W. Dudley McCarter
Behr, McCarter & Potter
St. Louis

Kathleen Diehl filed a discrimination charge against her former employer, NASD regulation, alleging discrimination by it on the basis of age and sex. The Missouri Commission on Human Rights issued her a "right to sue" letter and she then filed suit in circuit court seeking damages for lost wages and emotional distress. She also filed a request for jury trial, which the trial judge denied. The Supreme Court of Missouri reversed, however, in State ex rel. Diehl v. O'Malley, No. SC 84659 (Mo. banc 2003).

Article I, § 22(a) of the Missouri Constitution states that the right of trial by jury as heretofore enjoyed shall remain inviolate. The phrase "remain inviolate" is a more emphatic statement of the right to a jury trial than the simply stated guarantee in the Seventh Amendment to the United States Constitution that "the right of trial by jury shall be preserved.…" Federal courts have upheld the right to a jury trial in claims based on the Missouri Human Rights Act. The basis for the federal court conclusion that there is a right to jury trial of claims for damages under the Missouri Human Rights Act is that such actions are analogous to claims maintained at common law and are, therefore, within the Seventh Amendment's guarantee that trial by jury be preserved. Federal courts have rejected the characterization of an action for damages under this statute as equitable in nature. The fact that the statute has options for a claimant to pursue equitable or administrative relief does not make an action for damages in a civil action for violation of the statute an equitable or administrative action. The right to trial by jury, where it applies, is a constitutional right, regardless of any statutory provision, and is beyond the reach of hostile legislation. Here, Diehl's civil action for damages is the kind of case triable by juries from the inception of the state's original Constitution. The overruling of her request for a jury trial denied her constitutional right to trial by jury under Article I, § 22(a) of the Missouri Constitution.

Trial Court Did Not Err in Refusing to Set Aside $2.3 Million Default Judgment

Bobby and Linda Hinton filed a personal injury suit against Proctor & Schwartz, based on product liability claims. Bobby Hinton was injured at work while using a machine designed and manufactured by Proctor; the injury resulted in the amputation of the fingers on his right hand. The Hintons' suit was filed in October 2000. Prior to the suit being filed, Proctor had merged with Wolverine Corp. and the name of the surviving corporation became Wolverine Proctor & Schwartz. The summons for the Hintons' suit was served on CT Corporation, the registered agent for WP&S, on December 7, 2000. When no responsive pleading was filed for WP&S, the Hintons filed a motion for default judgment. The trial court conducted a default hearing and on February 10, 2001, entered a default judgment in favor of the Hintons in the amount of $2,300,000. On October 16, 2001, WP&S filed a motion to vacate the default judgment, which was denied by the trial court. Thereafter, WP&S filed a motion for reconsideration and a motion for relief from the judgment, both of which were also denied by the trial court. The Court of Appeals affirmed the trial court judgments in Hinton v. Proctor & Schwartz, No. ED 80700 (Mo. App. E.D. 2003).

The appellate court affords the trial court broad discretion in granting a motion to set aside a default judgment and narrow discretion in denying a motion to set aside a default judgment. The reason for the differing standards is the distaste our system holds for default judgments. A party moving to set aside a default judgment has the burden of proving both a meritorious defense and good cause. A motion to set aside a default judgment cannot prove itself; it must be verified or supported by affidavits or sworn testimony produced at a hearing on the motion. Here, the affidavit filed in support of the WP&S motion was not notarized and was, therefore, not a valid affidavit. Moreover, even if it had been notarized, it was insufficient evidence of good cause because it was not made on personal knowledge of the affiant. Hearsay statements contained in an affidavit are not facts admissible in evidence and should not be considered by the trial court. WP&S failed to present evidence to show a mistake or conduct that was not intentionally or recklessly designed to impede the judicial process.

Moreover, the defense that the trial court lacked personal jurisdiction over WP&S was waived, since it was not raised in the initial motion to vacate the default judgment. A defendant may waive personal jurisdiction when he or she is before the court and fails to properly raise the issue. In the motion to vacate, WP&S did not assert insufficiency of process and did not contest the trial court's jurisdiction. It was only raised in the later motion for reconsideration, but had not been preserved in the previously filed motion to vacate and was, therefore, waived. The trial court did not abuse its discretion in denying the motion to vacate and motion for reconsideration because WP&S had not met the pleading requirements of Supreme Court Rule 74.05 and had waived any claim of lack of personal jurisdiction.

Forum Selection Clause in Loan Documents Was Binding on Guarantor

LaSalle Bank loaned $20,000,000 to Family Snacks. Victor Sabatino, president of Family Snacks, signed all the loan documents and personally guaranteed the loan. As additional security, LaSalle Bank also obtained a deed of trust on property in Platte County, Missouri, owned by Victor Sabatino and his wife, Kathryn. Each of the loan documents contained a forum selection clause, stating that Cook County, Illinois, was the exclusive venue for all actions arising out of or related to the agreements. The deed of trust did not contain a separate forum selection clause, but incorporated the loan agreements by reference. The Sabatinos filed suit against LaSalle Bank in Platte County Circuit Court. The trial court granted the bank's motion to dismiss, based on the forum selection clauses in the loan documents and the Court of Appeals affirmed in Sabatino v. LaSalle Bank, No. WD 60729 (Mo. App. W.D. 2003).

Missouri courts follow the majority rule that an outbound forum selection clause should be enforced, unless it would be unfair or unreasonable to do so. The party resisting enforcement of a forum selection clause bears a heavy burden in persuading the court that the clause is unfair or unreasonable. In order to prove a forum selection clause is unfair, a party must do more than simply assert lack of bargaining power. The Sabatinos did not allege any facts to show that the loan documents were adhesive, or were not freely entered into in an arm's length transaction.

Platte County does not have exclusive venue pursuant to § 508.030, RSMo, which applies to suits in which the title of real estate may be affected. Here, the fact that the debt to LaSalle Bank was secured by the real estate is only incidental. The lawsuit filed by the Sabatinos did not seek a judgment that would directly affect the title to their real estate. Moreover, Missouri law enforces incorporation clauses in contracts. Although no Missouri case has directly ruled on the incorporation by reference of a forum selection clause, other jurisdictions have upheld forum selection clauses incorporated by blanket references to other agreements. Here, the deed of trust incorporated the forum selection clause in the other loan documents. The forum selection clauses at issue here are neither unfair nor unreasonable and, therefore, are enforceable under Missouri law.

Jury Instruction on Defendant's Intoxiction Was Improperly Refused by Trial Court

Larry McCrackin filed suit against Teresa Plummber for injuries he suffered in an automobile accident. The parties presented conflicting evidence at trial. McCrackin testified that Plummber crossed the center line and into his path. Plummber testified that McCrackin crossed the center line and into her path. Both presented evidence suggesting the other was under the influence of alcohol at the time of the accident. Plummber admitted to having drunk two beers earlier in the evening and McCrackin testified that he could smell alcohol on her breath. Plummber produced evidence that McCrackin emitted a strong odor of alcohol. The jury found McCrackin 100% at fault. The verdict was reversed, however, in McCrackin v. Plummber, No. WD 60996 (Mo. App. W.D. 2003) for the trial court's failure to submit the issue of Plummber's intoxication in McCrackin's verdict directing instruction.

The burden of presenting substantial evidence in support of an intoxication theory is met by showing alcohol consumption, particularly when combined with the lingering odor of alcohol. Here, McCrackin met that burden. Sufficient evidence was presented as a matter of law to submit to the jury the issue of whether Plummber was intoxicated and, if she was, whether such intoxicated state impaired her driving ability as presented in the verdict directing instruction that was rejected by the trial court. McCrackin presented evidence that, if believed by the jury, would have supported a finding that Plummber drove while intoxicated, thereby impairing her driving ability. The evidence presented was sufficient to submit to the jury, as the trier of fact that determines the credibility of the witness, the issue of whether Plummber was intoxicated and whether her intoxication was a legal cause of the accident.

Denial of Mobile Home Park Application by County Commission was Supported by Competent and Substantial Evidence

Windy Point filed its application for rezoning and a conditional use permit to develop a mobile home park on a 93-acre tract of land in Boone County. A public hearing was held before the Boone County Planning & Zoning Commission. At this hearing, Windy Point presented expert testimony that area property values would not be adversely affected and that traffic surrounding the development would still be at an acceptable level of service. Seventeen area residents testified regarding the negative impact the mobile home park would have on their real estate values and on traffic. The Planning & Zoning Commission recommended denial of the application, and the Boone County Commission denied it. On appeal to the Boone County Circuit Court, the commission's decision was affirmed and the Court of Appeals also affirmed the denial in Windy Point Partners v. Boone County, No. WD 60669 (Mo. App. W.D. 2003).

The combined testimony of the area residents constituted competent and substantial evidence that the flow of traffic would be hindered if the conditional use permit was granted. Several neighbors testified that the roads serving the development currently had traffic problems and that additional traffic would compound these problems. Others testified that the road is dangerous now and that increasing the traffic would cause more accidents. The Boone County ordinance states that a conditional use permit cannot be granted unless the use will not hinder the flow of traffic or result in traffic congestion on public streets. Here, the lay testimony established that the road was already congested and dangerous and that the addition of several hundred vehicles a day would only increase existing congestion. As between the conflicting expert testimony and the lay testimony, the commission was permitted to decide what testimony was more credible and entitled to greater weight. Windy Point failed to show that the commission's credibility determinations were against the overwhelming weight of evidence. Thus, there was competent and substantial evidence to support the commission's finding that the mobile home park development would hinder the flow of traffic or result in traffic congestion on public streets.

Missouri Has Two-Tier System Regarding Liability for Dog Bite Cases

Nine-year-old Katie Wilson was playing with her neighbor, Tiffany Simmons, when she was bitten by the Simmons' Dalmation dog. The dog's bite punctured her throat and damaged her trachea. She was taken to the hospital, where she underwent emergency surgery to repair her trachea and was hospitalized for three days. Katie's parents filed suit against the Simmonses, seeking recovery on three different theories: strict liability, premises liability, and negligence. The Simmonses filed a motion for summary judgment, supported by affidavits stating that neither of them had ever seen their dog bite, nip or otherwise harm anyone. In response, Katie Wilson's mother filed an affidavit stating that, immediately following the bite to Katie, Mrs. Simmons exclaimed that the dog had bit and nipped at her own daughter, Tiffany, on several occasions. Holding that the Wilsons were required to prove the dog's dangerous propensities, regardless of their theory of recovery, the trial court granted summary judgment to the Simmonses. The Court of Appeals reversed, however, in Wilson v. Simmons, No. WD 60571 (Mo. App. W.D. 2003).

The Missouri Rule recognizes that, in a dog bite case, there exists a two-tier system of liability, predicated on the dog's dangerous propensities. As to a dog that possesses abnormally dangerous or vicious propensities, the rule makes it clear that regardless of what steps are taken to warn or protect from those dangers of which the owner has actual or constructive knowledge, the owner will be strictly liable for any injuries caused by the dog. In other words, our public policy is that if an owner wants to knowingly maintain a vicious dog, he or she will be strictly liable for the injuries caused by the dog.

With respect to a dog that does not possess known vicious dangerous propensities, the rule reflects a degree of freedom from potential liability in recognition of the fact that dog is considered man's best friend. Thus, under the second tier of the Missouri Rule, the law has recognized that a possessor of land can be held liable to an invitee or a licensee entering on the land for a foreseeable danger created by the normally dangerous propensities of a dog. Of course, whether proceeding under strict liability or premises liability, our public policy with respect to domestic animals dictates that there be proof that the possessor of the animal, prior to the incident, had some knowledge of the animal's dangerous propensities. Here, the trial court erred in entering summary judgment for the Simmonses, based on its erroneous declaration that the law required the Wilsons, on their claim asserted for premises liability, to prove that the Simmonses' dog possessed vicious propensities that were known or should have been known to them prior to the incident.

City Not Liable for Defective Traffic Signals Where Intersection Not Unusually Dangerous

On September 20, 1999, at approximately 8:20 p.m., Stacy Horneyer was crossing the eastbound lanes of Chestnut Expressway in Springfield, Missouri. As she pulled into the lane, she was struck by a car driven by Heather Baker, who was driving with her headlights off. The streetlights at this intersection were not functioning and the intersection was dark. Due to a faulty controller, the streetlights had not been operating for more than 10 days. Ms. Horneyer filed suit against the City of Springfield, alleging that the city was liable for the unreasonably dangerous and hazardous condition at the intersection. The trial court granted summary judgment to the city and the Court of Appeals affirmed in Horneyer v. City of Springfield, No. SD 25031 (Mo. App. S.D. 2003).

The doctrine of sovereign immunity provides public entities with protection from liability for negligent acts. Sovereign immunity is waived in cases where the injuries are caused by the dangerous condition of a public entity's property. This dangerous condition exception to sovereign immunity refers only to physical defects in a public entity's property. Lack of adequate lighting that renders property not reasonably safe for its intended purpose is, under certain circumstances, considered such a physical defect. It fits within the exception where a duty exists to provide the lighting. Whether such a duty exists is a question of law; for a duty to exist, it must be foreseeable that the action or omission will cause harm or injury. A public entity does not have a duty to protect against all possible injuries, only those that are reasonably foreseeable.

A city has the duty to construct and maintain its streets in such condition that they will be reasonably safe and, therefore, a city is liable for injuries caused by negligent construction or by failure to keep the streets from nuisances, defects, and obstructions, if it had actual or constructive notice in time to appropriately address the nuisance, defect, or obstruction. A city must properly light a dangerous place at night in order to discharge its absolute duty to exercise reasonable care to keep its streets in reasonably safe condition for travel. A number of other courts have held that the failure of a public entity to provide adequate street lighting was the deprivation of a benefit, not the violation of a duty. The failure to maintain a streetlight does not create a greater risk than would be apparent in the complete absence of a streetlight.

The rule that corresponds the best to Missouri law is that the duty of a city to maintain streetlights is limited to situations in which illumination is necessary to avoid dangerous and potentially hazardous conditions. An intersection that is large and busy does not qualify, of itself, as a dangerous or hazardous condition, and the mere outage of streetlights at such an intersection does not render a reasonably safe street dangerous. Here, there was no evidence to show that the subject intersection was illuminated originally to obviate a dangerous condition. Thus, the city had no duty to maintain the streetlights under the circumstances of this case.