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September 7, 1993


Appeal from the Circuit Court of St. Louis City. Hon. Thomas M. O'Shea.

Lawrence G. Crahan, Judge, Presiding Judge Carl R. Gaertner and Judge Kathianne Knaup Crane concur.

The opinion of the court was delivered by: Crahan

Patricia Buff ("Defendant") appeals from an adverse judgment of $25,000 entered pursuant to a jury verdict in a suit seeking to recover for personal injuries sustained by Dustin Bequette ("Plaintiff") in an altercation following a party at Defendant's home. On appeal, Defendant asserts that the trial court erred in refusing her motion for a directed verdict and alleges error in the instructions and in certain evidentiary rulings. We find Defendant's first point to be dispositive and reverse the judgment.

Upon review of a denial of a directed verdict, we review the evidence presented at trial to determine whether or not the Plaintiff introduced substantial evidence that tends to prove the facts essential to plaintiff's recovery. Aubuchon v. Hyland, 820 S.W.2d 613, 615 (Mo. App. 1991). If the plaintiff has introduced substantial evidence, we will not find that the trial court committed reversible error. Id. In reaching this determination, we review the evidence in the light most favorable to the plaintiff, giving him the benefit of all reasonable inferences, and disregarding the defendant's evidence except as it aids the plaintiff's case. Id. In this particular case, the evidence was essentially undisputed and the issue presented is whether the evidence was sufficient to establish any duty upon the part of Defendant to protect Plaintiff from injuries suffered in an altercation after a party given at Defendant's home.

The record establishes that Defendant planned a party at her home in St. Louis for her son, John, to celebrate his sixteenth birthday. It was to be a dance party for boys and girls from 7:00 p.m. until midnight. The furniture in the living and dining rooms was moved to provide room for dancing to tapes and records. Defendant told John that there could be no more than twenty people at the party, including him and his girlfriend. John gave Defendant a list of names of persons he intended to invite to the party, which did not include Plaintiff. This was the first time Defendant had given a party for John.

In preparation for the party, Defendant purchased soda, chips and a sheet cake. She did not purchase any beer for the party or authorize anyone else to do so. The subject of beer never arose and, if it had, she would not have permitted it.

When the party was planned, Defendant intended to be there. At that time, her work schedule would have permitted her to be home no later than 4:00 p.m. However, after the party had been planned, a co-worker on the evening shift underwent emergency surgery and Defendant was required to work the 3:00 p.m. to 11:30 p.m. evening shift in her place. When she learned of the change in schedule, Defendant arranged to have her twenty-six year old son, James, and his wife attend the party. Defendant told James, "Don't let the kids destroy the house."

On the day before the party, Plaintiff, a seventeen year old senior at DuBourg High School, was standing by his locker when a younger student, whom he did not know, came down the hall handing out flyers advertising a "Keg Party--All-U-Can-Drink $3.00" at Defendant's address on the following day. Plaintiff had never been to Defendant's home and was not a friend or schoolmate of John's, but had played soccer against him and knew him by sight. John attended a different school and was not the person who handed out the flyers.

Defendant did not prepare the flyer, did not see it prior to the party, and was not told by anyone prior to the party that flyers were going to be distributed with reference to the party. When shown the flyer at trial, Defendant testified that the printing on the flyer was not John's. Defendant was not aware that anyone planned to charge admission to the party.

After seeing the flyer, Plaintiff talked to his friend, Jim, and they decided to go to the party. Plaintiff also called a twenty-four year old friend, Jeff, and a sixteen year old friend, Joe, neither of whom knew Defendant or John. They said they would like to go to the party also. Plaintiff decided to go to the party because someone he did not know handed him a flyer. He did not talk with Defendant or John and neither invited him to their home.

On March 25, 1988, the day of the party, Defendant left home to go to work at about 2:30 p.m. She arranged the soda, snacks and cake before leaving. John and his girlfriend were home when she left but her older son and his wife were not there yet.

On the evening of the party, Plaintiff, Jim, Jeff, Joe and Joe's girlfriend, Sherry, met in the parking lot of a steakhouse at about 7:30 p.m. and drank a couple of beers in the fifteen or twenty minutes they were there. They then set out for Defendant's home. At about 8:00 p.m., Plaintiff and his friends arrived at the street where Defendant lived and noticed numerous cars parked along the street and people walking up to Defendant's home. As they walked up to the house, Plaintiff and his friends observed that there was a lot of yelling and loud talking inside the house.

As Plaintiff approached Defendant's front porch, there were two men situated outside the front door collecting money. One of the men had long blond hair and no shirt and was sitting on a barstool. He had a club or stick hanging out of his back pocket and was directing people where to park and collecting money. He was never identified at trial but was not Defendant's son John. The other man had long black hair and a moustache and likewise was never identified at trial.

Plaintiff and his friends each paid $3.00 to the shirtless man and entered the house, which was crowded. There were twenty-five to thirty people in the living room area, where a keg of beer had been placed in a metal tub in the corner. Plaintiff saw John in ...

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