Opinion
No. WD55975.
OPINION FILED: May 4, 1999. OPINION MODIFIED, June 29, 1999.
APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY, MISSOURI, HONORABLE WARD B. STUCKEY, Judge.
Donald T. Taylor, Kansas City, KS, Attorney for Appellants.
Daniel E. Hamann, Kansas City, MO, Attorney for Respondent.
Before: Spinden, P.J., and Smith and Riederer, JJ.
Brandon Fisher and his parents, William and Dorothy Fisher, appeal the summary judgment of the circuit court for the respondent, William Fickle, on Brandon's claim for damages for personal injuries and his parents' claim for medical expenses. In their lawsuit, the appellants claimed, inter alia, that Brandon was seriously injured while playing on a motor vehicle, and that the respondent, as the possessor of the vehicle and the land upon which the vehicle was located, was liable for his injuries.
The appellants raise two points on appeal. They claim that the trial court erred in sustaining the respondent's motion for summary judgment because: (1) in doing so, the court "failed to view the evidence in the light most favorable to [the appellants], the non-moving part[ies] and failed to give all reasonable inferences from the record in determining whether there were any genuine issues of material fact"; and (2) contrary to the allegations of the respondent as to why summary judgment was correct, there was a genuine issue of material fact as to whether he owed Brandon a duty of care on which to base liability in that he possessed or controlled the land on which Brandon's injuries occurred, as well as the motor vehicle which caused them, giving rise to a duty of care under the law.
We reverse and remand.
Facts
At the time of Brandon's injuries, the respondent owned a four-unit apartment building located in Platte County, Missouri. Richard and Lois Ratcliff were the respondent's tenants and parked their vehicle, a Dodge Royal Monarch, on the public street in front of the building in which they lived. In October or November 1991, the respondent instructed his apartment manager, Steven Bye, to tell the Ratcliffs to move their vehicle from the front of the building to the back because of the limited parking space available in the front. Shortly thereafter, Bye asked the Ratcliffs to move their vehicle to the back of the building and was informed by them that the vehicle's transmission was not working properly and that it could only be driven in reverse.
At Bye's request, the Ratcliffs' son, Mark, drove the vehicle in reverse to the back of the apartment building and parked it in an area of trees. Mark then asked Bye if the location where he parked the vehicle was okay, to which Bye indicated that it was. At that time, Bye believed that the Ratcliff vehicle had been parked on the respondent's land. The respondent was not present when the Ratcliff vehicle was moved behind the building. After the vehicle was parked behind the apartment building, it was not moved or operated by the Ratcliffs or anyone else prior to November 1992. Between the time the vehicle was moved behind the building and November 1992, the respondent visited his apartment building on approximately two occasions.
The Fishers lived in an apartment building located next to that owned by the respondent. At that time, they had two sons, George and Brandon. Bye often observed the Fisher children, in addition to other neighborhood children who were not the respondent's tenants, playing on the respondent's land. When he observed this, he always instructed the children to leave. However, neither he nor the respondent ever saw any children playing on the Ratcliff vehicle parked behind the apartment building.
On November 15, 1992, Brandon, then three years old, and his older brother, George, then eight years old, were playing near the Ratcliff vehicle. Brandon climbed on the hood of the vehicle and kicked the radio antenna, which was broken and had a sharp, jagged edge. The antenna snapped back after Brandon kicked it and stabbed him above the left eye through his brain and to the back of his skull, causing him serious and permanent injury. George was the only witness to the accident. Shortly after Brandon's accident, the respondent learned that the Ratcliff vehicle was not parked on his land. Instead, it was parked approximately twenty feet beyond his property line, on land owned by the county. At no time prior to Brandon's accident did the respondent or Bye inform the Fishers that their children were playing on the respondent's land or that the Ratcliff vehicle was potentially dangerous.
After the accident, Brandon, by his mother as next friend, and his parents filed a two-count petition in the Circuit Court of Platte County, Missouri, against the respondent, claiming he was negligent in directing that the Ratcliff vehicle be moved behind his apartment building to an area where children played, in failing to warn them of the dangers associated with playing on the vehicle, and in not having the vehicle removed from its location. Brandon sought damages in the sum of $1 million for his personal injuries, and his parents sought damages of $100,000 for the medical expenses incurred by them in caring for Brandon's injuries.
On or about March 5, 1998, the respondent filed a motion for summary judgment on both counts of the appellants' petition. In his motion and accompanying suggestions in support thereof, he claimed that because he did not own or possess the land upon which the Ratcliff vehicle was located at the time of Brandon's accident and did not own or possess the vehicle, he owed no duty of care to Brandon and, thus, could not be liable to the appellants on their negligence claims. Thereafter, the appellants filed their response to the respondent's motion for summary judgment, claiming that the respondent's liability for Brandon's injuries was not contingent upon his ownership of the land or vehicle, but was contingent upon his possession or control of the land and vehicle. On May 13, 1998, the trial court granted the respondent's motion for summary judgment.
This appeal follows.
Standard of Review
When considering appeals from summary judgments, the [c]ourt will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.
Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.
ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993) (citations omitted). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 377.
I.
In Point I, the appellants claim that the trial court erred in sustaining the respondent's motion for summary judgment because in doing so, the court "failed to view the evidence in the light most favorable to [the appellants], the non-moving part[ies] and failed to give all reasonable inferences from the record in determining whether there were any genuine issues of material fact." This point, as written, violates Rule 84.04(d).
All rule references are to the Missouri Rules of Civil Procedure (1998), unless otherwise indicated.
Rule 84.04 sets forth the requirements for filing briefs with this court. In re Estate of Dean v. Morris , 963 S.W.2d 461, 466 (Mo. App. 1998). Rule 84.04(d) has three components with respect to points relied on. A point relied on must include: (1) a concise statement of the challenged ruling of the trial court, (2) the rule of law which the court should have applied, and (3) the evidentiary basis upon which the asserted rule is applicable. Id.; Rule 84.04(d). "Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule." Rule 84.04(d). As such, after stating why the court's ruling is erroneous, the point should explain wherein the testimony or evidence gives rise to the ruling for which the appellant contends. In re Marriage of Miller , 939 S.W.2d 572, 573 (Mo. App. 1997).
Here, the appellants' Point I sets out only an abstract statement of law without showing how that rule relates to the court's judgment. It does not provide the proper evidentiary basis in that it fails to explain wherein the testimony or evidence gives rise to the ruling for which they contend. Straeter Distrib., Inc. v. Fry-Wagner Moving Storage Co., 862 S.W.2d 415, 417 (Mo. App. 1993). We have no duty to search the transcript or record to discover the facts which substantiate a point on appeal. Cara Inv. Co. v. Purcell Tire and Rubber Co. , 721 S.W.2d 137, 138 (Mo. App. 1986). As such, the appellants' Point I preserves nothing for appellate review, Faith Baptist Church of Berkeley, Inc. v. Heffner , 956 S.W.2d 425, 426 (Mo. App. 1997), and we decline to address it.
Point denied.
II.
In Point II, the appellants claim that the trial court erred in sustaining the respondent's motion for summary judgment because, contrary to the allegations of the respondent as to why summary judgment was correct, there was a genuine issue of material fact as to whether he owed Brandon a duty of care on which to base liability in that he possessed or controlled the land on which Brandon's injuries occurred, as well as the motor vehicle which caused them, giving rise to a duty of care under the law. We agree.
To be entitled to summary judgment under Rule 74.04, the respondent, as the movant, was required to establish that (1) there was no genuine dispute as to the material facts, and (2) on these undisputed facts, he was entitled to judgment as a matter of law. Rule 74.04; ITT Commercial Fin. , 854 S.W.2d at 381. If the movant for summary judgment is a defending party, as is the case here, he or she can establish a prima facie case for summary judgment by one or more of three means: (1) showing facts that negate any one of the claimant's elements facts; (2) showing that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements; or (3) showing that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly pleaded affirmative defenses. ITT Commercial Fin. , 854 S.W.2d at 381.
In sustaining the respondent's motion for summary judgment, the trial court stated the following grounds in its judgment entry:
1. [t]hat [respondent] was not the owner of the automobile on which [Brandon] allegedly sustained injury nor did he exercise possession and control of the automobile.
2. [t]hat the [respondent] was not the owner of the property on which the automobile was parked at the time of [Brandon's] injury and did not maintain a dangerous condition that caused [Brandon's] injury.
From these findings, we infer, as the respondent contends, that the trial court, in sustaining his motion, found that he did not owe a duty of care to Brandon, negating a proof element of the appellants' case.
The appellants do not dispute the fact that the respondent did not own the vehicle or land in question. However, they contend that this issue of ownership was irrelevant to a determination of whether the respondent owed a duty of care to Brandon, and as such, it was error for the trial court to sustain the respondent's motion in reliance on the same. The appellants further contend that the relevant issue in determining whether the respondent owed a duty of care to Brandon was the issue of actual possession or control of the vehicle and property and that the record demonstrated a genuine factual dispute as to this issue. Thus, in deciding this appeal, we must determine first whether, under the law, actual possession or control of the vehicle and property in question, without ownership or a legal right to possession or control, was sufficient to impose a duty of care on the respondent.
Brandon, by his mother as next friend, and his parents filed a two-count petition against the respondent for negligence. In Count I, they sought damages for Brandon's personal injuries, and in Count II, payment of the medical expenses incurred by the parents as a result of his injuries. To recover on a theory of negligence, the appellants were required to show that: (1) the respondent had a duty of care to Brandon, (2) he breached that duty, and (3) his breach was the proximate cause of the injuries alleged. Martin v. City of Washington , 848 S.W.2d 487, 493 (Mo. banc 1993).
To establish a duty of care owed by the respondent, the appellants relied, inter alia, on allegations in their petition of premises liability, specifically, although not denominated as such, a modified version of the attractive nuisance doctrine. This doctrine was adopted by the Missouri Supreme Court in Arbogast v. Terminal Railroad Ass'n, 452 S.W.2d 81, 84 (Mo. 1970) as found in RESTATEMENT (FIRST) OF TORTS § 339 (1934). Miller v. River Hills Dev. , 831 S.W.2d 756, 761-62 (Mo. App. 1992). "Later in Glastris v. Union Electric Company, 542 S.W.2d 65 (Mo. App. 1976), it was found that the 1965 revision (Restatement of Torts 2d) of § 339 Restatement of Torts (First) did not produce any material changes." Id . at 762. Section 339 provides:
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
RESTATEMENT (SECOND) OF TORTS § 339 (1965).
With respect to § 339 liability, the appellants alleged in their petition that the respondent controlled or possessed the land and motor vehicle on which Brandon was injured, and thus, owed a duty to him to protect him from the inherent dangers created for an unsuspecting young child by the vehicle. "The liability of [a] landowner for injuries received on the premises . . . is dependent upon the device which caused the injury being in the possession and control of the landowner." Hunt v. Jefferson Arms Apartment Co. , 679 S.W.2d 875, 879 (Mo. App. 1984) ( citing McKeighan v. Kline's, Inc. , 98 S.W.2d 555, 559 (Mo. 1936)). "Thus, the liability of the landowner should more accurately be phrased the liability of the occupant or possessor of the land." Id. As such, the issue for us to decide is whether, for the purposes of § 339 liability, the respondent was in possession and control of the Ratcliff vehicle as a "possessor" of the land on which the vehicle was located, even though he did not have a legal right to possess or control the land.
Missouri courts have looked to the RESTATEMENT (SECOND) OF TORTS § 328E (1965) for a definition of "possessor of land," in the context of premises liability. Lahr v. Lamar R-1 Sch. Dist. , 951 S.W.2d 754, 756-57 (Mo. App. 1997); J.M. v. Shell Oil Co. , 922 S.W.2d 759, 763 (Mo. banc 1996); Bowman v. McDonald's Corp. , 916 S.W.2d 270, 285, 286 n.5 (Mo. App. 1995); Martin , 848 S.W.2d at 493 n.5; Hunt , 679 S.W.2d at 880 n.3. In this respect, it provides:
A possessor of land is
(a) a person who is in occupation of the land with intent to control it or
(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).
RESTATEMENT (SECOND) OF TORTS § 328E (1965). With respect to this section, the RESTATEMENT (SECOND) OF TORTS § 328E cmt. a (1965), provides that:
"Possession" has been given various meanings in the law, and the term frequently is used to denote the legal relationship resulting from facts, rather than in the sense of describing the facts themselves. It is used here strictly in the factual sense, because it has been so used in almost all tort cases.
The important thing in the law of torts is the possession, and not whether it is or is not rightful as between the possessor and some third person. Thus a disseisor is a possessor from the moment that his occupation begins, although as between the disseisor and the true owner he is not legally entitled to possession until his adverse possession has ripened through lapse of time into ownership.
In Lahr v. Lamar R-1 School District , 951 S.W.2d 754 (Mo. App. 1997), Lahr slipped and fell as she was preparing to enter her vehicle parked on a street located on school district property, after attending a sporting event at one of the district's schools. Id. at 755. She sued the school district for damages, claiming that as the owner of the property, it owed her a duty to maintain and make it safe. Id. The district moved for summary judgment, alleging that the city, not the district, controlled and possessed that part of the street where Lahr was injured such that it owed her no duty of care. Id. at 755-56. The undisputed evidence established that the district had assumed that the part of the street in question was owned by the city and had taken no action to control or maintain it. Id. at 757. Instead, the city had undertaken various projects to maintain, repair, and develop it. Id. The trial court, on these facts, sustained the district's motion for summary judgment, finding that it owed no duty of care to the plaintiff where it neither controlled nor possessed that part of the street where she fell. Id. at 756.
On appeal, the court, relying on the definition of "possessor of land" as set forth in § 328E of the Restatement, stated that in deciding whether the city intended to control the street, its conduct was an important factor because its actions spoke louder than words. Id. at 757. The appellate court agreed with the trial court that although the district owned the land, the city, not the district, was the possessor of the street and said that its actions in maintaining and repairing the street spoke volumes about its intent to control it. Id. at 758. The court held that the city exercised control over the street such that the district's duty of care as owner and presumed possessor was supplanted by the city's. Id.
Lahr teaches us that ownership of or a legal right to control land is not necessary to be deemed a "possessor of land" for purposes of establishing premises liability under the Restatement. Bowman , 916 S.W.2d at 285. Rather, in determining who is a possessor of land for such purpose, we must look to the intent of the person in occupation of the land and the amount of control that person exercises over it. Lahr , 951 S.W.2d 757; J.M. , 922 S.W.2d at 763. We find no logic in not applying this definition to § 339 cases. Accordingly, we find that a party can be liable in this state under § 339 of the Restatement as a possessor of land, even where he or she has no legal right to possess or control it, if he or she falls within the definition of "possessor of land" as set forth in § 328E of the Restatement. We find support for our holding in the judicial decisions of other states, which we find persuasive.
In Hallett v. United States Department of Navy , 850 F. Supp. 874 (D. Nev. 1994), five women sued the United States Department of Navy for incidents arising out of the annual Tailhook Convention which, at the time in question, was held at the Las Vegas Hilton Hotel. Id. at 876-77. All of the plaintiffs were guests at the Hilton during the convention. They alleged that certain of the Navy officers in attendance at the convention asked them to attend social events, at which they were assaulted. Id. One plaintiff further alleged that after being forced through a "gauntlet" of assault and harassment, she was raped. Id. The plaintiffs brought claims, inter alia, for negligence, claiming that the Navy owed them a duty to supervise and control the convention's social activities and a duty to warn them of the potential dangers. Id. at 877, 879. The Navy filed a motion to dismiss the plaintiffs' claims. Id. at 877. The court held that Nevada law imposed a duty upon owners, occupiers, or possessors of land to act as a reasonable person in view of the probability of injury to others. Id. at 880. While the Navy occupied a number of suites on the third floor of the Hilton during the convention, the assaults complained of allegedly occurred in the public hallway adjacent to these suites. Id. The court, in denying the Navy's motion to dismiss for a lack of duty of care, cited § 328E of the Restatement in holding that, even though the assaults allegedly occurred in the hallway owned by the Hilton, it might be possible for the plaintiffs to demonstrate that the Navy effectively controlled the area around its suites such that it was the occupier or possessor of the hallway giving rise to a duty of care on its part. Id.
In Alcaraz v. Vece , 929 P.2d 1239 (Cal. 1997), the plaintiff was injured when he stepped into a water meter box located on land adjoining that which he was renting from his landlords. Id. at 1240. The meter box was not located on the landlords' property, but was within an adjacent strip of land owned by the city, running between the sidewalk and the landlords' property. Id. at 1241. The plaintiff brought a claim for personal injuries against his landlords. Id. at 1240. They made a motion for summary judgment, claiming that they owed no duty of care to the plaintiff because they did not own the meter box or the land upon which it was located, which was sustained by the trial court. Id. at 1241-42. The California Court of Appeals reversed, with the California Supreme Court affirming. Id. at 1241-42. The court, citing § 328E of the Restatement, held that there was a triable issue of fact as to whether the landlords exercised control over the land upon which the meter box was located, such that they had a duty to protect the plaintiff from injury or the danger thereof. Id. at 1241, 1245. The court cited, with approval, Orthmann v. Apple River Campground, Inc. , 757 F.2d 909, 914 (7 th Cir. 1985), wherein the court held that if a landowner treats a neighbor's property as an integral part of his or her own, the lack of formal title is immaterial to establishing liability and whoever controls the land is responsible for its safety. Alcaraz , 929 P.2d at 1245-46. In upholding the decision of the court of appeals, the Alcaraz court held that as long as the landlords exercised control over the land in question, the location of the property line would not affect their potential liability. Id. at 1247.
In Wal-Mart Stores, Inc. v. Alexander , 868 S.W.2d 322 (Tex. 1993), the plaintiff was injured when she fell after tripping over a ridge at the base of a concrete ramp leading from the parking lot to the sidewalk in front of a Sam's Wholesale Club owned by Wal-Mart Stores, Inc. (Wal-Mart). Id. at 323. The plaintiff sued Wal-Mart for damages, and the jury found in her favor. Id. at 324. On appeal, Wal-Mart argued that it owed no duty of care to the plaintiff as to the ridge because it was not the occupier of the area where she was injured. Id. Wal-Mart leased the store building from its landlord from the exterior of the walls inward, while the landlord retained possession of the parking lot, sidewalks, and other common areas. Id. The evidence established that the ramp causing the ridge did not exist when Wal-Mart leased the building and that Wal-Mart subsequently built the ramp on its own initiative and at its own expense. Id. Citing § 328E of the Restatement, the Texas Supreme Court held that because Wal-Mart built the ramp, after leasing the building, on its own initiative and expense, it assumed control over the ramp area such that it was liable for the plaintiff's injury caused thereby. Id.
Having determined that the respondent was not entitled to summary judgment simply because he demonstrated that he did not have legal title to the land or the Ratcliff vehicle on which Brandon was injured or have any other actual legal right to possess or control them does not end our inquiry. We still would be required to affirm the trial court's summary judgment if we find, using the § 328E definition of "possessor of land" that on the undisputed facts the respondent did not sufficiently possess or control the land and the Ratcliff vehicle to impose a duty of care on him as to Brandon. Hunt, 679 S.W.2d at 879 . As such, we must decide whether there was a genuine dispute of material fact as to whether the respondent possessed or controlled the land and the Ratcliff vehicle located thereon for purposes of § 339 liability. We turn to the record to determine this issue.
In order to defeat the respondent's motion for summary judgment, the appellants were required "to show — by affidavit, depositions, answers to interrogatories, or admissions on file that one or more of the material facts shown by the [respondent] to be above any genuine dispute is, in fact, genuinely disputed." ITT Commercial Fin. , 854 S.W.2d at 381. They could not rest upon the mere allegations or denials in their pleadings, but were required to set forth in their response to the motion specific facts showing that there was a genuine issue at trial. Id. at 381.
For purposes of Rule 74.04, a "genuine issue" exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. A "genuine issue" is a dispute that is real, not merely argumentative, imaginary or frivolous. Where the "genuine issues" raised by the non-movant are merely argumentative, imaginary or frivolous, summary judgment is proper.
Id. at 382.
To defeat the respondent's motion for summary judgment, the appellants relied on their pleadings, the affidavit of Brandon's mother, and the deposition of Steven Bye, the respondent's apartment manager. Other than as to the material fact, as to whether the respondent possessed or controlled the land and Ratcliff vehicle, the mother's affidavit clearly put in dispute the other material facts necessary to establish the respondent's § 339 liability. In this respect, she stated that in June or July 1992, a children's fort was built behind where the Ratcliffs' vehicle was located and that a basketball goal post, as well as a trash receptacle, were placed in the general area of the vehicle, but did not state the respondent's role, if any, in how these items came to be on the property. In his deposition, Bye stated that the respondent instructed him to tell the Ratcliffs to move their vehicle from the front to the back of respondent's property in order to free up more parking spaces for his other tenants. He further stated that, pursuant to his request, the Ratcliffs' son moved the vehicle from the front to the back of the respondent's apartment building, and after doing so, asked if the location where he had parked it was okay, to which Bye responded that it was. The vehicle was not moved from this location until after Brandon was injured. Bye also stated in his deposition that, prior to Brandon's injury, he believed that the vehicle was parked on the respondent's property.
The appellants contend from his deposition that it could be inferred that the actions of Bye were done within the scope of his employment with the respondent, and as such, were imputed to him. See Nichols v. Prudential Ins. Co. , 851 S.W.2d 657, 661 (Mo. App. 1993) (holding that a principal is responsible for the acts and agreements of its agents which are within their actual or apparent authority). They further contend that it could be inferred from these imputed actions of the respondent an intent by him to control or possess the land on which Brandon was injured sufficient to subject him to § 339 liability as a "possessor of land" from which it could be inferred that he had a right to possess or control any devices located thereon, including the Ratcliffs' vehicle. We agree. As such, we find the appellants demonstrated that there was a genuine dispute as to the material facts as to whether the respondent was the possessor of the land in question and, as such, possessed or controlled the Ratcliffs' vehicle located thereon, such that he owed a duty of care to Brandon under § 339 of the Restatement. Hence, the trial court erred in sustaining the respondent's motion for summary judgment on the basis that he did not owe a duty of care to Brandon.
Conclusion
The summary judgment of the circuit court for the respondent is reversed and the cause is remanded for further proceedings consistent with this opinion.
All concur.