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Missouri Court Decisions and Personal Injury Law Updates | Daniel E Stuart | Personal Injury Attorney | Leawood

Action for Disclosing AIDS Discussed
Statutes create a confidential relationship between health care provider and patient and allow an action for breach of duty. That remedy is adequate so no equitable remedy applies. Defendant is a laboratory, not a health care provider, so action does not need affidavit under malpractice statute. Statutes allow release of test results on written authorization, but affirmative defense instruction must stand on substantial evidence of written authorization. Jurors' note showed that they were confused, which shows prejudice. No evidence showed that parent corporation was liable for action of subsidiary.
John Doe 1631, Appellant, vs. Quest Diagnostics, Inc., and Quest Diagnostics Clinical Laboratories, Inc., d/b/a Quest Diagnostics, Respondents, and LabOne, Inc., Defendant.
(Overview Summary)
Missouri Supreme Court - SC92790

Respondeat Superior, Direct Negligence, Punitive Damages Exception
Injury occurred in Kansas but each party was Missouri domiciliary, which determines the “mo[re] significant relationship ” when “the conflict involves a rule of recovery or question of compensation [.]” Plaintiff alleging injuries by employee may seek damages against employer for direct negligence, unless employer admits liability under respondeat superior because, then, further evidence of negligence is superfluous. But evidence of direct negligence remains relevant when plaintiff also seeks punitive damages against employer, so then plaintiff may seek direct negligence damages against employer. To do so requires prayer for relief and supporting allegations. When no party challenged those allegations’ sufficiency, circuit court erred in denying the claim by summary judgment. Defendants did not show that intervening conduct of plaintiff was superseding cause of injury.
Robin J. Wilson vs. Image Flooring, LLC, and Brandon Rapp
(Overview Summary)
Missouri Court of Appeals, Western District - WD75141 and WD75142

Negligent Misrepresentation Negated
Elements of claim for professional's negligent misrepresentation include: in the course of professional's business with specific persons in a specific transaction, professional gave information that was false for lack of due care, on which those persons reasonably relied to their detriment. Reliance depends on whether the information was a material factor in decision on the matter advised. Because plaintiff did its own investigation before making a decision on whether to buy workers' compensation insurance, plaintiff could not show reliance on insurance seller's advice.
ABC Seamless Siding & Windows, Inc. vs. Brian K. Ward, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD75361

FELA Claim Judicially Estopped
In bankruptcy action, debtor must disclose all claims, including those arising after confirmation of repayment plan. Omission from bankruptcy schedules of claim against employer under Federal Employers Liability Act, without evidence of inadvertance and without re-opening of bankruptcy claim, supports judicial estoppel of that claim. When movant for summary judgment establishes facts supporting defense, non-movant can only avoid judgment by producing admissible evidence raising a genuine dispute as to facts material to defense.
Harrison H. Strable, Jr., Plaintiff/Appellant, vs. Union Pacific Railroad Co., Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97849

Proof of Causation Absent
Violation of Locomotive Inspection Act establishes a breach of duty under Federal Employers Liability Act but does not establish injury's causation. Causation must stand on expert testimony that, absent from the record, results in no submissible case, so circuit court did not err in directing verdict for defendant. Motion in limine preserved error as to rulings on evidence of benefits but not eligibility for retirement.
Stephen Payton, Plaintiff/Appellant, v. Union Pacific Railroad Company, Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97480

Passenger Had No Duty
Passenger had no duty to plaintiffs under theories of direct negligence, agency of driver for passenger as principle, or action in concert, under facts established and undisputed. Since passenger had no liability, whether insurance covered his liability is moot. Partial judgment resolved all claims as to passenger and so was properly certified for appeal.
SAFE AUTO INSURANCE COMPANY, Plaintiff-Respondent, vs. EVAN HAZELWOOD, and JESSICA HAZELWOOD, Defendants-Appellants, TERRY BREIDENSTEIN, Defendant-Respondent and CARDL CASEY, Defendant.
Missouri Court of Appeals, Southern District - SD31928 and SD31929 (consolidated)

Airplane Product Liability Case Discussed
Statute provides that settlement with joint tortfeasor reduces award, but also requires pleading as an affirmative defense, which conclusory pleading and no evidence at trial did not raise. Rule supported a tempered sanction for defendant’s discovery violation that prejudiced plaintiff’s presentation of case; failure to protest sanction waived point on appeal. Statute allows plaintiff to recover damages that plaintiff’s decedent experienced before death including 52 seconds between when airplane lost an engine and when airplane crashed. Curative instruction remedied reference to incidents not sufficiently similar to be admissible in evidence. Evidence supported a submissible case that defective airplane parts caused crash. Circuit court did not abuse its discretion in excluding defendant’s alternative theory of causation because it was speculative, especially when circuit court allowed evidence of airplane’s maintenance. Evidence of safety certification rebutted no allegation, so circuit court properly excluded it, and that argument did not preserve argument that safety certification established non-defective condition. Evidence supported compensatory damages awarded. Punitive damages in a product liability action require clear and convincing evidence that defendant knew of defect.
Susan Delacroix, et al., Respondents/Cross-Appellants, vs. Doncasters, Inc., Appellant/Cross-Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97375

Release of Future Negligence Valid
Release sufficiently identified by classification “any” persons released, and the future claims released, and so included future sponsors.
Colleen M. Holmes, and Rick W. Holmes, Plaintiffs/Appellants, v. Multimedia KSDK, Inc., Lynn Beall, and Michael Shipley, Defendants/Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED98466

Secondary Implied Assumption of Risk Applied to Hot Dog
Evidence did not support instruction on primary assumption of the risk because, while every spectator at a baseball game assumes the risk of getting hit by a baseball, the same is not true of getting hit by a hot dog. Mascot flung hot dogs wrapped in foil to spectators in arena, striking plaintiff’s eye, causing injury. Evidence that plaintiff turned away from mascot for a moment supported an instruction on plaintiff’s comparative fault under the doctrine of secondary implied assumption of risk. “[W]here the plaintiff alleges [an] injury . . . caused not by an inherent risk, but by the defendant’s negligence [,]” “[t]he question of the plaintiff’s voluntary encounter of the risk, and the reasonableness of doing so, may properly be submitted as comparative fault to the jury.” Employee’s actions can render employer liable through either vicarious liability or employer’s negligent supervision and training, but not both, so circuit court did not wrongfully refuse instruction on employer negligence.
John Coomer vs. Kansas City Royals Baseball Corporation
(Overview Summary)
Missouri Court of Appeals, Western District - WD73984 and WD7404

Funds Transmuted
Appellant did not show that he lacked notice or time to retain replacement counsel, and circuit court did not err in denying continuance that appellant did not want, though appellant’s attorneys withdrew from representation. Record supported finding that appellant made a gift of property to spouse, classifying it as separate property; and, even if it didn’t, misclassification does not show prejudice by unfair division of property. Failure to object to evidence of property values waives the matter for appellate review. Appellant’s commingling of separate funds with marital funds transmuted separate funds into marital property. Peti tion for temporary restraining order did not modify, or determine any issue in, motion for relief pendente lite.
Susan E. Bowman, Respondent, vs. Gerard L. Prinster, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED94509

Defects in Brief Require Dismissal
Failure to comply with rules regarding points relied on, standard of review, legal authority, and appendix, require dismissal.
William B. Fazio, Appellant, vs. Stacey L. Wolf, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97568

Punitive Damages Award in Tobacco Case Reversed Again
Clear and convincing evidence of evil motive or reckless indifference is necessary to support and award of punitive damages. On strict liability product defect claim evidence of purposefully promoting addition met that standard. Defense, that cross-appellant’s cigarettes were no worse than others, was barred by law of the case. Statute on punitive damages bifurcates trial and “clearly and unambiguously mandates complete identity between the defendant in the first phase of trial and the defendant in the second phase.” Entering evidence—suggesting liability of another entity was beyond scope of Court of Appeals’ mandate and prejudiced appellants. Continuing objection preserved that issue.
Lincoln Smith, et al vs. Brown & Williamson Tobacco Corporation
(Overview Summary)
Missouri Court of Appeals, Western District - WD71918 and WD71919

Reasonable Inferences Bar Summary Judgment
Lease language did not establish whether landlord or tenant had control over site of plaintiff customer’s injury, and therefore the duty of care toward plaintiff, so it did not support summary judgment. Plaintiff’s inability to point out exact spot on defendant’s premises where she twisted her ankle did not show that she would be unable to establish an element of her negligence claim. Plaintiff’s evidence supported an inference as to where injury occurred. “A fact-finder may not give Plaintiff the benefit of such inferences at trial, but courts must do so on summary judgment.”
CARMENCITA TIGER, Appellant, vs. QUALITY TRANSPORTATION, INC., RED DOOR STORAGE, LLC, BAUMER'S INC., and DAVID P. BAUM, Defendants, and BAUMER'S INC., Respondent.
Missouri Court of Appeals, Southern District - SD31693

Entrustee’s Survivors Have Action for Negligent Entrustment
One who entrusts another with a chattel, knowing that the other is not competent to handle it, may be liable for damages resulting from negligent entrustment. Incompetence includes known habitual drunkenness. The action accrues to the person entrusted if damaged. If negligent entrustment causes entrustee’s death, wrongful death statute provides that such action. “[A] person who negligently entrusts a motor vehicle to another may be held liable for the entrustee’s injuries, even when no third party was injured, when the entrustor should have known that the entrustee would drive while intoxicated.” Whether alleged entrustor or alleged entrustee had control over use of vehicle, and degree of comparative fault, are for finder of fact to determine. To those common law principles, Dram Shop Act is a statutory exception.
Brody Hays, et al vs. Francis M. "Pete" Royer, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD74772

No Co-Worker Duty of Care to Provide Safe Workplace
Workers' compensation statutes do not affect “rights and remedies of an injured person against co-employees ‘available at common law.’” Petition alleged that death of plaintiff’s decedent was the result of negligence by co-workers. Co-workers may be liable for breaches of duty that exist independent of master-servant relationship, but breach alleged was duty to provide a safe workplace, which is employer's. That duty is non-delegable in the sense that liability cannot leave employer and cannot attach to managers. Therefore, petition failed to state a claim for which circuit court could grant relief. Rule bars “multiple contentions not related to a single issue” from point relied on.
Patricia Hansen vs. Randy Ritter and Randy Snyder
(Overview Summary)

Kansas Time Limit, Missouri Test, Applied
Statute provides that time limit applicable for bringing action in Missouri is time limit of state where action accrued. Action accrued in Kansas; so Kansas two-year limit applies. Time starts to run when, to a reasonable person, some--but not all--injury was capable of ascertainment. Record shows that a reasonable person could ascertain some injury from car collision when car collision occurred. Occurrence was beyond time for filing. Mandamus issues "to prevent unnecessary and expensive litigation."
STATE OF MISSOURI ex rel. OLD DOMINION FREIGHT LINE, INC., Relator vs. THE HONORABLE DAVID C. DALLY, TWENTY-NINTH JUDICIAL CIRCUIT, JASPER COUNTY, MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD31711

Multiple Tortfeasor Causation Discussed
In action alleging multiple tortfeasors, test of causation in fact is "substantial factor" if more than one defendant's conduct was enough to cause injury independently. Otherwise, test is whether defendant's conduct contributed to the injury's occurrence, the test called "but for." But-for causation, if shown, raises an issue of fact. No issue of fact was present on evidence that defendant manufactured both a dangerous product and a safe product, even by implication from evidence that dangerous product was used in most projects. Causation in law, also called "proximate cause" is a question of law. "The test is not whether a reasonably prudent person would have foreseen the particular injury, but whether, after the occurrences, the injury appears to be the reasonable and probable consequence of the act or omission of the defendant." Use of approved instruction describing causation was mandatory. Without record of evidence that was subject of withdrawal instruction, Court of Appeals cannot review denial of that instruction. Statute, which provides that settlement amount agreed between plaintiff and settling defendant reduces liability of non-settling defendant, applies to amount agreed but not received from bankruptcy trust, but not to amount available but not agreed. Partial reversal on issue of causation requires reapportionment of liability on remand--but not as to defendant as to whom judgment is final.
Lois J. Wagner, Robin G. Wagner and Wende L. Wagner, Individually and as Wrongful Death Beneficiaries of Robert Wagner vs. Bondex International Inc., and Simpson Timber Company Conwed Corporation, Defendant
(Overview Summary)
Missouri Court of Appeals, Western District - WD72474 and WD72482 and WD72619

Waiver of Physician/Patient Privilege Limited
Rule and statute bar physician from testifying as to information gathered from patient to treat patient for condition. Plaintiff filing action based on complaint waives privilege as to condition on which action is based, but no other, so protective order limiting subpoena duces tecum as to time was reasonable. Failure to object to evidence of future medical needs at circuit court waives error at Court of Appeals, and other evidence supported damages for future medical care. Objection at circuit court on one basis preserves no other basis at Court of Appeals. Failure to offer withdrawal instruction waives instructional error. Jury may award damages for future medical needs. Jury verdict is not subject to impeachment on matters inherent to verdict by affidavit and affidavits of appellant did not impeach verdict.
Cheryl Westerman vs. Barbara Shogren
(Overview Summary)
Missouri Court of Appeals, Western District - WD74066

Theory of Recovery Must Appear in Petition
In their petition, plaintiffs charged that defendant employer's negligence caused co-defendant employee to stab plaintiff. But employer established undisputed facts showing that stabbing occurred on employee's own vendetta and not in the course of employer's business. In response to defendant employer's motion for summary judgment, plaintiffs charged that employment helped employee stab plaintiff, but did not amend petition to include that theory. Circuit court correctly entered summary judgment on petition in employer's favor, and did not address the latter theory, so the latter theory is not subject to appeal.
KERRY INMAN and TINA INMAN, Plaintiffs-Appellants, vs. NICHOLAS DOMINGUEZ, Defendant, and CON-WAY TRUCKLOAD, INC., d/b/a CONTRACT FREIGHTERS, INC., Defendant-Respondent
Missouri Court of Appeals, Southern District - SD31441

No State Legal Defense Fund Coverage
Statutes provide that State Legal Expense Fund ("Fund") must pay judgments against employees of State agencies, which includes Kansas City Board of Police Commissioners, upon notice to Attorney General. Tardy tender—after claim is lost—exempts judgment from Fund coverage.
Gregory Sherf vs. Chris Koster, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD73952

Property Broadly Defined for Sovereign Immunity
Petition alleged injury caused by condition of street, drainage pipes, and drainage ditch that were part of city's fee-for-use storm water drainage system. Such allegations describe a proprietary function—one that benefits city itself rather than its citizens—which is not subject to sovereign immunity. Petition did not allege ownership of all such property but alleged "that the City 'exercised possession and control rising to the level of an ownership interest' over the area in question" so petition stated a cause of action.
Angela Phelps, et al vs. City of Kansas City, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD74287

City Liable for Employee's Wreck
In action against employer, plaintiff need not name employee as defendant. Public duty doctrine, immunizing government employee from personal liability, does not alter statutory waiver of sovereign immunity for government employer for injuries caused by employees "directly resulting from the negligent acts or omissions . . . arising out of the operation of motor vehicles . . . within the course of their employment."
Derrick J. Benson vs. Kansas City Missouri Board of Police Commissioners
(Overview Summary)
Missouri Court of Appeals, Western District - WD74283

Fake Reviews Lead to Defamation Action
Respondent presented enough evidence for jury to find that appellant's defamatory fake reviews on Google and Yahoo caused respondent to lose business. Award of $1 in actual damages and $150,000 in punitive damages therefore had support. "Reviewing courts examine what the jury found, not the possible or even probable reasoning it used" including whether jury intended nominal damages. Such award was not so grossly excessive as to violate constitutional provisions.
The Fireworks Restoration Company, L.L.C., Respondent, vs. Michael D. Hosto, et al., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97181

Genuine Dispute Remains
Statute requires train to sound an audible signal. In negligence action, on defendants' motion for summary judgment, defendants testified that they complied with statute and plaintiff testified that she heard no signal. On that record a genuine issue of material fact remains, which does not call for circuit court to resolve by determining credibility but calls for denial of motion. "On a motion for summary judgment, the court is not authorized to determine the credibility of conflicting testimony under oath, but rather, resolution of those matters is for the fact finder at a complete trial."
AMBER HALE f/k/a AMBER KOESTER, Appellant vs. STEVE E. WAIT, LANCE V. FROST, and BNSF RAILWAY COMPANY, Respondents
Missouri Court of Appeals, Southern District - SD31536

Causation is an Issue of Fact
Denial of a motion for judgment notwithstanding the verdict does not call for re-weighing of evidence on appeal. "[T]he mere fact that injury follows negligence does not necessarily create liability; a plaintiff must show the negligence was the proximate cause of the injury." "The test is not whether a reasonably prudent person would have foreseen the particular injury but whether, after the occurrences, the injury appears to be the reasonable and probable consequence of the act or omission by the defendant." Substantial evidence supported a finding that respondent's negligence did not alone cause respondent's injuries, and that appellant's negligence also caused respondent's injuries. Jury decides relative degree of fault.
WILLIAM HARGIS and MARY HARGIS, Plaintiffs-Respondents v. RANDALL LANKFORD, Defendant/Third-Party Plaintiff-Respondent and DARREL ROUTLEDGE, Defendant/Third-Party Defendant-Appellant
Missouri Court of Appeals, Southern District - SC31215

Stretch of Road Does Not Support Class Certification
Rule allows certification of class if, among other things, matters of fact or law in common among proposed class members predominate over their individual issues. For personal injury actions, variation in issues of causation often makes claims unsuitable for class certification. In traffic accident claims, concurrent negligence based on circumstances of speed, road condition, and lighting confuse the issues further. Because "multiple causation determinations" will be necessary to prove almost every claim, circuit court abused its discretion in certifying class of persons injured on highway.
SHERRY SMITH and DONNA TRIPLETT, Plaintiffs-Respondents, v. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD31590

Wrong FELA Instruction Offered
Federal Employers' Liability Act includes liability by respondeat superior, which includes proof that action done negligently occurred in furtherance of superior's instructions. Plaintiff had a right to submit an instruction on that theory to jury, but only a lawful instruction, and circuit court had no duty to draft lawful instruction when plaintiff did not. Circuit court did not err in sending case to jury only on theory of direct liability.
Eddie Cluck, Appellant vs. Union Pacific Railroad Company, Respondent.
(Overview Summary)
Missouri Supreme Court - SC91617

Defamation Discussed
Defendant responded to insurer's inquiry in good faith, consistent with release signed by appellant, which negated the malice element of defamation and the "without justification" element of tortious interference with business expectancy. Missouri constitution provides that essential truth of communications is an absolute defense to defamation actions so, an accurate report of another's findings is not defamatory, and the truth of the findings themselves is irrelevant. After 11 months and the filing of a motion for summary judgment, circuit court did not abuse its discretion in denying more time for appellant to do discovery on immaterial facts. Whether facts state a claim, not brought in circuit court, is not grounds for appeal in Court of Appeals.
T. Lee Nigro, M.D. vs. St. Joseph Medical Center and Sheryl Davis
(Overview Summary)
Missouri Court of Appeals, Western District - WD73810

Family reaches $6 million settlement with railroad for wrongful death
March 30th, 2012

The family of a Chicago dance instructor who was killed at a railroad crossing in University Park, Ill., almost two years ago has reached a $6 million settlement with the railroad company.


Jury returns $4.2 million verdict against doctor
March 30th, 2012

A Lackawanna County, Penn. jury has returned a $4.2 million verdict against a physician whose patient suffered a series of strokes that left her with severe memory loss and partial blindness.

Insured and Excluded Risks Separate Causes
If two events, one excluded and the other covered, each constitute a "separate and distinct" cause of injury, exclusion of the one will not bar coverage of the other. Malpractice policy excluded liability for any person's sexual conduct. Plaintiff alleged that, after insured failed to supervise employee, employee sexually assaulted plaintiff. Plaintiff alleged that failure to supervise proximately caused plaintiff's injury separately and concurrently with employee's conduct. In insurer's declaratory judgment action, insurer failed to negate such causation.
INTERMED INSURANCE CO., Plaintiff-Respondent vs. DOYLE B. HILL, D.O., HARTVILLE MEDICAL CENTER, P.C., and JEFFREY DAVID MARTIN, Defendants-Respondents, and PENNY L. BOYCE, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD31306

No Liability for Off-Duty Conduct
In action under Federal Employers' Liability Act, employer had no liability for injuries to claimant caused by drunk off-duty co-worker's assault, because drunk off-duty co-worker's assault was not reasonably foreseeable.
Jason D. Morgan, Plaintiff/Appellant, v. Union Pacific Railroad Co., Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97130

Official Immunity No Defense to Comparative Fault
Official immunity does not apply when an official sues a defendant, and evidence supports a comparative fault instruction, because official immunity only negates official's liability to another, and leaves duty and breach intact. Defendant's release of plaintiff did not waive defense to plaintiff's action. Evidence of plaintiff's speed, other than when accident occurred, was relevant as background to wreck. An "objection . . . sufficiently clear and definite [so] that the trial court will understand the reason for the objection" preserves error in ruling. Amount of damages awarded does not show prejudice to plaintiff.
Melissa K. Walley and Thomas Walley vs. La Plata Volunteer Fire Department, La Plata Rural Fire Protection Association and The City of La Plata
(Overview Summary)
Missouri Court of Appeals, Western District - WD72615

Verdict of 100% Fault Affirmed
Plaintiff did not object to evidence until it was already cumulative and cumulative error is not prejudicial. Preserving error requires making objection, obtaining a ruling on it, and including issue in motion for new trial. When, on objection, circuit court provides remedy and objecting party asks nothing more, issue is waived. Hearsay is admissible as grounds for expert opinion. Evidence that plaintiff driver did not look over his shoulder when making left turn supported an instruction for comparative fault. "Any error in submitting a comparative fault instruction is harmless when the jury returns a verdict attributing one hundred percent fault to the complaining party." Presence of evidence contrary to verdict does not require circuit court to grant motions for judgment notwithstanding the verdict of for new trial.
John Rouse vs. Keith Cuvelier, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD73653

Cause to Extend Time for Filing Petition Not Shown
Statute requires that, on filing of medical malpractice petition, plaintiff must file a supporting affidavit within 90 days. Statute also allows an extension of time for good cause. Motion stated no cause so circuit court was not required to grant it. Without statutory requirement, petition was subject to dismissal.
James P. Howard, Appellant, vs. SSM St. Charles Clinic Medical Group, Inc., and Rodrigo Goh, M.D., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97312

Health Care Time Bar Inapplicable
Statute sets two-year limitation on actions "for damages for malpractice, negligence, error or mistake related to health care[.] "Appellant charged that health care providers' negligence related to mental patient resulted in patient injuring her. Those allegations related to health care of patient are within statute and were time-barred. Those related to failure to warn are not related to health care, not within the statute, and not time-barred.
Vincetta Spero vs. Sylvia Mason, et al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD74016

Damage Cap Okay
In wrongful death action, but-for causation excludes conduct that did not contribute to death, and proximate causation excludes conduct that contributed to death only in an unexpected way. To preserve an issue for a motion for judgment notwithstanding the verdict, a motion for directed verdict is necessary, but whether it must occur—at the close of plaintiff's evidence or at the close of all evidence—depends on the issue. Statute provides foundation for entering expert's testimony into the record and, once entered, such evidence may make a claim submissible. On appeal, challenge to admissibility is too late and does not address whether claim was submissible. During closing argument, when circuit court grants all relief sought, no issue is preserved for appeal. Wrongful death is a purely statutory action so it is subject to statutes that cap non-economic damages and allow periodic payment of past damages. Those statutes do not violate Missouri constitution's provisions for separation of powers and jury trial. "The General Assembly has the right to create causes of action and to prescribe their remedies [and] may negate causes of action or their remedies that did not exist prior to 1820." After application of statutory cap on non-economic damages, circuit court has discretion to characterize all remaining award as past damages. Denial of directed verdict and JNOV are subject to same standard on appeal—to reverse a verdict there can be no substantial evidence supporting it. Statute creates an affirmative defense of settlement with joint tortfeasors for defendant to reduce damages award and presumes that settling party and non-settling party are jointly liable. Denying defendant discovery on settlement terms will not work to defendant's prejudice. Plaintiff may rebut presumption and show that settlement and award were for separate injuries.
Ronald Sanders, Appellant/Cross-Respondent, vs. Iftekhar Ahmed, M.D., Respondent/Cross-Appellant, and Iftekhar Ahmed, P.A., Respondent/Cross-Appellant.
(Overview Summary)
Missouri Supreme Court - SC91492

Family reaches $6 million settlement with railroad for wrongful death
March 30th, 2012 - The family of a Chicago dance instructor who was killed at a railroad crossing in University Park, Ill., almost two years ago has reached a $6 million settlement with the railroad company.

Jury returns $4.2 million verdict against doctor
March 30th, 2012 - A Lackawanna County, Penn. jury has returned a $4.2 million verdict against a physician whose patient suffered a series of strokes that left her with severe memory loss and partial blindness.

Genuine Dispute Remains
Statute requires train to sound an audible signal. In negligence action, on defendants' motion for summary judgment, defendants testified that they complied with statute and plaintiff testified that she heard no signal. On that record a genuine issue of material fact remains, which does not call for circuit court to resolve by determining credibility but calls for denial of motion. "On a motion for summary judgment, the court is not authorized to determine the credibility of conflicting testimony under oath, but rather, resolution of those matters is for the fact finder at a complete trial."
AMBER HALE f/k/a AMBER KOESTER, Appellant vs. STEVE E. WAIT, LANCE V. FROST, and BNSF RAILWAY COMPANY, Respondents
Missouri Court of Appeals, Southern District - SD31536

Medicare set-aside account divisible in divorce
March 19th, 2012

A wife in a divorce was entitled to a percentage of the husband's workers' compensation settlement that was placed in a Medicare set-aside account, the Illinois Appellate Court has ruled in affirming a $12,250 award.

Read the court's opinion: Washkowiak v. Washkowiak

Multiple amputee wins $18 million in settlement
March 5th, 2012

A Brooklyn mother who had her hands and legs amputated has won a $17.9 million settlement from the city and a hospital.

Landlord Immunity Doctrine No Help
Failure to raise defenses waived them. Late amendment of pleadings included opportunity to amend answer to ad defense. “Absent a proper motion for directed verdict, a motion for JNOV preserves nothing for appellate review.” Evidence showing that ordinance was in effect on a certain date supports an implication that it continued in effect. Landlord immunity doctrine protects landlord from common law liability to tenant’s business invitees but not from requirements of building code ordinance: failure to report elevator accident. Evidence showed knowledge of a reportable incident and proximate causation of injuries.
Dale E. Lewis vs. Mary Biegel
(Overview Summary)
Missouri Court of Appeals, Western District - WD72049 and WD72088

Official Immunity Inapplicable
Official immunity protects government employee from tort liability when exercising discretion. But ambulance district’s emergency medical technician protocols left no discretion to employee, and mandated certain procedures under certain facts, rendering those procedures a ministerial duty. Circuit erred in granting summary judgment in employee’s favor.
Lee Richardson, as Wife of Stanford Richardson, Sr., Deceased, Appellant, vs. Bryan Burrow, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97002

Wrongful Death Apportionment Affirmed
In action for wrongful death, statute provides factors under which circuit court shall apportion damages award among survivors. Record contains evidence that supports circuit court findings—some undisputed—that support apportionment and Court of Appeals does not re-weigh evidence.
Anglea Kay Wood, Donald Lee Odell Wood, Robert Allen Wood, Plaintiffs/Appellants, Sandra K. Wood, Plaintiff/Respondent, v. Kyle A. Smith and City of Warrenton, Defendants/Defendants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED96141

Official Immunity No Defense to Comparative Fault
Official immunity does not apply when an official sues a defendant, and evidence supports a comparative fault instruction, because official immunity only negates official's liability to another, and leaves duty and breach intact. Defendant's release of plaintiff did not waive defense to plaintiff's action. Evidence of plaintiff's speed, other than when accident occurred, was relevant as background to wreck. An "objection . . . sufficiently clear and definite [so] that the trial court will understand the reason for the objection" preserves error in ruling. Amount of damages awarded does not show prejudice to plaintiff.
Melissa K. Walley and Thomas Walley vs. La Plata Volunteer Fire Department, La Plata Rural Fire Protection Association and The City of La Plata
(Overview Summary)
Missouri Court of Appeals, Western District - WD72615

Verdict of 100% Fault Affirmed
Plaintiff did not object to evidence until it was already cumulative and cumulative error is not prejudicial. Preserving error requires making objection, obtaining a ruling on it, and including issue in motion for new trial. When, on objection, circuit court provides remedy and objecting party asks nothing more, issue is waived. Hearsay is admissible as grounds for expert opinion. Evidence that plaintiff driver did not look over his shoulder when making left turn supported an instruction for comparative fault. "Any error in submitting a comparative fault instruction is harmless when the jury returns a verdict attributing one hundred percent fault to the complaining party." Presence of evidence contrary to verdict does not require circuit court to grant motions for judgment notwithstanding the verdict of for new trial.
John Rouse vs. Keith Cuvelier, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD73653

Cause to Extend Time for Filing Petition Not Shown
Statute requires that, on filing of medical malpractice petition, plaintiff must file a supporting affidavit within 90 days. Statute also allows an extension of time for good cause. Motion stated no cause so circuit court was not required to grant it. Without statutory requirement, petition was subject to dismissal.
James P. Howard, Appellant, vs. SSM St. Charles Clinic Medical Group, Inc., and Rodrigo Goh, M.D., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97312

Railroad employee wins $4.5M for foot injury
February 28th, 2012

A Roanoke, Va. jury has awarded $4.5 million to a 43-year-old former railroad worker who claimed his on-the-job foot injury led to permanent pain and disability.

Prestera Center has agreed to pay $1 million to settle a lawsuit alleging that workers at the center's Dunbar, W.Va. inebriation shelter caused a man's death by failing to notice that he had overdosed on cocaine and other drugs.


Mental healthcare organization must pay $1 million in wrongful death
February 28th, 2012

Prestera Center has agreed to pay $1 million to settle a lawsuit alleging that workers at the center's Dunbar, W.Va. inebriation shelter caused a man's death by failing to notice that he had overdosed on cocaine and other drugs.

Auto insurer that denied coverage hit with $10 million bad faith verdict
February 15th, 2012

A jury has awarded $10 million to an Ohio couple whose insurer refused to pay their auto claim or provide a lawyer for their defense for hitting another car in an accident that killed one person and injured another.

Out-of-state defendants can't be sued for defamation
February 15th, 2012

Long-arm jurisdiction could not be exercised over out-of-state defendants who allegedly posted defamatory material about state residents on their website, New York's highest court has ruled in reversing the denial of a motion to dismiss.

Read the court's opinion: SPCA of Upstate New York v. American Working Collie Organization


Former deputy wins $178 million judgment against hospital
January 24th, 2012

A former Clay County, Fla. sheriff's deputy who retired after having serious complications after undergoing laparoscopic surgery in 2007 has won a multi-million dollar civil judgment against a Jacksonville hospital.

Intervention Is a Right in Wrongful Death
Statute provides action for wrongful death and defines who has right to bring it first. Any such person may join as a matter of right under rule on intervention.
Kevin Martin, D.O., Natural Guardian and Conservator for Blake Martin, Respondent, v. August A. Busch IV, Respondent, v. Larry Eby and Christine Trampler, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED96814

Psychiatric Records Relevant to Physical Injury
In FELA action, elements include causation of condition and injury, which defendant claimed was due to abuse and sudden cessation of drugs. That defense makes plaintiff’s psychiatric history, and records of psychiatrist relevant. That damages alleged are physical only, not psychiatric, does not change that.
State ex rel. BNSF Railway Company, Relator, vs. The Honorable Mark H. Neill, Respondent.
(Overview Summary)
Missouri Supreme Court - SC91706

 

Contractor Liable for Uneven Pavement
“[H]ighway contractors have a continuing and non-delegable duty to exercise reasonable care for the safety of the public using the highway” and following State’s instructions is no defense, master/servant doctrine notwithstanding. Record shows that uneven lanes can be dangerous and that appellant could have added appropriate signage. Damages correctly calculated to include respondent’s fault.
David Harlan vs. Apac-Missouri, Inc., et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD73637

Scope of Official Immunity Discussed
Official immunity immunizes public employees from negligence in performing official, but discretionary, acts absent a breach of “either a statutory or departmentally-mandated duty[.]” Such duty is not limited to statutes and regulations, and includes political subdivision’s rules, policies, and guidelines. Therefore, petition against public employee need not plead a violation of statute or regulation, and affirmative defense must plead and prove discretionary acts in violation of no statute, regulation, rule, policy, and guideline. “[S]upervisory conduct and policy making is discretionary and covered by official immunity.”
June P. Nguyen, et al vs. Grain Valley R-5 School district, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD73182

Health Care Affidavits Did Not Conform
Statute requires petition against health care professional to have supporting affidavit from a health care professional having statutorily-prescribed qualifications. Qualifications of affiant include practicing “substantially the same specialty as the defendant[,]” meaning the same procedure, or having retired from such practice in the last five years. Without such allegation, affidavit is inadequate as a matter of law and circuit court erred neither in striking affidavit nor in dismissing petition. University of Missouri Board of Curators has protection from tort liability under sovereign immunity.
Richard Kreutz Sr., Surviving Father of Richard Kreutz, Jr., Deceased, and Susan Kreutz, Surviving Mother of Richard Kreutz, Jr., Deceased vs. Curators of The University of Missouri, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD72964

FELA Instructions Okay
Statute of limitations under Federal Employers’ Liability Act for injury starts running “when the plaintiff knows or should have known in the exercise of reasonable diligence that he is injured and the cause of such injury.” Respondent had no reason to know that he had an injury because employer’s expert gave him none. Outcome of earlier claims was irrelevant. Proposed withdrawal instruction had no factual basis. Proposed instruction on apportionment of damages had no basis in law because “the FELA does not authorize apportionment of damages between . . . causes.” Proposed instruction on probable cause had no basis in law because FELA does not use that standard.
Lawrence Mickey, Respondent, vs. BNSF Railway Company, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED95110

Trustee’s Place in Litigation Limited
Circuit court jurisdiction over civil action comes from constitution and is unaltered by instructional error. No instructional error occurred when circuit court submitted instructions naming injured persons instead of their bankruptcy estate’s trustee. Circuit court did not err in excluding evidence of bankruptcy because “a plea of poverty ‘is immaterial to the issues of the case[.]’” Once judgment for defendant issued, motion to add new defendants for vicarious liability was moot.
Janice Stanton, U.S. Trustee for the Bankruptcy Estate of Anthony King and Sandra King vs. James Hart, D.O.
(Overview Summary)

Missouri Court of Appeals, Western District - WD73663

Special Errand Doctrine Discussed
“Coming and going rule” excludes travel to and from work from respondeat superior because such commute is the employee’s errand, not the employer’s. But special errand doctrine exempts travel done as “a specific journey, at a specific time and to a specific place, under potentially dangerous conditions, based solely on the needs of the [employer], and as the sole available means of furthering the [employer]’s interests.” Such facts entitle appellant to a judgment notwithstanding the verdict.
Phong Tran vs. Dave's Electric Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD71183

Rating System Was Opinion
If a statement has an innocent sense when considered without pleaded innuendo, the statement is not defamatory. True statements and opinions are not defamatory. Defendant’s rating system for plaintiff business was partly subjective so it constituted an inactionable opinion statement. “[S]tatements of opinion are protected by an absolute privilege even if the statements are ‘made maliciously or insincerely.’” Failure of defamation claim results in failure of dependent claim for tortious interference with business expectancy because latter action’s elements include an action independently wrong.
Castle Rock Remodeling, LLC, Appellant, v. Better Business Bureau of Greater St. Louis, Inc., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED96214

Negligent Infliction of Emotional Distress Elements not Changing
Elements of action for negligent infliction of emotional distress include an action in unreasonable risk of causing distress and an injury that is medically diagnosable and medically significant. Brief out of compliance with rules and devoid of meritorious theory supports an award of attorney fees against 18-time pro se appellant. Remanded to determine amount of award.
David L. Biersmith vs. Curry Association Management, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD73231

Indemnity Action Barred
Statute provides that settling tortfeasor is immune from any co-tortfeasor’s action for indemnity, except under contract or vicarious liability. Indemnity is a claim by one person against another person based on liability to a third person however denominated. Statute does not apply to any claim by one person directly based on liability to that person.
American National Property and Casualty Company vs. Ensz & Jester, P.C., et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD73401

Chiropractor Gets Hospital Lien
Statute creating hospital lien confines lien to certain institutions, but a separate statute applies lien to other institutions, without regard to charitable support.
Tarika Kelly Marie Espino vs. Marvin's Midtown Chiropractic, LLC
(Overview Summary)
Missouri Court of Appeals, Western District - WD72747 and WD72748

Snow Removal Contractor Owes Duty to Third Person
Contractual duty related to safety may create duty “to exercise reasonable care to prevent foreseeable harm to” third persons. Genuine dispute existed as to whether defendant properly executed that duty—snow removal—so circuit court erred in entering summary judgment. Circuit court did not plainly err in applying clearly phrased and prominently printed release of landlord liability in apartment lease.
Charles Abbott vs. Epic Landscape Productions, L.C., et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD72867

No Set-Off from Settlement on Separate Injury
Ruling on undisputed facts is a matter of law subject to de novo review. Statute provides that settlement by one joint tortfeasor reduces award against non-settling tortfeasors. Tortfeasors may be joint when separate actions cause a single injury. But separate injuries from separate causes, like “an original injury and an aggravation thereof” means that tortfeasors are separate, and statute does not apply.
Charmin Gibson, Respondent, v. City of St. Louis, City of St. Louis Water Department, and City of St. Louis Street Department, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED95949

Workers' Comp No Remedy for Disease
Statutory amendments make workers' compensation the exclusive remedy for a job-related accident, expressly exclude occupational disease from definition of accident, and require strict construction. “The legislature is presumed to have intended what the statute says, and if the language used is clear, there is no room for construction beyond the plain meaning of the law.” When workers' compensation is not the exclusive remedy, common law remedy lies in circuit court.
State ex rel, KCP&L Greater Missouri Operations Company vs. The Honorable Jacqueline Cook, Circuit Court Judge, 17th Judicial Circuit Court
(Overview Summary)
Missouri Court of Appeals, Western District - WD73462

Dram Shop Liability Discussed
In action under dram shop act, statute requires proof by clear and convincing evidence, but that makes no difference to analysis of summary judgment, because only a genuine dispute is needed to defeat motion. Plaintiffs’ “direct evidence, circumstantial evidence, and expert testimony” raised a genuine issue as to whether driver was visibly intoxicated when wreck occurred. Statutes render liability only for liquor license holder, so undisputed evidence that some defendants did not hold any license showed that those defendants could not be liable.
Lester Nokes, Appellant, Norma Robinson, Tony Gutierrez, Jackson Gutierrez and Eustolio Gutierrez, Appellants vs. HMS Host USA, LLC, HMS Host Corporation, Host International, Inc., LJA Enterprises, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD73055 Consolidated with WD73056

No Jury Misconduct Shown
Remedy for jury error depends on cause—new trial for misconduct and remittitur for honest mistake. Damage award for wrongful death of parent must include relationship with plaintiff, and appellant failed to show that excluded evidence, that decedent was disappointed with plaintiff, was relevant to plaintiff’s loss. Appellants did not show that plaintiff’s arguments caused, and jury inquiry demonstrated, jury misconduct as to calculation of damages.
J.E. EVANS, JR., and MAMIE CHILDS, Plaintiffs-Respondents vs. FIRSTFLEET, INC., and ADARA L. SMITH, Defendants-Appellants
Missouri Court of Appeals, Southern District - SD30624

No Affidavit, No Action
Independent physical examination under rule gives rise to physician/patient relationship. Physician’s examination of appellant included a range of motion test. Appellant alleged damages from such test. Such allegations state a malpractice claim based on a health care provider's provision of health care, for which statute requires an affidavit.
Sohrab Devitre, Appellant, vs. The Orthopedic Center of Saint Louis, LLC, Defendant, and Mitchell B. Rotman, M.D., Respondent.
(Overview Summary)

Missouri Supreme Court - SC90835

Registration of Foreign Nation’s Judgment Discussed
Federal statutes subject enforcement of foreign nation’s judgment on defamation claim to First Amendment considerations. Missouri statutes provide method for authenticating foreign nation’s judgment for registration. Circuit court must apply those statutes.
Leodegaria Sanchez Pontigon, Respondent, v. Udis Sanchez Lord, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED95677

Whether Insurance Applied was Ambiguous
Risk insured was in Texas, so Texas substantive law governs. Texas Garage insurance policy covered all vehicles that seller owned. Insurer’s letters denying liability did not estop or waive any defense theory. Undisputed facts do not establish whether sale occurred or not under Texas law, because Texas law provides that sale occurs depending on whether “the parties had the current intent to effect a sale,” and the established facts remain ambiguous on that issue.
Ericka J. Sauvain, Amy Leigh Sauvain, by Next Friend Ericka J. Sauvain, and Bonnie S. Hughes vs. Acceptance Indemnity Insurance Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD72343

Approved Instructions Contradictory
On issue of comparative fault, approved instructions for assessing fault, used according to notes on use, included differing standards on causation. Jury’s question showed that using those instructions confused the jury. Circuit court did not err in granting plaintiff’s motion for new trial.
Joyce C. Bean and Robert Kampert, Co-Conservators of the Estate of Sara Kampert, a Minor, and Joyce C. Bean and Robert Kampert, Co-Conservators of the Estate of Lacie Marie Kampert, a Minor, and Christopher Newbury, by and Through his Natural Mother and Next Friend, Tamara Newbury, and Robert Kampert and Barbara Kampert vs. Superior Bowen Asphalt Company, LLC.
(Overview Summary)
Missouri Court of Appeals, Western District - WD71638

Plaintiff’s Verdict Dangerous Condition of Property Upheld
On claim against city for dangerous design of intersection, expert testimony supported submissible case based on standards for traffic signal visibility. Whether sign placement met safety standards was a jury question on which record contained evidence supporting verdict. Statute governing admissibility of collateral source evidence provided no admissibility for Medicaid payments.
HUNTER LAMPE and SUMMER LAMPE, Plaintiffs-Respondents vs. BETTE J. TAYLOR and THE CITY OF SPRINGFIELD, MISSOURI, Defendants-Appellants
Missouri Court of Appeals, Southern District - SD29897

Statutory Interest Rate Applies
Voir dire questioning sought out fixed attitudes of panel and circuit court should have allowed it, but appellant showed no prejudice. Exclusion of cumulative evidence showed no prejudice. Circuit court properly applied existing Kansas law on negligence and punitive damages to events in Kansas. Statutory interest rate applied whether judgment mentioned it or not.
Natalie Adkins, et al. vs. Jill Hontz
(Overview Summary)

Missouri Court of Appeals, Western District - WD72549 and WD72550 and WD72751

Collateral Source Statute Discussed
Plaintiff’s Medicare coverage paid for her medical services at an amount less than the amount billed. Statute on collateral source rule creates presumption that value of medical services is amount required to satisfy providers, but allows rebuttal by evidence including amount billed. Rebuttal occurs on presentation of substantial probative evidence and creates a jury issue. Exclusion of evidence materially affected merits of plaintiff’s action, entitling her to new trial. Present damages also include possibility of need for future treatment.
Edith C. Deck, Appellant vs. Delmar Teasley, Respondent.
(Overview Summary)
Missouri Supreme Court - SC90628

No Appeal of Satisfied Judgment
For any one injury, plaintiff may have only one judgment against joint tortfeasors. Appellant plaintiff suffered a directed verdict in defendant insurer’s favor on phantom driver theory, obtained judgment against co-defendant driver, and received satisfaction of such judgment. Satisfaction of judgment against one joint tortfeasor precludes further action for single injury against phantom driver, and recovery from such person’s insurer.
HUGH BRYAN, Appellant vs. JOSEPH PEPPERS, Defendant, and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent
Missouri Court of Appeals, Southern District - SD30068

Comparative Fault in Failure to Follow Physician’s Instructions
On claim of physical injury due to fall, evidence that plaintiff departed from physician’s instructions for treatment supported an instruction on comparative fault. Such instructions cannot prejudice plaintiff when jury assesses zero percent fault to defendant and, thus, never reaches apportionment of fault.
JACK SKINNER, Appellant vs. LEGGETT & PLATT, INC., Respondent
Missouri Court of Appeals, Southern District - SD29869

FELA over Workers' Compensation
Common carrrier’s contractor was subject to FELA because contractor “performed a necessary part of [common carrier]’s total rail operation and undertook obligations of [common carrier]. Defense of workers’ compensation exclusivity is subject to summary judgment standard.
Joey Scott Luman vs. ITS Technologies & Logistics, LLC
(Overview Summary)
Missouri Court of Appeals, Western District - WD72010

Petition Re-Filed Too Late
Petitioner’s decedent died in 2003. Petitioner filed an action but dismissed it in 2007, and re-filed again in 2009. Action re-filed in 2009 was beyond three-year limitation for action based on death from malpractice, and one-year savings period for re‑filing after voluntary dismissal.
GEORGE BROWN, JR., Appellant vs. MISSOURI DELTA MEDICAL CENTER, Respondent
Missouri Court of Appeals, Southern District - SD30578

Waving Bicyclist Into Intersection May Be Negligence
Unidentified motorist is presumed uninsured. Record contains material raising a genuine issue as to whether unidentified motorist was negligent when she waved child to cross intersection into oncoming traffic.
Andrew Preston, and Rebecca Preston, Appellants, v. American Family Mutual Insurance Company, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED94294

No Official Immunity For EMTs
Official immunity protects public employees from liability for discretionary acts. But publicly-employed medical personnel are immune only when acting on a “true emergency”—when circumstances develop and change quickly—not when patient is stable. Defendants’ summary judgment reversed.
Deborah Thomas and Philip Thomas, Appellants, v. Michael Brandt, James Loehrer, Respondents, and Community Fire Protection District, Defendant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED94414

Reformed Policy Showed No Intent To Let Defendants Off
Third party beneficiary of contract may have standing to challenge reformation if they could have challenged an amendment based on a change of position in reliance on the contract. Mutual mistake is grounds for reformation. Evidence of originally intended wording and drafter’s testimony are not required. Burden of proof is a preponderance of evidence when all parties agree; otherwise clear, convincing and cogent evidence is required. Corporation’s employees may testify and have attorney-client privilege, without designation under rule, as to corporation’s purpose in reforming release to omit unintended release of strangers to contract. Present intent is relevant to reformation and state-of-mind hearsay is admissible to show it. Recitation of background facts did not prejudice appellants. Ruling on reformation mooted appellant’s summary judgment motion, so ruling need not follow rule on summary judgment. Circuit court’s certification of a judicial unit for appellate review was correct.
Kimbra Lunceford and Christopher Lunceford vs. Michael C. Houghtlin and Glynn Graybill
(Overview Summary)
Missouri Court of Appeals, Western District - WD71544

Two-Year Statute Bars Lost Chance Claim
Medical malpractice is the nature of claim whether described as lost chance of recovery or lost chance of survival, so applicable statute of limitations is the two-year statute for medical malpractice claims, not three-year statute for wrongful death.
Lisa Markham, Appellant, v. Romulo J. Fajatin, M.D., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED94201

Stock Law Discussed
Statute presumes negligence when specified animal escapes its enclosure, but statute applies only to animal's owner and not to any other person in mere possession of animal. Reversed on that theory. But "[a]n appellate court should reverse a plaintiff's verdict without remand only if it is persuaded that the plaintiff could not make a submissible case on retrial. `The preference is for reversal and remand.'" Remanded for proceedings on plaintiff's alternative theories.
JANIE L. GROMER, Plaintiff - Respondent vs. HUBERT MATCHETT, SR., Defendant - Appellant
Missouri Court of Appeals, Southern District - SD29942

Strict Construction Yields Civil Remedy
Statute requiring strict construction of workers' compensation law eliminates judicial construct, which provided administrative remedy against (and tort immunity for) co‑worker, so tort action is available against co-worker. As to such action, workers' compensation decision was no bar under doctrine of res judicata. Official immunity requires proof of supervisory capacity and performance of a discretionary act.
Richard Robinson, et al. vs. Cheryl Hooker
(Overview Summary)
Missouri Court of Appeals, Western District - WD71207

Medical Records Privileged
“Prohibition is an appropriate remedy when a party is ordered to produce material that is protected from discovery by some privilege.” Privilege trumps relevance, and protects medical records of patient who did not waive such privilege, even when use of records is against third party rather than patient. “The very nature of an evidentiary privilege is that it removes evidence that is otherwise relevant and discoverable from the scope of discovery.”
State ex rel. William A. Stinson, Relator vs. The Honorable Ted House, Respondent.
(Overview Summary)
Missouri Supreme Court - SC90364

Kansas Law Applied
Under “most significant relationship” test, wrongful death claims and defenses will be subject to law of the State where injury occurred, unless exceptional circumstances require otherwise. Record contained evidence that supported claim for pain and suffering and defense of comparative fault. Evidence’s weight was for the jury to decide, and cumulative hearsay was harmless. Modified Missouri instruction on suffering implied consciousness as required by Kansas law.
Sara Livingston, et al. vs. Baxter Health Care Corporation
(Overview Summary)
Missouri Court of Appeals, Western District - WD71257 and WD71312

Jury awards $6M to parents of 16-year-old killed in crash
June 15th, 2010

Nearly seven years after their 16-year-old daughter was killed in a traffic accident while skipping school, John and Joanne Kazanjian this week won a $6 million jury verdict from the young man who lost control of his car and crashed into a tree.

Contractor working for city settles wrongful death suit for $2.4M
June 15th, 2010

A contractor working for the city of Menlo Park, Ca. has settled for $2.4 million a wrongful death lawsuit stemming from a 2007 accident in which a bicyclist died.

Doctors Negligent for Birth Injury, Jury Finds

An Ohio jury has awarded a local couple $1.63 million in a lawsuit filed against two doctors that delivered their son four years ago and allegedly caused him injury. The lawsuit claims that the mother requested a Caesarian section due to the size of the baby, but the doctors refused. While birthing the baby vaginally, the child's shoulder became caught, causing permanent injuries to his right arm. The jury found in their verdict that both the doctors were negligent in caring for the woman and baby. Kimball Perry, The Cincinnati Enquirer 06/07/2010
Read Article: The Cincinnati Enquirer

Suit: Sudden Acceleration in Toyota Caused Death

Toyota Motors has been named in another lawsuit, this one over the death of a 15-year-old boy who died in a car wreck in 2009 while driving a 2000 Camry. The suit, filed by the boy's mother, claims that the car suddenly accelerated, smashing into a tree and then a wall, killing Nathaniel Stuckey. The lawsuit also states that Toyota has known for years about the potentially dangerous accelerations and done nothing to warn consumers or fix the problem. The suit is seeking unspecified damages. Jason Riley, Louisville Courier Journal 06/08/2010
Read Article: Louisville Courier Journal


Evidence Did Not Support Comparative Fault Instruction
The trial court should not have supported a comparative fault instruction where the evidence did not support Appellant was at fault in motorcycle accident.
Ronald Joe Hayes, et ux., Appellants, vs. Trisha G. Price, Respondent
(Overview Summary)
Supreme Court of Missouri - SC90054

Jury Questions On Standard Of Care Remain
Plaintiff asserted that defendant claimed to secure pre-judgment interest. Statute of limitation begins to run “when the damage resulting therefrom is sustained and is capable of ascertainment [.]” Ascertainment of damage, from alleged failure to secure prejudgment interest, was not possible until verdict exceeded offer. Offer sent by fax was sufficient under case law on that day, but 25 days later, such case law was reversed. Whether such reversal put defendant on notice is a jury question. Whether defendant relied on prior case law is also a jury question. Dismissal of appeal did not constitute settlement.
ED ENGLISH by and through Carol S. Davis, Public Administrator of Taney County, Missouri, as Guardian and Conservator of Ed English, Plaintiff-Appellant vs. EDWARD J. HERSHEWE and THE HERSHEWE LAW FIRM, P.C., formerly Hershewe & Gulick, P.C., Defendants-Respondents
Missouri Court of Appeals, Southern District - SD30075

Affidavit’s Absence Mandates Dismissal
In medical malpractice action against health care provider, statute requires dismissal for failure to timely file affidavit so Court of Appeals enforces statute by writ of mandamus.
State of Missouri, ex rel., John P. Tanner, D.D.S., M.D. vs. The Honorable W. Stephen Nixon, Judge of the 16th Judicial Circuit Court of Jackson County
(Overview Summary)
Missouri Court of Appeals, Western District - WD71240

Officer, bar pay $2.3M to settle suit in fatal crash
April 14, 2010
A Missouri police officer and the bar that served her alcohol have agreed to pay a total of $2.255 million — the limit of their insurance policies — to compensate the families of four young people killed and one man injured in a traffic crash in Des Peres last year. Click here


Resort employee's 'excited utterance' admissible in ski accident case
April 14, 2010
An offhand comment by a defendant's employee just might be the key piece of evidence needed to get a personal injury or employment case before a jury.
Take the case of Keith Brunsting and the resort employee who saw the skier lose control and crash headfirst into a tree.

Lawyer hired to represent minor can be sued

April 14, 2010
A lawyer could be sued for malpractice based on the alleged dissipation of a personal injury settlement negotiated on behalf of the plaintiff when he was a minor, the Kentucky Supreme Court has ruled in reversing a dismissal.
Read the court's opinion: Branham v. Stewart

School can't raise assumption of the risk doctrine as defense
April 14, 2010
The assumption of the risk doctrine is not available as a defense in a negligent supervision case against a school, New York's highest court has ruled.
Read the court's opinion: Trupia v. Lake George Central School District

Substantive Statute Cannot Apply Before Its Effective Date
In health care claim, statute on affidavit of merit does not define qualifications of expert at trial and witness need not practice the same specialty, as defendant Witness with expertise in infections was qualified to testify on risks of infection and Defendant’s denial is not controlling. Treating physicians' statements are properly admitted as basis for expert’s testimony, and as substantive evidence under business records exception to hearsay rule. Statute’s presumption as to value of medical services is subject to rebuttal. Statute does not limit testimony about projected future damages and future medical expenses to terms of present value. Instructions stood on record, including definition of terms. Second Hammer instruction okay. Under Missouri constitution’s ban on retrospective legislation, “the legislature cannot change the substantive law for a category of damages after a cause of action has accrued.”
James Klotz and Mary Klotz v. St. Anthony's Medical Center, Michael Shapiro, M.D., and Metro Heart Group, LLC
(Overview Summary)
Missouri Supreme Court - SC90107

Statutes Trump Anti-Stacking Provisions
Motor Vehicle Financial Responsibility Law provides that every operator’s policy must provide minimum coverage and make no exception for policies held simultaneously. Defendant’s “policy [wa]s silent as to whether it is an owner’s or an operator’s policy” but had to be an operator’s policy because she owned no vehicle. Therefore, neither exclusion for driving other person’s vehicle nor anti-stacking provision are can block such coverage otherwise provided.
Mark Karscig, Appellant vs. Jennifer M. McConville, Appellant, American Family Mutual Insurance Company, Respondent.
(Overview Summary)
Missouri Supreme Court- SC90080

Consulting physician not liable for malpractice
February 12, 2010 11:50 AM
A physician-patient relationship is an indispensable element of a medical malpractice claim and, therefore a doctor who was consulted regarding a plaintiff's pregnancy can't be sued, the Oklahoma Supreme Court has ruled. Read the case digest: Consulting physician not liable for malpractice Read the court's opinion: Jennings v. Badgett

Bioengineering Expertise Distinguished From Medical Expertise
On strict liability claim, requested limiting instruction cured any prejudice from admission of state-of-the-art evidence. Medical engineering expert was qualified to testify as to forces on plaintiff’s body, not causes and diagnosis of injury. Circuit court did not err in limiting impeachment of expert to his area of expertise when such was his testimony on direct and offered cross-examination showed no inconsistency. Without error, there is no cumulative error. Under a failure-to-warn theory, Plaintiff’s lack of evidence, as to what warning would have been sufficient and how such warning would have changed plaintiff’s actions, supported defendant’s directed verdict.
Jeanne Moore and Monty Moore, Appellants, v. Ford Motor Company, Respondents.
(Overview/Summary)
Missouri Court of Appeals, Eastern District - ED92770

Causation Of Suicide Not Shown
Suicide is a voluntary intervening act between negligence and suicide, unless negligence caused insanity that made suicide involuntary. Circuit court struck only evidence of volition for lack of medical grounding, so plaintiffs could not show causation element of wrongful death and lost chance of survival claims. Summary judgment on that basis did not violate open courts provision because it barred no recognized cause of action. In appeal of such claims, certification of no just reason for delay upheld.
Jana Kivland and Kristin K. Bold vs. Columbia Orthopaedic Group, L.L.P., and Robert Gaines, M.D.
(Overview/Summary)
Missouri Court of Appeals, Western District - WD70774

Water Company Has Duty To Control Water
Petition alleged that defendant water company failed to halt water leak, resulting in damage to property, causing injury to plaintiff property owner. Circuit court dismissed petition for lack of defendant’s duty to plaintiff. Court of Appeals reverses because defendant “has a duty to control the water flowing through and from its water main.”
Diane Hackmann, Appellant, v. Missouri American Water Company, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92806

Amendment Based On Newly Discovered Evidence Denied
Denying amendment to petition, that would require new defense “expert evaluation and opinion” without a “compelling” reason, was not an abuse of discretion even though based on newly discovered evidence. Record supported inferences supporting both sides of summary judgment motion as to whether any negligence of defendant’s employees caused injury, so Court of Appeals reverses summary judgment in such defendant’s favor. Circuit court did not abuse its discretion in allowing, with appropriate safeguard, jury to view exhibit during deliberations.
Janet Lunn, Appellant, v. Scott Anderson, M.D., Heather White, M.D. Digestive Disease Specialts, Esse Health, and SSM Healthcare d/b/a Depaul Health Center, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92395

No Stalking Shown
“[T]he stalking provision of the Adult Abuse Act was not meant to be a panacea for the minor arguments that frequently occur between neighbors.” To obtain a permanent order of protection against appellant for stalking, respondent had to show a reasonable fear of appellant. “[H]owever inconvenient or irritating” appellant’s conduct was, respondent neither alleged nor proved that it was alarming.
C.H. vs. William Wolfe
(Overview Summary)
Missouri Court of Appeals, Western District - WD70695

Nevada Court Weighs Award in Wrongful Death Case
The Nevada Supreme Court heard arguments Wednesday in a challenge to a $14.1 million wrongful death verdict stemming from a 2001 car crash, the Las Vegas Review Journal reports. In the accident, 58-year-old Rosa Delgado was struck and killed by truck owned by a gas station company and driven by temporary workers. Attorneys for the company argued that the award should be reduced because the judge abused her discretion and that company had no control over temporary employees. Doug McMurdo, Las Vegas Review Journal 12/10/2009
Read Article: Las Vegas Review Journal

Family Files Suit Over Wrong-Way Crash
The family of two people killed earlier this year in a collision with a woman who was traveling the wrong way on a New York highway have filed a lawsuit against the other driver’s estate. In the lawsuit, the family alleges that 36-year-old Diane Schuler was impaired by drugs and alcohol at the time of the crash. A total of eight people were killed in the crash. Jim Fitzgerald, Newsday 12/09/2009
Read Article: Newsday

Doctor Liable for Medical Malpractice, Jury Finds

A Kentucky jury has ordered a Pikeville doctor to pay more than $4.6 million for injuries sustained by a local man during a 2007 medical procedure, the Williamson Daily New reports. After deliberating for about three hours, jurors found that Dr. Mark Swofford was liable for medical malpractice, according to an attorney for the plaintiff. The award includes $750,000 in damages for the wife of the plaintiff. Daily News Staff, Williamson Daily News 12/09/2009
Read Article: Williamson Daily News

$4 million med-mal verdict reduced
December 4, 2009 10:03 AM
A $4 million med-mal verdict that didn't clearly include economic damages must be reduced under a state statute capping non-economic damages, the West Virginia Supreme Court has ruled. Read the case digest here: $4 million med-mal verdict reduced Read the majority opinion here: Karpacs-Brown v. Murthy

Insurance Question Discussed
Failing to clear question with circuit court before asking, and mentioning insurance when that word was not in company’s name, did not require mistrial. Venire person’s failure to disclose was from failure to remember, and appellants showed no prejudice. Video tape is admissible if it is instructive and any differences between recording and relevant time are explained, and any hearsay was cumulative and, therefore, harmless.
Saint Louis University and Paulo Bicalho, M.D., Appellants v. Alice Geary, Individually and as Personal Representative of the Estate of Phillip Sgroi, Respondent
(Overview Summary)
Missouri Supreme Court - SC89840

No HIPAA Violation Shown
Defendants adequately disclosed one of appellant’s treating physicians as a non-retained expert. Appellants showed no disclosure of protected health information under Health Insurance Portability and Accountability Act requiring circuit court to ban treating physician’s testimony. Circuit court did not err in barring physician from testifying about late, undisclosed examination of plaintiff.
Frederick Beaty and Barbara Beaty vs. St. Luke's Hospital of Kansas City, Desmond J. Young, M.D., Cardiovascular Consultants, P.C., and Martin Henry Zink, M.D.
(Overview Summary)
Missouri Court of Appeals, Western District - WD69441

Expert Designated For Hearing But Not Trial
Expert’s knowledge and opinions are attorney work product until such expert is designated for trial. Rule that allows discovery related “each person whom the other party expects to call as an expert witness at trial” does not reach an expert witness intended for testimony only at pre-trial hearing unrelated to case’s merits. Writ of prohibition bars order to produce privileged material.
State ex rel. Crown Power and Equipment Company, L.L.C., Relator v. The Honorable Gary E. Ravens, Respondent
(Overview Summary)
Missouri Supreme Court - SC89671

Set-Off Provision Explained
Conflict between policy limits and “other insurance” provision renders policy ambiguous and allows stacking. Set-off clause reduces amount of damages, against which policy limit will be paid, not policy limit.
Steve Ritchie and Anita Ritchie, Respondents v. Allied Property & Casualty Insurance Company, Appellant
(Overview Summary)
Missouri Supreme Court - SC90085


Jury Awards Record Damages in Smoker Lawsuit

A jury awarded more than $300 million in damages Thursday to an ex-smoker who is now confined to a wheelchair because of emphysema. In the verdict, the Florida jury ordered Philip Morris to pay Cindy Naugle, 61, $56.6 million in damages for medical expenses and $244 million in punitive damages. The case is one of about 8,000 so-called Engle progeny cases and is the largest verdict against tobacco companies thus far. Gina Keating, Reuters 11/20/2009
Read Article: Reuters

City Negligent for Lifeguard Death, Family Claims
A California city was negligent in the death of an 11-year-old participating in a junior lifeguard program, according to a claim filed by the girl’s family. Alyssa Squirrell died after being hit by a boat operated by Huntington Beach lifeguard Lt. Greg Crow during a routine training exercise. The claim seeks damages on behalf of the family for wrongful death. Deepa Bharath, Orange County Register 11/19/2009
Read Article: Orange County Register



Damages Awarded to Man Injured by Tree Limb
A jury has awarded nearly $6 million to a New Jersey man who was severely injured when a tree limb fell on his family’s car. According to the lawsuit, the state was negligent for failing to maintain the tree which stood along a state highway. The plaintiff was permanently injured in the accident and can no longer work, according to reports. Staff, Hunterdon County Democrat 11/20/2009
Read Article: Hunterdon County Democrat

New York jury finds Fisher Controls liable for employee's death from mesothelioma.
The Buffalo News (10/23, Gryta) reports, "A Buffalo jury has ordered a St. Louis-based supplier of industrial control valves and control systems to pay the estate of a Niagara Falls man $2.25 million for the former Hooker Chemical repairman's death from cancer, court officials confirmed Wednesday." The jury "held Fisher Controls financially liable for the asbestos-caused mesothelioma that killed Ronald Drabczyk." The jury found that "Fisher Controls had acted with reckless disregard for Drabczyk's workplace safety, making it 100 percent financially responsible for his painful death under New York law." The ruling is "the first time Fisher Controls has been found liable for using asbestos in its products and the first punitive damages award in a New York State asbestos case in more than 20 years."

Seattle firefighter awarded $12.7 million in accidental fall.
The Seattle Post Intelligencer (10/23, Gutierrez) reports, "A King County jury awarded $12.7 million Thursday to a Seattle firefighter who was severely debilitated when [he] fell down a fire pole shaft during an on-duty shift at a fire station, according to the City Attorney's Office." The firefighter, Mark Jones, "was unable to return to work after the Dec. 23, 2003 incident, when he fell down the shaft in Station 33 at 9645 Renton Ave. S." Jones "filed a lawsuit in 2006 accusing the city of negligence for not properly safeguarding the alcove containing the station's fire pole. A verdict in favor of Jones was announced after a six-week trial in King C

Medical Billing Statute Construed
Objection to question on voir dire is necessary to preserve error even after denial motion in limine as to question. Plaintiff needed no expert to make a submissible case under “alternative theories of failure to keep a proper lookout and failure to act after the danger of a collision became apparent” even though defendant presented an expert. Statute determines presumptive value of medical treatment by amounts incurred, not amounts paid. Error must appear in objection, motion for new trial, and point relied on to be preserved. Appellant showed no prejudice from surplus language in non-MAI instruction.
James Berra, Respondent, v. Charles E. Danter, Appellant
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92279

No Hospital Lien On Wrongful Death Award
Statute provides that personal injury actions survive death of injured person unless injury caused death. Defendants established that decedent died as a result of the injuries for which survivors sued and survivors raised no genuine issue as to such fact. Statute creates hospital lien against payment for injury to patient, but such lien does not apply to wrongful death award, which is payment to decedent’s survivors.
Gerald J. Bamberger, et. al., Appellants, v. Charles F. Freeman, et. al., Respondents
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92319

Childhood Sexual Abuse Claim Too Late
Plaintiff knew, since his injuries occurred, that such injuries were caused by childhood sexual abuse, so tolling statute gave him until the age of 31 to bring a claim. Claim filed nine years later was untimely.
Timothy P. Dempsey, Appellant, v. Father Robert Johnston, Roman Catholic Archdiocese of St. Louis, et. al., Respondents
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92624

Injury During Business Trip Not Compensable
Failure to timely file answer may constitute an admission of “how and where the injury occurred,” but not whether it occurred in the course and scope of employment, because the former is a factual finding and the latter is a legal conclusion. Being out of town on business does not necessarily establish course of employment. Course of employment does not include “exercising a personal privilege for his own benefit, wholly apart from his employment or his employer's interest.”
Travis Anderson, DEC., By His Dependents vs. Veracity Research Co.
(Overview Summary)
Missouri Court of Appeals, Western District - WD70452

No Survivor Benefit
Decedent, finally adjudicated as permanently and totally disabled, died from causes unrelated to work after such adjudication. Statutory changes deleted survivor’s claim to benefits and circuit court had no authority to modify award by adding survivor.
Tina Roller vs. Sarah Steelman, Treasurer of the State of Missouri, as Custodian of the Second Injury Fund
(Overview Summary)
Missouri Court of Appeals, Western District - WD69720 and WD69844

Judge OKs Loss of Consortium Suit
The widow of a passenger killed in the 2006 crash of Comair Flight 5191 can pursue damages for loss of companionship, a federal judge ruled last week. The ruling follows a Kentucky Supreme Court decision that reinstated loss of consortium damages in cases where a spouse had died. Previously, plaintiffs could only pursue damages for loss of consortium if a spouse or parent were left incapacitated. Beth Musgrave, Lexington Herald-Leader 10/13/2009
Read Article: Lexington Herald-Leader

Sovereign Immunity Applies To Emergency Medical Service
Because sovereign immunity is not an affirmative defense, plaintiff suing a public entity must plead and prove an exception. Such exception includes the performance of a proprietary function of government. Such functions do not include emergency medical service, even for a fee. Governmental employee’s official immunity for performing ministerial acts is an affirmative defense, so petition is subject to dismissal under such defense only if it alleges facts showing that official immunity applies.
Lee Richardson, as Wife of Stanford Richardson, Sr., Deceased, Appellant, v. City of St. Louis and Bryan Burrow, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED91995

Insurance Did Not Waive Sovereign Immunity
To state a claim against a government employee, plaintiff must allege the breach of a statutory or regulatory duty. Teacher’s care of child, with disabilities and propensities harmful to himself, was not such a ministerial duty. Such facts do not show a waiver of sovereign immunity as a dangerous condition of public property. Circuit court did not err in dismissing such petition. Purchase of insurance did not waive sovereign immunity because policy had an exclusion for events to which sovereign immunity applied.
James Boever and Cheryl Boever, Appellants, v. Special School District of St. Louis County, Michael Laspe, Jeanie Wolf, and Stacy Durham, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92698

Look-Away Not Enough For Liability
Defendant trailing driver’s brief look-away does not entitle plaintiff lead driver to judgment when evidence also supports lead plaintiff’s sudden and un-signaled stop. Conflicting evidence on whether trailing driver could stop prevented summary judgment for leading drivers. “[A] forward vehicle’s negligent failure to provide an adequate warning could constitute a proximate cause of injuries to drivers following several vehicles behind.”
David Kasper, et ux vs. Randall W. Welhoff, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD69329

No health Provider Affidavit, No Action
Constitutional ban on ex post facto laws applies to criminal statutes, and ban on laws retrospective in operation does not apply to procedural statutes. Earlier dismissed action vested no right to earlier procedural statutes in later action—later action was governed by the law in effect when filed. Such law required a health provider affidavit, without which circuit court must dismiss without prejudice. Such ruling was correct despite statute of limitation’s effective bar to re-filing.
Randy L. White and Tammy Sue White, Appellants, v. Mazoor Tariq, M.D., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92149

Standard Of Care Sufficiently Defined
Expert defined standard of care differently from approved instruction, but adequately to make a submissible case, because he testified extensively to his background and stated that his opinions were based on “the standard of care applicable to physicians who practice in the field of internal medicine.” Circumstantial evidence was enough to prove causation.
Joe Bob Lake vs. Frank B.W. McCollum
(Overview Summary)
Missouri Court of Appeals, Western District - WD66670

Firefighter Equipment Case Verdict Upheld
Evidence of products failure at other times was similar enough to be admissible. Plaintiffs’ circumstantial evidence supported their claims for negligence and strict liability against maker of firefighter protective gear. User of alarm includes persons intended to respond. Fireman’s Rule applies only to “anticipated risks that accompany fighting a fire.” Causation issue is whether “device's failure directly contributed” to injury. Existence of similar cases with lesser awards did not defeat damages award. Evidence of maker’s knowledge supported claim for punitive damages. Such award was not unconstitutionally excessive. Apportionment of award to decedent’s mother, in same amount as to decedent’s children, was not grossly excessive.
Angela Martin, et al., Respondents, v. Survivair Respirators, Inc., et al., Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED90885

Disjunctive Instruction Okay
Evidence supported instruction in the disjunctive. Expert’s testimony on "expansion of the bruising" or worsening pain supported instruction on swelling. Expert’s testimony—describing conduct that “could,” rather than “would,” have prevented injury—was enough to show causation. Defendant’s failure to object to or cross-examine on use of the phrase "within a reasonable degree of medical certainty" waived error.
Olive Lavaun Fletcher vs. Kansas City Cancer Center, LLC, et al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD69942

Once a year, tens of thousands of people gather in Nevada’s Black Rock Desert for the Burning Man Festival. According to the festival’s website, the event “is dedicated to community, art, self-expression, and self-reliance.”
Sweet!
The highlight of the festival is the burning of a 60-foot wood sculpture in the figure of a man. (Who are these people, Druids?)
Apparently, after the sculpture collapses in flames, participants toss tokens, mementos and other combustible objects into the fire, completing their “Burning Man experience.”
Anthony Beninati made the 2005 festival a truly memorable affair.
Beninati wanted to place a photograph of a recently deceased friend in the Burning Man bonfire.
After slowly circling the bonfire for about 90 minutes, Beninati stepped forward and tossed in the photograph of his friend.
You know what happened next.
Turning away, Beninati tripped on something and fell into the fire, severely burning his hands.
After beating out the flames, Beninati was right there in a California courthouse, suing the city of Black Rock for negligence.
According to Beninati, Black Rock was negligent in allowing participants to approach the burning remnants of the Burning Man sculpture without provision for safe ingress and egress “routes and corridors” for those attendees who were “moved by the event to directly participate in the burning ritual.”
Of course, some might say that the sort of regimentation suggested by Beninati might detract from the “art, self-expression, and self-reliance” of the experience, but who are we to quibble?

The California Court of Appeal didn’t quibble, concluding that Beninati assumed the risk of his injuries.

“[A]n obvious risk inherent in the activity undertaken by Beninati was that the flames and ash hid the location of fire embers and Burning Man debris, including the cables which had held up the sculpture,” the court explained. “By continuing to walk into the fire, Beninati assumed the risk that he might trip and fall into the fire because he could not see the ground surface. This risk itself is one that is inherent in the burning of the effigy and the Burning Man commemorative ritual.” (Beninati v. Black Rock City)

Marriage Does Not Equal Vicarious Liability
Failure to state a claim is subject to a writ of prohibition, not to prevent usurpation of jurisdiction, but because it prevents unnecessary litigation. To make Passenger liable for Driver’s negligence under joint venture, or master-servant theories of liability requires some “realistic right of control,” for which marriage does not substitute.
State ex rel. Pansy Henley, Relator v. The Honorable James R. Bickel, Respondent
(Overview/Summary)
Missouri Supreme Court - SC89614

Cannot Compel Consent To Ex Parte Interview With Health Professionals
In medical malpractice claim, Defendant sought Plaintiff’s release of “[a]ny and all information, including records” which “is deliberately broad enough to encompass ex parte communications” with physicians, which the courts will not compel as to either Plaintiff or physicians.
State of Missouri ex rel. John W. Collins, MD vs. Honorable Marco Roldan
(Overview/Summary)
Court of Appeals, Western District - WD70350

Defense To Malicious Prosecution Disputed
Appellant was defendant in underlying suit and prevailed against Respondent, who was plaintiff in underlying suit. Such fact supports Appellant’s claim for malicious prosecution against Respondent, which Respondent’s motion for summary judgment failed to negate. Respondent’s reliance on counsel’s advice in underlying suit, after full disclosure to counsel of all facts, constitutes an affirmative defense to malicious prosecution claim and negates an element of such claim: lack of probable cause in underlying suit. Facts related to accuracy of such disclosure were subject to genuine dispute. Therefore, Circuit Court erred in granting Respondent summary judgment.
DONALD R. EHRHARDT, Plaintiff-Appellant vs. RONALD J. HERSCHEND, Defendant-Respondent
Court of Appeals, Southern District - SD29058

Continuing Care Does Not Resume
Plaintiff’s renewed contact with Physician—after four years of “no care, treatment, or other service”—did not constitute continuing care that tolls statute of limitations for medical malpractice. Circuit Court’s dismissal of Physician was not error. But its dismissal of Hospital, which filed no motion for dismissal, was error.
SHERRY HOOE and DENNIS HOOE, Appellants vs. SAINT FRANCIS MEDICAL CENTER, CAPE LABORATORY AND PATHOLOGY, L.C., and WILLIAM STAHR, M.D., Respondents
Court of Appeals, Southern District - SD29279

No Errors in Verdict Form and Verdict Director
Record contained sufficient evidence of causation to submit malpractice case to jury. Verdict form is not an instruction and did not mislead jury through its reference to verdict director. Verdict director’s reference to a term defined in evidence did not constitute a roving commission. Reference to another instruction by number did not constitute an identifying phrase for verdict form. Affirmed.
Edgar T. Edgerton, Respondent, vs. Stephen K. Morrison, M.D., et al., Appellants
(Overview/Summary)
Supreme Court - SC89762

Right Of Sepulcher Discussed
Petition seeking damages for violating right of sepulcher need not allege any duty because law provides that everyone owes duty to avoid interference with proper burial. Such duty did not require self-incrimination under drug laws and abandonment of corpse statute. Excluded testimony would not have proved or disproved any issue, so it was irrelevant. Evidence admitted but not included in record is not subject to appellate review. Evidence supported amount of damages awarded.
Boyd H. McGathey and Debra A. Augustine vs. Matthew C. Davis
(Overview/Summary)
Court of Appeals, Western District - WD69031

Comparative Fault Instruction Unsupported
Plaintiff’s offer of settlement did not meet statutory requirements for pre-judgment interest because its acceptance would not have constituted an enforceable contract. Evidence of vehicles’ position and speed showed that, even exercising the highest degree of care, Plaintiff could not have avoided collision so Circuit Court erred in submitting instruction on comparative fault. Judgment modified to eliminate fault attributed to Plaintiff.
RONALD JOE HAYES, et us., Plaintiffs-Appellants vs. TRISHA G. PRICE, Defendant-Respondent
Court of Appeals, Southern District - SD27730

Petition Claimed Negligence, Not Premises Liability
Allegations that Defendants had tampered with Plaintiff’s safety equipment enunciated a claim for general negligence, not premises liability, so facts that negated Defendant’s control of premises did not entitle Defendant to summary judgment.
BARRY SMITH, Plaintiff-Appellant vs. DEWITT AND ASSOCIATES, INC., Defendant, and, HERRMAN LUMBER COMPANY - BRANSON, INC., Defendant-Respondent
Court of Appeals, Southern District - SD28949

False Light Theory Recognized
Defendant’s association of plaintiff with its computer viral advertising campaign stated aclaim, for invasion of privacy by presentation in a false light, if it alleges actual malice. “[T]he barriers to generating publicity are quickly and inexpensively surmounted[, and] the ethical standards regarding the acceptability of certain discourse have been diminished[, so] as the ability to do harm grows, we believe so must the law’s ability to protect the innocent.”
Greg Meyerkord, Appellant, v. The Zipatoni Company, Respondent
(Overview/Summary)

Missouri Court of Appeals, Eastern District - ED90736

Settlement Enforced
Attorney’s mental impressions are protected from discovery but not barred from evidence. Parol evidence was admissible as to contract, because it was not completely integrated, as shown by missing signatures. Attorney is presumed to have authority to bind client in settlement. General repudiation of settlement terms does not negate agreement. Upon finding settlement, Circuit Court should dismiss claims, not require attorneys to dismiss claims.
Shaun P. Kenney and Christen D. Shepherd and Carol Pence and Mark D. Pence vs. John M. Vansittert
(Overview/Summary)

Missouri Court of Appeals, Western District - WD69073

Abandoned Pleading Barred From Evidence
Respondent made closing arguments supported by reasonable inferences from the evidence, and on which Appellant shows no prejudice, so Court of Appeals will not review Circuit Court’s actions for plain error. Circuit Court did not abuse its discretion in ruling against offer into evidence of abandoned pleading because such pleading was a Respondent’s counterclaim against a later-dismissed co-defendant “whose identity and interests would have to be explained to the jury if the abandoned pleading were to be received in evidence.”
Lorri Arrington, Plaintiff-Appellant v. Goodrich Quality Theaters, Inc., v. Goodrich Quality Theaters, Inc., a Michigan Corporation Qualified to transact business in Missouri, Defendant-Respondent
Missouri Court of Appeals Southern District

Release Need Not Reserve Rights
Under contributory negligence doctrine, only one party could ever be liable for all damages. So when claimant granted a release to alleged tortfeasor, alleged tortfeasor could never afterward make any claim against claimant unless such release had express language limiting the extent of the release. Under comparative fault doctrine, both parties can be liable for their respective faults, so release need no longer reserve rights.
Joseph Vidacak, Jr., Plaintiff v. Oklahoma Farmers Union Mutual Insurance Co., and John Doe, Defendants, and Luann P. Gregory-Cory and Celadon Trucking Services, Inc., Defendants/Third Party Plaintiffs/Appellants v. Joseph Vidacak, Sr., Third Party Defendant/Respondent
Missouri Court of Appeals Southern District

Case Made For Products Liability And Negligent Manufacture
Once Plaintiff met elements of prejudgment interest statute, subsequent offers did not revoke right to prejudgment interest. Documents were admissible under public records statute. Admitting expert testimony discussing regulations was not error. Evidence of defective product in violation of federal regulations, and of causation, made a submissible case on products liability and negligent manufacture. Evidence that should have been offered during case in chief is barred from rebuttal. Evidence supports verdict, and Appellant did not show prejudice from admission of disputed evidence, so Circuit Court did not err in denying remittitur and new trial.
Cortez Strong, Respondent/Cross-Appellant, v. American Cynamid Company, Appellant/Cross-Respondent, and Georgia Santos-Jawaid, M.D., Respondent
Missouri Court of Appeals Eastern District

Interest On Damages Starts With Original Judgment
Judgment creditor is entitled to interest pending her successful appeal retroactive to original judgment. “[T]he interest on [the] award continued to accrue during the appeal and dates back to the original, albeit initially inadequate, judgment[.]” Remanded to perfect judgment by apportioning damages to Plaintiffs and crediting payments.
Karen Lindquist, Individually and as Personal Representative of the Estate of Michael Lindquist, Plaintiff/Respondent, v. Mid-America Orthopaedic Surgery, Inc., Respondent/Appellant
Missouri Court of Appeals Eastern District

Co-Defendant Subject To Indemnity
Verdict found Litigating Defendant vicariously liable to Plaintiff for Settling Defendant’s actions and apportioned no fault between them. Though judgment was on appeal, Litigating Defendant’s action for indemnification against Settling Defendant was ripe. Medical malpractice statute protecting settling defendants applied to apportioned fault. General tort statute protecting settling defendants applied only to contribution actions. “[Settling Defendant] is discharged from his duty to indemnify [Litigating Defendant] only to the extent of his payment to [Plaintiff].
Robert E. Fast, M.D., et al., Appellant, v. F. James Marsten, M.D., Respondent
Missouri Court of Appeals Western District

Notice Statute Inapplicable
Statute, requiring notice to City of action based on road’s defective condition, did not apply to wrongful death action based on defective design, and is tolled during Plaintiff’s minority. Mandamus remedies improper dismissal. Facts show no defense in laches.
State ex rel. Stephanie Sasnett, Maris Sasnett, Bryan Sasnett, and Mandy Vierthaler, Relators, v. Honorable Kelly Moorhouse, Judge, Div. 9, Circuit Court of Jackson County, Missouri, Respondent
Missouri Court of Appeals Western District

Res Ipsa Loquitur In Medical Malpractice Discussed
When likely causes of injury are all within Defendant’s control, and Plaintiffs cannot show specific cause of injury that does not occur without negligence, doctrine of res ipsa loquitur allows an inference of negligence without expert testimony. But that doctrine does not bar expert testimony supporting such inference. Statute, requiring affidavit of legally qualified health care provider, does not bar res ipsa loquitur.
Janice Sides, et al., Appellants v. St. Anthony's Medical Center, et al., Respondents
Supreme Court of Missouri

Injurious Falsehood Shown
In injurious falsehood claim, omission of language describing reckless disregard for truth was erroneous, but not prejudicial, because Defendant Corporation had actual knowledge of statement’s falsity through Corporation’s employees. Known false statement negates the qualified privilege of good faith. Causation required for Defendant to be liable for actions of Third Party is that statement was a “substantial factor” in causing such action. Record provided reasonable certainty of lost profits and attorney fees, and required no remittitur.
Brian Wandersee and Advanced Cleaning Technologies, Inc., Respondents v. BP Products North America, Inc., Appellant
Supreme Court of Missouri

Injured Party Is Not A Bystander
A party directly involved in a wreck can recover for emotional damages, not limited to threats to his own personal safety, but including sight of other persons’ injury. “[A] direct victim's emotional distress from viewing injuries or death of another person involved in the accident are insepara[bl]e from the direct victim's role in the event.” Plaintiffs showed evidence supporting elements of negligence, including medically significant damages, so as to avoid summary judgment.
Tommy R. Jarrett and Beverly Jarrett, Appellants v. Michael B. Jones, Respondent
Supreme Court of Missouri

Car Passenger Was Principal Of Driver
Passenger was owner of car but did not drive. Owner allowed Driver to use car in exchange for driving Passenger. Such arrangement constituted a principal/agent relationship, allowing Driver's negligence to be imputed to Passenger. “Specifically, when a person operates an automobile of another while the owner is a passenger, acquiescing in the operation, there is a presumption that the driver is the agent of the owner and within the scope of his agency.” Emergency vehicle was not negligent per se in blocking traffic lane without warning. Circuit Court did not err in barring late amendment to answer for pleading set-off for a settlement disclosed months before.
Sandra Bach, Appellant/Cross-Respondent, v. Winfield-Foley Fire Protection District, Respondent/Cross-Appellant
Supreme Court of Missouri

Overhead Power Line Safety Act Discussed
Public Entity that hired an independent contractor for work may be a person subject to liability for contractor’s violation of Overhead Power Line Safety Act. Act provides that such Public Entity is presumptively liable for contribution to Defendant despite common law principles and statutory cap on damages under sovereign immunity. Circuit Court did not err in allowing one party to solicit testimony on meaning of contract from witness who had no involvement with the contract when other party had already done so.
Union Electric Co. d/b/a Ameren UE, Respondent v. Metropolitan St. Louis Sewer District, Appellant
Supreme Court of Missouri

Vicarious Liability Found
Undisputed facts showed that Defendant was principal of agent whose negligence while on Defendant’s business injured Plaintiffs. Dispute as to legal consequence of such facts did not require Defendant to present evidence of such facts to jury. Such facts support summary judgment that Defendant was vicariously liable for Plaintiff’s injuries without regard to transportation regulations. Admission of evidence as basis of expert opinion, if error, was harmless because expert gave it little weight and so did jury. Other evidence supported jury’s damage award.
Frank Horner and Cherrie Horner, Respondents v. Fedex Ground Package System Inc., Appellant
Missouri Court of Appeals Eastern District

Circuit Court Granted New Trial On Unpreserved Point
Unsigned intersection may constitute a dangerous condition, and such allegation avoids defense of sovereign immunity. Substantial evidence supported such allegation. Plaintiffs’ failure to object to inconsistent verdicts before jury was discharged waived point on appeal, but did not bar Circuit Court from granting new trial on that basis. Such remedy is appropriate over additur.
Dolores Boney, et al., Respondent, v. Joshua Worley, et al., Defendant; Cass County, Missouri, Appellant
Missouri Court of Appeals Western District

Medical Affidavit Required In Res Ipsa Case
Standard of care is irrelevant in a case brought under res ipsa loquitur, and such evidence is inadmissible, but statute still requires affidavit regarding opinion of legal qualified health care provider to accompany petition for health care malpractice.
Frieda L. Gaynor, Plaintiff/Appellant v. Washington University, Barnes-Jewish Hospital, Andrea A. Vannucci, M.D., Joseph Borrelli, M.D., and John Doe, M.D., Defendants/Respondents
Missouri Court of Appeals Eastern District

No Action Against “Host Employer”
Allegations that contractor Defendant subcontracted with Decedent’s employer was not enough to state a claim against Defendant for jobsite fatality. Petition did not allege ownership of or easement on site, substantial control over subcontracting employer, injury to an innocent third party, or negligence. When Circuit Court denies a motion to dismiss for lack of subject matter jurisdiction, prohibition is an appropriate remedy.
State ex rel. Union Electric Company, d/b/a Ameren UE, Relator v. The Honorable David A. Dolan, Respondent
Supreme Court of Missouri

Election Board's Sovereign Immunity Is Issue Of Fact
Whether sovereign immunity protects County Election Board from liability for injuries at polling place depends on the extent to which Board exerted control over space.
Evelyn Thomas, et al., Appellant v. Clay County Election Board, et al., Respondent. Missouri Court of Appeals Western District

No Duty To Clear Ice
Neither Landlord nor Contractor had any duty to clear natural accumulations of snow and ice unless they took on that duty by conduct or contract. Record shows that they neither cleared ice nor had any contractual obligation to do so when Plaintiff sustained his injury.
Douglas Richey, Plaintiff/Appellant, v. DP Properties, LP, IMB Corp., SMC Properties, Inc., Sharp Lawn & Landscaping, Inc., and Grugg & Ellis Management Services, Defendants/Respondents. Missouri Court of Appeals Eastern District

Plaintiff Had Right To Her Instructions
Circuit Court must submit to jury any proffered instruction supported by evidence and in proper form. Plaintiff was prejudiced by Circuit Court's rejection of instructions because substitutes were not substantially equivalent. Plaintiff's objection to Court's substituted instructions was sufficient to preserve the issue.
Bernice Mitchell, Appellant, v. Joseph Evans, M.D., Surgical Care of Independence, Inc., Sol H. Dubin, M.D., Orthopedic Associates of Kansas City, Inc., Robert L. Bowser, M.D., Jeff Richardson, C.R.N.A., and Independence Anesthesia, Inc., Respondents. Missouri Court of Appeals Western District

Dangerous Condition Not Alleged, Premises Liability Defenses Do Not Apply
Plaintiff alleged that negligent action at job site caused injury. Circuit Court granted summary judgment under independent contractor exception to premises liability. "[Plaintiff]'s allegations as to [Defendant]'s conduct could apply to any third party who came onto the premises and acted in such a manner, not just to the premises' owner and its employees." Summary judgment for Defendants reversed and remanded for further proceedings.
Alvin Griffith, Plaintiff-Appellant, v. Brother Dominic and Assumption Abbey, Defendants-Respondents. Missouri Court of Appeals Southern District

Insurance Report Was Privileged
Plaintiff showed no prejudice, and no abuse of discretion, in refusal of his request to record Defendant's psychological expert evaluation of him. Defendant's report to insurance company was protected by insurer-insured, attorney-client, and work product privileges. Prejudice from evidence, refuting Plaintiff's claim that injury caused him to leave work, did not outweigh probative value, even though it related to sexual orientation. Evidence refuting Plaintiff's claimed financial condition was admissible. Denying Plaintiff's motion to amend petition to add new theory, during second week of trial and after three years of litigation, was no abuse of discretion. Denying Plaintiff's motion to amend petition to allege of aggravation of a preexisting condition was harmless because after three weeks of trial, and two hours of deliberation, jury rendered verdict 100 percent for Defendant. Such verdict needs no evidence to support it because Plaintiff had the burden of proof. Any error in excluding specific safety regulations was harmless because Plaintiff's expert was allowed to testify about them.
Bob Ratcliff, Appellant v. Sprint Missouri, Inc., d/b/a Sprint United Telephone, Respondent. Missouri Court of Appeals Western District


Statute Of Limitation Started With Partial Memory
Memory of physical abuse made alleged sexual abuse capable of ascertainment for statute of limitations. On Circuit Court's denial of Defendant's motion for summary judgment, writ of prohibition is the remedy.
State ex rel. Marianist Province of the United States, Relator, v. The Honorable John A. Ross, Respondent. Supreme Court of Missouri

Jury gives drunk man small fraction of $14M verdict
March 31, 2008 6:51 AM
A Missouri jury apportioned 96 percent of the liability to the plaintiff, who was drunk when he was paralyzed diving head first into a shallow pool. As a result, Chad Stockbauer will only get $560,000 of the $14 million verdict. Click here to read the full article.

Appointment As Plaintiff Ad Litem Relates Back
Plaintiff timely filed petition for wrongful death, but not motion for appointment as plaintiff ad litem. Rule provides that motion for appointment related back to petition because it constituted an amendment to petition and Movant had beneficial interest in original action.
Eleanore Thorson, Appellant v. Elizabeth Connelly, Robert Palmer, and Betty Palmer, Respondents. Supreme Court of Missouri

Self-Help Remedied
Record supported a finding that Appellant committed conversion to collect a debt. Damages are difference between value of property when taken and value when recovered. Evidence insufficient to support award. Remanded for evidence on damages.
Alvin Mackey, Plaintiff-Respondent, v. Steven G. Goslee, Defendant-Appellant. Missouri Court of Appeals Southern District

Work Was Maintenance, Not Capital Improvement
Plaintiff was a statutory employee because he regularly did work that the property manager that hired would otherwise do through ordinary employees: renovate vacated apartments. Such renovation was not a capital improvement because it merely maintained, and did not improve, property. Circuit Court correctly dismissed for lack of jurisdiction in favor of exclusive remedy of workers' compensation.
Matthew McGrath, Plaintiff/Appellant, v. VRAI Limited Partnership, Defendant/Respondent. Missouri Court of Appeals Eastern District

N.Y. woman hurt in car crash gets $13M from county
A New York woman who was badly injured in a 1995 car crash will get $13 million under a settlement approved this week by the Nassau County Legislature, Newsday reports. Click here to read the full article.

Temporary Worker Or Co-Employee?
Whether a third party sent Plaintiff to site determined whether he was "furnished" as a temporary worker, whose injuries were covered under policy. Worker cannot furnish himself.
Bryan Gavan, Appellant v. Bituminous Casualty Corporation, et al., Respondents. Supreme Court of Missouri

Plaintiff can't recover for lost chance of survival
A wrongful death plaintiff can't recover damages for medical malpractice that allegedly decreased a patient's chance of survival by only 20 to 30 percent, a Maryland appeals court has ruled in affirming summary judgment.
Click here to read the full text of the opinion.

Mo. court upholds $8M punitive award against State Farm
A Missouri appeals court Tuesday upheld an $8 million punitive damages award issued in Jackson County against State Farm Insurance, The Kansas City Star reports.
Click here to read a news story about the ruling and click here to read the full text of the court's decision.

Parents May Be Liable For Their Children's Conduct
Circuit Court erred in granting summary judgment when petition pleaded that Parent left Children unattended in car, with which Children caused damage. A parent may be liable in negligence for "entrusting to the child an instrument which, because of its nature, use, and purpose, is so dangerous as to constitute, in the hands of the child, an unreasonable risk to others." But failure to plead facts describing a statutory duty failed to secure Circuit Court's jurisdiction as to such facts.
Jamie LeBlanc, Plaintiff/Appellant, v. Wendy Patton, Defendant/Respondent. Missouri Court of Appeals Eastern District

Potential For Manslaughter Is Not a Dangerous Condition
Absence of screening from overpass, so that someone could throw objects onto traffic below, was not a dangerous condition of property under sovereign immunity statute. Judgment for State affirmed without transfer.
Vicey Tucker, Appellant, v. Missouri Highways and Transportation Commission, Respondent, Jeffrey Campbell, Jr., Defendant. Missouri Court of Appeals Western District

Instruction Not In MAI Requires Remand
Because record contained no evidence of Driver's speed at the time of the accident at issue, record did not support a departure from Missouri Approved Instructions on excessive speed. Such departure raises a presumption of prejudice that Respondent did not rebut.
Tomacena Gumpanberger, Respondent, v. Bill Jakob, et al., Appellant. Missouri Court of Appeals Eastern District

Knowledge Of Injury And Cause Start FELA Filing Time Running
Statute starts the time for filing a FELA claim when the Employee "knew or should have known, in the exercise of reasonable diligence, the critical facts of both his injury and its cause being work-related." Genuine issues remain as to either existence of permanent injuries and their cause. Summary judgment reversed.
Curt Louis Jones, Appellant, v. The Kansas City Southern Railway Company, Respondent. Missouri Court of Appeals Western District

No Mental Disability, No Tolling Of Statute Of Limitations
Statute provides that cause of action accrues "when a reasonable person would have been put on notice [of injury and damage] and would have undertaken to ascertain the extent of the damages." When Plaintiff understood his injury does not control. Action accrued before mental disability occurred, so it did not toll statute. Dismissal affirmed.
Herbert A. Graham, Appellant v. Father Michael McGrath, Roman Catholic Archdiocese of St. Louis, an unincorporated association, and Archbishop Justin Rigali, of the Archdiocese of St. Louis, MO., Respondents. Missouri Court of Appeals Eastern District

Swift Transportation takes $36.5M hit from fatal crash
Swift Transportation Co., a Phoenix-based trucking giant, has been slapped for $36.5 million in damages in a lawsuit over a fatal traffic crash in Kansas, The Arizona Republic reports.
Click here to read the full article, and visit Lawyers USA's Verdict Collection to search a collection of more than 16,000 verdict and settlement reportsMo. high court ruling protects employee personnel files
In a case watched closely by employment law attorneys, the Missouri Supreme Court said Tuesday that access to confidential personnel records of people who arent party to the case must be limited, The Kansas City Star reports.
Click here to read a news story about the ruling and click here to read the full text of the court's decision.

High court ponders whether suit against Medtronic can proceed
Supreme Court justices wrestled Tuesday with the question of how much protection federally approved medical devices should have from product-liability lawsuits, The Associated Press reports.
Click here to read the full article.

Future Damages Affirmed
Plaintiff supported submission of future damages to jury with expert medical testimony that such damages are "reasonably likely to occur." Circuit did not plainly err in failing to interrupt sua sponte Plaintiff's closing argument on damages allowable. Evidence supported amount of damages without remittitur.
Anna Berthelsen, Respondent v. URS Corporation, Appellant. Missouri Court of Appeals Western District

Laser Hair Removal Not Shown To Be A Health Care Service
Defendant did not establish facts showing that the two-year statute of limitations for actions against health care providers applied to her use of laser-hair removal equipment because record does not show what type of laser she used.
Sandra Mitchell, Appellant v. Martha McEvoy, Respondent. Missouri Court of Appeals Eastern District


Record Supported Instruction On Careful Lookout
Defendant's evidence that Plaintiff got six hours of sleep the night before wreck, was sleepy when driving, and did not brake before impact, supported an instruction on failure to keep a careful lookout. Peace Officer's explanation of investigation did not constitute an opinion on fault. Inconsistent statements on questionnaires regarding Plaintiff's health were admissible for impeachment, even if Plaintiff didn't fill them out. Foundation and procedure for admitting prior inconsistent statements were correct.
Jeff and Amy Kearbey, Appellant/Respondent v. Wichita Southeast Kansas, Respondent/Appellant. Missouri Court of Appeals Western District

Damages Not Proven On Promissory Estoppel Claim
When Plaintiffs discovered that defendant insurance broker had not procured the proper policy, they sued for damages, based on Insurer's failure to defend, under a theory of promissory estoppel. Appellate Court reverses Plaintiff's judgment notwithstanding the verdict because promissory estoppel requires proof that only enforcement of the promise is an adequate remedy. "What the [Plaintiffs] sought was not the issuance of an insurance policy that would cover the risk (a promise that [Agent] could not fulfill) but damages for [Agent]'s mistaken representation that the policy they did receive would provide coverage." Plaintiffs received their damages under negligence claim, so promissory estoppel did not apply.
Neal S. Clevenger and Mitsue I. Clevenger, Respondents v. Oliver Insurance Agency, Inc., Appellant. Supreme Court of Missouri

Third party can't be sued for spoliation
A third party can't be sued for the negligent spoliation of evidence, New York's highest court has ruled.
Click here to read the full text of the opinion.

Car Passenger Was Joint Venturer In Driving
Passenger was owner of car but did not drive. Owner allowed Driver to use car in exchange for driving Passenger. Such arrangement constituted a joint venture, allowing Driver's negligence to be imputed to Passenger. Emergency vehicle was not negligent per se in blocking traffic lane without warning. Circuit Court did not err in barring late amendment to answer for pleading set-off for a settlement disclosed months before.
Sandra Back, Plaintiff/Appellant/Cross-Respondent, v. Winfield-Foley Fire Protection District, Defendant/Respondent/Cross-Appellant. Missouri Court of Appeals Eastern District

 

Daniel E Stuart - Mr. Stuart is licensed to practice law in Kansas, Missouri and New York and has been representing individuals since 1994. Having represented individuals for personal injuries, divorce, child custody, medical negligence, Dan has considerable expertise in the areas of asbestos-related litigation including FELA cases, as well as personal injury work related to automobile, premises liability/slip and fall injuries and railroad employee occupational injuries. The focus of his practice has been personal injury, divorce and child custody litigation related matters involving complex issues and including toxic tort exposure and catastrophic injuries. In addition, Dan has experience in commercial business litigation cases including fraud.


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