise to a duty to supervise.¹⁸ When going beyond those more obvious relationships, the attorney needs to carefully develop facts that will support the pleaded allegations of a special relationship between the plaintiff and the defendant. Two cases involving injury to a party guest provide an instructive comparison of the factual situations that will support or defeat a finding of duty.

In Cook v. Smith, the Missouri Court of Appeals for the Western District found a duty to supervise a 16-year-old girl invited to a party at the home of one of her volleyball teammates.¹⁹ No adults were present when the party started.²⁰ The plaintiff was injured while riding as a passenger on an ATV owned by the defendant parents/homeowners, and known by them to have a faulty brake.²¹ The court found the existence of a duty to supervise based on the principle that "acceptance of the custody and control of a minor child creates a relationship sufficient to support a duty of care."²² Because the plaintiff was an invited, anticipated guest, the court found that the defendants accepted custody and control over her, thus creating a duty of ordinary care.²³

In a different set of circumstances, the Missouri Court of Appeals for the Eastern District found that a party host did not owe a duty to supervise an injured guest. The defendant in Bequette v. Buff was the mother of a 16-year-old boy who was going to have a birthday party at their house.²⁴ Approximately 20 friends of her son were specifically invited to the party, with plans to serve soda, chips and cake to the guests.²⁵ As was the case in Cook, the defendant parent/homeowner was not present when the party started.²⁶ Unbeknownst to the defendant, flyers were distributed in area schools advertising a keg party at her home on the date and time planned for the birthday party.²⁷ A student who received a flyer, but who was not on the guest list approved by the defendant, showed up at defendant's home and wound up breaking his right ankle in a dispute over payment for beer.²⁸ The court found no duty because there was no relationship between the plaintiff and the defendant – namely that the defendant did not know the plaintiff, had not invited him to the party, and knew nothing about the flyer that plaintiff received.²⁹

While the normal rule requires a duty to supervise the injured child, there are situations where a case can be made absent such a duty. In Stonger v. Riggs, a teenage boy riding his bike on a public road was injured when he was struck by a riding lawnmower operated by another teenage boy on the same road.³⁰ Suit was brought against the parents of the lawnmower operator, not on the basis that they should have supervised the injured child, but on the grounds that they entrusted the lawnmower to their son and then failed to supervise his operation of the machine.³¹ The Court of Appeals noted that Missouri law recognizes five situations where parents can be held liable for the torts of their child.³² The court found the parents could be held negligent under the dangerous instrumentality exception for allowing an unlicensed 14year-old to drive a motorized, self-propelled riding lawnmower unsupervised and uninstructed down a public street.³³

II. Duty to Supervise Adults

The doctrine of negligent supervision of an adult is in some ways the opposite of negligent supervision of a minor. While negligent supervision of a child ordinarily turns on the duty to control the injured child, negligent supervision of an adult is based on the duty to supervise and control the adult tortfeasor.³⁴ The duty to supervise seems to arise most often in employment and other professional settings. The Restatement defines the scope of a master's duty to control his servant:

A master is under the duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them if

(a) the servant

(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or

(ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control his servant, and

(ii) knows or should know of the necessity and opportunity for exercising such control.³⁵

Under those principles, a cause of action would appear to lie based on allegations that an employer's negligence in supervising employees led to a collision involving a company-owned auto-mobile.³⁶ Doctors have been found to have a duty to supervise residents.³⁷ However, in cases involving medical personnel and some other professionals, expert testimony may be needed to make a case for negligent supervision. The rationale for requiring such testimony is that the duty to supervise in such cases goes to the standard of care for the profession, and that such knowledge is outside the province of lay jurors, thus requiring expert testimony.³⁸

Other cases involving failure to supervise in an employment setting may be barred by various forms of immunity. Sovereign immunity will bar a negligent supervision claim against a public entity covered by that doctrine.³⁹ The supervision of public employees has been found to be a discretionary act, barring suit against the individual supervisors under the doctrine of official immunity.⁴⁰ Also, negligent supervision claims brought in connection with acts of child sexual abuse committed by priests have been found to be barred by the First Amendment of the United States on the grounds that determining whether a church had reasonably supervised its clergy would require an inquiry into church doctrine, creating an excessive entanglement with religion.⁴¹ The Supreme Court of Missouri has held, though, that a cause of action for intentional failure to supervise is not barred by the First Amendment.⁴² Such a cause of action is stated if:

(1) a supervisor (or supervisors) exists,

(2) the supervisor (or supervisors) knew that harm was certain or substantially certain to result,

(3) the supervisor (or supervisors) disregarded this known risk,

(4) the supervisor's inaction caused damage, and

(5) the other requirements of the Restatement (Second) of Torts, section 317 are met.⁴³

Even under this cause of action, however, the First Amendment still does not allow a court to decide whether or not a cleric should have a supervisor, since that question is considered an issue of church government.⁴⁴

III. Proving Breach of Duty

Because "[n]egligent supervision is a variant of the common law tort of negligence,"⁴⁵ breach of duty is proven in the same way as other negligence cases. Breach turns on foreseeability, though the courts have not been consistent in the way they have expressed the standard. In some instances it is described as whether a reasonable person could have foreseen that injuries of the type suffered would likely occur under the circumstances.⁴⁶ Other times, the standard is stated as whether it was foreseeable that injuries of the type suffered could or might occur.⁴⁷

Thus, in Smith v. Archbishop, a jury question on breach was found where the teacher kept a lit candle in her classroom, was aware of the danger of allowing children to be near lit candles, but took no precautions to keep the children away from the candle as they milled about the classroom changing into their costumes for the school play.⁴⁸ A submissible case for breach was made in Cook v. Smith where the evidence showed the defendants knew a group of teenagers would be on their property with a defective ATV but made no effort to supervise their use of the ATV or to prevent them from riding it.⁴⁹ In a similar case, a fact question on breach was found to exist where the defendants allowed their 13-year-old granddaughter to drive an automobile unsupervised, even though the girl had never driven before and did not know the car had faulty brakes.⁵⁰ The court found it was foreseeable that a minor who had never operated a full-size automobile might lose control of it and suffer injuries if permitted to drive unsupervised.⁵¹

On the other hand, the court in Bequette v. Buff ruled that the defendant could not have foreseen injuries to a plaintiff who was unknown to her, resulting from a scuffle with an unidentified person "over a charge for beer which she did not provide, know about or authorize to be served at the party."⁵² A babysitter was found not to have breached her duty to supervise when the young girl in her care was bitten by a dog.⁵³ The evidence at trial showed the child had petted the dog without incident, and therefore the babysitter could not have reasonably foreseen that the dog would attack the child as she started running toward the house.⁵⁴

Three cases involving sexual abuse of a child show how factual variations affect the reasonably foreseeable analysis. A.R.H. v. W.H.S. involved allegations that a grandmother had failed to prevent her granddaughter from being sexually molested by her husband.⁵⁵ The court found the petition stated a claim because it alleged grandmother knew of the abuse, and a jury could find that a reasonable person who knew that such abuse had taken place in the past would recognize that it could happen again if steps were not taken to prevent it.⁵⁶ A jury question on breach was also found in G.E.T. ex rel. T.T. v. Barron, where the defendant babysitter allegedly failed to protect one of her charges from being molested by her teenage son.⁵⁷ In denying defendant's summary judgment motion, the court found the foreseeability requirement had been met through evidence that: defendant regularly absented herself from the premises, leaving the children in her care alone with her son; and that some of the alleged acts of molestation had actually occurred in defendant's presence.⁵⁸ Summary judgment was upheld, though, in another case involving allegations of a child being molested by her grandfather. As was the case in A.R.H., the petition in O.L. v. R.L. alleged the grandmother breached her duty to her granddaughter by leaving her unsupervised with grandfather.⁵⁹ The plaintiffs relied on A.R.H. and G.E.T. in opposing summary judgment.⁶⁰ The court found those cases distinguishable because the grandmother in O.L. did not have actual knowledge of the abuse, both grandparents were joint caretakers, and there were no facts to support a showing that grandmother had constructive knowledge of the abuse.⁶¹

In cases involving negligent supervision of an adult, evidence must be presented "that would cause the employer to foresee that the employee would create an unreasonable risk of harm outside the scope of his employment."⁶² Two previous assaults committed by a security guard, plus his comment while on duty that a woman visiting his building had "nice legs," was found insufficient to put the employer on notice that the guard would sexually assault another female visitor to his building while on duty.⁶³ However, numerous incidents of harassment by members of a police force against the operators of a theater, along with the city's knowledge of those incidents, created a foreseeable risk of damage to the theater building, resulting in a breach of the city's duty to supervise its police force when an officer intentionally set fire to the building while he was on duty.⁶⁴

IV. Relationship to Other Legal Doctrines

Because many negligent supervision claims arise out of injuries suffered on the defendant's property, some confusion has arisen on the interplay between negligent supervision and principles of landowner liability. Defendants will often try to argue that the scope of their duty is defined by the plaintiff's status as a licensee, invitee or trespasser. The courts have properly found that they are not restricted to considering premises liability theories in finding a duty to supervise just because the injury-causing activities took place on the defendant's property.⁶⁵

Allegations of a duty to supervise have occasionally had to take a back seat to other legal doctrines. Another case involving injury to a party guest is illustrative. The plaintiff in Smith v. Gregg was 17 years old and an invited guest to a graduation party at the defendant's home, where alcohol was being served, allegedly with the knowledge of the defendant.⁶⁶ Plaintiff was injured when he got into a fight with another guest, who allegedly became intoxicated and belligerent.⁶⁷ Plaintiff pleaded a special relationship, but the Court of Appeals ruled that imposing a duty to supervise under the circumstances of that case would conflict with the common law rule that social hosts cannot be held liable for supplying alcohol to minor guests.⁶⁸ The plaintiff in this case also tried to plead premises liability concepts to hold the defendant responsible for the actions of the other guest involved in the fight.⁶⁹ The court also found no duty to control the actions of the other guest, based on § 318 of the Restatement, which sets out when a possessor of land is obligated to control the conduct of a third person so as to prevent him from causing harm to others.⁷⁰

V. Insurance Coverage for Negligent Supervision Claims

A body of case law has emerged over the issue of when claims for negligent supervision fall within the coverage of insurance policies. The most commonly litigated issue is whether a homeowner's or commercial general liability (CGL) policy covers claims for negligent supervision where the injury-causing event involves an excluded activity, such as use of an automobile or a firearm. Missouri courts have adopted the principle that coverage exists whenever an excluded risk and an insured risk are concurrent causes of an accident.⁷¹ Under that principle, coverage should exist for the negligent supervision claim if the allegations of negligence are independent of the excluded activity.⁷² Two districts of the Court of Appeals seem, on the surface, to be taking divergent approaches in determining whether the failure to supervise constitutes an independent act of negligence. The difference may, however, owe more to the facts of the specific cases than to a philosophical difference between the courts.

The Court of Appeals for the Western District has been more likely to find no coverage exists under a CGL policy. An example is American States Insurance Co. v. Porterfield, an auto accident case where a trailer became unhitched from a truck operated by defendant's employee and struck an oncoming vehicle.⁷³ The injured plaintiffs contended the defendant was negligent in supervising his employees in the proper method of hitching a trailer to the truck.⁷⁴ The court concluded that the injuries arose out of the use of the truck by the employee and not from negligent supervision, and were therefore excluded from coverage under the CGL.⁷⁵

The Western District also denied coverage when a negligent supervision claim was raised in connection with the drowning of a small child attending a home-based day care center.⁷⁶ Although the plaintiffs tried to frame the issue in terms of the day care operator's failure to supervise her own children, resulting in a gate leading to the swimming pool being left open, the court noted that the duty to supervise in such a case ran to the plaintiffs' child.⁷⁷ The supervision of plaintiffs' child was found to be an integral part of the operation of the day care center, so that the negligent supervision claim was not covered under an exclusion for injuries arising out of a business pursuit of the insured.⁷⁸

Decisions from the Court of Appeals for the Eastern District have tended to find coverage under CGL policies. For example, a police officer sued a security company after a criminal suspect took one of the company's cars and collided with the officer's patrol car.⁷⁹ The suit alleged the company was negligent in supervising and training its employees, and that negligence led to an unauthorized third party gaining control of one of the company's cars.⁸⁰ The company's insurer under a CGL policy claimed no coverage based on an exclusion for injury "arising out of the ownership, maintenance, operation, use, loading or unloading of" an automobile.⁸¹ The Eastern District ruled against the insurance company on the grounds that the negligent supervision that allowed the car to be taken by an unauthorized third party was independent of the use of the automobile that resulted in the injury.⁸² The court distinguished this case from the Western District's opinion in Porterfield by noting that Porterfield involved allegations of negligence in supervising a permissive driver, while the driver in the case before it was not permissive.⁸³ Since the employees who allegedly were negligently supervised were not involved in the operation of the motor vehicle, that negligence did not arise out of the ownership or use of the automobile.⁸⁴

Coverage was also found in a case where a gas station owner was sued for negligent supervision after one of his clerks, who was intoxicated, shot a customer during an altercation over change.⁸⁵ The owner's CGL policy contained an exclusion for "bodily injury . . . arising out of the ownership or use of any firearm."⁸⁶ The Eastern District accepted the injured customer's argument that the owner's negligence was a separate and concurrent cause of liability from the use of the firearm, and held that the policy covered the negligent supervision claim.⁸⁷

VI. Conclusion

Failure to supervise can be a viable theory in an injury case, but it is a cause of action that contains many traps for the unwary. Careful fact development and drafting of pleadings are required to successfully allege and prove duty and breach, and to bring the allegations of negligence within the scope of any insurance coverage that may exist. The good news for attorneys bringing and defending against such actions is that a solid body of case law is developing that can provide some guidance in distinguishing the submissible case from one that is not.

Footnotes

¹ Mr. McPherson received his J.D. from Drake University in 1996. Mr. McPherson served as trial and appellate counsel in the Cook v. Smith case cited herein.

² Hill v. Herbert Hoover Boys Club, 990 S.W.2d 19, 22 (Mo. App. E.D. 1999).

³ Smith, Etc. v. Archbishop of St. Louis, 632 S.W.2d 516, 518 (Mo. App. E.D. 1982).

⁴ Id.

⁵ Id. at 519-20.

⁶ Id. at 518.

⁷ Id. at 521.

⁸ Id.

⁹ Id.

¹⁰ Id.

¹¹ Id. at 522.

¹² Id.

¹³ Id.

¹⁴ Bequette v. Buff, 862 S.W.2d 921, 924 (Mo. App. E.D. 1993).

¹⁵ A.R.H. v. W.H.S., 876 S.W.2d 687, 689 (Mo. App. E.D. 1994).

¹⁶ Id. at 691.

¹⁷ Bequette, 862 S.W.2d at 924.

¹⁸ See, e.g., Hartman by Hartman v. Hartman, 821 S.W.2d 852 (Mo. banc 1991) (parents); Stonger v. Riggs, 21 S.W.3d 18 (Mo. App. W.D. 2000) (parents); Peterson v. Summit Fitness, Inc., 920 S.W.2d 928 (Mo. App. W.D. 1996) (parent); O.L. v. R.L., 62 S.W.3d 469 (Mo. App. W.D. 2001) (grandparents); A.R.H. v. W.H.S., 876 S.W.2d 687 (grandparent); Rogger v. Voyles, 797 S.W.2d 844 (Mo. App. S.D. 1990) (grandparent); Smith, Etc. v. Archbishop of St. Louis, 632 S.W.2d 516 (teacher); Haynes by Haynes v. Green, 748 S.W.2d 936 (Mo. App. S.D. 1988) (school principal); G.E.T. ex rel. T.T. v. Barron, 4 S.W.3d 622 (Mo. App. E.D. 1999) (child care provider); Swain by Swain v. Simon, 699 S.W.2d 769 (Mo. App. W.D. 1985) (babysitter).

¹⁹ 33 S.W.3d 548, 550 (Mo. App. W.D. 2000).

²⁰ Id.

²¹ Id. at 551.

²² Id. at 553, quoting Hill, 990 S.W.2d at 22.

²³ Id. at 554.

²⁴ 862 S.W.2d at 922.

²⁵ Id.

²⁶ Id.

²⁷ Id. at 922-23.

²⁸ Id. at 923-24.

²⁹ Id. at 925.

³⁰ 21 S.W.3d 18, 20 (Mo. App. W.D. 2000).

³¹ Id.

³² Id. at 21, citing National Dairy Prods. Corp. v. Freschi, 393 S.W.2d 48, 54 (Mo. App. E.D. 1965).

³³ Id. at 23.

³⁴ O.L., 62 S.W.3d at 474.

³⁵ Restatement (Second) of Torts § 317 (1965).

³⁶ Centermark Props., Inc. v. Home Indem. Co., 897 S.W.2d 98, 101 (Mo. App. E.D. 1995).

³⁷ Dine v. Williams, 830 S.W.2d 453, 456 (Mo. App. W.D. 1992).

³⁸ Id. at 456; Hammonds v. Jewish Hosp. of St. Louis, 899 S.W.2d 527, 530 (Mo. App. E.D. 1995) (plaintiff presented expert testimony that hospital's failure to supervise doctor fell below the standard of care); Annen v. Trump, 913 S.W.2d 16, 22 (Mo. App. W.D. 1995) (supervisory responsibilities of engineer must be established by expert testimony).

³⁹ Aiello v. St. Louis Cmty. Coll. Dist., 830 S.W.2d 556, 559 (Mo. App. E.D. 1992).

⁴⁰ Kanagawa v. State, 685 S.W.2d 831, 836-37 (Mo. banc 1985).

⁴¹ Gibson v. Brewer, 952 S.W.2d 239, 247 (Mo. banc 1997); Gray v. Ward, 950 S.W.2d 232, 234 (Mo. banc 1997).

⁴² Gibson, 952 S.W.2d at 248.

⁴³ Id.

⁴⁴ Id.

⁴⁵ Cook, 33 S.W.3d at 553.

⁴⁶ Smith, Etc. v. Archbishop of St. Louis, 632 S.W.2d at 521; Swain, 699 S.W.2d at 773-74; Cook, 33 S.W.3d at 554.

⁴⁷ Rogger, 797 S.W.2d at 844; A.R.H., 876 S.W.2d at 689; G.E.T., 4 S.W.3d at 624; O.L., 62 S.W.3d at 476.

⁴⁸ Smith, Etc. v. Archbishop of St. Louis, 632 S.W.2d at 522.

⁴⁹ Cook, 33 S.W.3d at 554-55.

⁵⁰ Rogger, 797 S.W.2d at 846.

⁵¹ Id. at 847.

⁵² Bequette, 862 S.W.2d at 925.

⁵³ Swain, 699 S.W.2d at 774.

⁵⁴ Id.

⁵⁵ A.R.H., 876 S.W.2d at 688.

⁵⁶ Id. at 691.

⁵⁷ G.E.T., 4 S.W.3d at 623.

⁵⁸ Id. at 625.

⁵⁹ O.L., 62 S.W.3d at 473.

⁶⁰ Id. at 480.

⁶¹ Id. at 481.

⁶² Reed v. Kelly, 37 S.W.3d 274, 278 (Mo. App. E.D. 2000).

⁶³ Id.

⁶⁴ St. John Bank & Trust Co. v. City of St. John, 679 S.W.2d 399, 403 (Mo. App. E.D. 1984). Note: The city had waived sovereign and official immunity by purchasing liability insurance. Id. at 401.

⁶⁵ Smith, Etc. v. Archbishop of St. Louis, 622 S.W.2d at 523; Cook, 33 S.W.3d at 554 n.2.

⁶⁶ Smith v. Gregg, 946 S.W.2d 807, 809 (Mo. App. S.D. 1997).

⁶⁷ Id.

⁶⁸ Id. at 811-12; see Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547 (Mo. banc 1987) (setting forth rule on social host liability).

⁶⁹ Smith v. Gregg, 946 S.W.2d at 813.

⁷⁰ Id. citing Restatement (Second) of Torts § 318 (1965).

⁷¹ Braxton v. United States Fire Ins. Co., 651 S.W.2d 616, 619 (Mo. App. E.D. 1983).

⁷² Centermark, 897 S.W.2d at 101.

⁷³ 844 S.W.2d 13, 14 (Mo. App. W.D. 1992).

⁷⁴ Id. at 15.

⁷⁵ Id. at 16.

⁷⁶ Schoettger v. American Nat. Prop. & Cas. Co., 10 S.W.3d 566, 570 (Mo. App. W.D. 2000).

⁷⁷ Id.

⁷⁸ Id. at 568.

⁷⁹ Centermark, 897 S.W.2d at 99.

⁸⁰ Id. at 103.

⁸¹ Id. at 100.

⁸² Id. at 103, see also Columbia Mut. Ins. Co. v. Neal, 992 S.W.2d 204, 208-09 (Mo. App. E.D. 1999) (finding coverage on basis that grandparent's negligence in supervising grandchild run over by an automobile owned by the grandparents and being operated on their property was incidental to the use of the automobile that caused the harm).

⁸³ Id.

⁸⁴ Id.

⁸⁵ Braxton, 651 S.W.2d at 617.

⁸⁶ Id.

⁸⁷ Id. at 620. The court also found the exclusion did not apply due to an ambiguity in the policy as to whether the exclusion only applied "if the insured himself owned or used a firearm in connection with his business, or if it also applied when someone else used the firearm 'for [the insured] or in his behalf.'" Id. at 619.

JOURNAL OF THE MISSOURI BAR
Volume 59 - No. 3 - May-June 2003