Tort Law

Heidi Doerhoff Vollet, Esquire

Amusement park owes patrons riding roller coasters and similar rides the highest degree of care.  Contributory negligence only applies in an amusement park ride situation if there is evidence that the patron’s failure to follow instructions was negligent or unreasonable.   Chavez v. Cedar Fair, LP, Case No. 75373 (Mo. App. W.D., July 16, 2013), Ellis, J.

Plaintiff was injured when she collided with another rider on an amusement park ride.  The jury found in favor of plaintiff on her claims that Defendant was negligent in the operation of the ride.

On appeal, Defendant contends that (1) the trial court erred in instructing the jury that Defendant was required to use the highest degree of care rather than ordinary care; (2) the trial court erred in not instructing the jury on comparative fault because there was evidence Plaintiff had let go of the straps during the ride; (3) the trial court erred in excluding evidence of how many others had ridden the ride without accident; and (4) Plaintiffs’ expert’s testimony should not have been admitted.

Held: Affirmed.
   The standard of care for an amusement park depends on the type of amusement offered.  An amusement park operator owes the highest degree of care to a patron when the claim is negligent operation of a ride.  Operators who offer this type of ride are similar to common carriers in that they are in control of the ride apparatus and equipment. 

The trial court did not err in refusing to instruct on comparative negligence.  Even if Plaintiff let go of the straps, there is no evidence that she did so negligently or unreasonably, which would be required to show that she was partially at fault.  There was no offer of proof as to the ridership evidence that Defendant wanted to introduce.  Any deficiencies in Plaintiff’s expert’s testimony went to the weight, not the admissibility, of the testimony. 

Seller of firearms is not liable for injuries caused by a purchaser, even though the purchaser used a stolen credit card.  The fact that the purchase falls within one of the preemption exceptions of the federal Commerce in Arms Act does not create a new cause of action.  Plaintiffs must still identify a negligence theory recognized by Missouri law. Noble et al. v. Shawnee Gun Shop, Inc., No. 75536 and 75537 (Mo. App. W.D., July 16, 2013), Ahuja, J.

Plaintiffs in two suits alleged that the Defendant, a retail store, negligently sold firearms to an individual who later shot and killed two people at a different location. The Plaintiffs alleged that the fact that the purchaser used a stolen credit card should have alerted Defendants to the fact that his purchase of firearms presented a risk of serious injury. 

The circuit court sustained motions to dismiss both cases, finding that the petitions failed to state a claim for which relief could be granted.  These claims fall within the federal Commerce in Arms Act, which bars lawsuits against the manufacturers or sellers of firearms except in limited circumstances. 

Plaintiffs argue that this case falls within the negligent entrustment exception to the Act.  That provision applies when the seller knows, or reasonably should know, that the buyer is likely to use the firearm in a manner that constitutes an “unreasonable risk of physical injury,” and the buyer actually does so. 

Plaintiffs also argue that Defendant is liable based on a theory of “general negligence,” similar to the liability imposed on sellers of liquor under the dram shop statute. 

Held: Affirmed.
Plaintiffs’ claims as asserted fit within the “negligent entrustment” exception.  However, that exception merely states that the federal Act does not preempt such claims; it does not create a cause of action where it does not otherwise exist.  Plaintiffs must therefore find an independent cause of action apart from the Act. 

The court rejects Plaintiffs’ attempts to assert a “general negligence” claim against Defendant for two reasons.  First, the claim is essentially a negligent entrustment claim, which is not recognized against third-party sellers in Missouri.  Second, there is no precedent in Missouri for recognizing a negligence claim against the seller of a legal product that is not defective, based on acts that committed by a third party on different premises.
Dram shop-type liability does not apply here; liability in that instance is purely statutory.  In addition, the law recognizes a distinction between sale of items for use on the premises and sale of items for use elsewhere. 

Default judgment against defendant was proper where defendant who was sued for negligence and negligent entrustment did not answer or otherwise defend lawsuit despite being served with petition and notice of default judgment hearing.  Even if Plaintiff’s petition did not state a valid claim, this did not create an issue of subject matter jurisdiction and it was not a due process violation to proceed to default judgment.  A.D.D., et al. v. PLE Enterprises Inc. et al., No. 75270 (Mo. App. W.D., May 14, 2013), Welsh, C.J.

A.D.D. is a child who was injured in a car accident when a car that had been rented from Rolling Hills (Defendant) ran a red light.  A.D.D. and his mother filed suit against Defendant and served Defendant’s registered agent.  Defendant did not answer or file any other responsive pleading.  Plaintiffs subsequently served the agent with notice of a default judgment hearing.  Defendant did not respond or appear at the hearing.  After hearing and briefing, the trial court entered default judgment against Defendant and awarded Plaintiffs damages.

More than a year later, Defendant filed a motion to set aside the default judgment as void, which the circuit court granted.  The circuit court found that the petition had failed to state a claim against Rolling Hills for joint and several liability with the other defendants. 

Defendant does not dispute that it received notice that it was a named defendant in the law suit.  It argues that the petition did not effectively state the claim on which the judgment was eventually entered. 

Held: Reversed and remanded.
   The circuit court erred in setting aside the default judgment.   Because the motion to set aside the judgment was not filed within a year, the judgment is only void if the court lacked personal or subject matter jurisdiction or if it was not rendered in accordance with due process requirements.  After J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), an insufficient pleading or failure to state a claim is not an issue of subject matter jurisdiction. 

There was also no due process violation.  Defendant was served and notified that it was alleged to have acted negligently and to be jointly and severally liable with the other defendants. Defendant did not answer or otherwise defend itself.  The circuit court did not act inconsistently with due process by proceeding with a default judgment. 

Keith A. Cutler, Esquire

Action to recover money damages for wrongful foreclosure requires showing that borrower was not in default.   Reliance Bank v. Musselman, et al., No. 98721 (Mo. App. E.D., July 2, 2013), Clayton, III, J.

Bank instituted foreclosure proceedings against Borrowers for defaulting on a loan.  After the foreclosure occurred and the property was sold, Bank sued Borrowers for the deficiency balance.  Claiming numerous irregularities in the foreclosure process, including lack of proper notice, Borrowers filed a counterclaim against the Bank to recover money damages for wrongful foreclosure.   The trial court granted summary judgment in favor of Bank on the wrongful foreclosure claim, and Borrowers appealed.

Held: Affirmed.
   Although Borrowers alleged that they were not in default, the undisputed facts showed that they were, in fact, in default .   Borrowers alternatively argued that the grant of summary judgment was not proper because they did not receive proper notice of the foreclosure sale The court of appeals made a distinction between wrongful foreclosure suits in equity, and those in law .   In wrongful foreclosure suits in equity to set aside a sale, irregularities in the foreclosure process can be a sufficient basis for a borrower to prevail However, in wrongful foreclosure suits at law, brought for the purpose of recovering money damages, the court of appeals ruled that a borrower may not recover where the borrower fails to show that they were not in default at the time the foreclosure was commenced. Irregularities in the foreclosure process are irrelevant   Since the wrongful foreclosure claim here was one at law for the recovery of money damages, and since Borrowers failed to show that they were not in default, the trial court did not err in granting summary judgment in favor of Bank.

Co-employee owes no common law duty to fellow employee to refrain from negligently injuring fellow employee in the course of co-employee’s work.  Carman v. Wieland, No. 98872 (Mo. App. E.D., July 16, 2012), Mooney, P.J.

A firefighter was injured when she alighted from a fire truck and her fellow firefighter backed the truck over her.  She filed suit against the driver, alleging that he was negligent in operating the truck.  Defendant driver filed a motion for summary judgment, arguing that the Plaintiff’s claims did not involve the breach of a duty separate from the employer’s non-delegable duty to provide a safe workplace.  The trial court denied summary judgment on that basis, but granted summary judgment on another basis, and Plaintiff appealed.

Held: Affirmed on different ground.
  The court of appeals ruled that the trial court erred in denying summary judgment Under Missouri law, an employer has a non-delegable duty to provide a safe workplace This duty encompasses the ordinary negligence of employees acting in the course of their employment In order for a co-employee to maintain a negligence action against a fellow employee, the plaintiff must allege something more than a breach of a duty of general supervision and safety The duty alleged to be breached must one that is independently owed to the fellow employee, above and beyond the employer s duty of general supervision and safety .   Here, the plaintiff simply alleged that her fellow firefighter drove the truck negligently This alleged negligence fell within the employer s duty of general supervision and safety, and did not constitute the something more necessary to maintain a claim against a fellow employee Thus, the trial court erred in denying defendant s motion for summary judgment .   However, because the trial court granted summary judgment on another ground (also deemed erroneous by the court of appeals) the granting of summary judgment was upheld, although for a different reason.