Timmons v. Powderly et al

Filing 34

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that Plaintiff's Motion for Summary Judgment against Defendant L.E.P. (Doc. 20) is denied. IT IS FURTHER ORDERED that Defendant Powderly's Motion for Summary Judgment (Doc. 21) is granted. A separate Judgment in favor of Defendant Powderly will accompany this Memorandum and Order.. Signed by Magistrate Judge Abbie Crites-Leoni on 6/9/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
NICHOLAS R. TIMMONS,
Plaintiff,
v.
L.E.P., a minor, and
TIMOTHY J. POWDERLY,
Defendants.

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Case No. 1:16 CV 31 ACL

MEMORANDUM AND ORDER
Plaintiff Nicholas R. Timmons brings this personal injury action arising out of an
automobile accident against Defendant L.E.P., a minor, and Timothy J. Powderly, L.E.P.’s
father. This case has been assigned to the undersigned United States Magistrate Judge pursuant
to the Civil Justice Reform Act and is being heard by consent of the parties. See 28 U.S.C. '
636(c). Presently pending before the Court is Plaintiff’s Motion for Summary Judgment against
Defendant L.E.P. (Doc. 20.) Also pending is Defendant Timothy Powderly’s Motion for
Summary Judgment. (Doc. No. 21). For the following reasons, Plaintiff’s Motion will be
denied, and Defendant Powderly’s Motion will be granted.
Background
On September 21, 2015, L.E.P. was operating a 1998 Pontiac Firebird Trans-Am at the
intersection of Notre Dame Drive and Route K in Cape Girardeau, Missouri. L.E.P. was not yet
licensed and was only a permit driver. Defendant L.E.P. turned onto Route K from Notre Dame

Drive, lost control of the Trans-Am and collided with the vehicle operated by Plaintiff
Timmons.1
In Count I of his Complaint, Timmons asserts a negligence claim against L.E.P. (Doc. 1
at p. 2.) Timmons alleges that L.E.P. was not skilled or experienced in operating such a
powerful vehicle, and drove at a speed that was too fast to maintain control of the vehicle. Id.
He states that he sustained injury, has incurred medical expenses, and has experienced pain,
suffering, lost income, and disability as a result of L.E.P.’s negligence. Id.
Timmons asserts a negligent entrustment claim against Timothy E. Powderly in Count II.
Id. at p. 3. He states that Powderly was the owner of the Trans-Am driven by L.E.P. Id.
Timmons alleges that Powderly negligently entrusted the vehicle to L.E.P. when he knew his
daughter was too inexperienced “to operate such a powerful vehicle.” Id. He further alleges that
Powderly directed L.E.P. to enter onto Route K from Notre Dame Drive when it was not safe to
do so due to the proximity of traffic on Route K. Id. Timmons contends that the collision
resulted from Powderly’s negligence. Id. at 4. He requests compensatory and punitive damages
“commensurate to his reckless conduct.” Id.
L.E.P. asserts an affirmative defense of comparative fault. (Doc. 2 at p. 2-3.)
Timmons filed a Motion for Summary Judgment against Defendant L.E.P, contending
that L.E.P. admitted both fault and damages during her deposition. He requests that the Court
enter summary judgment in favor of Plaintiff and against L.E.P., and that this matter proceed to
trial against L.E.P. on the issue of compensatory damages only.
1

The facts set out in this paragraph were taken from Timmons’ Statement of Uncontroverted
Facts. L.E.P. failed to respond to Timmons’ Statement of Uncontroverted Facts. Under this
Court’s Local Rules, “[a]ll matters set forth in the statement of the movant shall be deemed
admitted for purposes of summary judgment unless specifically controverted by the opposing
party.” E.D. Mo. L.R. 4.01(E).

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Defendant Powderly filed a Motion for Summary Judgment, in which he argues that he is
entitled to judgment as a matter of law on Timmons’ negligent entrustment claim because
Timmons has produced no evidence to support such a claim. He further argues that Timmons
cannot establish that the conduct of Powderly supports a claim of punitive damages.
I.

Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a motion for

summary judgment if all of the information before the court demonstrates that “there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party.
City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc., 838 F.2d 268, 273 (8th Cir. 1988).
After the moving party discharges this burden, the nonmoving party must do more than show
that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). A genuine issue of material fact is not the “mere existence of some
alleged factual dispute between the parties.” State Auto. Ins. Co. v. Lawrence, 358 F.3d 982, 985
(8th Cir. 2004). “Instead, the dispute must be outcome determinative under prevailing law.”
Mosley v. City of Northwoods, 415 F.3d 908, 910-11 (8th Cir. 2005) (internal quotations
omitted). A fact is material when it “might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The nonmoving party bears the burden of setting forth specific facts showing that there is
sufficient evidence in his favor to allow a jury to return a verdict for him. Anderson, 477 U.S. at
249; Celotex, 477 U.S. at 324. “If ‘opposing parties tell two different stories,’ the court must
review the record, determine which facts are material and genuinely disputed, and then view
those facts in a light most favorable to the nonmoving party – as long as those facts are not ‘so
blatantly contradicted by the record . . . that no reasonable jury could believe’ them.” Reed v.

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City of St. Charles, Mo., 561 F.3d 788 (8th Cir. 2009) (quoting Scott v. Harris, 550 U.S. 372,
380 (2007)). Self-serving, conclusory statements without support are not sufficient to defeat
summary judgment. Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir.
1993).
In ruling on a motion for summary judgment, the court must review the facts in a light
most favorable to the nonmoving party and give that party the benefit of any inferences that
logically can be drawn from those facts. Matsushita, 475 U.S. at 587; Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005). The Court may not “weigh the evidence in the
summary judgment record, decide credibility questions, or determine the truth of any factual
issue.” Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). The court is
required, however, to resolve all conflicts of evidence in favor of the nonmoving party. Robert
Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).
III.

Discussion

A.

Plaintiff’s Motion
As previously noted, Timmons requests that the Court enter judgment against L.E.P. on

the issue of liability due to L.E.P.’s admissions during her deposition. Timmons’ argument is
based on the following deposition testimony:
[Plaintiff’s Counsel]: You would agree that when you’re operating a car, it’s
important to operate it in a way that it doesn’t lose control?
[L.E.P.]: Yes.
[Plaintiff’s Counsel]: And if a car loses control because of the way you operate it
and it goes into the oncoming lane of traffic and causes a wreck, that would be
your fault?
[L.E.P.]: Yes.

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[Plaintiff’s Counsel]: Do you have a judgment based on what happened whether
this accident was your fault?
[Defendant’s Counsel]: In addition to the form, I would also object that it
invades the province of the jury, but you can go ahead and answer, L.E.P.
[L.E.P.]: Yes.
[Plaintiff’s Counsel]: You think it was?
[L.E.P.]: Yes.
(20-1 at p. 9-10.)
In her Response, L.E.P. does not dispute her admissions during her deposition, but
contends that summary judgment is inappropriate because she has pleaded comparative fault as
an affirmative defense, and the record contains facts from which a jury could reasonably infer an
allocation of fault to Plaintiff Timmons. (Doc. 28.) L.E.P. cites to her testimony that she looked
in both directions when she was stopped at the intersection, and did not see any cars nearby.
(Doc. 28-2 at p. 3-4.) She also notes that her father, Defendant Timmons, testified that he
believed Timmons was driving too fast. (Doc. 28-3 at p. 4.)
Under the pure comparative fault principles adopted by Missouri in Gustafson v. Benda,
661 S.W.2d 11 (Mo. 1983) (en banc), the injured party’s own negligence is compared to that of
the negligence of defendant to determine whether any damages awarded should be diminished in
proportion to the amount of negligence attributable to that plaintiff. Cornell v. Texaco, Inc., 712
S.W.2d 680, 682 (Mo. 1986) (en banc). Comparative fault is an affirmative defense in which the
defendant must prove that the actions or omissions of the plaintiff contributed to the plaintiff's
loss to negate or reduce the defendant’s legal responsibility. Business Men’s Assurance Co. v.
Graham, 891 S.W.2d 438, 447 (Mo. Ct. App. 1994). The parties in a negligence case have the
right to have their case submitted to a jury under comparative fault principles if there exists

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substantial evidence, not mere speculation or conjecture, that the plaintiff’s conduct was a
contributing cause of her damages. Hughes v. Palermo, 911 S.W.2d 673, 674 (Mo. Ct. App.
1995).
Timmons did not file a Reply, and has not otherwise addressed the issue of comparative
fault. L.E.P. raised this issue as an affirmative defense and has submitted deposition testimony
in support of the argument. The issue of any negligence on the part of Timmons remains a
genuine issue of material fact. Thus, the Court cannot grant Timmons’ Motion. See Cerentana
v. Alhalabi, 4:05CV1359SNL, 2006 WL 3103052, at *1 (E.D. Mo. Oct. 31, 2006) (denying
plaintiff’s motion for partial summary judgment on liability when defendant raised issue of
comparative fault in his answer and deposition testimony, noting that “comparative fault is a jury
issue”).
B.

Defendant Powderly’s Motion
Defendant Powderly first argues that he is entitled to judgment as a matter of law on

Count II because Timmons cannot establish the requisite elements of a negligent entrustment
claim.
In order to recover on a claim for negligent entrustment under Missouri law, a plaintiff
must prove by a preponderance of the evidence that (1) the entrustee is incompetent, (2) the
entrustor knew or had reason to know of the incompetence, (3) there was an entrustment of a
chattel, and (4) the negligence of the entrustor concurred with the negligence of the entrustee to
harm the plaintiff. Evans v. Allen Auto Rental and Truck Leasing, Inc., 555 S.W.2d 325, 326
(Mo. banc 1977).
Powderly argues that Timmons has produced no evidence to show that Powderly knew or
had reason to know that L.E.P. was an incompetent driver. Powderly contends that L.E.P. was a

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good student and was very reliable, had driven the Trans-Am seven to nine times prior to the
accident, and had not been involved in any similar incidents.
Timmons responds that L.E.P.’s incompetence and Powderly’s knowledge thereof is
established by the fact that L.E.P. was not a licensed driver, and by Powderly’s statements to the
police officer at the scene. Timmons states that the police report contains an admission by
Powderly that L.E.P. was not familiar with the Trans-Am, and that Powderly told L.E.P. when to
pull out into traffic. Timmons argues that it can be inferred from these statements that L.E.P.
was not competent to exercise her own judgment about when to pull out into traffic.
In his Reply, Powderly first argues that Timmons failed to respond to Powderly’s
Statement of Uncontroverted Material Facts and those facts support summary judgment. He next
contends that his alleged statements to the police officer are immaterial and irrelevant to
Timmons’ negligent entrustment claim.
The police report provides as follows, in relevant part:
P1 ADVISED “IT WAS HIS FAULT” AND THT HE “TOLD D1 TO PULL
OUT”. P1 ADVISED HE WAS THE FATHER OF D1 AND THAT D1 WAS A
PERMIT DRIVER AND HAD NOT BEEN FAMILIAR WITH V1. P1
ADVISED V1 TIRES BEGAN TO “SPIN OUT” AND D1 LOSS CONTROL OF
THE VEHICLE. P1 STATED HE THEN GRABBED THE STEERING WHEEL
OF V1 WHICH ASSISTED IN D1 OVER-CORRECTING V1 INTO THE PATH
OF V2.
(Doc. 27-1 at p. 5.)
Powderly argues that he has no memory of telling the officer that his daughter had not
been familiar with the car. (Doc. 31 at p. 2.) He testified that he told the officer that L.E.P. “was
a fairly new driver.” (Doc. 27-2 at p. 6.) Powderly contends that is what he meant by any such
statement. (Doc. 31 at p. 2.)

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The Court finds that there is insufficient evidence for a jury to find that Powderly knew
that L.E.P. was incompetent to drive prior to the accident. The mere fact that L.E.P. did not have
a driver’s license does not establish that she was incompetent to drive with her father in the car
when it is undisputed that L.E.P. obtained a learner’s permit four months prior to the accident.
(Doc. 21-2 at p. 11, 38.) See Mo. Rev. Stat. ' 302.130 (allowing a minor at least fifteen years of
age to operate a vehicle under the supervision of a parent or guardian).
Even assuming Powderly’s statements to police regarding L.E.P. losing control of the
vehicle establish L.E.P.’s incompetence as a driver during the accident at issue, there is no
evidence that Powderly had knowledge of this incompetence prior to the accident. Courts have
found that there must be evidence that the entrustor knew of the entrustee’s habitual negligence
when considering entrustment of vehicle cases. Portman v. Stanley, 674 S.W.2d 678, 679 (Mo.
Ct. App. 2008) (son’s past conduct of rolling car into ditch, running into a parked car and leaving
the scene, and running into a fire hydrant that occurred more than two years before the collision
at issue was not such that defendant parents would reasonably have foreseen collision); See Lix v.
Gastian, 261 S.W.2d 497, 500-01 (Mo. Ct. App. 1953) (no showing of “habitual reckless
conduct” on the part of son to hold father liable when one year prior son had pled guilty to
charge of careless driving and son had reputation for fast driving); cf. Hallquist v. Smith, 189
S.W.3d 173, 177 (Mo. Ct. App. 2006) (evidence sufficient to defeat summary judgment when
parent was “well aware of the dangerous proclivities of the child with respect to driving” due to
history of driving while intoxicated).
Timmons cites Pritchett v. Kimberling Cove, 568 F.2d 570 (8th Cir. 1977), to support his
claim that summary judgment on negligent entrustment is not warranted. In Pritchett, the Court
found that a boat marina negligently entrusted a motorboat to a minor employee when the

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employee had just turned fifteen years old, had a poor school record, had little training in safe
operation of motorboats, and no training in the operation of motorboats at night. 568 F.2d at
577. The facts in this case are distinguishable. In this case, it is undisputed that L.E.P. had her
driver’s permit for four months before the accident took place, L.E.P. drove with her father as a
passenger on many locations without incident, L.E.P. had driven Powderly’s Trans-Am between
seven and nine times prior to the accident, L.E.P. had not been involved in any prior car collision
while driving the Trans-Am or any other car, the Trans-Am had never fishtailed while L.E.P.
was driving prior to the accident, and LE.P. was a good student.2 (Doc. 23 at p. 1-2.)
Given these facts, Timmons has failed to show that Powderly knew or had reason to
know that L.E.P. was incompetent to drive prior to the accident. Thus, Powderly is entitled to
judgment as a matter of law on Timmons’ negligent entrustment claim.
Powderly next contends that he is entitled to summary judgment on Timmons’ claim for
punitive damages on Count II because Timmons has failed to present clear and convincing
evidence to support such a claim. In light of the Court’s ruling, there is no need to consider
Timmons’ request for punitive damages.
Accordingly,

2

As Powderly pointed out, Timmons failed to respond to Powderly’s Statement of
Uncontroverted Material Facts. As such, these facts are deemed admitted. See E.D. Mo. L.R.
4.01(E).

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IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment against
Defendant L.E.P. (Doc. 20) is denied.
IT IS FURTHER ORDERED that Defendant Powderly’s Motion for Summary
Judgment (Doc. 21) is granted. A separate Judgment in favor of Defendant Powderly will
accompany this Memorandum and Order.

_____________________________________
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 9th day of June, 2017.

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