IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

YURIY MATYSYUK,

Appellant,

v.

VIKTOR PANTYUKHIN and 

LYUBOV PANTYUKHIN,

Respondents.

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WD82414

FILED: February 25, 2020

Appeal from the Circuit Court of Pettis County

The Honorable Robert L. Koffman, Judge

Before Division Three: Lisa White Hardwick, P.J., and

Alok Ahuja and Anthony Rex Gabbert, JJ.

Yuriy Matysyuk was injured in an automobile accident while riding as a 

passenger in a vehicle driven by Igor Pantyukhin.1 The vehicle was owned by Igor’s 

father. Matysyuk sued Igor’s parents, Viktor and Lyubov Pantyukhin (collectively, 

the “Pantyukhins”) in the Circuit Court of Pettis County, alleging that they had 

negligently entrusted the accident vehicle to their son. The circuit court granted 

the Pantyukhins’ motion for summary judgment. It found that the uncontroverted 

facts failed to establish that Igor was incompetent to drive due to habitual 

recklessness, and that Matysyuk would therefore not be able to prove an essential 

element of his negligent entrustment claim. Matysyuk appeals. He argues that the 

circuit court should have stayed proceedings on the Pantyukhins’ summary 

judgment motion to permit him to conduct further discovery, and that a genuine 

 

1 To distinguish him from his parents, we refer to Igor Pantyukhin by his first 

name in this opinion. No familiarity or disrespect is intended.
2

issue of material fact existed regarding whether Igor was incompetent to drive. We 

affirm.

Factual Background

On October 7, 2014, Igor was driving Matysyuk, his co-employee, to the 

jobsite of a pipeline project in Muskingum County in central Ohio, on which they 

were both working for their employer, ProEnergy Services. Igor was driving a 1999 

Honda Accord owned by his father Viktor Pantyukhin. On the way to the jobsite, 

Igor drove off the right side of the roadway while attempting to negotiate a lefthand curve. The vehicle struck a tree. Matysyuk was seriously injured in the 

accident, was hospitalized for several weeks, and incurred medical expenses 

exceeding $400,000. Igor was issued a citation for failure to control his vehicle. He 

pleaded guilty to the offense, and was assessed fines and court costs totaling $120.

Igor was twenty years old at the time of the 2014 accident. He was residing 

at home in Sedalia with his parents, the Pantyukhins, at the time.

Igor had been involved in a prior car accident in September 2011, when he 

was seventeen years old, and three years prior to the accident involving Matysyuk. 

In the 2011 incident, Igor failed to stop at a stop sign and collided with another 

vehicle which was traveling on a cross-street. The driver of the other vehicle and

two passengers in Igor’s vehicle were injured. Igor was driving a 2000 Suzuki Swift 

owned by Viktor Pantyukhin in the 2011 accident. In connection with the 2011 

accident, Igor was cited for failure to yield, and for failing to properly secure a minor 

passenger.

Igor had one other motor-vehicle-related citation prior to the 2014 accident 

involving Matysyuk. In June 2012, Igor pleaded guilty to failing to wear a seatbelt 

and for failing to secure two minor children in seatbelts.

On September 26, 2014, Igor was listed as an “Excluded Driver” in the 

automobile insurance policy purchased by the Pantyukhins to insure the 1999 
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Honda Accord. Although Matysyuk’s Brief contends that Igor was excluded from 

the policy because he had become “too costly to insure” and was “an unreasonable 

risk,” nothing in the record suggests any reason for Igor’s exclusion from the 

Pantyukhins’ automobile insurance policy. There is also no support in the record 

for the assertion (made for the first time in the “Conclusion” of Matysyuk’s Brief) 

that the Pantyukhins’ were “told by the insurance agent not to let [Igor] drive their 

cars.”

On September 12, 2016, Matysyuk filed a Petition against Igor, their joint 

employer, and the Pantyukhins. The petition alleged that the Pantyukhins 

negligently entrusted their 1999 Honda to Igor, when he was incompetent to drive it 

due to his habitual recklessness. The Petition also alleged a claim against the 

Pantyukhins for negligent supervision, although that claim is not at issue in this 

appeal.

On March 9, 2017, the Pantyukhins moved for summary judgment. They

argued that Matysyuk could not establish a necessary element of his negligent 

entrustment claim: that Igor was incompetent to drive by reason of habitual 

recklessness.

On April 10, 2017, Matysyuk filed his response to the Pantyukhins’ motion. 

Matysyuk responded to the Pantyukhins’ statement of uncontroverted material 

facts, and alleged additional purportedly material facts. Matysyuk argued that 

there was a genuine issue of material fact whether Igor was a habitually reckless 

driver based on his 2011 accident, his 2012 citations, and his exclusion from the 

Pantyukhins’ automobile insurance policy. Matysyuk’s response did not contend 

that the Pantyukhins’ summary judgment motion was premature because he had 

propounded written discovery to which the Pantyukhins had not yet responded, or 

because he desired to take their depositions, or the depositions of other witnesses.
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On April 24, 2017, the Pantyukhins filed a reply memorandum in support of 

their summary judgment motion, which responded to Matysyuk’s statement of 

additional facts.

Matysyuk filed a motion to strike some of the Pantyukhins’ responses to his

statement of additional material facts; he also moved for leave to file a sur-reply

memorandum. Once again, Matysyuk did not assert that proceedings on the 

Pantyukhins’ motion should be stayed to permit him to conduct additional 

discovery.

On May 18, 2017, the Pantyukhins noticed their summary judgment motion 

for hearing on July 17, 2017. At the conclusion of the July 17 hearing, the circuit 

court took the matter under advisement.

After the hearing concluded, Matysyuk filed a motion to stay proceedings on 

the Pantyukhins’ motion for summary judgment pending further discovery. In his

motion, Matysyuk noted that the circuit court had asked during the July 17 hearing

“why proceedings on the Motion for Summary Judgment had not been stayed.” 

Matysyuk noted that besides his first round of interrogatories, no other discovery 

had been conducted between the parties. He requested that, before the court ruled 

on the summary judgment motion, he be permitted to depose the Pantyukhins, Igor, 

and the Pantyukhins’ insurance agent to learn why Igor was excluded from the 

Pantyukhins’ automobile insurance policy.

After conducting a further hearing, the circuit court denied Matysyuk’s 

motion for stay on July 20, 2017.

On August 2, 2017, the circuit court granted the Pantyukhins’ motion for 

summary judgment. In its judgment, the circuit court stated that the record 

showed that “Igor has had one accident prior to the fateful one in the present case.” 

The court found that “[t]his [one accident] is not sufficient to establish habitual 

recklessness,” as required to support a negligent entrustment claim against his 
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parents. The judgment also found (in a ruling not challenged here) that the 

Pantyukhins were entitled to summary judgment on Matysyuk’s negligent 

supervision claim.

Matysyuk later voluntarily dismissed his claims against Igor, and against 

their employer, with prejudice. Matysyuk then filed this appeal.

Analysis

I.

We examine Matysyuk’s Points in reverse order. In his second Point, 

Matysyuk argues that the circuit court erred in denying his motion to stay

proceedings on the Pantyukhins’ motion for summary judgment.

“The trial court has discretion to grant or deny additional time to conduct 

discovery before ruling on a pending summary judgment motion.” Brooks v. City of 

Sugar Creek, 340 S.W.3d 201, 209 (Mo. App. W.D. 2011) (citation omitted). “A trial 

court abuses its discretion only when its ruling is clearly against the logic of the 

circumstances then before the court and is so arbitrary and unreasonable as to 

shock the sense of justice and indicate a lack of careful consideration.” Holm v. 

Wells Fargo Home Mortg., Inc., 514 S.W.3d 590, 596 (Mo. 2017) (citation and 

internal quotation marks omitted).

Under Rule 74.04(b), a party defending a claim may move for summary 

judgment “[a]t any time.” See also Farrow v. Saint Francis Med. Ctr., 407 S.W.3d 

579, 587 n.4 (Mo. 2013). “When a motion for summary judgment is filed, the party 

against whom it is directed may not stand idly by doing nothing.” Duncan v. 

Dempsey, 547 S.W.3d 815, 821 (Mo. App. E.D. 2018) (citation and internal quotation 

marks omitted). If the non-movant wishes to conduct further discovery before the 

court rules on the summary judgment motion, it may move for a continuance under 

Rule 74.04(f). Rule 74.04(f) provides:
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Should it appear from the affidavits of a party opposing the motion 

that for reasons stated in the affidavits facts essential to justify 

opposition to the motion cannot be presented in the affidavits, the 

court may refuse the application for judgment or may order a 

continuance to permit affidavits to be obtained or depositions to be 

taken or discovery to be had or may make such other order as is just. 

“Rule 74.04(f) allows the trial court to postpone any ruling on a pending summary 

judgment motion to accommodate further discovery.” Brooks, 340 S.W.3d at 209

(footnote omitted).

The Pantyukhins moved for summary judgment on Matysyuk’s negligent 

entrustment claim on March 9, 2017. Instead of filing a motion for a continuance 

under Rule 74.04(f) so that he could conduct further discovery, Matysyuk responded 

to the Pantyukhins’ motion on the merits on April 10, 2017. In his response, 

Matysyuk alleged additional facts, which he argued created a genuine issue of 

material fact regarding whether Igor was incompetent to drive. Matysyuk’s 

opposition to the summary judgment motion relied on the discovery which had been 

completed to date. The Pantyukhins filed a reply memorandum, and Matysyuk 

then filed a motion to strike some of the Pantyukhins’ responses to his additional 

facts, and a motion requesting leave to file a sur-reply to correct one of his 

additional facts. After the parties completed their motions practice, the 

Pantyukhins noticed their summary judgment motion for hearing on July 17, 2017.

Matysyuk only moved to stay the summary judgment proceeding so that he 

could conduct further discovery after the July 17 hearing was held. Matysyuk’s 

motion was apparently prompted by comments the circuit court had made at the 

hearing on the Pantyukhins’ motion. (We have not been provided with a transcript 

of that hearing.) By the time Matysyuk requested a stay, the Pantyukhins’ motion 

for summary judgment had been pending for more than 4 months, the parties had 

fully briefed and argued the motion, and the circuit court had taken it under 

advisement.
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The circuit court did not abuse its discretion by refusing to allow Matysyuk to 

have two bites at the apple: first, by responding to the Pantyukhins’ summary 

judgment motion on the merits; and then by seeking to stay proceedings on the 

motion after the circuit court has apparently questioned his merits arguments, and 

taken the matter under advisement. The circuit court was entitled to hold that the 

time to seek relief pursuant to Rule 74.04(f) was during the briefing of the summary 

judgment motion, not after the motion had been fully (and extensively) briefed, and 

taken under advisement. 

Rule 74.04 does not generally contemplate post-hearing briefing on a 

summary judgment motion. The Rule specifies that “[n]o other papers with respect 

to the motion for summary judgment [beyond the motion, response, reply, and surreply] shall be filed without leave of court,” Rule 74.04(c)(5), and that “[a]fter the 

response, reply and any sur-reply have been filed or the deadlines therefore have 

expired, the court shall decide the motion.” Rule 74.04(c)(6). A circuit court may 

have good reason to deny a post-hearing motion to stay. A stay motion may create 

the prospect of yet further briefing, since the party moving for summary judgment 

may wish to oppose the motion for stay with its own affidavits, arguing a lack of 

diligence or bad faith in the conduct of discovery by the party seeking the stay. It is 

within the circuit court’s discretion to require that such matters be addressed in the 

course of the parties’ summary judgment briefing, rather than after that briefing 

has concluded. See Resolution Trust Corp. v. Lieberman, 826 S.W.2d 55, 56 (Mo. 

App. E.D. 1992) (circuit court did not abuse its discretion when it denied a motion to 

stay involving a summary judgment motion which had been pending for seven 

months, where stay motion was filed four days before the summary judgment 

hearing).

Point II is denied.
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II.

In his first Point, Matysyuk challenges the merits of the circuit court’s ruling 

granting the Pantyukhins summary judgment on his negligent entrustment claim.

“This Court reviews a grant of summary judgment de novo.” Messina v. 

Shelter Ins. Co., 585 S.W.3d 839, 842 (Mo. App. W.D. 2019) (citation and internal 

quotation marks omitted). “Summary judgment shall be entered if there is no 

genuine issue as to any material fact and the moving party is entitled to judgment 

as a matter of law.” Folsom v. Mo. State Hwy. Patrol, 580 S.W.3d 645, 649 (Mo. 

App. W.D. 2019) (citation and internal quotation marks omitted). “The Court 

reviews the record in the light most favorable to the party against whom judgment 

was entered, and gives the non-movant the benefit of all reasonable inferences from 

the record.” Messina, 585 S.W.2d at 842 (citation and internal quotation marks 

omitted).

To prove a claim for negligent entrustment of a chattel by the defendant, a 

plaintiff must prove that:

(1) the entrustee was incompetent by reason of age, inexperience, 

habitual recklessness or otherwise; (2) the entrustor knew or had 

reason to know of the entrustee’s incompetence; (3) there was 

entrustment of the chattel; and (4) the negligence of the entrustor 

concurred with the conduct of the entrustee to cause the plaintiff’s 

injuries.

Lockhart v. Carlyle, 585 S.W.3d 310, 313 (Mo. App. W.D. 2019) (citation and 

internal quotation marks omitted); see also Delana v. CED Sales, Inc., 486 S.W.3d 

316, 324-26 (Mo. 2016); Evans v. Allen Auto Rental & Truck Leasing Co., 555 

S.W.2d 325, 326 (Mo. 1977).

“To establish their right to summary judgment, the [Pantyukhins] were

required to negate at least one of the requisite elements of a claim for negligent 

entrustment.” Hallquist v. Smith, 189 S.W.3d 173, 176 (Mo. App. E.D. 2006) 

(citation omitted). The Pantyukhins’ motion contended that Matysyuk could not 
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prove the first element: that Igor was incompetent to drive their car. In his 

petition, Matysyuk did not allege that Igor was incompetent due to his age or 

inexperience. Instead, Matysyuk’s petition alleged only that Igor was incompetent 

“due to his habitual reckless driving behavior.” The Pantyukhins’ summary 

judgment motion contended that the undisputed facts failed to establish Igor’s

habitual recklessness.

“Proof of the entrustee’s incompetence is essential to establish liability under 

the doctrine of negligent entrustment.” Evans, 555 S.W.2d at 326–27 (citation and 

internal quotation marks omitted). “Incompetence of the [entrustee] may be shown 

by specific acts of carelessness and recklessness committed by him.” Lix v. Gastian, 

261 S.W.2d 497, 500 (Mo. App. 1953) (citations omitted). To establish that an 

entrustee was incompetent by reason of habitual recklessness, “it must be shown 

that the reckless conduct of the [entrustee] was so constantly committed as to 

constitute a habit of negligence.” Id. (citations omitted). Therefore, “proof of a 

single accident, even though accompanied by negligence, is not sufficient to 

establish habitual recklessness.” Peters v. Henshaw, 640 S.W.2d 197, 200 (Mo. App. 

W.D. 1982); accord, Schneider v. Warr, No. 06-3252-CV-S-GAF, 2007 WL 9718150, 

at *3 (W.D. Mo. Sept. 19, 2007).

Igor’s prior accident in September 2011, more than three years prior to the 

accident in which Matysyuk was injured, is insufficient to establish Igor’s habitual

recklessness. See Portmann v. Stanley, 674 S.W.2d 678, 679-80 (Mo. App. E.D. 

1984) (affirming grant of summary judgment to parents who entrusted vehicle to 

son, where son had been involved in three prior accidents, but “[e]ach of these 

occurred more than two years before the collision now in issue”). Matysyuk’s Brief 

understandably emphasizes the severity of the 2011 accident, and of the injuries 

that resulted. But the severity of the 2011 accident cannot change the fact that it 
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was a single accident, more than three years prior to the current incident. That 

single accident cannot establish a habit of recklessness on Igor’s part.

Matysyuk also relies on Igor’s 2012 citations for failure to wear a seatbelt, 

and for failure to properly restrain minors in his vehicle, as proof of his habitual 

recklessness. “Missouri, with other states, recognizes that a history of traffic 

violations is powerful evidence that a driver is incompetent [by reason of habitual 

recklessness] and that a jury can find incompetence solely on the basis of numerous 

traffic convictions.” LeCave v. Hardy, 73 S.W.3d 637, 641 (Mo. App. E.D. 2002) 

(collecting cases). The temporal connection between the earlier traffic offenses and 

the accident causing the plaintiff’s injuries, as well as the frequency of the traffic 

offenses, are important when determining whether an entrustee was incompetent 

by reason of habitual recklessness. See Peters, 640 S.W.2d at 200 (“[I]t becomes 

most important to determine when the offenses charged to [the entrustee] took 

place.”).

Igor’s citations in 2012 for seatbelt-related offenses cannot establish his 

habitual recklessness. These offenses occurred on a single occasion, more than two 

years before the relevant accident. Further, the circumstances underlying the 2012 

citations are entirely different from the circumstances of the accident in which 

Matysyuk was injured. 

Matysyuk also argues that the fact that Igor was listed as an excluded driver 

in the Pantyukhins’ automobile liability insurance policy is evidence that Igor was 

incompetent to drive. The Eastern District rejected the argument that failure to 

maintain required insurance established habitual recklessness in LeCave. The 

court explained:

The failure to obey the Motor Vehicle Financial Responsibility 

Law cannot serve as the basis for a claim of active negligence because 

there is no causal relationship between the failure to purchase 

insurance and the act of negligently operating a vehicle. In other 
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words, the absence of insurance is not a cause in fact or a contributing 

cause of an accident.

73 S.W.3d at 644 (citations omitted). This reasoning from LeCave applies with even 

greater force in this case, since the Motor Vehicle Financial Responsibility Law 

expressly authorizes vehicle owners to exclude designated household members from 

the owners’ automobile liability insurance policies. See § 303.190.2(3), RSMo.

While the fact of Igor’s exclusion from the Pantyukhins’ insurance policy does 

not alone establish incompetence, LeCave recognized that “the circumstances 

causing a driver to be uninsured may be evidence that a driver is incompetent.” 73 

S.W.3d at 644. “For instance, if insurance companies refuse to insure a driver 

because he is too high a risk, or if he can obtain insurance only by paying an 

exorbitant premium, this may be evidence that provides notice to those aware of his 

uninsured status that he may be incompetent.” Id. In this case, however, there is 

no evidence in the summary judgment record regarding the reasons why Igor was 

excluded from coverage under the Pantyukhins’ insurance. The record is also silent 

as to whether Igor carried his own insurance. The fact that the Pantyukhins listed 

Igor as an excluded driver in their insurance policy does not, by itself, create a 

material question of fact as to whether Igor was incompetent to drive.

LeCave is clearly distinguishable. In that case, at the time of the relevant 

accident, the son to whom a father entrusted a vehicle was twenty-one years old. 

Id. at 640.

Between the ages of 16 and 21 [the son] incurred convictions for seven 

speeding violations, one “following too close” violation, and one 

“careless and imprudent” violation. Two weeks before the accident [the 

son] was again ticketed, resulting in a conviction for speeding. [The 

son’s] license had previously been suspended and he had a mandatory 

insurance suspension.

Id. In addition to the son’s ten traffic violations (two of which occurred in the six 

months before the accident), his license had previously been suspended, and it was 

“uncontroverted that [the father]’s insurance company had specifically excluded [the 
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son] from its coverage of [the father]’s vehicles and that [the son] carried no

insurance of his own.” Id. at 640, 643. Based on the son’s driving record and the 

circumstances underlying his failure to carry insurance, the Eastern District held 

that there was a material question of fact regarding whether the son was competent 

to drive an automobile. Id. at 644.

Unlike in LeCave, in this case the summary judgment record contains 

evidence of only two separate incidents, the most recent one occurring more than 

two years before the accident underlying this lawsuit. Unlike in LeCave, in this 

case the summary judgment record lacks any evidence concerning the 

circumstances surrounding Igor’s exclusion from his parents’ insurance, or 

concerning whether he carried insurance of his own. Because there is no evidence 

in the record that Igor did not maintain his own insurance, Matysyuk’s claim that 

the Pantyukhins violated Missouri’s Motor Vehicle Financial Responsibility Law by 

allowing Igor to drive their vehicle is unsupported. 

Matysyuk’s brief also refers to traffic citations received in November 2016 by 

another child, while he was driving the Pantyukhins’ vehicle. Those citations postdate the accident at issue here by more than two years, and involve a different 

person to whom the Pantyukhins apparently entrusted a different family vehicle. 

The 2016 citations cannot establish a triable issue on Matysyuk’s negligent 

entrustment claim.

The circuit court did not err in granting summary judgment in favor of the 

Pantyukhins on Matysyuk’s negligent entrustment claim. Point I is denied.

Conclusion

The judgment of the circuit court is affirmed.
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Alok Ahuja, Judge

All concur.