Nance v. Morris Motors, Inc.

863 S.W.2d 694, 1993 Mo. App. LEXIS 1680, 1993 WL 442005
CourtMissouri Court of Appeals
DecidedOctober 29, 1993
DocketNo. 18624
StatusPublished
Cited by3 cases

This text of 863 S.W.2d 694 (Nance v. Morris Motors, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nance v. Morris Motors, Inc., 863 S.W.2d 694, 1993 Mo. App. LEXIS 1680, 1993 WL 442005 (Mo. Ct. App. 1993).

Opinion

CROW, Judge.

Plaintiff, Kenneth Nance, sued Defendant, Morris Motors, Inc., for bodily injuries he allegedly received when a motor vehicle he was driving struck a bridge abutment. Plaintiffs theory of liability, as pled in his petition, was that some 60 days before the crash, his employer took the vehicle to Defendant for repair of the steering mechanism; Defendant performed the work negligently; as a result, the steering mechanism malfunctioned, causing the crash.

Defendant moved for summary judgment. The trial court granted the motion. Plaintiff appeals.

Plaintiffs petition pled four allegations of negligence. We need not consider the first three. At oral argument in this Court, Plain[696]*696tiff conceded he abandoned them in the trial court because he had no evidence to support them. Plaintiffs fourth allegation of negligence — the one at issue here — attempts to invoke the doctrine of res ipsa loquitur.

Res ipsa loquitur is a rule of evidence whereby a submissible issue of negligence may be made by adducing a particular kind of circumstantial evidence, viz., by showing the fact of an occurrence which, because of its character and circumstances, permits a jury to draw a rebuttable inference, based on the common knowledge or experience of laymen, that the causes of the occurrence in question do not ordinarily exist in the absence of negligence on the part of the one in control. Hasemeier v. Smith, 361 S.W.2d 697, 700[4] (Mo. banc 1962). The doctrine applies when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care, (b) the instrumentalities involved were under the management and control of the defendant, and (c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence. Bass v. Nooney Co., 646 S.W.2d 765, 768[1] (Mo. banc 1983).

Endeavoring to plead facts meeting those requirements, Plaintiffs petition alleged:

Defendant had sole and exclusive possession and control of the vehicle and the steering mechanism for the purpose of repairing the same and after leaving the possession of the Defendant, the steering mechanism malfunctioned; that had it not been for the negligence of the Defendant, the steering mechanism would not have malfunctioned and/or Defendant should not have released possession of the vehicle had the steering mechanism malfunctioned and not been corrected, that under normal circumstances a vehicle will respond to a turning of a steering wheel, whereas in this case the turning of the steering wheel did not cause the vehicle to respond after Defendant had repaired the steering mechanism. Defendant is in a better position than the Plaintiff to identify their own negligent acts.

In support of its motion for summary judgment, Defendant relied on certain answers by Plaintiff to Defendant’s interrogatories and certain excerpts from Plaintiffs deposition. From those sources, we learn the vehicle had between 70,000 and 80,000 miles on it when it was taken to Defendant for repair of the steering mechanism. After Defendant worked on the vehicle, approximately seven weeks elapsed before the crash. During that interval, Plaintiff drove the vehicle about 600 miles per week. He recalled no problem with the steering mechanism until the crash.

After the crash, the vehicle was taken to another dealer, not Defendant, for repair. Asked whether anyone there examined the steering mechanism, Plaintiff replied, “Not that I know of.”

In response to Defendant’s motion for summary judgment, Plaintiff filed his affidavit stating the vehicle was purchased new some three years before the crash, and he was its sole driver. Plaintiff avowed no one other than Defendant ever worked on the steering mechanism before the crash. Plaintiff explained the vehicle was taken to Defendant because Plaintiff was notified by a “flier” of a manufacturing defect in the steering mechanism which should be corrected by an authorized dealer. According to Plaintiff, he attempted to steer the vehicle as he approached the bridge abutment. The steering wheel turned, but the vehicle did not respond and the crash ensued.

Plaintiff maintains the facts set forth in the three preceding paragraphs constitute a sub-missible case under the res ipsa loquitur doctrine. That is: (a) after vehicles’ steering mechanisms are repaired, such vehicles do not ordinarily crash because of steering failure unless the repairer did the work negligently, (b) the steering mechanism in the vehicle Plaintiff was driving was under the sole management and control of Defendant when the repairs were made, and no one else touched the steering mechanism before the crash, and (c) Defendant, being the repairer, has superior knowledge or means of information about the cause of the steering failure.

Earlier this year, the Supreme Court of Missouri handed down a comprehensive and instructive opinion on summary judgments, ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 [697]*697S.W.2d 371 (Mo. banc 1993). When considering appeals from summary judgments, an appellate court reviews the record in the light most favorable to the party against whom judgment was entered. Id. at 376[1]. Facts set forth by affidavit or otherwise in support of a party’s motion for summary judgment are taken as true unless contradicted by the non-moving party’s response to the motion. Id. at 376[2]. The appellate court accords the non-movant the benefit of all reasonable inferences from the record. Id. at 376[3]. Summary judgment is designed to permit the trial court to enter judgment without delay where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Id. at 376[7].

The rule on summary judgments, Rule 74.04, Missouri Rules of Civil Procedure (1993), divides movants into two classes: “claimants” and “defending parties.” ITT Commercial Finance, 854 S.W.2d at 380. A defending party is one against whom recovery is sought. Id. Where, as in the instant case, the party moving for summary judgment is a defending party who will not bear the burden of persuasion at trial, such party need not controvert each element of the non-movant’s claim in order to establish a right to summary judgment. Id. at 381. Rather, a defending party may establish a right to judgment by showing facts that negate any one of the claimant’s elements’ facts, or by showing that the non-movant, after an adequate period of discovery, has been unable to produce, and will be unable to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements. Id.

Viewing the record in the light most favorable to Plaintiff and allowing him the benefit of all reasonable inferences, we nonetheless hold the record demonstrates Plaintiff has been unable to produce, and will be unable to produce, evidence sufficient to allow the trier of fact to find the existence of the third element of res ipsa loquitur, i.e., that Defendant possesses superior knowledge or means of information as to the cause of the steering failure.

After Defendant repaired the steering mechanism, it performed properly for approximately seven weeks, during which Plaintiff drove the vehicle over 4,000 miles.

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Bluebook (online)
863 S.W.2d 694, 1993 Mo. App. LEXIS 1680, 1993 WL 442005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nance-v-morris-motors-inc-moctapp-1993.