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06/28/83 GARY LEE CHANEY v. JOHN CRETEN

June 28, 1983

GARY LEE CHANEY, JR., AN INFANT, BY HIS NEXT FRIEND AND NATURAL MOTHER, DIANA KAY CHANEY, APPELLANTS,
v.
JOHN CRETEN, MABEL CRETEN, ROGER D. SORENSEN AND MARCIE SORENSEN, D/B/A SKATELAND, AND FRANK BERNARD, RESPONDENTS.



From the Circuit Court of Buchanan County; Civil Appeal; Judge Merrill M. Steeb.

Motion for Rehearing Overruled, Transfer Denied September 27, 1983.

Before Turnage, P.j., Pritchard, Kennedy, JJ.

The opinion of the court was delivered by: Kennedy

Plaintiffs mother and son appeal from an adverse verdict and judgment in their lawsuit for damages for injuries sustained by son in a collision between himself and another skater, defendant Frank Bernard, as the two of them were skating at a skating rink operated by defendants John Creten, Mabel Creten, Roger d. Sorensen and Marcie Sorensen, d/b/a Skateland.

The submitted negligence of defendant Frank Bernard was his skating backward.

The submitted negligence of defendant Skateland, as we shall call the four defendants Creten and Sorensen collectively, was its failure to supervise the skating rink so as to prevent Bernard's skating backward.

Plaintiff Gary Lee Chaney at the time of the accident was seven years of age. He was a guest at a friend's birthday party held at Skateland, a public roller-skating rink operated by defendants Creten and Sorensen. Seventeen-year-old Frank Bernard was also skating at the rink on this afternoon, although he was not a guest at the birthday party. As he was skating backwards he collided with Gary Lee Chaney causing serious injuries to the younger boy.

Plaintiffs claim upon this appeal that the court erred in excluding upon motion in limine certain testimony that defendant Bernard had on earlier occasions been cautioned about skating backward and threatended with exclusion from the rink, and also that he had been denied the privilege of using the rink facilities after his collision with plaintiff Gary Lee Chaney. The excluded testimony by Mary Bringus, manager of Skateland, would have been that on two occasions she had reprimanded him for "kating backwards without watching where he should be going." The most recent of these, according to her testimony, had been two weeks to a month before the accident. Defendant Bernard himself stated in a deposition (his testimony on this point was likewise excluded) that the last reprimand had been one week before the incident. His testimony in the deposition was: "I got warnings to slow down, quit weaving. I was turning around. She called it weaving. . . . I was warned to watch out where I was going, or I wasn't going to be allowed to go backwards." The record does not show when the earlier of the two occasions was.

The judgment is reversed and the case remanded for a new trial as to defendant Bernard, and affirmed as to Skateland.

The excluded evidence was admissible as against defendant Bernard and it was error to exclude it. The warnings and admonitions he had received tend to show his knowledge of the danger posed by his skating backward. The principle is thus stated in 57 Am.Jur.2d Negligence § 72 (1971):

As hereinbefore stated, the duty to use care is based upon actual or imputed knowledge of danger. It is also true that the care which must be exercised in any particular situation is in proportion to the actor's knowledge, actual or imputed, of the danger to another in the act to be performed.

See also Komeshak v. Missouri Petroleum Products Co., 314 S.W.2d 263, 270 (Mo. App. 1958); 65A C.J.S. Negligence § 233 (1966).

This principle makes admissible the warnings and admonitions earlier given to defendant Frank Bernard.

In so holding we take account that defendant Bernard was 17 years old at the time of the accident. The jury was entitled to consider the fact of recent warnings and admonitions to a youngster of that age, who otherwise might be excused from the consequences of his conduct on the ground of his immaturity. This thought is pointed up in the language of ...


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