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10/12/93 DONALD ROBIN SHELTON v. ALLEN L. WISEMAN

October 12, 1993

DONALD ROBIN SHELTON, APPELLANT/CROSS-RESPONDENT,
v.
ALLEN L. WISEMAN, AND RONALD G. VOSS, RESPONDENTS/CROSS-APPELLANTS.



Appeal from the Circuit Court of Franklin County, Missouri. Hon. Lawrence O. Davis, Judge.

This Opinion Substituted for Withdrawn Opinion of August 10, 1993.

Gaertner, Smith, Stephan, Jr.

The opinion of the court was delivered by: Gaertner

Appellant/cross-respondent, Donald Robin Shelton, appeals a jury verdict entered in the Circuit Court of Franklin County, allocating his comparative fault at ninety-five percent, for a motorcycle accident during appellant's employment with respondent, Ronald G. Voss, in violation of Missouri's Child Labor Law Statute, RSMo § 294.040 (Supp. 1989). Appellant also appeals a directed verdict entered in favor of respondent, Allen L. Wiseman, for damages resulting from the same statutory violation. Respondents cross-appeal, alleging RSMo § 294.040 (Supp. 1989) does not provide a private cause of action for a violation of one of its sections. *fn1 We affirm in part, reverse in part, and remand with instructions. Furthermore, on the Court's own motion, we transfer this cause of action to the Supreme Court of Missouri.

The Bailey's Creek Gun and Conservation Club ("the gun club") was an unincorporated social club which brought shooters together for target matches. In 1981, the gun club built a rifle range on respondent Wiseman's farm.

Due to the considerable distance between the shooting stands and the targets, the gun club customarily hired young men to ride motorcycles to the targets to reset them. Voss, vice-chairman of the gun club in 1982, was responsible for the hiring. One of those hired by the gun club was appellant, who was characterized as a skilled motorcyclist with experience in motorcycle racing. Appellant was fifteen years old at the time. He alleges Wiseman was also aware of the gun club's practice of hiring teenage motorcyclists and had no objection to the practice.

On August 29, 1982, appellant worked for the gun club as a target resetter in a shooting event. That morning, Voss instructed appellant as to the route he would have to ride to reset the targets. Appellant then took a "check-out run" over this course. When he returned, appellant reported he had nearly wrecked his motorcycle while crossing a cattle guard. *fn2 Subsequently, appellant was seriously injured during the shooting event when he lost control of his vehicle crossing the cattle guard. Appellant suffered a broken neck, severe facial lacerations requiring over 100 stitches, and the loss or fracture of several teeth.

Appellant filed a three-count petition against respondents and others *fn3 to recover damages for his bodily injuries. Counts I and II were based on premises liability. Count III was based on a violation of Missouri's Child Labor Law, which forbids the employment of a minor under the age of sixteen to operate a motor vehicle.

After the close of plaintiff's evidence at trial, Wiseman successfully moved for a directed verdict on appellant's child labor claim. At the close of all evidence, the trial court issued a comparative negligence instruction to the jury. The jury found for both respondents on the premises liability claim, and against Voss on the child labor claim. It assessed five percent fault to Voss, and ninety-five percent fault to appellant.

The jury fixed appellant's damages at $75,000. Before trial, appellant had settled with other defendants for a total of $14,500. Because of this, the trial court reduced the amount of damages to $60,500. The trial court then factored in appellant's comparative fault of ninety-five percent and entered a judgment for him in the amount of $3,025.

On appeal, appellant contends the trial court erred: 1) in instructing the jury to consider the comparative fault of a minor bringing a claim based on a violation of Missouri's Child Labor Laws, RSMo § 294.040 (Supp. 1989); 2) in giving a comparative negligence instruction when there was insufficient evidence to allocate fault to him; and 3) in directing a verdict in favor of Wiseman.

Respondents cross-appeal, contending no private cause of action may be brought for a violation of RSMo § 294.040 (Supp. 1989). Respondents also contend that if the trial Judge erred in giving a comparative fault instruction, 1) Voss is entitled to a new trial on the issue of liability, or alternatively, 2) appellant should be awarded only $60,500, the amount of appellant's damages offset against his other settlements. We turn first to appellant's claims.

Appellant contends the jury was improperly instructed to consider his own comparative fault in causing his motorcycle accident. Whether a jury instruction was erroneous and/or prejudicial is a question of law. Hanten v. Jacobs, 684 S.W.2d 433, 436 (Mo. App., E.D. 1984). To determine whether the court erred in granting a comparative fault instruction, we look to our past treatment of civil claims based on a violation of our child labor laws.

RSMo Chapter 294 sets out Missouri's regulation of child labor. Specifically, RSMo § 294.040 (Supp. 1989) states:

A child under sixteen shall not be employed or permitted to work by any person, firm, or ...


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