Missouri Court Decisions and Personal Injury Law Updates
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
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