Seeking Justice For All
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Phone: 314-862-7999 . Fax: 314-862-8999 . www.stl-law.com
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ADMINISTRATIVE LAW AND PROFESSIONAL LICENSING Prevailing party in administrative proceeding may be entitled to award of attorney fees if State cannot prove its position was substantially justified. Gary Webster was an employee of the Division of Youth Services, a division of the State of the Missouri’s Department of Social Services. A female employee claimed that Webster had sexually harassed her and she filed a complaint against Webster with the Department’s Office for Civil Rights. An investigator from the OCR concluded that Webster had violated State regulations and policies and, based upon that investigation, Webster was demoted. Webster appealed the demotion and, after a five-day hearing, received a full reinstatement. As a prevailing party in an agency proceeding, Webster then was awarded his attorney fees and expenses incurred in the proceeding. The Department appealed and the Missouri Court of Appeals, Western District reversed on the grounds that the wrong standard was applied in arriving at the award. The appellate court articulated that, on remand, Webster would be entitled to an award of attorney fees unless the State established that its decision to demote Webster was substantially justified. [Seidner v. Webster, WD65375, 9-19-2006].
Evidence of alcohol consumption is admissible to show negligence of a driver even though blood alcohol content was below legal limit. R.J. Slater was driving his motor vehicle at the intersection of Route B and Seeburger Road in St. Charles, when it collided with a motorcycle driven by Richard Zempel. Slater had a stop sign at that intersection while Zempel did not. The police officer detected an odor of alcohol on Slater, but determined his alcohol content had not exceeded the legal limit. Zempel sued Slater for personal injury and, at trial, evidence was admitted relative to Slater’s consumption of alcohol before the accident. The jury found in favor of Zempel and Slater appealed. In affirming the jury verdict, the Court of Appeals, Eastern District, held that the alcohol consumption was relevant to Slater’s ability to see Zempel and to recall the incident later and, therefore, the trial court did not error is admitting the evidence. [Zempel v. Slater, No. ED 85109, 12-6-2005].
A judge must consider including a non-cohabitation restriction in a divorce decree if both parents request one. As part of their divorce settlement, Husband and Wife agreed that neither parent should allow anyone who was not a relative to stay overnight when the children were in his or her custody. However, when both parents requested the trial court to grant their judgment of dissolution, the judge refused to include the non-cohabitation clause into “this judgment or any other judgment that I issue.” On appeal, the lower court’s refusal was reversed because a non-cohabitation restriction can be included in a judgment if the parents can show it would serve the child’s best interests. [Vollet v. Vollet, WD65682, 10-3-06]
Court cannot order that a child receive private schooling over the wishes of one parent unless the private school will meet the particular educational needs of the child. During a divorce trial where custody was at issue, the parents disagreed as to the choice of high school for their child. The son had attended a parochial school, St. John the Baptist, since kindergarten and Husband wanted him to stay at that school through high school. Wife believed that their son would do better in a public school and objected to his continuing a parochial education through high school. The trial court awarded the parents joint custody and further provided that, in the event the parties disagreed as to the choice of school, the son would attend St. John the Baptist and the parties would share the costs equally. The Wife appealed and the Missouri Court of Appeals, Eastern District, reversed as to the choice of school provision. The appellate court noted that the trial court could not compel attendance at a private school without proof that the public school could not meet the child’s educational needs. [Seyler v. Seyler, ED86912, 9-12-2006]
No jurisdiction exists for a Missouri court to modify a child support award entered in this state where all the parties were living out of state. After the parties divorced, Father lived in Kansas while Mother and Daughter lived in New Jersey. Mother was awarded child support by a Kansas court. Then, Father moved to Missouri and Mother eventually filed a motion to modify in Missouri and was awarded an increase in the child support amount. A year later, Mother sought an additional increase in child support and filed another motion to modify in Missouri. Father, now a resident of Tennessee, sought an order terminating child support because the Daughter was turning 18, the age of emancipation under Kansas law. The Missouri Court of Appeals, Western District, held that Tennessee, not Missouri, was the proper jurisdiction to amend the Missouri child support award, since none of the parties reside in Missouri. However, the appellate court also held that Missouri court had jurisdiction to enforce its own child support award and found that the law of Kansas – where the original child support order was entered – governed the issue of whether the child was emancipated. Accordingly, the matter was remanded to the trial court for the purpose of declaring that, under Kansas law, Daughter was emancipated upon reaching the age of 18. [Lunceford v. Lunceford, WD65338, 11-7-2006]
City can seize junked vehicle in open lot. Travis Benton kept junked cars on an open lot he owned in the City of Higginsville. The cars were visible from the street and the City had received complaints regarding the lot. The City notified Benton that the vehicles must be removed and, when Benton failed to comply, the City towed and seized a junked car that was owned by a third party. Benton filed suit, alleging violation of his civil rights under 42 U.S.C. 1983 and the trial court granted summary judgment in favor of the City. In affirming the lower court’s summary judgment, the Missouri Court of Appeals recognized that previous Missouri courts have upheld city ordinances authorizing the towing of inoperable motor vehicles. In addition, the appellate court noted that the junked car was not titled in Benton’s name and Benton failed to notify the City in a timely interest that he was asserting any interest in the towed car. [Benton v. City of Higginsville, No. W.D. 64861, 11-8-2005].
Mistaken payment made to public entity can be recovered through claim for “money had and received.” From 1995 to 2001, Investors Title Company recorded documents daily with the St. Louis County Recorder of Deeds and would pay for the multiple recording using one check. Investors would submit a “blank” signed check to the Recorder and, at the end of the day, an employee would fill in the amount of the check. Marjorie King, an employee in the Recorder’s office, devised a scheme whereby she would inflate the amount entered on Investor’s check and would misappropriate the amount in excess of the actual charges. King was charged and pled guilty to criminal charges and Investor sought recovery from the Recorder for the amount appropriated. The Recorder argued that the claim was barred because no written contract existed between Investors and St. Louis County. The jury rejected that argument and awarded Investors a verdict in the amount of $499,391. On appeal, the Missouri Court of Appeals, Eastern District, upheld the verdict and found that Investors’ cause of action for money had and received was proper because the payments were made as a result of a mistake. [Investors Title Company v. Hammonds, No. ED 85951, 3-21-2006]
Endorsement in memo section of check serves to bar claim after check cashed. Albany Homes Sales, Inc. agreed to purchase Gene Roger’s interest in the company, which amounted to nine percent of the shares. Albany sent Rogers a check for $26,000 and added a notation in the memo line on the front of the check stating “buy-out of 9% ownership.” Before cashing the check, Rogers placed his own restrictive endorsement on the check, indicating that the check represented a partial payment. Rogers’ suit for an accounting and injunctive relief was dismissed by the trial court and the Missouri Court of Appeals affirmed the dismissal. The appellate court held that, by cashing the check, Rogers accepted Albany’s offer to purchase his ownership interest and his secret endorsement was of no legal effect. Therefore, Rogers was no longer a shareholder and he lacked standing to bring suit as such. [Walker v. Rogers, No. WD 64708, 1-31-06]
Landowner was not entitled to “just compensation” where County rezoned her property from commercial to residential. Dianna Reagan purchased real estate in St. Louis County that was zoned industrial. Reagan began construction of an office building, a permissible use under the zoning ordinance. However, after complaints from homeowners in the neighboring residential area, St. Louis County rezoned the property to residential. Reagan filed suit against St. Louis County, alleging that the rezoning constituted an unconstitutional taking without just compensation. The trial court found that the rezoning devalued the property by $65,300 and entered judgment in favor of Reagan in that amount plus attorney fees. The Missouri Court of Appeals, Eastern District, reversed the judgment of the lower court and found that Reagan was not entitled to any compensation for the rezoning. The appellate court recognized that a rezoning could constitute a compensable taking in situations where the rezoning causes the landowners to suffer an actual physical invasion of the property or where the regulation completely deprived the landowner of all economic or productive use of the building. However, in this case, the appellate court applied a balancing test and found in favor of the County because the economic impact of the rezoning was insufficient and because the industrial zoning of the property was inconsistent with the residential nature of the surrounding subdivisions. [Reagan v. County of St. Louis, No. ED85763, 6-30-2006].
New law governs disputes arising out of residential construction for new homes and certain remodeling projects. Senate Bill 168, signed by Governor Blunt in July 2005, mandates a homeowner must provide notice to the contractor and allow an opportunity to cure before filing suit against a contractor for defects in new home construction and in some remodeling projects. The “notice and right to repair” procedure is applicable only if the contractor properly notifies the homeowner of certain aspects of the law at the time that the parties enter into their contract. The procedure also includes the option of submitting the dispute to non-binding mediation. [Section 213.041, 436.350, 436.353, 436.356, 436.359, 436.362 and 436.365, RSMo (Supp. 2005).]
A builder may be liable for defective construction even after the 10-year statute of repose. Athena Thompson was injured when a second-floor balcony affixed to an apartment building collapsed. The balcony and apartment complex were constructed by the developer 11 years before the collapse. Ms. Thompson alleged that the deck screws used to support the balcony were insufficient and that an experienced builder would know or should have known that the use of the deck screws created an unreasonable risk. The trial court granted the developer’s motion for summary judgment based upon the fact that the injury took place after the expiration of the 10-year statute of repose. The Court of Appeals reversed the lower court judgment and held that that Ms. Thompson’s suit would not be barred in light of the fact that Thompson alleged that the developer was the builder, designer and owner of the complex and should be charged with superior knowledge of the defect. [Thompson v. Higginbotham, et al, No. WD 65473, 1-10-2006]
A contractor’s failing to sign a contract allowed city to revoke the contract before the contractor performed any of it terms. The City of St. Charles received proposals for the development of real estate it owned and passed an ordinance authorizing the selection of the proposal submitted by Client Service, Inc. (CSI). The City administrator executed a contract and forwarded it to CSI, but before the contractor could sign and return the contract, the City notified CSI of its intent to withdraw. CSI then signed the contract and, when the City refused to perform its terms, CSI brought suit for specific performance. The trial court’s summary judgment in favor of the City was affirmed by the Missouri Court of Appeals, Eastern District on the grounds that the City effectively revoked the contract before the parties had established a contractual relationship. [Client Services, Inc. v. City of St. Charles, No. ED 85579, 1-24-2006]
A police officer had probable cause to search a motor vehicle’s trunk after finding a small amount of marijuana in the passenger compartment. Roger Irvin was stopped for speeding when the police officer detected a strong odor of alcohol emanating from the car. After flunking a field sobriety test, Irvin was placed under arrest. The officer then searched the passenger compartment and found a misdemeanor amount of marijuana. Without procuring a warrant, the officer then unlocked the trunk and found a felony amount of marijuana. Irvin claimed that the police officer had no probable cause to search the trunk and the trial court agreed, granting Irvin’s motion to suppress the felony amount of marijuana. However, the Missouri Court of Appeals, Western District, reversed the trial court ruling and found that the search was constitutional. [State of Missouri v. Roger Irvin, WD 66801, 11-7-2006]
New bankruptcy law will make it harder for debtor to discharge debts arising out of separation agreement or divorce decree. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 provides that debts incurred relative to a divorce or separation are no longer dischargeable. Domestic support obligations, such as child support and maintenance, were non-dischargeable under the old law. However, non-support obligations usually were dischargeable under the old law. Under the new law, the domestic support obligations remain non-dischargeable and, now, so are non-support obligations arising out of a divorce or separation, including property settlement obligations. Also non-dischargeable under the new law could be obligations arising out of hold harmless and indemnification agreements between the parties to a divorce or separation agreement. The new law will provide a remedy to a spouse who is forced to pay a marital debt that the other spouse was supposed to pay under the decree. If that other spouse files bankruptcy, the third party creditor – such as a credit card company – can still proceed against the non-filing spouse. Under the new law, the filing spouse cannot discharge any obligation to reimburse the non-filing spouse under an indemnification or hold harmless agreement if the non-filing spouse had to pay the third party creditor. [11 U.S.C 523(a)(15)]
Temporary employee cannot sue for tortious interference of contract where he had no expectation of continued employment. Stehno, a temporary employee, was placed by his employment agency to work at Amdocs on the Sprint account. Stehno worked several days on the assignment before he was recognized by a senior manager at Sprint. The senior manager was uncomfortable working with Stehno and asked Amdocs to remove him from the Sprint account. After Amdoc complied with the request, the employment agency terminated Stehno because it had no other assignments for him. Stehno sued Sprint and Amdocs for tortious interference with a business expectancy, but a jury returned verdicts in favor of both companies and against Stehno. The Missouri Supreme Court upheld the verdicts on the grounds that Stehno had nothing more than a subjective expectancy for continued employment. The agreement between Amdocs and Sprint and the agreement between Amdocs and the employment agency provided that Sprint and Amdocs had the right to terminate a contract worker for any reason. In addition, Stehno was an employee at will with the employment agency and, accordingly, under common law, could be terminated for any non-discriminatory reason. Therefore, Stehno had no valid reasonable expectancies for continued employment with Sprint, Amdocs or the employment agency. [Stehno v. Sprint Spectrum, LP., No. SC87023, 2-14-06]. Employees may be held liable in sexual harassment cases under the Missouri Human Rights Act. At a dinner party attended by the senior business team of Abiliti Solutions Inc., the company’s vice-president, Tamara Cooper, was subjected to unwelcome sexual touching by the companies’ president, Gordon Quick. Cooper brought suit against the company for sexual harassment and retaliation and against Quick for sexual harassment and assault. The trial court entered summary judgment against Cooper on all claims. On appeal, the Missouri Court of Appeals, Eastern District, affirmed the summary judgment against the company, but reversed as to the claims against Quick. The appellate court found that an individual can be liable under the Missouri Human Rights Act, which makes it unlawful for an employer to discriminate and defines “employer” to include “any person directly acting in the interest of an employer.” [Cooper v. Albacore Holdings, Inc., ED87027, 8-29-06]
Comprehensive trust legislation contains changes that may affect existing revocable trusts. For the first time, Missouri has enacted legislation that addresses widespread issues relating to trusts. The Missouri Uniform Trust Code and other recent legislation, contain provisions that govern the drafting of trusts. The new legislation also may cause many settlers to revisit trusts already in place. The new legislation purports to provide clarity with regard to numerous issues, including: (1) the ability to revoke, terminate or amend a trust; (2) the capacity of the settler to revoke or amend a trust; (3) a beneficiary’s ability to remove a trustee; (4) a trustee’s duties and powers; (5) spendthrift provisions. [Sections 456.1-101 to 456.11-1106, RSMo.]
Punitive damages are recoverable by purchaser of a truck where car dealership knew truck was unsafe to drive. The Krysa’s purchased a truck from Payne’s Car Company that they later found out was unsafe to drive. The Krysa’s sued Payne for fraudulent misrepresentation and violation of the Missouri Merchandising Practices Act. At trial, the Krysa’s proved that, at the time of the sale, Payne knew or should have known that the truck had significant structural and mechanical problems. The jury awarded the Krysa’s $18,000 in compensatory damages and $500,000 in punitive damages and Payne appealed. The Court of Appeals upheld both awards, finding that the punitive damage award was not excessive because Payne’s fraud against the Krysa’s was not an isolated incident. [Krysa v. Payne, No. W.D. 64589 , 11-15-2005]
Boat insurance covers injury suffered to boat owner who was hit by another boat while swimming. Valerie and Jeff Poage owned a pontoon boat which they took out on Table Rock Lake. The Poages stopped the boat and turned it off in order to allow Valerie and her guests to swim in the lake. Several minutes later, Valerie was swimming approximately 25 feet from her boat when she was hit by another boat and suffered bodily injury. The Poages’ boat was insured through State Farm and the policy in question provided coverage for “bodily injury caused by an accident resulting from the ownership, maintenance or use” of the Poages’ watercraft. State Farm denied coverage for the injury and Valerie filed suit. The trial court granted summary judgment in favor of Valerie and State Farm appealed. The Missouri Court of Appeals, Southern District, affirmed the trial court decision, finding that the term "use" – which was not defined in the insurance policy -- had been construed by other courts as a general catch-all term that was capable of multiple meanings. Therefore, the appellate court liberally construed the term in favor of the insured and found that, even though the boat was not running and was simply floating, it was "used" for the purpose of swimming in the lake. [Poage v. State Farm Fire & Casualty Co., SD 27619, 10/23/2006]
Statute of limitations for intentional tort begins to run when the damages are capable of ascertainment. A 41-year old man filed suit against Chaminade College Preparatory School, claiming that he was molested by two teachers more than 25 years ago. The plaintiff alleged that he had repressed his memory of the sexual abuse until just before filing suit. Chaminade argued that the statute of limitations barred the claim and the trial court granted summary judgment in favor of Chaminade on that basis. The Supreme Court for the State of Missouri reversed and remanded the matter back to the trial court, holding that the statute of limitations does not begin to run “when the wrong is done …but when the damage resulting therefrom is sustained and is capable of ascertainment.” The Supreme Court directed the lower court to consider that the statute of limitations begins to run when the “evidence was such to place a reasonably prudent person on notice of a potentially actionable injury.” [Powel v. Chaminade College Preparatory School, Inc. SC 86875, 6-13-06).]
State must follow statutory procedure strictly in order to terminate parental rights. Missouri’s children division took custody of a five-day old child because of concerns that Mother could not provide adequate care. Mother entered into a written service agreement with the children’s division, which included a requirement that she submit to a psychological examination. Mother complied with that requirement and, after the examination, the psychologists recommended adoption in her report. However, the report also provided that, if Mother was able to work through her issues, she may in the future be able to be a good Mother. Two years later, the children’s division and the juvenile office each filed a petition for the termination of parental rights in circuit court. Over Mother’s objection, the psychologist’s report was filed in support of the termination and, in entering judgment in favor of the termination, the circuit court relied upon the report. The Missouri Supreme Court reversed the circuit court’s judgment on the grounds that the statutory framework required that a study be prepared after the filing of a petition for termination of parental rights. The Supreme Court noted that this requirement was not merely a superficial technicality because it ensures that the lower court will not be relying upon stale conclusions and because it causes the lower court and the juvenile office to have a role in developing the study. [In the Interest of: C.W., No. SC88049, 1-9-2007]
Landlord not vicariously liable for accidental shooting where lease provided tenant with exclusive possession and control of the premises. Glennco leased residential property it owned to Tuggles. Under the lease, Tuggles was required to procure insurance coverage, to pay taxes relative to the property, to repair and maintain the premises and to pay for improvements to the property. During the term of the lease, a loaded gun owned by Tuggles was discharged on the premises, resulting in the accidental death of a minor child. The parents of the minor child filed sued against both Tuggles and Glennco for wrongful death and the trial court granted summary judgment in favor of Glennco. In affirming the trial court’s judgment, the Missouri Court of Appeals, Western Division relied upon the general rule that landlords are not liable for personal injuries sustained by a tenant or a tenant’s invitees. [Thompson v. Tuggle, No. WD 65576, 2-7-06]
NEGLIGENCE AND PERSONAL INJURY Business owner can be held liable for slip and fall on ice on sidewalk in front of business. John Cooper was walking on the sidewalk on Forsyth in Clayton when he slipped and fell on ice that partially covered the sidewalk, injuring his pelvis, back, and legs. The sidewalk was in front of a business owned by Capital Investment, LLC. Cooper brought suit against Capital, alleging that: the condition of the sidewalk was dangerous and defective and that Capital was negligent for failing to remedy or warn. Capital filed a motion for summary judgment on the grounds that no duty arose to clean the sidewalk because the ice had accumulated naturally as a result of the general weather conditions in the community. Cooper responded to the motion with evidence that Capital artificially created a condition that made the sidewalk unsafe by allowing the canopy attached to the property to drain water onto the sidewalk, where it froze, thereby creating an unnatural accumulation of ice. The trial court granted the motion for summary judgment in favor of Capital, however, the Missouri Court of Appeals, Eastern District reversed on the grounds that a jury must decide whether the ice accumulated as a result of general weather conditions or whether it was a dangerous condition unique to Capital’s property. [Cooper v. Capital Investment, LLC, ED87541, 10-24-2006]
Non-compete agreements are enforceable in the health care industry, even where enforcing employer is a not-for-profit corporation. Pearl Copeland and LuAnn Helms were employed by Oxford Healthcare, a home health provider. Both agreed in writing not to work for a competing business within 100 miles of Oxford for a two-year period following their termination of employment there. Copeland and Helms both resigned from Oxford and commenced working for Integrity, a competing home healthcare provider. Thereafter, a number of Oxford’s patients began receiving services at Integrity. Oxford filed suit and the lower court granted it injunctive relief, but denied its claim for damages. On appeal, the Missouri Supreme Court cited the general rule that non-compete agreements are enforceable to protect against the misuse of trade secrets or customer contacts. The Supreme Court found that the non-compete agreements at issue were reasonably tailored geographically and temporarily for the limited purpose of protecting Oxford’s patient base. Furthermore, the Supreme Court held that Oxford’s status as a not-for-profit entity did not preclude it from protecting itself from unfair competition. Consequently, the lower court’s judgment was reversed and remanded with regard to the damage issue and Oxford was entitled to prove damages resulting from its loss of patients. [Healthcare Services of The Ozarks v. Copeland, #SC87083, 8-8-2006] Employer who breached contract with its employee cannot enforce non-compete in that same contract. Marschuetz and his employer, Supermarket Merchandising, entered into a written contract that contained a non-compete. The contract also provided that Marschuetz “shall receive the compensation as is mutually agreed upon, which may be adjusted from time to time, as full compensation for services…” After Marschuetz signed the contract, Supermarket unilaterally instituted three changes to the way Marschuetz would be compensated. Marschuetz never agreed to the changes and eventually resigned to work for a competitor. Supermarket filed suit and the trial court entered preliminary and permanent injunctions against Marschuetz, precluding him from working for the competitor. On appeal, the Missouri Court of Appeals, Eastern District, reversed the judgment entered by the lower court, finding that Supermarket breached the contract first and, therefore, was not entitled to rely on that same contract to seek injunctive relief. [Supermarket Merchandising and Supply, Inc., ED 86393, 5-16-06)]
Qui tam plaintiff must allege fraudulent activity with particularity or else suffer dismissal. Dr. Keshav S. Joshi brought a qui tam action against St. Luke's Hospital, Inc. and Dr. Mohammed Bashiti, St. Luke's chief of anesthesiology, pursuant to the False Claims Act. Dr. Joshi's complaint alleges that from 1989 to the present, St. Luke's and Dr. Bashiti submitted and conspired to submit false claims to the government seeking payment Medicare and Medicaid for anesthesia services, medical supplies, and prescriptions. The Defendants moved to dismiss on the grounds that the complaint failed to set forth the fraudulent conduct with the heightened particularity required by the Federal Rules of Civil Procedure. The district court granted the motion to dismiss and denied Dr. Joshi’s request for a relaxation of the pleading requirements to allow him to conduct discovery and procure the necessary details. The United States Court of Appeals, Eighth Circuit, affirmed the district court’s dismissal, indicating that the heightened pleadings requirement reflects, in part, a concern that a qui tam plaintiff, who has suffered no injury in fact, may be particularly likely to file suit as a pretext to uncover unknown wrongs. [United States ex rel. Keshav S. Joshi v. St. Luke's Hospital, Inc., 441 F.3d 552 (8th Circuit 2006) No. 05-2445.]
In appointing a guardian to care for an incapacitated and disabled, court must consider and give preference to the appointment of a family member. Robert Prost was a patient at Fulton State Hospital, a Department of Mental Health (DMH) facility, after being found incompetent to stand trial on arson charges. The DMH filed a Petition for Appointment of Guardian and recommended that the court appoint the Public Administrator of Franklin County to be appointed as Prost’s guardian. Prost testified that he preferred his mother to serve as guardian and his mother testified that she would consent to such an appointment. The trial court granted the petition and appointed the Public Administrator without articulating a reason as to why mother was not appointed. The Court of Appeals, Eastern District, reversed and directed the trial court, upon remand, to consider that Missouri law requires the preference for the appointment of relatives over strangers to serve as guardians as there is a presumption that a relative is "likely to be more solicitous than a stranger" in providing care for the incapacitated. [In the Interest of Robert A. Prost, ED87269, 09/26/2006]
Landowner has no cause of action against neighboring landowner for loss of lateral support unless actual subsidence is alleged. Kensington Building Corp. built a retaining wall on property abutting the property owned by Dean and Donna Lusardi. According to the Lusardi’s, the retaining wall was defective and they claimed it would not laterally support Lusardi’s property. The Lusardi’s filed suit and, after a non-jury trial, received a verdict against Kensington in the amount of $8,891.02. However, during the trial, no evidence was introduced to support a finding that Kensington’s construction resulted in the actual disturbance of the integrity of Lusardi’s soil. Based upon this lack of subsidence, the Missouri Court of Appeals, Eastern District, reversed the judgment of the trial court. The appellate court concluded that a cause of action for damages for the withdrawal of lateral support will not lie without proof that the soil had moved from its natural position. [Lusardi v. Kensington Building Corporation, ED85063, 11-29-2005]
Conviction for driving while intoxicated is set aside without evidence of operation. Willie Chambers was discovered slumped over the steering wheel of a car parked in William Utke's driveway. Utke had not seen the car pull into the driveway, nor did he know how long the car had been parked there. The car's headlights were not on and the engine was not running. When the police officer arrived to the scene, Chambers admitted he had been drinking, but would not admit he had been driving the car. Chambers was placed under arrest and, because of his prior convictions, he eventually was convicted of the felony crime of driving while intoxicated and sentenced to four years in the custody of the Missouri Department of Corrections. The conviction was reversed on the grounds that the State failed to introduce the requisite "significant additional evidence" of Chambers’ driving or operating his vehicle that is necessary to sustain a criminal conviction where the engine was not running. [State of Missouri v. Willie Chambers, SD27329, 10-19-2006]
Workers’ compensation law provides exclusive remedy for employees injured due to negligent acts committed by employer or by fellow employees acting within the scope of their employment. While working as a lineman for Tri-County Electric Cooperative, Steven Watson climbed an electric pole without proper protection and died when he touched the wires. Watson’s parents brought a civil suit against Tri-County and his son’s supervisor, Bobby Newland. The trial court denied Tri-County’s and Newland’s motion for summary judgment, however, the Supreme Court for the State of Missouri issued a writ of prohibition, which enjoined the trial court from hearing the case. The Supreme Court held that suits against employers and against individual employees for the breach of the duty to maintain a safe workplace are preempted by the remedies provided under the workers’ compensation act. [State ex re. Tri-County Electric Cooperative Association v. Dial, No. SC 87279, 5-30-2006]
School district is not liable for death of student who was traveling to an off-campus school event. Lee Davis, a student at Lutheran South High School, was killed while traveling to see the school’s softball team play a championship game in Columbia, Missouri. His parents filed a wrongful death suit against the school, alleging causes of action for negligent supervision and/or failure to supervise. The trial court dismissed the suit and the parents appealed. In affirming the lower court’s dismissal, the Missouri Court of Appeals, Eastern District, found that the school owed no general duty of care to the students because the event was not mandatory and the students were not under the control and custody of the school at the time of the collision. [Davis v. Lutheran South High School Association, No. ED 86449, 6-27-2006] |
