DANNY BELL, ADMINISTRATOR OF THE ESTATE OF BRITT THOMAS BELL, DECEASED v. RUBEN NAZARIO
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RENDERED: JULY 30, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
MODIFIED: AUGUST 6, 1999; 2:00 P.M.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001756-MR
DANNY BELL, ADMINISTRATOR OF THE ESTATE
OF BRITT THOMAS BELL, DECEASED
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
ACTION NO. 1996-CI-836
v.
RUBEN NAZARIO
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GARDNER, KNOPF, AND MCANULTY, JUDGES.
KNOPF, JUDGE:
This is an appeal from a summary judgment
dismissing a wrongful death action because the victim’s death was
not a reasonably foreseeable consequence of the defendant’s
alleged negligence.
Finding no error, we affirm.
The underlying facts of this action are not in dispute
and were set out by the trial court as follows:
The circumstances of this case are tragic.
While Dr. Ruben Nazario and his wife were out
of town, their two children, Eduardo, age 18,
and Gustavo, age 14, threw a party. It is
uncontroverted that the Defendant [Nazario]
did not know they planned to do so. There is
evidence that he actually told them not to
have friends over while they were out of
town. Regardless, the boys had a large
number of people over. That evening
[February 9, 1996], Mark Gosser, a stranger
to the boys, came over, walked into the house
to find Danny Abbott, persuaded Mr. Abbott to
go outside of the Nazario home, and started
to fight with him. Gosser and Abbott had
been having trouble for some weeks previous
to the party. Several people at the party
gathered around to watch the fight. Gosser
pulled a gun and fired at Abbott. He missed,
but struck a spectator, Britt Thomas Bell,
fatally wounding him.
Record on Appeal (ROA) at 113.
On October 8, 1996, Danny Bell, as administrator of the
estate of Britt Thomas Bell, brought a wrongful death action
against Ruben Nazario.
In the original complaint, Bell alleged
that Nazario was negligent in allowing the party at his home and
in failing to provide adult supervision for the party.
Nazario
answered, denying any negligence, and the action proceeded
through discovery.
On January 20, 1998, Nazario moved for summary judgment
on the complaint.
While the motion was pending, Bell moved the
trial court to file an amended complaint.
The trial court
granted the motion and the first amended complaint was filed on
February 20, 1998.
In the first amended complaint, Bell alleged
that Nazario’s sons were acting as his agents, and that Britt
Thomas Bell’s death was caused by their negligence while acting
in the scope of their authority.
Subsequently, on June 5, 1998,
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Bell filed a second amended complaint, alleging that Nazario
negligently entrusted his home to his minor sons while he was out
of town, and that Britt Bell’s death occurred as a result of this
negligent entrustment.
On June 26, 1998, the trial court granted Nazario’s
motion for summary judgment.
In addition to dismissing the
original complaint alleging Nazario’s primary negligence, the
trial court also dismissed the counts alleged in Bell’s first and
second amended complaints.
The trial court found that,
regardless of any negligence by Nazario or his sons, the actions
of Mark Gosser were an intervening and superseding cause of Britt
Thomas Bell’s death, and that Gosser’s criminal conduct was not a
reasonably foreseeable consequence of any negligence by either
Nazario or his sons.
Bell now appeals from this determination.
Bell primarily argues that the trial court denied him
due process of law in dismissing the counts contained in the
first and second amended complaints.
Nazario filed the motion
for summary judgment prior to the filing of the amended
complaints, and his motion did not address the new claims raised
therein.
Bell contends that the trial judge acted improperly in
dismissing those claims when the issues had not been submitted to
the court for adjudication.
We agree that, as a general rule, a trial court should
not rule on issues which have not been presented to the court for
adjudication.
(1987).
See Gall v. Scroggy, Ky.
App., 725 S.W.2d 867
However, a trial judge is authorized to grant a summary
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judgment in favor of a party who has not requested it when all of
the pertinent issues are before him at the time the case is
submitted.
Green v. Bourbon County Joint Planning Commission,
Ky., 637 S.W.2d 626, 630 (1982)
The rationale for not requiring
a formal motion for summary judgment in these limited situations
is that there is no prejudice to the party against whom summary
judgment is granted.
Storer Communications of Jefferson County,
Inc. v. Oldham County Board of Education, Ky. App., 850 S.W.2d
340, 342 (1993). In the present case, we conclude that the trial
court’s ruling regarding the foreseeability issue necessarily
precluded any recovery on Bell’s additional causes of action.
A motion for summary judgment should only be granted
where there is no genuine issue as to any material fact and when
the moving party is entitled to judgment as a matter of law.
56.03.
CR
The record must be viewed in a light most favorable to
the party opposing the motion, and all doubts are to be resolved
in his favor.
Steelvest, Inc. v. Scansteel Service Center, Inc.,
Ky., 807 S.W.2d 476, 480 (1991).
Summary judgment should only be
used to terminate litigation when, as a matter of law, it would
be impossible for the respondent to produce evidence at trial
warranting a judgment in his favor and against the movant.
Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255, 256
(1985).
We agree with the trial judge that summary judgment was
appropriate.
The parties in this case had completed discovery.
Although Bell filed two (2) amended complaints after Nazario
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filed his motion for summary judgment, all of the additional
causes of action sounded in negligence.
In the original
complaint, Bell alleged that Nazario was negligent in allowing
the party to be held in his home and in failing to provide adult
supervision for the party.
In the first amended complaint, Bell
alleged that Eduardo and Gustavo were acting as Nazario’s agents,
and that he was liable for their negligence.
In the second
amended complaint, Bell alleged that Nazario negligently
entrusted his home to his sons while he was out of town.
The
threshold issue of foreseeability in each of these claims was a
matter of law for the court to decide.
As correctly stated by the trial court, negligence
consists of: (1) a duty on the part of the defendant; (2) a
breach of that duty; and (3) a consequent injury.
The absence of
any one (1) of the three (3) elements is fatal to the claim.
Illinois Central Railroad v. Vincent, Ky., 412 S.W.2d 874, 876
(1967).
Moreover, the chain of causation will be broken by an
intervening or a superseding cause.
A superseding cause is an
act which intervenes between the original negligence and the
injury, is of independent origin, is itself capable of bringing
about the injury, is not reasonably foreseeable by the original
actor, and must involve the unforeseen conduct of a third person.
NKC Hospitals, Inc. v. Anthony, Ky., 849 S.W.2d 564, 568-69
(1993).
The question of whether an undisputed act or
circumstance is a superseding cause is a legal issue for the
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court to resolve.
Montgomery Elevator Co.
v. McCullough, Ky.,
676 S.W.2d 776, 780 (1984).
As stated in Waldon v. Housing Authority of Paducah,
Ky.
App., 854 S.W.2d 777 (1993):
In Kentucky, “[t]he rule is that every person
owes a duty to every other person to exercise
ordinary care in his activities to prevent
foreseeable injury.” Grayson v. Fraternal
Order of Eagles, Aerie No 3738, Inc. v.
Claywell, Ky., 736 S.W.2d 328 (1987).
(Emphasis added). In addressing questions of
proximate cause, recent cases apply the
general principles of foreseeability in those
cases involving intervening or superseding
cause. See generally Montgomery Elevator Co.
v. McCullough, Ky., 676 S.W.2d 776 (1984).
Even an intervening criminal act does not
relieve one for liability for his or her
negligent acts or omissions, where the
criminal act is a reasonably foreseeable
consequence of the defendant’s negligent act.
See, e.g. Wheeler v. Andrew Jergens Company,
Ky., 696 S.W.2d 326 (1985).
Id. at 778-79.
In Waldon, a resident of a public housing complex was
shot and killed outside of her residence.
Her estate brought a
wrongful death action against the housing authority, alleging
that its negligence was a cause of her death.
The evidence
showed that the housing authority was told by the decedent and
others that the assailant had made threats to kill one of its
tenants.
The housing authority was also aware that the assailant
was residing in the complex without its permission, yet it took
no action to evict him or to discourage his presence in the area.
Despite its knowledge of the assailant’s threats against one of
its tenants, as well as the frequent occurrence of crime at the
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complex, the housing authority failed to provide any security
patrols of the area.
Id. at 799.
By contrast, the uncontested evidence in the record in
the present case was that Gosser did not go to the Nazario house
to attend the party.
Rather, he went to the house to find
Abbott, with whom he had a number of previous disputes.
Gosser
then managed to convince Abbott to come outside of the house to
start the fight.
As explained by the trial court:
No matter if the Nazario children had
held parties at the home previously to this
one, ostensibly without the parent’s
knowledge. A little rowdiness at a party
with alcoholic drinks and lots of teenage
guests is foreseeable. A murder is not. No
matter if alcohol and marijuana were
available at the party from various sources,
since it is undenied that Gosser did not
partake of either while at the Nazario’s and
that Abbott was 23 years old and did not
smoke any marijuana at the party. No matter
if the Nazario parents had made the children
their agents or that they entrusted the house
to their sons. The house did not cause the
death of Britt Thomas Bell. The intervening
and superseding criminal act of Mark Gosser
did. Gosser broke the chain of proximate
cause as to Dr. Ruben Nazario.
ROA at 115.
We agree with the trial court’s analysis.
Nazario
could not be held liable on any of Bell’s negligence theories
unless the shooting and Britt Thomas Bell’s death was a
reasonably foreseeable consequence of the alleged negligence.
Based upon the undisputed facts, Gosser’s criminal conduct was a
superseding cause of Britt Thomas Bell’s death regardless of any
of the alleged negligence of either Nazario or his sons.
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Therefore, Bell could not prevail on any of his theories of the
case and summary judgment was appropriate on all of his claims.
Accordingly, the judgment of the Pulaski Circuit Court
is affirmed.
GARDNER, JUDGE, CONCURS.
McANULTY, JUDGE, DISSENTS AND FURNISHES OPINION.
McANULTY, JUDGE, DISSENTING: Respectfully, I dissent.
The trial court deprived Appellant of his opportunity to be heard
by considering the two amended complaints under Appellee’s motion
for summary judgment.
In addition, I disagree with the
majority’s position that the injury to the decedent was not a
foreseeable consequence of Appellee’s negligence.
In my humble
opinion, the trial court erred by granting by summary judgment.
A party may move for judgment as a matter of law if
there are no genuine issues of material fact in dispute.
Steelvest, Inc. v. Scansteel Serv. Center, Inc., Ky., 807 S.W.2d
467 (1991).
However, the trial court cannot grant summary
judgment until the non-moving party receives notice of the motion
and is allowed ten days to respond.
CR 56.03.
This Court has
maintained that “it is fundamental that a trial court has no
authority to otherwise dismiss claims without a motion, proper
notice and a meaningful opportunity to be heard.”
Storer
Communications of Jefferson County, Inc. v. Oldham County Bd. Of
Educ., Ky. App., 850 S.W.2d 340, 342 (1993).
In this case, the motion for summary judgment was filed
by Appellee after the original complaint.
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No additional motions
for summary judgment were filed after the first and second
amended complaints.
Appellant did not receive proper notice from
the trial court that the subsequent claims would be considered
under the original summary judgment motion.
Therefore, Appellant
did not receive the requisite ten days to respond.
The majority states that the trial court may consider
the motion as to the amended complaints if all the issues are
before the court and cites Green v. Bourbon County Joint Planning
Commission, Ky., 637 S.W.2d 626, 630 (1982).
In Green, the issue
was whether summary judgment could be granted in favor of a nonmoving party.
This is inapplicable to the case at hand.
In the
case sub judice, the trial court granted summary judgment in
favor of the moving party and thereby deprived Appellant of the
opportunity to respond to the amended complaints.
The trial
court cannot grant summary judgment as to the new claims since
the issues were never presented to the court by the moving party.
CR 56 requires a party, not the court, to move for summary
judgment.
The trial court erred and thereby violated Appellant’s
right to due process.
Even without this procedural error, summary judgment
was not appropriate.
The majority agreed with the trial court’s
ruling that the misconduct of Gosser is a superseding cause which
breaks the chain of proximate cause.
However, “once it is
determined that the defendant’s duty requires him to anticipate
the intervening misconduct, and guard against it, it follows that
[the misconduct] cannot supersede his liability.”
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William L.
Prosser, Torts § 44 (4th ed. 1978).
In other words, if the
misconduct is reasonably foreseeable, the action is not a
superseding cause and the defendant is still liable.
Appellee informed his children that they were not to
have friends over while he was out of town.
It was reasonably
foreseeable that a teenage party with no adult supervision could
lead to injury.
Both the trial court and majority conceded that
there was a foreseeable likelihood of rowdiness.
It is not such
a far stretch in logic that rowdiness could lead to serious
injury.
Appellee had a duty to protect the guests from injury
and the combination of teens and drinking created a foreseeable
risk of injury.
I would reverse and remand this case to the trial
court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William C. Boone
Louisville, Kentucky
Joe L. Travis
Heidi Schultz Powers
Travis, Pruitt & Lawless
Somerset, Kentucky
Phillip K. Wicker
Somerset, Kentucky
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