Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Lafayette County, Missouri, The
Honorable Dennis A. Rolf, Judge
Before: Karen King Mitchell, Presiding Judge, Cynthia L.
Martin, Judge and Gary D. Witt, Judge
Cynthia L. Martin, Judge
Zeller ("Zeller"), plaintiff ad litem for
her deceased son Cody Turner ("Turner"), appeals
from the trial court's judgment dismissing her petition
against Cameron Scafe ("Scafe"). Kristen Kantner
("Kantner") appeals from the trial court's
judgment dismissing her cross-petition against Scafe. Zeller
and Kantner (collectively "Appellants") argue on
appeal that the trial court's dismissal of their claims
against Scafe was erroneous because each stated a claim for
negligence per se given Scafe's violation of
section 311.310. We affirm.
and Procedural History
reviewing the dismissal of a petition for failure to state a
claim, we treat the facts alleged in the petition as true and
construe those facts liberally in favor of the plaintiff.
Gordon v. City of Kansas City, 450 S.W.3d 793, 795
n.l (Mo. App. W.D. 2014). We summarize the relevant facts,
consistent with this standard.
12, 2012, Turner attended a "keg party" at
Scafe's house in Oak Grove. Brian Beebe, Jr.
("Beebe"), Amy Greenstreet
("Greenstreet"), and Kantner were also at the
party. Scale knowingly allowed Beebe and other minors in
attendance to consume intoxicating liquor and knowingly
failed to stop Beebe and other minors from consuming
intoxicating liquor, a class B misdemeanor pursuant to
approximately 6:30 a.m., Beebe, Kantner, and Turner left the
party in a Jeep Wrangler loaned to them by Greenstreet.
Turner initially drove the vehicle but became fatigued.
Turner moved to the console of the vehicle, and Beebe took
over driving the vehicle. At approximately 7:30 a.m., Beebe
failed to negotiate a curve. The vehicle skidded off the
roadway, struck an embankment, and overturned. Beebe panicked
and fled the scene on foot. Beebe contacted his grandfather,
Jerry Nussbaum ("Nussbaum"), and asked Nussbaum to
pick him up.
was thrown from the vehicle. Turner suffered a head injury,
multiple skull fractures, and epidural and subdural
hematomas, but was alive immediately following the accident.
Kantner was trapped by her seatbelt in the vehicle. Despite
her injuries, Kantner was able to call emergency services and
run to a nearby residence for help. Turner was air
transported to a nearby hospital, where he was pronounced
as plaintiff ad litem for Turner, filed a petition
for damages arising from Turner's death and then later
filed a first amended petition
("Petition"). Zeller asserted a claim for wrongful
death against Scafe based on a theory of negligence per
se given Scafe's violation of section 311.310.2.
Zeller also asserted claims for negligence and wrongful death
against Kantner on the theory that she did not prevent Beebe
from operating the vehicle.
filed a cross-petition and then an amended cross-petition
("Cross-Petition"). The Cross-Petition alleged a
claim of negligence against the decedent, Turner, because he
turned over operation of the vehicle to an obviously
intoxicated Beebe. The Cross-Petition also asserted a claim
for negligence per se against Scafe based on his
violation of section 311.310.2.
filed motions to dismiss Zeller's and Kantner's
claims against him for failure to state a claim upon which
relief can be granted, arguing that Missouri law does not
recognize a cause of action, by legislation or at common law,
against social hosts who provide alcoholic beverages to
minors. Kantner filed a motion to dismiss Zeller's claims
against her because Missouri law does not impose a duty on
passengers to prevent the operation of a motor vehicle by
trial court granted Kantner's motion to dismiss
Zeller's claims against her. The trial court also granted
Scafe's motions to dismiss Zeller's and Kantner's
claims against him.
appealed. We dismissed the appeal for want of a final
judgment because Kantner's claim against Turner remained
pending before the trial court. See Zeller v. Scafe,
455 S.W.3d 503 (Mo. App. W.D. 2015). Kantner then voluntarily
dismissed the claim against Turner.
and Kantner appeal the trial court's judgment dismissing
their claims against Scafe.
review the trial court's grant of a motion to dismiss
de novo. Davison v. Dairy Farmers of Am.,
Inc., 449 S.W.3d 81, 83 (Mo. App. W.D. 2014).
A motion to dismiss for failure to state a cause of action is
solely a test of the adequacy of the plaintiffs petition. It
assumes that all of plaintiffs averments are true, and
liberally grants to plaintiff all reasonable inferences
therefrom. No attempt is made to weigh any facts alleged as
to whether they are credible or persuasive. Instead, the
petition is reviewed in an almost academic manner, to
determine if the facts alleged meet the elements of a
recognized cause of action, or of a cause that might be
adopted in that case.
Coons v. Berry,
304 S.W.3d 215, 217 (Mo. App. W.D.
2009). "[T]o avoid dismissal, the petition must invoke
substantive principles of law entitling the plaintiff to
relief and ultimate facts informing the defendant of that
which plaintiff will attempt ...