author: STUMBO, Justice. WINTERSHEIMER, Justice,

text:
    Shirley COULTER and Thomas Coulter, Appellants, v. J. Kent THOMAS, M.D. and Louisville S.C., Ltd., Appellees.
    No. 1998-SC-000795-DG.
    Supreme Court of Kentucky.
    Dec. 21, 2000.
    As Amended Dec. 29, 2000.
    Eh J. George, Jr., Louisville, for Appellants.
    Susan D. Phillips, William P. Swain, Phillips Parker Orberson <& Moore, PCL, Douglass Farnsley, Catherine Murr Young, Sites & Harbison, Louisville, for Appellees.
   STUMBO, Justice.

We granted discretionary review in this personal injury case to determine what is required to effectively revoke consent to a medical procedure in progress and whether a jury should be instructed on the claim of battery where the defendant refuses to comply with a patient’s request that treatment stop.

I. FACTS

Shirley Coulter, Appellant, consulted ophthalmologist Dr. Kent Thomas, Appel-lee, for a surgical procedure to remove a mass on Coulter’s lower eyelid in early 1992. The outpatient surgery was to be performed at the SurgeCenter in Louisville. During the procedure, Pat Bowling, a circulating nurse, placed an automatic blood pressure cuff (ABPC) on Coulter’s arm in an effort to monitor her blood pressure at intervals during the procedure. The ABPC automatically inflates and deflates in cycles scheduled by the operator, and the operator may also trigger an unscheduled cycle. The first time the ABPC inflated, Coulter testified that she felt extreme pain, began to sweat and tremble, and demanded the cuff to be removed. She claims that, almost immediately, the ABPC began to inflate for the second time, and she again cried out for someone to remove the cuff. It was not until several minutes, and another inflation later, that the cuff was removed. The surgery continued without the benefit of the ABPC.

The Appellees offered testimony that complaints of discomfort associated with cuff inflations are very common, and thus did not indicate to them Coulter was being injured. Coulter claims they did not remove the cuff because she had been labeled as a “complainer.” Appellees detail the complaints made by Coulter in their brief. They claim she protested that the room was too cold, the EKG pads were cold, the anesthetic injection was uncomfortable, etc.

Coulter testified that she left the Surge-Center in severe pain, caused by the blood pressure cuff. Dr. Ergadon Atasoy, who operated on Coulter for a surgical pronator teres release of her arm, discovered damage to her right arm (the arm to which the ABPC was applied). He found that the blood vessels in her arm were hemorrhaging, and blood had collected around her median nerve causing severe and permanent injury to the arm. Appel-lees point out that this hemorrhaging and collection of blood was found below her elbow. The ABPC was, of course, applied to her arm above the elbow. Coulter brought a medical malpractice suit against the SurgeCenter, and Dr. Thomas, in which she requested a jury instruction on the claim of battery, arguing that any initial consent to use the cuff was expressly revoked when she demanded the ABPC to be removed. The trial court declined to give the instruction, and the jury returned a verdict for the defendants. The Court of Appeals affirmed, and the appellants sought discretionary review in this Court. We granted review to address the issue of revocation of consent and the battery claim.

II. INFORMED CONSENT

Appellant claims her consent was not informed because she was not notified of the fact that none of the staff had read the instructions for operating the ABPC, and thus were not aware that the machine could cause injury. We do not address this issue because we find Ms. Coulter’s consent could have been revoked, whether it was informed or not.

III. REVOCATION OF CONSENT

Appellant argues that the trial court should have given an instruction to the jury on the claim of battery. However, “lack of consent is an essential element of battery.” Vitale v. Henchey, Ky., 24 S.W.3d 651 (2000). Since we have disposed of Appellant’s lack of informed consent claim, Appellant must prove that her consent was effectively revoked. An indirect look at this issue is found in DeGrella, by and through Parent v. Elston, Ky. 858 S.W.2d 698, 703 (1993), wherein this Court considered the right of a competent person to forego medical treatment, either by refusal or withdrawal of same. We acknowledged the common law right, but focused on the legislative codification found in KRS 311.621(8), (formerly KRS 311.622(1). There, we were primarily concerned with what proof of the patient’s desires to fore-go medical treatment entirely under certain circumstances was required when the patient was no longer capable of voicing those desires personally.

In the case at bar, the patient is and was present to both voice the objections and give testimony about attempt to revoke. There is no case law directly on point in Kentucky regarding this issue, therefore we have looked to other jurisdictions to develop a test to guide the trial courts in determining whether sufficient proof has been presented to warrant submission of the issue to a jury.

In Mims v. Boland, Ga., 110 Ga. App. 477, 138 S.E.2d 902, 905 (1964), the plaintiff claimed she revoked her consent to a barium enema which was administered despite her revocation. In reaching its conclusions, the Court of Appeals of Georgia delineated a test which we adopt:

To constitute an effective withdrawal of consent as a matter of law[,] after treatment or examination is in progress[,] commensurate to subject medical practitioners to liability for assault and battery if treatment or examination is continued, two distinct things are required: (1) The patient must act or use language which can be subject to no other inference and which must be unquestioned responses from a clear and rational mind. These actions and utterances of the patient must be such as to leave no room for doubt in the minds of reasonable men that in view of all the circumstances consent was actually withdrawn. (2) When medical treatments or examinations occurring with the patient’s consent are proceeding in a manner requiring bodily contact by the physician with the patient and consent to the contact is revoked, it must be medically feasible for the doctor to desist in the treatment or examination at that point without the cessation being detrimental to the patient’s health or life from a medical viewpoint.

Id. at 907. We believe that the jury could find from these factors that Coulter revoked her consent regarding use of the blood pressure cuff. First, she testified that she used very specific language in demanding that the cuff be removed. She claims that she stated, “Take it off. I can’t stand it,” after the first inflation. Dr. Thomas testified that she merely complained of the tightness of the cuff. Regardless, it is up to the jury to decide whom to believe. If they choose to believe Appellant, language such as “take it off’ could satisfy the first prong of the test. To distinguish Mims, the plaintiff there merely expressed a desire to insert the barium tube herself. Id. at 908. There was no testimony presented in that case that the plaintiff ever clearly and unequivocally asked the person administering the enema to remove it from her body; there were merely complaints of discomfort. As such, we find that the Appellant could satisfy the first element of this test.

There is no question the plaintiff could easily prove the second prong, as the cuff was actually removed during the surgery without any sort of complication. Therefore, we hold that, on remand, the jury should be allowed to determine if Appellant’s consent was effectively revoked.

IV. BATTERY

The trial court also erred in not allowing the tendered battery instruction to the jury. In Vitale v. Henchey, Ky., 24 S.W.3d 651 (2000) we were faced with the question of whether the plaintiff was required to prove a physician breached the standard of care, a negligence burden, by substituting surgeons without a patient’s consent. In reaching that such a burden was not required, we drew an important distinction:

[A]s a result of Holton and the Kentucky Informed Consent Statute an action for a physician’s failure to disclose a risk or hazard of a proposed treatment or procedure is now undisputedly one of negligence and brings into question professional standards of care. However, the physicians, as did the trial court, confused the issue of informed consent, i.e., the failure to disclose a risk or hazard of the surgeries, with the issue of no consent, or whether any valid consent was obtained prior to [the doctor’s] performance of the surgeries. Holton and the Kentucky Informed Consent Statute do not apply when surgery is performed without the patient’s consent

Id. Here, since we have disposed of the claim of informed consent, we have likewise disposed of the idea that Appellant is required to bring her claim under a theory of negligence. As stated above, this is a case about revocation of consent, and therefore, pursuant to our recent decision in Vitale, it is proper for Appellant to bring a claim for battery. Vitale v. Henchey, Ky., 24 S.W.3d 651 (2000) (declaring “Kentucky recognizes an action for battery when a physician performs an operation without the consent of the patient.”) We find that the jury should have been instructed on the intentional tort of battery.

The judgment of the Court of Appeals is reversed, and we remand this case for trial on the battery claim consistent with this opinion.

LAMBERT, C.J.; COOPER, GRAVES, and KELLER, JJ., concur.

WINTERSHEIMER, J., dissents by separate opinion, with JOHNSTONE, J., joining that dissent.

WINTERSHEIMER, Justice,

dissenting.

I must respectfully dissent from the majority opinion because the jury was properly instructed only on negligence as distinguished from battery. The jury verdict was proper.

The testimony of nurse Bowling was that Shirley Coulter complained during the first inflation that the automatic blood pressure cuff was “tight.” Dr. Thomas also testified that the complaint was that the cuff was “tight” or “very tight.” On the contrary, Mrs. Coulter testified that after the first inflation, she stated, “Take it off. I can’t stand it.” Nurse Bowling advised Mrs. Coulter that the blood pressure cuff needed to remain on her arm and that the procedure would soon be completed. The nurse further testified that she did not remove the cuff because complaints of discomfort associated with cuff inflations are not unusual and she had no indication that the patient was being injured by the cuff. Dr. Thomas also testified that such complaints were very common and that it was not severe. When the automatic cuff took a second reading during surgery the patient again complained of tightness and said, “Take it off. I can’t stand it.” Both Dr. Thomas and nurse Bowling testified that it was at this time that they removed the blood pressure cuff pursuant to the direction of the doctor. It should be recognized that the patient was 53 years of age at the time of the surgery in 1992, that she was 5 feet 3 inches tall, weighed over 250 pounds and was then totally disabled by rheumatoid arthritis. The evidence indicates that the patient suffered from a number of problems with her right hand and arm. In addition, there was defense testimony that the median nerve below her elbow had not been injured even indirectly by the blood pressure cuff. The cuff had been applied to the upper arm. The patient had consented to the 15 minute procedure which involved the removal of a mass from her eyelid.

During trial, counsel questioned all the medical personnel present in the operating room during the procedure about the statements that were made at that time. Counsel sought to support the claim that the patient revoked consent to use the automatic blood pressure cuff, however, the jury found against the patient on the revocation of consent argument, evidently based on the testimony of the doctor and nurse. The instructions given by the trial judge correctly related to negligence and not to battery.

Certainly any party to civil litigation is entitled to have their theory of the case submitted to the jury for its acceptance or rejection if there is any evidence to sustain it. Farrington Motors v. Fidelity & Casualty Co., Ky., 303 S.W.2d 319 (1957). The circuit judge did not abuse his discretion in any way in regard to the instructions given.

I conclude that neither the complaints as the patient described them, nor as were described by the medical personnel, constitutes a sufficient expression of revocation. I would affirm the decision of the jury and the Court of Appeals.

JOHNSTONE, J., joins in this dissent.

      . The Appellees claim the ABPC only inflated a total of two times, disputing the second immediate inflation described by Coulter.
      However, Nurse Bowling testified that she may have triggered another cycle, (which would have been the second cycle to which Coulter refers). Bowling testified that such a procedure is normal if the nurse believes the reading is unreliable. Bowling states that she does not remember triggering an unscheduled reading in this case, although she did say that she may have done so.

      . We make no finding on this issue, as causation and damages are not issues before us, and will be resolved in the trial court.


source: Caselaw Access Project

license: Public Domain

text:
    Rickie BROOKS, Appellant, v. UNIVERSITY OF LOUISVILLE HOSPITAL; Robert L. Whittaker, Director of Special Fund; Thomas Lewis, Arbitrator; Donna H. Terry, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2000-SC-0248-WC.
    Supreme Court of Kentucky.
    Dec. 21, 2000.

      Wayne C. Daub, Louisville, for Appellant.
    Timothy P. O’Mara, Middleton & Reut-linger, Louisville, for Appellee University of Louisville Hospital.
    Joel D. Zakem, John William Burrell, Labor Cabinet, Special Fund, Frankfort, for Appellee Whittaker.
   OPINION OF THE COURT

This workers’ compensation appeal concerns whether the 1996 amendment to KRS 342.125 applies to an injury which arose before December 12, 1996, and whether the amendment to KRS 342.125(3) is unconstitutional as applied to the claimant’s motion to reopen.

The claimant sustained a gradual injury to her left wrist and arm which became manifest on February 4,1995, and she also developed a psychiatric condition. In November, 1996, she filed a workers’ compensation claim in which she alleged that she was totally disabled. On August 26, 1997, she was awarded a 30% occupational disability, with a 10% disability being attributed to the physical injury and a 20% disability to the psychiatric condition. The award was affirmed by the Workers’ Compensation Board (Board) on December 5, 1997.

On March 6, 1998, less than seven months after receiving her award, the claimant moved to reopen. She alleged that she had become totally disabled by a worsening of her physical and psychiatric conditions. The arbitrator determined that less than two years had passed since the award was entered and denied the motion pursuant to KRS 342.125(3) as effective December 12, 1996. Subsequently, the Administrative Law Judge (ALJ) who considered the matter determined that although the claimant had presented the necessary prima facie case, reopening was barred by KRS 342.125(3) until two years after the award.

In appealing to the Board, the claimant asserted that the amended version of KRS 342.125 did not control this claim and also that, if it did govern the claim, the statute was unconstitutional. The Board rejected the claimant’s arguments, and its decision was affirmed by the Court of Appeals. The claimant appeals.

First, the claimant questions whether the 1996 amendment to KRS 342.125 applies to a claim which arose before its effective date. Her second argument is that the amendment which is at issue deprives her of a vested right and also that the amendment violates §§ 14, 54, 59(24), and 241 of the Kentucky Constitution. Pointing to the general rule in workers’ compensation that a worker’s rights are governed by the law in effect on the date of injury, she asserts that no two-year waiting period for reopening existed at that time. Maggard v. International Harvester Co., Ky., 508 S.W.2d 777 (1974). When she was injured, she was entitled to increased income benefits from the date of a successful motion to reopen and was permitted to reopen upon proof of increased occupational disability.

The claimant explains that the amendment operates to prevent her from reopening and from receiving the increased income benefits to which she would otherwise be entitled until after the two-year period has expired. By imposing a two-year waiting period for reopening, the amendment effectively deprives her of the vested right to receive additional income benefits for the post-award increase in her occupational disability for the period from March 6, 1998, through August 26, 1999. She asserts that the provision imposes no two-year waiting period should her employer seek to reopen upon proof of a decrease in her occupational disability. Thus, she concludes, the amendment treats workers and employers differently with regard to the right to reopen and, as a result, treats workers whose condition improves differently from workers whose condition deteriorates after the award.

At the time the claimant was injured, KRS 342.125(1) provided that an award could be reopened “at any time” and “upon the application of any party” upon the requisite showing. As amended effective December 12, 1996, KRS 342.125 provides, in pertinent part, as follows:

(1) Upon motion by any party or upon an arbitrator’s or administrative law judge’s own motion, an arbitrator or administrative law judge may reopen and review any award or order on any of the following grounds:
(a) Fraud;
(b) Newly-discovered evidence which could not have been discovered with the exercise of due diligence;
(c) Mistake; and
(d) Change of disability ....
(3) Except for reopening solely for determination of the compensability of medical expenses, fraud, or conforming the award as set forth in KRS 342.730(l)(c)(2)., or for reducing a permanent total disability award when an employee returns to work, no claim shall be reopened more than four (4) years following the date of the original award or order granting or denying benefits, or within two (2) years of such award or order, and no party may file a motion to reopen within two (2) years of any previous motion to reopen by the same party.
(8) The time limitation prescribed in this section shall apply to all claims irrespective of when they were incurred, or when the award was entered, or the settlement approved. However, claims decided prior to December 12,1996, may be reopened within four (4) years of the award or order or within four (4) years of December 12, 1996, whichever is later, provided that the exceptions to reopening established in subsections (1) and (3) of this section shall apply to these claims as well.

Our decision in Meade v. Reedy Coal Co., Ky., 13 S.W.3d 619 (2000), was rendered shortly after the Court of Appeals rendered its decision in the instant case. Meade v. Reedy Coal Co., concerned whether the two-year limitation contained in KRS 342.125(3) precluded the reopening of an award which was entered prior to December 12, 1996. The employer had argued that in view of the fact that KRS 342.125(8) referred to a “time limitation” which applied to all claims “irrespective of when they were incurred,” KRS 342.125(3) effectively created a “window” during which awards could be reopened and that the window governed the reopening of all claims regardless of when they were incurred or decided.

We considered the amendments but were not persuaded that the legislature intended for the two-year waiting period and the four-year limitation contained in KRS 342.125(3) to apply retroactively to govern the reopening of awards which were entered before December 12, 1996. However, we did conclude that there was a clear legislative intent for the four-year limitation contained in KRS 342.125(8) to govern the reopening of such claims. We also concluded that KRS 342.125(3) was intended to govern the reopening of awards which were entered on or after December 12, 1996. We did not address the implications of applying the provision to the reopening of those claims which arose before December 12, 1996, but were decided on or after that date because the question was not before us. As in Meade v. Reedy Coal Co., the claimant’s injury occurred before December 12, 1996; however, here, the award was not entered until after December 12,1996.

The two-year waiting period and the four-year limitation on reopening which are contained in KRS 342.125(3) and which decreased the period during which an award could be reopened are both statutes of limitations. Such limitations on the time for taking action relate to the remedy and may be enlarged or restricted without impairing vested rights. See Stone v. Thompson, Ky., 460 S.W.2d 809, 810 (1970). An existing right of action cannot be extinguished by an amendment which shortens the period of limitations to a time that has already run or to a time that is unreasonably short. However, if the amendment leaves a reasonable time in which a claim may be asserted, it does not impair a vested right. See Crawford v. V. & a Coal Co., Ky., 432 S.W.2d 403 (1968). Likewise, an amendment which extends a period of limitations may not be applied to a claim in which the period of limitations has already run before the amendment’s effective date but may be applied to a claim in which the period has not already run. See Beth-Elkhorn v. Thomas, Ky., 404 S.W.2d 16 (1966); Kiser v. Bartley Mining Co., Ky., 397 S.W.2d 56 (1965).

KRS 342.730 provides a remedy for permanent occupational disability due to work-related injury in the form of income benefits. Income benefits are awarded based upon the amount of occupational disability which exists at the time the worker reaches maximum medical improvement following an injury. A final award of income benefits is enforceable as a final judgment of a court by operation of KRS 342.305. However, KRS 342.125 provides some relief from the principles of the finality of judgments by permitting the reopening and modification of an otherwise final workers’ compensation award under certain specified conditions, one of which is a change of occupational disability which occurs after the award. In moving to reopen, the claimant alleged a post-award increase in occupational disability due to a worsening of her physical and psychiatric conditions.

It must be kept in mind that a reopening is the remedy for redressing specified situations which either occur or come to light after an award is entered. Here, the claimant sought a remedy for a change that is alleged to have occurred after her award was entered. The claimant’s award was not entered until August 26,1997, more than eight months after the amendments which are at issue became effective. Obviously the post-award physical and psychological changes which gave rise to the alleged increase in occupational disability did not occur until after August 26, 1997. Under those circumstances, the December 12, 1996, amendments did not deprive the claimant of a right which vested before their effective date, and no vested right was impaired by applying the amended version of KRS 342 .125(3) to the attempted reopening. Instead, any right which the claimant had to a remedy for a post-award increase of occupational disability was contained within the December 12, 1996, version of KRS 342.125. The claimant has failed to demonstrate how applying the amendment to redress a post-award change that occurred after the amendment’s effective date violated § 4, 54, or 241 of the Kentucky Constitution.

The Kentucky Constitution § 59(24) prohibits special legislation with regard to the regulation of labor, trade, mining, or manufacturing. In Kentucky Harlan Coal Co. v. Holmes, Ky., 872 S.W.2d 446 (1994), we noted that the purpose of § 59(24) was to prevent special privileges, favoritism, and discrimination, and to insure equality under the law. A general law must apply equally to all in a class, and there must be distinctive and natural reasons inducing and supporting a class distinction. A statutory classification must be based upon some reasonable and substantial difference in kind, situation, or circumstance which bears a reasonable relationship to the purpose of the statute. There is a strong presumption which favors the constitutionality of statutes which involve economic matters. Delta Air Lines, Inc. v. Commonwealth, Revenue Cabinet, Ky., 689 S.W.2d 14 (1985); Brooks v. Island Creek Coal Co., Ky.App., 678 S.W.2d 791 (1984). '

The claimant has asserted that the classes created by KRS 342.125(3) unfairly discriminate in favor of employers by permitting them to reopen within the two-year period if the employee’s condition improves; whereas, workers who sustain a worsening of condition are precluded from doing so. However, contrary to what the claimant would have us believe, both instances in which an employer is permitted to reopen at any time require proof of a post-award increase in the worker’s earnings. First, KRS 342.125(3) permits an employer to reopen the award within two years of its entry for the purpose of conforming the award as set forth in KRS 342.730(l)(e)2. This provision addresses instances where an injured worker returns to work at a wage which exceeds the prein-jury wage. It limits the worker’s income benefits during those weeks in which the employment is sustained. Second, KRS 342.125(3) permits an employer to reopen if the worker is awarded a total disability and then returns to work. Neither of those provisions applies to the instant case.

The claimant’s motion to reopen was not premised on an assertion that her earnings had decreased since the award. In fact, the initial award indicated that she had not worked since October 23, 1996. The motion to reopen was premised on the grounds that a worsening of her physical and psychiatric conditions had resulted in increased occupational disability. KRS 342.125(3) permits neither a worker nor an employer to reopen within two years of an award upon an allegation that a change in the worker’s medical condition has resulted in a change of occupational disability. We conclude, therefore, that the claimant has failed to demonstrate that KRS 342.125(3) violated the requirements of § 59(24) as it applied to her motion to reopen.

The decision of the Court of Appeals is affirmed.

All concur.


author: GUIDUGLI, Judge.

text:
    Kevin STOUT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 1999-CA-000647-MR.
    Court of Appeals of Kentucky.
    Jan. 14, 2000.

      Elizabeth Shaw, Richmond, KY, for Appellant.
    A.B. Chandler, III, Attorney General, Paul D. Gilbert, Assistant Attorney General, Frankfort, KY, for Appellee.
    Before: GUIDUGLI, JOHNSON and KNOPF, Judges.
   OPINION

GUIDUGLI, Judge.

Kevin Stout appeals his conviction on charges of first-degree burglary (KRS 511.020), first-degree criminal mischief (KRS 512.020), theft by unlawful taking over $300 (KRS 514.030), and possession of burglar’s tools (KRS 511.050). He was sentenced to a total of twelve years’ imprisonment. Stout presents only one issue on appeal — -whether or not a utility knife is a deadly weapon. We affirm.

On February 23, 1998, Stout was indicted by the Powell County Grand Jury on the above-stated charges. He pled not guilty and a jury trial was held on February 1, 1999. The facts are not in dispute. Officer Greg Connor testified that he found Stout hiding inside the Rogers’ Hardware Store on January 3, 1998, at approximately 11:00 p.m. Entry had been gained by breaking out a plate glass window and a display case of knives had been broken and the knives placed into a trash container to facilitate removal. When the police found Stout hiding behind some boxes in the store, he had in his possession a pair of gloves, a screwdriver, pliers and a “razor box type knife that would lock in place.” It is this “razor box type knife” that is the central issue of this appeal.

Stout contends that the item found in his possession is not a knife or a razor but rather a common tool used by carpet layers, carpenters, delivery persons, etc. The trial court, on Stout’s motion for a directed verdict, held otherwise:

BY THE COURT: Well, the Court having examined the instrument, and having heard the evidence presented, finds that it could be used to slit someone’s throat, or to inflict physical injury on somebody, especially since the blade locks, somewhat akin to a switchblade. So, the motion for a directed verdict is denied.

Officer Connor testified at trial that the item was a “razor box type knife that would lock in place.” He also demonstrated to the jury how the instrument worked and stated that it was not a pocket knife or hunting knife [both of which are exempt from being considered deadly weapons under KRS 500.080(4) ]. In response to a question as to whether the item was a knife, he testified that it is considered a “razor/knife.” Finally, the item itself was introduced into evidence by the Commonwealth, together with the gloves, screwdriver and pliers.

We agree with the trial court that the item in question, which Stout possessed on the night of his arrest inside the hardware store, was a knife. A knife is defined as “a cutting or stabbing instrument with a sharp blade, single-edged or double-edged, set in a handle.” Webster’s New World Dictionary of the American Language, 2 nd Edition, 1978, 779. See also, Ballentine’s Law Dictionary, 3 rd Edition, 1969, p. 702; Am.Jur.2d, Volume 79, Weapons and Firearms, Volume 79, § 2. The trial court stated that the knife had “[a] three inch blade that is sharpened on one side, and then locks for stability, which ... could be used to cut flesh.... ” (Trial transcript, p. 145). Whether the particular instrument is or is not a deadly weapon should be determined by the court as a matter of law. Hicks v. Commonwealth, Ky., 550 S.W.2d 480, 481 (1977).

In Williams v. Commonwealth, Ky., 304 Ky. 761, 202 S.W.2d 408 (1947), the Court held a razor to be a deadly weapon when it stated:

“Counsel’s^ contention that a razor could not come within the scope and purview of this law, though confessedly a most deadly weapon, because it was designed for a lawful purpose, is not well taken. When and while used, or intended for use, as an article of the toilet, it is not, nor need not be, concealed, but the man who carries it upon his person hidden from the public view, arms himself with a weapon deadly in its nature and merciless in its power to do harm, and is, in our opinion, as guilty of a violation of the law as he who so carries the pistol, dirk or the sling-shot.”

Williams, Id. at 409. Pursuant to KRS 500.080(4)(b) “any knife other than an ordinary pocket knife or hunting knife” is defined as a “deadly weapon.” In the case sub judice we believe from the testimony and evidence presented the “razor knife” or “utility knife” or whatever term used to describe the instrument, it was in fact a knife as defined by statute. Although the item may be used as a tool under proper circumstances, when viewed under the circumstances of this case, there can be no other conclusion than it was a knife. In that Stout was armed with a deadly weapon when he burglarized the Rogers’ Hardware Store he was guilty of burglary in the first degree (KRS 511.020).

For the foregoing reasons, we affirm the judgment and sentence entered by the Powell Circuit Court.

ALL CONCUR.


author: BARBER, Judge:

text:
    COMMONWEALTH of Kentucky, Appellant, v. Domini Jermayle BLINCOE, Appellee.
    No. 1999-CA-002143-MR.
    Court of Appeals of Kentucky.
    Dec. 1, 2000.

      Albert B. Chandler, III, Attorney General, Teresa Young, Special Assistant Attorney General, Louisville, KY, for Appellant.
    J. David Niehaus, Daniel T. Goyette, Louisville, KY, for Appellee.
    Before BARBER, BUCKINGHAM and MILLER, Judges.
   OPINION

BARBER, Judge:

The appellant, Commonwealth of Kentucky, (Commonwealth) appeals the dismissal by the trial court of an indictment against the appellee (Blincoe). A witness had invoked his Fifth Amendment rights when asked to testify at trial. The Commonwealth claims that the witness is the only individual who can link Blincoe to the charged offense. An appeal of the interlocutory order entered by the trial court is pending before this Court.

The appeal of the interlocutory order was filed on May 10, 1999. On May 21, 1999, the trial court issued an order stating that the case would be dismissed in sixty days if the Commonwealth did not proceed to trial. The Commonwealth failed to seek intermediate relief from the Court of Appeals pursuant to CR 76.33 following entry of the trial court’s order. The record shows that the Commonwealth took no steps to avoid dismissal of the action. As the Commonwealth refused to try Blincoe until the appeal of the interlocutory order was final, the trial court dismissed the criminal action without prejudice on August 5, 1999. The Commonwealth appeals this order of dismissal.

The Commonwealth asserts that the trial court did not have jurisdiction to dismiss the case without prejudice. At the

time the case was dismissed, the Commonwealth was appealing the interlocutory order in Commonwealth v. Domini Jermayle Blincoe, 34 S.W.3d 822. The Commonwealth claims that the pendency of that appeal transferred jurisdiction over the entire case from the circuit court to the appellate court, pursuant to Hoy v. Newburg Homes, Inc., Ky., 325 S.W.2d 301, 302 (1959). The general rule is that the taking of an appeal divests the trial court of jurisdiction to proceed further. Commonwealth v. Hayes, Ky., 734 S.W.2d 467 (1987). A circuit court, however, is vested with some continuing jurisdiction over a criminal matter, and retains “inherent jurisdiction to do all things reasonably necessary to the administration of justice in the case before it.” Smothers v. Lewis, Ky., 672 S.W.2d 62, 65 (1984). It is true that the trial court’s jurisdiction over matters on appeal is necessarily divested when an appeal is perfected. See Commonwealth v. Bailey, Ky., 259 S.W.2d 49 (1953). However, an appeal from a particular order or judgment does not bring the entire case into the appellate court. Garnett v. Oliver, Ky., 242 Ky. 25, 45 S.W.2d 815, 816 (1931). The earlier appeal in this matter was an appeal from an interlocutory order, and brought only one issue of a multifaceted action before this Court. For this reason, the trial court still had jurisdiction over trial of the matter, but not over the specific single issue raised before the Court of Appeals.

KRS 22A.020(4) states that:
An appeal may be taken to the Court of Appeals by the state in criminal eases from an adverse decision or ruling of the Circuit Court, but only under the following conditions:
(a) Such appeal shall not suspend the proceedings in the case.

Id. (emphasis supplied). Based upon this statute, the trial court ruled that in the present case delaying trial of this matter until after the Court of Appeals issued a final ruling would suspend the proceedings, and it therefore held that the trial could not be delayed. This ruling was logical, in that awaiting a Court of Appeals decision could take as long as a year, during which time Blincoe would presumably have to sit in jail or be out on bail and under indictment, with no determination of his guilt or innocence being made. That result would clearly be unjust if he is innocent, a possibility not noted by the Commonwealth. The Commonwealth cannot delay trials at will, requiring citizens to remain imprisoned or at least under indictment until such time as the Commonwealth consents to trial.

Blincoe asserts that KRS 22A.020 specifically provides that an interlocutory appeal “shall not suspend the proceedings in the case”. This statute was cited and relied upon by the trial court in dismissing the action without prejudice for failure by the Commonwealth to proceed to trial in a timely fashion. This statute specifically refers to suspension of a trial, but Blincoe argues that it should apply to pretrial proceedings as well.

The Commonwealth argues that pursuant to Eaton v. Commonwealth, Ky., 562 S.W.2d 637 (1978), the term “proceedings” should only refer to proceedings after attachment of jeopardy. It asserts that as the case was still prior to trial, the pretrial proceedings should have been continued until the appeal of the interlocutory order was final. The basis for this argument is the assertion that the trial had not begun at the time the appeal was taken from the earlier order, so that there was nothing to “suspend” while awaiting the appellate court determination.

This argument overlooks the fact that Blincoe was under indictment and awaiting trial at the time the appeal was taken. We do not find that Eaton v. Commonwealth, supra, permits pre-trial proceedings to be held in abeyance until a ruling is made on the interlocutory order. Eaton holds that unless the defendant’s “constitutional right to a speedy trial were unduly threatened, we see no reason why an interlocutory ‘ruling’ entered prior to trial ... could not be reviewed by appeal.” Id. at 639. The Eaton court indicated that where a defendant’s right to a speedy trial was threatened by the requested delay, the prosecution might wish to request a writ of prohibition. The proper avenue for the prosecution when aggrieved by an interlocutory order of the trial court is an appeal of the ruling. Commonwealth v. Williams, Ky.App., 995 S.W.2d 400, 402 (1999). The Commonwealth, through its inaction, violated the trial court’s order, thereby justifying dismissal of the case. A delay of even a few months has been found to violate a defendant’s right to a speedy trial. Mann v. Commonwealth, Ky.App.,561 S.W.2d 335, 337 (1978). Forcing Blin-coe to wait for trial until after this Court, and possibly the Kentucky Supreme Court, rendered a final opinion on the appeal of the interlocutory order would be improper. The Commonwealth argues that it will now be forced to reindict the defendant, which it claims would be a waste of judicial economy. This argument is not sufficient to support delaying a trial for months or years while an issue is on appeal.

KRS 22A.020(4)(c) specifically grants the Court of Appeals the right to reverse a trial court’s decision in an interlocutory order, and to order a new trial of the defendant where no double jeopardy provisions apply. In the present ease, the action was dismissed without prejudice by the trial court. A new indictment may properly be obtained should the Commonwealth prevail in its appeal of the interlocutory order. Filing of an appeal of an interlocutory order in a criminal matter is permitted, but such filing does not suspend applicable time limits for the taking of other steps in the action. See Commonwealth v. Cobb, Ky.App., 728 S.W.2d 540, 541 (1987). For this reason, the trial court’s dismissal of the action is hereby affirmed.

ALL CONCUR.


author: BUCKINGHAM, Judge.

text:
    Calvin HOUGHLAND and Sun Trust Bank, N.A. (Formerly Third National Bank of Nashville), Appellants, v. Dinwiddie LAMPTON, III and Mason H. Lampton, Co-Executors and Beneficiaries under the Will of Nancy Houghland Lampton, Deceased, and Nancy Lampton, Appellees.
    No. 1999-CA-000319-MR.
    Court of Appeals of Kentucky.
    Dec. 15, 2000.

      Susan S. Wettle, Laura M. Haara, George W. Thacker, III, Louisville, KY, Briefs for Appellants.
    Travis Combs, Jr. LaGrange, KY, Brief and Oral Arguments for Appellees.
    Before BUCKINGHAM, GUIDUGLI, and HUDDLESTON, Judges.

      . Nancy Lampton Ray resigned as a co-executor of her mother's estate in June 1996.

   OPINION

BUCKINGHAM, Judge.

Nancy Houghland Lampton died testate leaving an estate with debts, taxes, and costs of administration in excess of the residuary estate which had been designated by her to pay such liabilities. Calvin Houghland appeals from an order of the Oldham Circuit Court which required all nonresiduary legacies under Lampton’s will to abate proportionately to pay the estate taxes. We believe the trial court ruled correctly and thus affirm.

Nancy Houghland Lampton died on December 14, 1991. She left a will dated June 9, 1987, and a codicil dated May 18, 1989. The will appointed Lampton’s three children, Dinwiddie Lampton, III, Mason Lampton, and Nancy Lampton Ray as co-executors of the estate.

Lampton’s gross estate was valued at $3,199,189. The administration costs, debts, and estate and inheritance tax liability of the estate totaled $1,310,116, leaving a net estate of $1,888,873 for distribution by the executors.

Item I of the will directed that all debts, funeral expenses, administration costs, and taxes be paid from the “residuary estate without apportionment among the legatees and devisees hereunder....” In Item II, Lampton bequeathed certain items of personal property to beneficiaries and the remaining tangible personal property to her children. Item III provided in part as follows:

As part of a family settlement agreement, I agreed that under my Last Will and Testament, I would create a trust, the corpus of which would be equal to one-fourth (¾) of the value of the corpus in the “Nancy Houghland Lampton Trust” created under the Will and Codicil of Sara Roark Houghland, at the date of my death. In keeping with said agreement, I hereby devise to the trustee hereinafter named an amount equal to one-fourth (⅞) of the value at the date of my death of the corpus of the said “Nancy Houghland Lampton Trust” to be held and distributed as a trust estate. This said trust is to be funded out of my general estate and is to constitute a first charge thereon and shall be upon the following terms and conditions ... [emphasis added].

The trust was created for the lifetime benefit of Lampton’s brother, Calvin Hough-land, and upon his death is to be held for the benefit of his children. The parties agree that ½ of the value of the corpus of the Nancy Houghland Lampton Trust at the time of her death was $910,597.

In Item IV, Lampton devised her personal residence to her son, Dinwiddie Lampton, III. In Item V, she bequeathed her interest in Starry Cato Partnership to her son, Mason Lampton. In Item VI of the will, she bequeathed her shares of stock in an insurance company in equal shares to her two sons. In Item VII, she bequeathed her shares of stock in Hard Scuffle, Inc., to Dinwiddie Lampton, III, and directed that the bequest be reduced by the estate and inheritance taxes generated by reason of the stock being included in her estate. In Item VIII, she transferred the residue of her estate in equal shares to her daughter, Nancy Lampton Ray, and her two sons. In Item IX, she appointed her three children as co-executors of the estate. She further reiterated that all estate and inheritance taxes were to be paid from the residuary estate “without apportionment among the legatees and devisees hereunder.... ”

The estate and inheritance taxes exceeded the value of the residuary estate. Lamptoris two sons, Dinwiddie and Mason, as co-executors and beneficiaries under Lamptoris will, argued that, after the Hard Scuffle stock bore the taxes attributable to it and the residuary estate was exhausted, the balance of the tax liability should be apportioned among all nonresi-duary legacies on a pro rata basis. Calvin Houghland, however, argued that the trust created under Item III of the will should not be reduced to pay estate and inheritance taxes because of the will provision which stated that the trust was to be funded out of Lamptoris “general estate” and was to constitute a “first charge” on the estate.

In August 1996, Dinwiddie and Mason filed a declaratory judgment action in the Oldham Circuit Court. The parties filed cross-motions for summary judgment, and the trial court granted the summary judgment motion of Dinwiddie and Mason and directed that all bequests be reduced by a proportionate share of the estate and inheritance taxes. Calvin Houghland and the bank appointed as trustee under the will appealed.

“Under Kentucky law, federal estate taxes and Kentucky inheritance taxes are required to be shared proportionately by all of the beneficiaries in the absence of a specific direction in the will.” Estate of Webber v. United States, 404 F.2d 411, 413 (6th Cir.1968). See also Louisville Trust Co. v. Walter, 306 Ky. 756, 207 S.W.2d 328 (1948). However, “[a] testator may, if he elects so to do, shift the burden of taxation

from the person or fund which is ordinarily liable under the law to some other person or fund of his choice.” Gratz v. Hamilton, Ky., 309 S.W.2d 181, 182 (1958). The testator’s intent controls in this regard. Id. Further, the intention of the testator should be ascertained from the four corners of the will. Graham v. Jones, Ky., 386 S.W.2d 271, 273 (1965). Also, in determining the intention of the testator, consideration must be given to what the testator meant by what he or she said rather than what the testator intended to say. Harlan National Bank v. Brown, Ky., 317 S.W.2d 903, 907 (1958).

Houghland argues that under the plain reading of Lamptoris will, Lampton intended to give priority to the trust when apportioning the remaining estate taxes and abating legacies. He bases his argument on the language in Item III of the will which states that the trust “is to be funded out of my general estate and is to constitute a first charge thereonf.]” He further relies on the case of Dawson v. Gaines, 299 Ky. 100, 184 S.W.2d 894 (1945), wherein the testatrix left a will containing monetary bequests and specific devises totaling $115,000 but no residuary clause disposing of the residue of the estate. The residuary estate in Dawson was approximately $46,000, and the issue was whether the specific legacies and the residuary estate should be charged with estate taxes proportionately or whether the taxes should be charged to the residuary estate only. The court therein concluded that it was the intent of the testatrix that the estate tax be paid out of the portion of the estate remaining undistributed after the payment of the specific bequests. Id. at 895.

Houghland further argues alternatively that even if the court determines the aforementioned language of Item III of the will to be meaningless in relation to the apportionment of taxes, the trust should still be exonerated from taxes under the rules of abatement. While acknowledging that the general rules of abatement would provide that the trust must share in the apportionment of the estate taxes with all other nonresiduary legacies, he asserts an exception which provides that when a legacy is made in payment of a debt or is founded upon some valuable consideration, it is entitled to preference over gratuitous legacies which must abate first.

The Lampton brothers contend and the trial court ruled that the trust must share proportionately with the other nonresidu-ary legacies because Lampton did not clearly express an intent in her will to shift the tax burden. They cite' the case of In re Wolinsky’s Estate, 73 N.Y.S.2d 757 (1947), to support their position. In Wolinsky, the testator established trusts for the benefit of a widow and two children and directed that the trusts be a first and primary charge upon the estate which would have priority over all other bequests in the will. Id. at 759. A second bequest of similar importance was given a secondary priority to that of the trusts. When the residuary estate proved insufficient to pay all the taxes, the court turned to the clause which stated that the bequests “shall abate pro rata.” In holding that the preferred gifts must share in the apportionment of the taxes, the court held:

In the event that after segregating the preferred gifts the assets of the estate available for the payment of taxes are insufficient for that purpose the preferred gifts will be required to make a pro rata contribution to the extent necessary to meet the deficiency. In respect of such contribution there will be no preference as between the gifts in trust and other preferred legacies since the priority in payment granted to the trusts is not a dispensation from the estate tax.

Id.

The trial court in the case sub judi-ce held that “it is the ruling of this Court that payment based on a priority or preference status among beneficiaries, is not, unless so expressed in the will, a dispensation from the obligation to pay estate taxes, and the general rule requires apportionment.” We agree with the trial court. Because the will did not clearly express an intent that the trust be exempt from sharing in the obligation to pay estate taxes, the general rule of apportionment should be followed. Furthermore, we reject Houghland’s alternative argument that an exception to the general rules of abatement would exonerate the trust from sharing pro rata in the tax liability. The issue was not initially raised before the trial court, and it does not otherwise have merit.

The judgment of the Oldham Circuit Court is affirmed.

ALL CONCUR.

      . We will hereinafter collectively refer to the will and codicil as ‘‘the will.”

      . The family settlement agreement which resulted in the will provision creating the trust stemmed from testamentary trusts created by Sara Roark Houghland for the benefit of Nancy Houghland Lampton and Calvin Hough-land. Under Sara Roark Houghland's will, the trusts were each to be funded with one-half of her residuary estate. Under a codicil to her will, however, she increased Nancy Houghland Lampton’s share to ¾ of her residuary estate and decreased Calvin Houghland's share to ½ of the residuary estate. A family settlement agreement was subsequently entered into between Nancy Houghland Lamp-ton and Calvin Houghland, apparently to avoid a possible contest of the will by Calvin Houghland due to his concerns as to Sara Roark Houghland’s testamentary capacity in connection with the codicil.

        . See also Maurice T. Brunner, LL.B., Annotation, Construction and Application of Statutes Apportioning or Prorating Estate Taxes, 71 A.L.R.3d 247, § 21(a) (1976), wherein it was stated as follows: “The fact that a legacy may be preferred as to payment, either by direction of the testator or by operation of rules of law, does not entitle such legacy to escape a pro rata contribution to the payment of estate taxes which the residue is not sufficient to meet.” Id. at pp. 339-40.

      . "The Court of Appeals is without authority to review issues not raised in or decided by the trial court.” Regional Jail Authority v. Tackett, Ky., 770 S.W.2d 225, 228 (1989).


author: PER CURIAM.

text:
    In re the MARRIAGE OF Shelly WERTHS, Respondent, and Donald Bradley, Respondent, and Director, Division of Child Support Enforcement, Appellant.
    No. SC 82586.
    Supreme Court of Missouri, En Banc.
    Dec. 27, 2000.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Gary L. Gardner, Asst. Atty. Gen., Carolyn H. Kerr, Jefferson City, for Appellant.
    Karl H. Timmerman, Grandview, Troy D. Losh-North, Holden, for Respondents.
   PER CURIAM.

The Division of Child Support Enforcement (DCSE) appeals from the trial court’s finding that no modification of the existing child support order is warranted. Appeal dismissed.

DCSE asserts four claims of error. First, the trial court erred in declaring sections 452.370.8, 454.400.2(13), 454.498, RSMo Supp.1999, violative of the due process and equal protection provisions of the United States Constitution and the Missouri Constitution. Second, the trial court erred in declaring sections 452.370.8, 454.400.2(13), and 454.498, RSMo Supp. 1999, violative of the separation of powers and judicial review provisions of the Missouri Constitution. Third, the trial court erred in declaring sections 454.490.1 and 454.513, RSMo Supp.1999, violative of the separation of powers and judicial review provisions of the Missouri Constitution. Fourth, the trial court erred when it set aside the order of the director of DCSE modifying the existing child support order.

In all appeals, this Court is required to examine its jurisdiction sua sponte. Avidan v. Transit Cas. Co., 20 S.W.3d 521, 523 (Mo. banc 2000); Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997); Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995); Committee for Educ. Equal, v. State, 878 S.W.2d 446, 450 (Mo. banc 1994). “A prerequisite to appellate review is that there be a final judgment.” Section 512.020, RSMo 1994; Boley, 905 S.W.2d at 88. If there is no final judgment, this Court lacks jurisdiction and must dismiss the appeal. Avidan, 20 S.W.3d at 523. A judgment is final only if it leaves nothing for future determination. Id.; see also Rule 74.01(b). “If an intended judgment does not dispose of all issues and all parties in the case or does not form a final disposition of the matter, it is not a final, appealable judgment and we have no jurisdiction to entertain an attempted appeal therefrom.” Id. (quoting Wallace v. Hankins, 541 S.W.2d 82, 84 (Mo.App.1976)).

A review of the record in this case reveals that the trial court’s intended judgment does not constitute an appeal-able order under the final judgment rule. In one portion of its intended judgment entry, that portion in which the trial court found an absence of substantial and continuing changed circumstances so as to defeat the order of the director of DCSE modifying child support, the trial court, apparently acting pursuant to section 454.496.7, RSMo Supp.1999, ordered, among other things, “This cause shall be set for Trial de Novo.” As a consequence, the intended judgment, contemplating a trial de novo, does not finally dispose of all the claims; the outcome of the case is left to future determination in a new trial. Because the claims presented here have not been finally disposed, this Court has no jurisdiction over DSCE’s appeal.

DSCE’s appeal of the trial court’s decision is dismissed for lack of jurisdiction.

All concur.

      . Rule 74.01(b) provides an exception to the final judgment rule for cases involving multiple claims or multiple parties. Under Rule 74.01(b), a trial court may issue a final order disposing of less than all claims or parties and certify that there is "no just reason for delay.” Rule 74.01(b). If the trial court intended its order to be an immediately appealable final order, it may, of course, consider proceeding under Rule 74.01(b) if the requirements of the rule are met.


author: SHERRI B. SULLIVAN, Judge.

text:
    Cecilia CUBA, Claimant/Appellant, v. JON THOMAS SALONS, INC., Employer/Respondent, and Secura Insurance Company, Insurer/Respondent.
    No. ED 77249.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 26, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Nov. 9, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      James Joseph Sievers, Clayton, for appellant.
    Teresa W. Jeffery, John J. Johnson, Jr., Law Office of Brown & James, St. Louis, for respondent.
   SHERRI B. SULLIVAN, Judge.

Cecilia Cuba (“Cuba”) appeals from the decision of the Labor and Industrial Relations Commission (“Commission”) affirming the decision of the Administrative Law Judge (“ALJ”) denying Cuba’s workers’ compensation claim for permanent partial disability. In its decision, the Commission adopted the date the claim was filed as the date the inquiry begins for purposes of assessing liability for both the last exposure rule and the three-month rule. A dissenting opinion argued that the date of diagnosis is to be used when applying the three-month rule. We agree with the dissent, and thus we reverse and remand the Commission’s decision.

Cuba worked as a hair designer for Jon Thomas Salons, Inc. (“Jon Thomas”) from August 8, 1983 to April 27, 1995. Cuba worked eight hours per day, 40 hours per week for approximately 12 years at Jon Thomas. Cuba’s job duties included cutting, coloring, perming, and highlighting hair, activities that involved extensive use of her hands.

Leading up to February 1995, Cuba began to notice numbness and tingling in her hands, and she sought treatment from her private physician, Dr. Donald DiPasco (“Dr.DiPasco”). Dr. DiPasco diagnosed Cuba with bilateral carpal tunnel syndrome, and he prescribed bilateral wrist splints. After this diagnosis, Jon Thomas filed a Report of Injury with the Division of Workers’ Compensation on February 24, 1995, stating that the injury was due to repetitive use of the hands with implements of the trade.

Subsequent to her diagnosis by Dr. DiPasco, Cuba continued her employment at Jon Thomas. On April 17, 1995, Cuba met with Dr. Phillip George (“Dr. George”), an employer-provided physician, for pain in her wrists. Based upon an electromyo-gram (“EMG”) and a nerve conduction test of both wrists, Dr. George diagnosed Cuba with carpal tunnel syndrome on May 8, 1995. He recommended surgeiy, but Cuba decided to take a more conservative approach to treatment by quitting her full-time job as a hair designer at Jon Thomas and returning to school.

On August 7, 1995, Cuba again saw Dr. George and reported that she was doing well with no ongoing symptoms of numbness, tingling, weakness, or swelling in either hand. Cuba told Dr. George that she was going to school and that she was designing hair approximately 18-19 hours per week. Dr. George’s opinion was that Cuba would continue to do well as long as she did not design hair 40 hours per week. Based on this visit, Dr. George believed that Cuba did not need surgery. In a supplemental report, dated- November 20, 1995, Dr. George stated that he found Cuba to have a 0% permanent partial disability.

Cuba filed a Claim for Compensation with Jon Thomas and Secura Insurance Company (“Secura”) on August 26, 1996, for $56,454 in accordance with Section 287.430 requiring workers’ compensation claims to be filed within two years after the date of injury. On August 29, 1996, Jon Thomas and Secura denied the claim.

On November 14, 1996, Cuba visited a third physician, Dr. David Volarich (“Dr. Volarich”), concerning her -wrists. Dr. Vo-larich diagnosed Cuba -with carpal tunnel syndrome with a 30% permanent partial disability.

In August 1998, a hearing was held before an ALJ of the Division of Workers’ Compensation. In December 1998, the ALJ denied Cuba’s “demands for future medical treatment, temporary disability benefits and permanent partial disability.” In January 1999, Cuba filed an Application for Review with the Commission. In November 1999, the Commission affirmed the decision of the ALJ denying Cuba’s claim, with one member of the three-member panel dissenting.

Section 287.495 provides the standard of review for the appellate court in workers’ compensation cases. It provides in relevant part:

The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: (1) that the commission acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the facts found by the commission do not support the award; (4) that there was not sufficient competent evidence in the record to warrant the making of the award.

In determining the sufficiency of the evidence in a workers’ compensation case, the appellate court reviews the evidence and inferences in the light most favorable to the Commission’s award. Landers v. Chrysler Corp., 963 S.W.2d 275, 279 (Mo.App. E.D.1997). The Commission’s decision shall be overturned only if it is unsupported by substantial evidence or clearly contrary to the overwhelming weight of the evidence. Id. The appellate court will disregard any evidence that might support a finding different from the Commission’s even though the evidence may have been sufficient to support contrary findings. Id. Decisions of the Commission which are clearly interpretations or applications of law are reviewed for correctness without deference to the Commission’s judgment. Tidwell v. Kloster Co., 8 S.W.3d 585, 588 (Mo.App. E.D.1999).

We address Cuba’s second point on appeal first. Cuba argues that the Commission erred in determining liability for the last exposure rule under Section 287.063 and the three-month rule under Section 287.067.7 based on the date of the claim rather than on the date of the diagnosis. Carpal tunnel syndrome is a known occupational disease. Weniger v. Pulitzer Publishing Co., 860 S.W.2d 359, 360 (Mo.App. E.D.1993). Workers’ compensation claims for occupational diseases are analyzed under Section 287.063 of the Missouri Workers’ Compensation Act. Hunsicker v. J.C. Industries, Inc., 952 S.W.2d 376, 381 (Mo.App. W.D.1997). Thus, we must determine whether the Commission properly applied the last exposure rule for occupational diseases set forth in Section 287.063 and an exception to this rule set forth in Section 287.067.7.

Section 287.063 provides:

1. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists, subject to the provisions relating to occupational disease due to repetitive motion, as is set forth in subsection 7 of section 287.067, RSMo.
2. The employer liable for the compensation in this section provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease for which claim is made regardless of the length of time of such last exposure.

Section 287.067.7 provides:

With regard to occupational disease due to repetitive motion, if the exposure to the repetitive motion which is found to be the cause of the injury is for a period of less than three months and the evidence demonstrates that the exposure to the repetitive motion with a prior employer was the substantial contributing factor to the injury, the prior employer shall be liable for such occupational disease.

In its decision, the Commission stated that its interpretation of Section 287.067.7 is supported by case law with the purpose of developing a bright line rule. We find that the Commission erred in its interpretation of Section 287.067.7. In Arbeiter v. Nat’l Super Markets, 990 S.W.2d 142, 145 (Mo.App. E.D.1999), we held that, based upon rules of statutory interpretation, liability under Section 287.067.7 is determined by the date the occupational disease was diagnosed rather than the date the claim was filed. “Unlike section 287.063, section 287.067.7 does not employ the phrase ‘for which claim is made.’ Rather, with respect to timing, the operative phrase in section 287.067.7 is ‘if the exposure to the repetitive motion which is found to be the cause of the injury is for a period of less than three months....’ ” Id.

The language in Section 287.067.7 supports our conclusion that the legislature intended the three-month time frame to refer to the date of diagnosis. Repetitive motion injuries take time to manifest themselves. There is no logical reason to provide a three-month period to file a claim for a repetitive motion injury. The logical interpretation is that the legislature believed that because repetitive motion injuries do not occur overnight, it is necessary to determine whether the current job or the previous job actually caused a repetitive motion injury to an employee. The legislature determined that an employer who exposes an employee to a form of repetitive motion for less than three months may not be liable for an injury if that employee was exposed to a form of repetitive motion by a prior employer and that prior exposure is found to be the substantial contributing factor to the injury. Thus, interpreting Section 287.067.7 to refer to the date of diagnosis comports with legislative intent and provides a bright line rule for repetitive motion injuries.

Furthermore, our interpretation of Section 287.067.7 supports the purpose of the Workers’ Compensation Act. “Provisions of [section 287.063] and section 287.067 were intended to provide complete and workable arrangements for compensation of those disabled by occupational diseases.” Enyard v. Consolidated Underwriters, 390 S.W.2d 417, 423 (Mo.App.1965). To interpret Section 287.067.7 otherwise would provide an incentive to employers to terminate at-will employees diagnosed with a repetitive motion injury. One of the unique aspects of repetitive motion injuries is that conservative treatment, which may include reducing exposure to the repetitive motion and wearing night splints, often provides an alternative to more intrusive surgery and, as this case illustrates, may be desired by the employee. Employees may be reluctant to attempt a more conservative approach to treatment knowing that they may be terminated and miss the opportunity for compensation for surgery. An employer may also be reluctant to hire an individual diagnosed with a repetitive motion injury knowing that if the employee opts for surgery or submits a claim for disability, the employer could be liable for that employee’s claim.

To interpret the language of Section 287.067.7 to refer to the date of the claim contravenes both the legislative intent and the purpose of the Workers’ Compensation Act. Accordingly, we hold that Section 287.067.7 refers to the date of diagnosis and not the date of the claim for purposes of assessing liability for both the last exposure rule under Section 287.063 and the three-month rule under Section 287.067.7. Based upon the date of diagnosis, May 8, 1995, Cuba’s self-employment exposed her to the repetitive motion for less than three months.

In its decision, the Commission cites Johnson v. Denton Construction Co., 911 S.W.2d 286 (Mo. banc 1995), for the proposition that the Missouri Supreme Court determined that the date the claim is filed determines liability. However, in Johnson, the Court did not address the issue of whether the date of diagnosis or the date of the claim determines liability. Section 287.067.7 was not in effect when Johnson’s claim was filed. The Court found that the claim was filed immediately after Johnson left Denton, and therefore, it did not have to address the issue of whether the date of diagnosis or the date of the claim was the determining factor. Thus, the Court did not apply the last exposure rule as a bright line rule. Although Johnson is often cited in support of using the date of the claim to determine liability, the Court actually avoided answering the question because both the date of diagnosis and the date of the claim were prior to Johnson’s subsequent employment, and the Court determined that Denton was the last employer to expose Johnson to the hazard for which the claim was made.

The Commission cites a number of other cases to support the date of the claim as providing a bright line rule for liability. However, the cases the Commission cites to support this interpretation of Section 287.067.7 actually indicate that there is no bright line rule established. In each case, the court analyzed the facts presented and determined the outcome, not based solely upon the date the claim was filed, but rather upon an analysis of all the evidence presented, including the date of the report of injury, the date of diagnosis, and the date of the claim. Arbeiter is the first case in which the interpretation of Section 287.067.7 is directly analyzed, and it is the only case that provides a bright line rule for the interpretation of Section 287.067.7.

Accordingly, Cuba’s point two on appeal is granted.

We now address Cuba’s point one on appeal. Cuba argues that the Commission erred in relieving Jon Thomas of any liability for her carpal tunnel syndrome because the evidence supports the conclusion that Cuba’s employment at Jon Thomas was the substantial contributing factor to her carpal tunnel syndrome. The Commission found that Cuba’s self-employment as a hair designer substantially caused her disability and not her employment at Jon Thomas.

The Commission based its finding upon Dr. George’s deposition testimony in which he stated that, although he would be speculating, a cause of the increased symptoms in Cuba’s hands between her visit to him in August 1995 and her visit to Dr. Volarich in November 1996 may be either that “she got back to doing hair 45 hours a week or she read a textbook which reported the symptoms of carpal tunnel syndrome.” Based upon the results of Cuba’s November 1996 visit to Dr. Volarich, Dr. Volarich found that Cuba’s work as a hair designer at Jon Thomas leading up to the time that she saw Dr. DiPaseo in February 1995 was the substantial contributing factor to her carpal tunnel syndrome. However, the Commission found Dr. George’s testimony more credible than Dr. Vola-rich’s testimony. “We will not disturb the choice of one medical opinion over another by the Commission unless the choice clearly results from an abuse of discretion.” Jaycox v. General Ameñcan Life Ins. Co., 992 S.W.2d 240, 244 (Mo.App. E.D.1999).

Dr. George’s deposition testimony and records related to his visits with Cuba support a finding that Cuba’s work at Jon Thomas was the substantial contributing factor to her carpal tunnel syndrome. Dr. George saw Cuba on three different occasions, April 17, 1995, May 8, 1995, and August 7, 1995. During the April 17 visit, Dr. George advised Cuba to undergo the necessary tests to make a diagnosis. On May 8, he diagnosed Cuba with carpal tunnel syndrome based upon the results of an EMG and a nerve conduction test of both wrists. Dr. George recommended surgery at' this time. On August 7, Dr. George found that Cuba’s symptoms did not indicate a need for surgery. However, in his deposition, Dr. George testified that once the results of an EMG and nerve conduction test are found to be abnormal, the results “rarely return to totally normal without some form of treatment, usually involving [surgery].”

In sum, Dr. George diagnosed Cuba with carpal tunnel syndrome and recommended surgery less than two weeks after Cuba left Jon Thomas. Based upon this evidence, we find that Cuba’s approximately 12 years as a hair designer at Jon Thomas was the substantial contributing factor to her carpal tunnel syndrome. Her subsequent self-employment was not the substantial contributing factor to her occupational disease diagnosed on May 8, 1995. “The subsequent exposure may increase the symptoms of the disease, but it cannot be the cause of the disease.” Arbeiter, 990 S.W.2d at 145.

Additional evidence supports a finding that Cuba’s work at Jon Thomas was the substantial contributing factor to her carpal tunnel syndrome. Dr. DiPasco diagnosed Cuba with carpal tunnel syndrome while Cuba was working at Jon Thomas, and Jon Thomas filed a Report of Injury-stating that the injury was due to repetitive use of the hands with implements of the trade while Cuba was working at Jon Thomas.

Accordingly, Cuba’s point one on appeal is granted.

Section 287.067.7 establishes an exception to the last exposure rule under Section 287.063 for an occupational disease due to repetitive motion. This three-month rule exception applies in this case. Therefore, because the date of diagnosis is the controlling date in determining whether a prior employer is liable under Section 287.067.7, because Cuba was diagnosed with carpal tunnel syndrome less than two weeks after leaving Jon Thomas, and because Cuba’s work at Jon Thomas was the substantial contributing factor to her occupational disease, we find Jon Thomas liable for Cuba’s claim.

In light of our conclusions for Cuba’s points one and two on appeal, her points three, four, and five are moot. Accordingly, the decision of the Commission is reversed and remanded for further proceedings consistent with this opinion.

LAWRENCE E. MOONEY, P.J., and PAUL J. SIMON, J., concur.

      . All statutory references are to RSMo (1994), unless otherwise indicated.

      . See, e.g., Bull v. Excel Corp., 985 S.W.2d 411 (Mo.App. W.D. 1999); Bissell v. Paramount Cap Mfg., 962 S.W.2d 13 (Mo.App. S.D.1998); Feltrop v. Eskens Drywall and Insulation, 957 S.W.2d 408 (Mo.App. W.D.1997); Hunsicker v. J.C. Industries, Inc., 952 S.W.2d 376 (Mo. App. W.D.1997); Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755 (Mo.App. W.D. 1997); Anderson v. Noel T. Adams Ambulance District, 931 S.W.2d 850 (Mo.App. W.D.1996); and Walker v. Klaric Masonry, Inc., 937 S.W.2d 219 (Mo.App. E.D.1996).


author: LOWENSTEIN, Judge.

text:
    Amanda COOK, Appellant, v. David SMITH, Respondent.
    No. WD 58116.
    Missouri Court of Appeals, Western District.
    Oct. 3, 2000.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 2000.
    Application for Transfer Denied Jan. 23, 2001.

      Roger G. Brown, Jefferson City, for appellant.
    Erwin L. Milne, Jefferson City, for respondent.
    Before LOWENSTEIN, P.J., LAURA DENVIR STITH and NEWTON, JJ.
   LOWENSTEIN, Judge.

This appeal arises from a directed verdict granted Defendants David and Ginger Smith (Smiths) in a personal injury case involving one count of premises liability based on an artificial condition of land and one count of negligent supervision. Plaintiff Amanda Cook (Cook) is a sixteen-year-old girl who was invited to the Smiths’ farm for a party with their daughter, Sarah Smith, and several other members of her high school volleyball team. When a guest began to drive the Smiths’ All-Terrain Vehicle (ATV) without permission, Cook climbed aboard. An accident resulted, allegedly because of faulty brakes on the ATV, and Cook was seriously injured. Neither of the Smiths was home at the time of the accident.

FACTUAL AND PROCEDURAL HISTORY

On August 27,1994, the Smiths hosted a party and bonfire at their farm in Calla-way County for twenty-five to thirty-five members of Sarah’s high school volleyball team. Among those invited was Cook. No adults were present at the time the party began, around 5 p.m. Ginger Smith arrived about three hours later; David Smith was out of town. At the time of the accident only the Smiths’ children were home: Sarah, age sixteen, and Justin, age fourteen.

The Smiths kept a three-wheel ATV on their property, which Justin used that evening to haul supplies to a pasture for the bonfire. Justin testified that the rear brake on the ATV was “faulty.” He said that though the ATV would stop after about five feet when the front brake was applied, the rear brake would not stop the vehicle until about twenty feet.

When Justin left the ATV running that evening to tend to the bonfire, a guest, Laura Farris (Farris), began driving the ATV. Farris had never before driven an ATV and did not know that the brakes were faulty. She drove the ATV around the pasture and returned to the site of bonfire. Plaintiff Cook then climbed aboard as a passenger, and the two of them drove away from the bonfire and toward the Smiths’ house. There was disputed testimony as to whether Farris had Sarah’s permission to drive the ATV. Ginger Smith testified that had she been there, she would not have permitted any of the girls to ride the ATV. Justin testified that he waved his hands and yelled to Farris and Cook to return the ATV, but to no avail.

On a path to the house, Farris and Cook encountered Sarah, who was driving a tractor-type vehicle. To avoid hitting Sarah, Farris turned the vehicle but headed toward a creek. As the two approached the creek, Farris turned the steering wheel all the way to the left and applied the brakes, but the ATV continued to go straight, went over the embankment and dropped six or seven feet into the dry creek bed. Cook sustained numerous injuries, including seven broken ribs, a collapsed lung, torn cartilage in her chest, severe bruises, a concussion, a gash on the head, and a permanently enlarged right breast. She continues to suffer from pain in her ribs and from back spasms.

Cook sued on two theories: premises liability and negligent supervision. With regard to the premises liability claim, Cook argued that the ATV was a defective artificial condition of land and thus the Smiths breached their duty to either warn her or make the ATV safe. As to the negligent supervision claim, Cook argues that the Smiths breached their duty of ordinary care by fading to provide adult supervision to the teenage group.

At the close of Plaintiff Cook’s evidence, the trial court granted the Smiths’ motion for a directed verdict only as to the premises liability claim on the basis that the ATV was not a condition of the land. At the close of all of the evidence, the trial court granted a directed verdict to the Smiths on the negligent supervision claim on the basis that Cook failed to make a submissible claim. On appeal Cook contests both rulings.

STANDARD OF REVIEW

In reviewing a directed verdict granted for a defendant, an appellate court views the evidence and permissible inferences most favorably to the plaintiff, disregards contrary evidence and inferences, and determines whether the plaintiff made a submissible case. Thong v. My River Harbour, Inc. 3 S.W.3d 373, 377 (Mo.App.1999) (quoting Schumacher v. Barker, 948 S.W.2d 166, 168 (Mo.App.1997)). Directing a verdict is a drastic measure. Id. A presumption therefore is made in favor of reversing the trial court’s judgment sustaining a motion for directed verdict unless the facts and inferences therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to a result. Id.

I. Premises Liability

Plaintiff Cook argues in her first point that the trial court erred in granting the directed verdict as to premises liability. In this point, two questions arise: the legal status of Cook, and the duty owed to her with respect to the land.

In Missouri, the duty owed to a plaintiff in a premises liability action generally depends upon the status of the plaintiff at the time of the injury. Cochran v. Burger King Corp., 937 S.W.2d 358, 361 (Mo.App.1996)(citing Carter v. Kinney, 896 S.W.2d 926, 928 (Mo. banc 1995)). Moreover, “the particular standard of care that society recognizes as applicable under a given set of facts is a question of law.” Id. There are three broad categories of plaintiffs recognized in premises liability cases: (1) trespassers; (2) licensees; and (3) invitees. Id.

The parties argue a great deal in their briefs about the legal status of Plaintiff Cook. Cook contends that she was an invitee; the Smiths contend that she was a licensee. In Carter v. Kinney, the Supreme Court of Missouri clarified Missouri’s distinction between the two and stated that “social guests are but a subclass of licensees.” 896 S.W.2d at 928. The Carter case involved a church member who opened up her house to other members of her church for bible study. Id. at 927. The Court noted that “the fact that an invitation underlies a visit does not render the visitor an invitee for purposes of premises liability law.” Id. at 928 The Court also cited an earlier decision' noting that the status of invitee arises in two situations: where the invitation was rendered with a “material benefit motive,” or where the invitation was extended to the “public generally or to some undefined portion of the public” Id. (quoting Wolfson v. Chelist, 284 S.W.2d 447, 450 (Mo.1955)).

The facts indicate that Plaintiff Cook, along with several others, was invited to the Smiths’ home to unite their daughter’s volleyball team. The court finds no “material benefit motive” in such a purpose. Id. Moreover, the guests at the party were an ascertainable group: twenty-five to thirty-five members of a high school athletic team. As such, this court finds that the invitation was neither to “the public generally [nor] to some undefined portion of the public” so as to render the guests invitees. Id.

The next question for the court is what duty the Smiths owed Cook as a licensee. Missouri follows the Restatement, Law of Torts, First § 342 (1934). Gray v. Russell, 853 S.W.2d 928, 930 (Mo. banc 1993); Wells v. Goforth, 443 S.W.2d 155, 158 (Mo. banc 1969). That section states:

A possessor of land is subject to liability for bodily injury caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he
(a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and
(b) invites or permits them to enter or remain upon the land, without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to warn them of the condition and the risk involved therein.

The pivotal issue in this point is whether an ATV is an artificial condition of land. Cook argues that the only requirement for a condition to be artificial is that it be on (“thereon”) the land. She relies heavily on Wiegers by Evans v. Fitzpatrick, 766 S.W.2d 126, 129 (Mo.App. 1989), which held that a metal ladder brought onto land was an artificial condition of land for purposes of the attractive nuisance doctrine. Because the attractive nuisance doctrine was not pleaded and because there is little similarity between a ladder and a motorized vehicle, this court finds Wiegers inapplicable.

Conditions of land generally are in the nature of “hidden dangers, traps, snares, pitfalls, and the like.” Jones v. National Supermarkets, Inc. 729 S.W.2d 218, 220 (Mo.App.1987) (quoting Dixon v. General Grocery Co., 293 S.W.2d 415, 418 (Mo.1956)). A review of premises liability cases in Missouri indicates nothing akin to a motorized vehicle as an artificial condition. As such, the court declines to extend the meaning of artificial condition of land to include an ATV, even a defective one. This point is denied.

II. Negligent Supervision

Plaintiff Cook argues in her second point that the trial court erred in granting a directed verdict in favor of the Smiths on their count for negligent supervision.

Negligent supervision is a variant of the common law tort of negligence. G.E.T. ex rel. T.T. v. Barron, 4 S.W.3d 622, 624 (Mo.App.1999). To make a prima facie case, a plaintiff must plead and prove: (1) a legal duty on the part of the defendant to use ordinary care to protect the plaintiff against unreasonable risks of harm; (2) a breach of that duty; (3) a proximate cause between the breach and the resulting injury; and (4) actual damages to the plaintiffs person or property. Id. (quoting Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 431 (Mo. banc 1985)).

Missouri courts have held that the duty to supervise is narrow, requiring “the existence of a relationship between the plaintiff and defendant that the law recognizes as the basis of a duty of care.” Hill ex rel. Hill v. Herbert Hoover Boys Club, 990 S.W.2d 19, 22 (Mo.App.1999)(eoach had no duty to supervise minors playing on opposite team). Missouri case law establishes that “acceptance of the custody and control of a minor child creates a relationship sufficient to support a duty of care.” Id.; Swain by Swain v. Simon, 699 S.W.2d 769 (Mo.App.1985)(ba-bysitter was supervisor and owed duty of ordinary care). “It is not the supervisor’s control over the instrumentality that caused the harm, but the obligation and ability to supervise and control the child that is the decisive factor in a negligent supervision of a minor case.” Id. (citations omitted)(emphasis in original). “The duty to supervise runs not to an activity, but rather to an individual.” Id. (quoting Be-quette v. Buff, 862 S.W.2d 921, 924 (Mo. App.1993) (parents owed no duty to uninvited guest at child’s party)).

The parties primarily rely on the Be-quette and Hill cases in arguing whether a duty arose. In Bequette, a mother authorized her son to invite twenty friends to celebrate his sixteenth birthday, and he gave her a guest list. 862 S.W.2d at 922. Because the mother was required to work late, she arranged for her twenty-six-year-old son and his wife to supervise the party. Id. Fliers advertising a “keg party” were distributed at the son’s high school, even though the mother neither authorized the fliers nor the alcohol. Id. at 922-23. The plaintiff, who learned about the party from a flier and was not among the twenty invited guests, broke his ankle in a scuffle at the party. Id. at 923-24. The Bequette court held that the mother owed no duty to supervise because the plaintiff and the mother did not know each other, because the plaintiff was not a friend of the defendant’s son, because the defendant had not invited the plaintiff, because the plaintiff was not among the twenty invited guests, and because the defendant did not know of or issue a general invitation to the party. Id. at 925.

In Hill, the plaintiff was a fourteen-year-old baseball player in a league of youths age sixteen years old or under. 990 S.W.2d at 21. Hill was injured during a game and sued (among others) the coaches on the opposing team under a negligent supervision theory. Id. at 22. The court held that the coaches on the opposing team never exercised custody and control of the minor primarily because they neither assumed nor accepted coaching obligations; indeed, the coaches on his own team acknowledged responsibility for the boy. Id. at 21, 23.

This court finds that the Smiths accepted the custody and control of Cook as a minor child, establishing and creating a duty to her of ordinary care. Cook was not an uninvited partygoer, as in Bequette. 862 S.W.2d at 924. Cook was an invited, anticipated guest. Moreover, the Smiths were more akin to the coaches on Hill’s team than to those on the opposing team. Hill, 990 S.W.2d at 21. The Smiths knew a group of teenagers would be on their farm with a bonfire and a defective ATV, yet they provided no supervision. Based on the specificity of the invitation, the age of the guests, the number of guests, the nature of the party, and the Smiths’ knowledge of the defective brakes, this court finds that the Smiths accepted Cook, a minor, into their care and control so as to establish the duty of ordinary care on their part under a negligent supervision claim.

Breach of the duty of ordinary care “involves whether a reasonable person could have foreseen that the injuries of the type suffered would likely occur under the circumstances.” Rogger v. Voyles, 797 S.W.2d 844, 846 (Mo.App.1990). “Ordinary care may require more vigilance and caution when a child is involved if there is a potentially dangerous situation of which a supervisor is or should be aware.” Id. Plaintiff Rogger, a thirteen-year-old girl, sued her grandparent for injuries sustained after the grandparent permitted her to drive an automobile unsupervised. Id. Rogger had never driven and was not aware that the automobile’s brakes were faulty. Id. The Rogger court held that these facts were sufficient evidence for a trier of fact to make a negligent supervision finding: “It is foreseeable that a minor who has never operated a full-size automobile, but does so without direction or supervision, might lose control of it and suffer serious injuries” Id. at 847.

The Rogger facts are similar to the instant case. Had the Smiths been present at the party, supervised Farris as she drove the vehicle or prevented her or any of the guests from doing so, it is conceivable that Cook would not have sustained the injuries she did. Having established sufficient evidence to support a duty to supervise Cook and a responsibility of ordinary care, the issues of causation and breach of duty by the Smiths made a submissible jury issue. Under the applicable scope of review where a directed verdict has been granted, there was sufficient evidence for a jury to have decided whether there was a breach of duty. The court reverses and remands on the issue of negligent supervision.

The judgment as to premises liability is affirmed. The judgment as to negligent supervision is reversed and remanded for a new trial.

All concur.

      . See, e.g., Carter v. Kinney, 896 S.W.2d 926 (Mo. banc 1995) (an icy driveway); Jackson v. City of Blue Springs, 904 S.W.2d 322 (Mo. App.l995)(lrees and bushes that blocked a roadway); Becker v. Setien, 904 S.W.2d 338 (Mo.App.1995) (a hole in the floor); Gray v. Russell, 853 S.W.2d 928 (Mo. banc 1993)(stairs of a loading dock).

      . The Smiths also rely on Smith v. Gregg, 946 S.W.2d 807 (Mo.App.1997). The Smith court found no actionable negligent supervision claim where Defendants hosted a high-school graduation party for minors and provided alcohol. Id. at 809. At the party, the plaintiff incurred injuries from a fight with another partygoer while the parents were in a closed room. Id. The two counts involved 1) negligent supervision in providing alcohol to minors, and 2) negligent supervision in failing to provide security because of the violent guest. Id. at 811. The court declined to find an actionable negligent supervision claim as to the count involving alcohol to avoid imposing dram-shop liability on the hosts. Id. (relying on Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547 (Mo. banc 1987) Note: The Supreme Court recently examined § 537.053.3 and invalidated the part thereof that required as a prerequisite a criminal conviction. Kilmer v. Mun, 17 S.W.3d 545 (Mo. banc, 2000)). The negligent supervision claim involving the failure to provide security was rooted in premises liability: the court noted that the hosts neither knew nor should have known of any necessity to control the violent guest. Id. at 813. These facts are not applicable to the instant case, where alcohol was not involved and where the allegation does not relate to failure to control a third party. That the activities took place on the Smiths’ property does not in itself restrict the court to considering premises liability theories in finding a duty to supervise. The allegation in the instant case instead involves providing no supervision to a group of teenagers where it was foreseeable they would play with and be injured by a defective ATV.
      Neither party cited a similar case, Thwing v. Reeder, 987 S.W.2d 347 (Mo.App.1998), where summary judgment was correctly granted in favor of a mother who hosted a drinking party for her teenage son and his friends. In Thwing, the mother temporarily left the party to visit a neighbor. Id. at 348. Shortly after she left, a group of party crashers intruded and a guest was shot. Id. The case was not submitted under a negligent supervision theory, and like Smith v. Gregg, involved uninvited partygoers and alcohol. Id.