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Zeller v. Scafe

Court of Appeals of Missouri, Western District, Second Division

September 6, 2016

SABRINA ZELLER, Appellant,
v.
CAMERON SCAFE, Respondent. and KRISTEN KANTNER, Appellant,

         Appeal 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

         Sabrina 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.[1] We affirm.

         Factual and Procedural History

         When 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.

         On May 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 section 311.310.2.

         At 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.[2]

          Turner 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 dead.

         Zeller, 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").[3] 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.

         Kantner filed a cross-petition and then an amended cross-petition ("Cross-Petition").[4] 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.

         Scafe 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 another.

         The 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.

         Zeller 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.

         Zeller and Kantner appeal the trial court's judgment dismissing their claims against Scafe.[5]

         Standard of Review

         We 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 ...


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