Harris v. Niehaus , 1993 Mo. LEXIS 80 ( 1993 )

BENTON, Judge,

concurring in the result in part and dissenting in part.

The principal opinion finds that this case should not have been submitted to the jury under either a failure-to-warn or a failure-to-protect theory. As to failure-to-warn, this holding is eminently correct because no evidence suggests that the trustees could have warned either the mother or children in a way that would give additional information. Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. banc 1992).

As for the submissibility of the failure-to-protect claim, there is no question that the plaintiffs introduced sufficient evidence of but-for causation. The principal opinion holds that, from the trustees’ view, the mother’s negligence was not foreseeable, “expected,” or “anticipated,” and that the trustees should have neither expected nor anticipated such an accident.

I disagree. In reviewing the sufficiency of a claim, this Court takes the evidence in the light most favorable to the party submitting the claim, and makes all reasonable inferences in support of that party. 01-daker v. Peters, 817 S.W.2d 245, 251-52 (Mo. banc 1991); Delisi v. St. Luke’s Episcopal — Presbyterian Hospital, Inc., 701 S.W.2d 170, 173 (Mo.App.1985). In this light, the evidence demonstrates that this accident was foreseeable.

I. Facts

The road in question was built on a hill and sloped toward a lake. The slope was sufficiently gentle to guarantee that people would park on the road, and the trustees knew that people regularly parked on this road, and around the cul-de-sac. The principal opinion’s focus on driving is off-the-point; this is a parking case. While placing a car in “park” and taking other routine precautions will normally prevent a car from rolling down a hill, a jury could infer — as this one did — that a reasonable trustee would foresee the possibility of a mechanical malfunction or other human error that would cause a car to roll down the hill.

The principal opinion argues that it was not foreseeable that a parent would leave children alone in the car. In reality, parents often do leave children alone in cars for brief intervals, often without the slightest thought. From the evidence in this case, a jury could reasonably infer that Eugenia’s behavior fit into this typical circumstance of a parent believing that he or she would be away only for a minute or two, and that the children were safer being left in the car, than going on the construction site. Eugenia is also typical in that she believed that taking the keys with her prevented the car from rolling.

II. Foreseeability

These facts sufficiently demonstrate foreseeability. In most areas of tort law, the negligence of another eliminates liability for one’s own negligence only if the negligence of the other person was not reasonably foreseeable. See, e.g., Jordan v. General Growth Development Corp., 675 S.W.2d 901, 903-04 (Mo.App.1984); Restatement (Second) of Torts, § 447; see also Leveillee v. Wright, 300 Mass. 382, 15 N.E.2d 247, 251 (1938) (“It was not necessary that the defendant should have foreseen the precise manner in which the accident might result.... We think that it could have been found that in its general nature, what actually occurred was a probable consequence of the defendant’s negligence.”); Berry v. Visser, 354 Mich. 38, 92 N.W.2d 1, 5 (1958); Restatement (Second) of Torts, § 302A cmt. c (“[T]he actor is required to know that there is a certain amount of negligence in the world, and that some human beings will fail on occasion to behave as a reasonable [person] would behave.”) Thus, in a comparative fault system, negligence by a plaintiff should eliminate liability — as opposed to reducing recovery — only if that negligence were not reasonably foreseeable. Restatement (Second) of Torts, § 302A cmt. b.

Reasonable foreseeability does not require that the defendant be able to foresee the precise details of the accident. Instead, the question is whether that type of accident was foreseeable. “The test is not whether a reasonably prudent person would have foreseen the particular injury, but whether, after the occurrences, the injury appears to be the reasonable and probable consequence of the act or omission of the defendant.” Foley v. Hudson, 432 S.W.2d 205, 207 (Mo.1968). “[Defendant] may not have anticipated that the occurrences would happen exactly as they did, but that is not necessary. It is sufficient that what occurred is a natural or probable consequence of his act ... and that some injury was reasonably foreseeable.” Id. at 208. “If the result is foreseeable, the manner in which it is brought about need not be, and is immaterial.” St. John Bank & Trust Co. v. City of St. John, 679 S.W.2d 399, 403 (Mo.App.1984), quoting Prosser & Keeton, Torts § 44, at 317 (5th ed. 1984).

While it is true that the evidence supported the submission of Eugenia’s fault to the jury — and the jury found Eugenia to be 90% at fault — the principal opinion emphasizes Eugenia’s fault in order to eliminate the trustees’ liability. Because the possibility of a runaway car was reasonably foreseeable, Eugenia’s fault is a concurrent cause, not an intervening cause, of the damages.

III. Contributory Negligence

The principal opinion bases its finding of no liability on its interpretation of § 343(b) as explained by § 343A(1) of the Restatement (Second) of Torts. These sections allow recovery, even though a condition may be open and obvious if the landowner should still “anticipate” harm. Since these sections were written in terms of contributory negligence, they partake equally of the logic of assumption-of-the-risk/contributory-negligence and of the logic of intervening cause.

As Cox v. J.C. Penney Co., 741 S.W.2d 28, 29-30 (Mo. banc 1987), recognized, it would be improper under a comparative fault system to excuse a landowner’s liability for all types of negligence by a plaintiff. Such reasoning is especially true in a case of wrongful death because, traditionally, the negligence of one member of the class of beneficiaries is not imputed to the other members of that class. Sanfilippo v. Bolle, 432 S.W.2d 232, 233-34 (Mo.1968).

Under a comparative fault system, § 343(b) only requires determining whether the landowner should have anticipated the negligent act — i.e., was the act foreseeable. Section 343 does not permit a possessor of land to expect that invitees will never be negligent. In other words, the issue is properly one of proximate causation. When there is disputed evidence — as in this case — on whether the landowner had reason to expect this type of accident, liability is a mixed question of law and fact; thus, the case properly belongs to the jury.

In describing the types of acts which owners need not anticipate, the principal opinion says that owners can rely on invitees using “due care” and "ordinary perception, intelligence, and judgement.” While I do not believe that the principal opinion intends to reimpose contributory negligence for cases involving invitees and premises liability, some trial judges and lawyers could easily read such a standard into the principal opinion. This choice of terms by the principal opinion is unfortunate because I believe that the only real difference between this opinion and the principal opinion is a disagreement over the sufficiency of the evidence, and not over the law that applies to the case.

IV.

Because the failure-to-warn theory was not submissible, I would reverse and remand for a new trial only on the failure-to-protect claim. Miller v. Scholl, 594 S.W.2d 324, 328 (Mo.App.1980). For this reason, I concur in the result in part and dissent in part.