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