Wrongful Death Suit Against Convenience Store That Sold Alcohol to a Minor is Barred by Missouri Dram Shop Act
W. Dudley McCarter
Behr, McCarter & Potter
St. LouisTerry Keown, a minor, bought liquor from Huck’s Convenience Store. After consuming the alcohol, he was killed in a one-vehicle traffic accident. His mother filed a wrongful death suit against the store, alleging that it negligently sold liquor to her son. She further alleged that the Missouri Dram Shop Act was unconstitutional because it barred lawsuits against commercial sellers of packaged alcohol who sell liquor to a minor. The defendant’s motion to dismiss was sustained and the Supreme Court of Missouri affirmed in
Snodgras v. Martin & Bayley, Inc., No. SC 87841 (Mo. banc 2006).
“Section 537.053.1 RSMo., provides that dram shop liability is generally prohibited and that Missouri follows the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons.”1 The statute does contain an exception and allows suits against “any persons licensed to sell intoxicating liquor by the drink for consumption on the premises if the seller knew or should have known that the liquor was served to a person under the age of 21 or knowingly served liquor to a visibly intoxicated person.”2 The statute has no exception “for claims against a seller of packaged liquor, even if the sale is to a minor.”3
The statute does not impose any barriers to pursuing a recognized cause of action; it simply defines the scope of the cause of action. Therefore, the Dram Shop Act does not violate the open courts clause of the Missouri Constitution. Plaintiff’s claim that the act violates the equal protection clause is also incorrect. An equal protection claim will be denied if the statute is rationally related to a legitimate state interest. A statute is presumed to have a rational basis, and this presumption will only be overcome by a clear showing of arbitrariness or irrationality. A statutory classification is upheld “if any state of facts reasonably may be conceived to justify it.”4
“There are several rational bases for barring suits against sellers of packaged liquor for consumption off the premises” and it is “not irrational for the legislature to assign additional responsibility to those who sell liquor by the drink for consumption on the premises.”5 “Sellers of packaged liquor have no control over their patrons once they leave the premises. The legislature could have reasonably concluded that allowing for liability in that context would involve unacceptable amounts of uncertainty given the variety of possible intervening factors between the time of purchase, consumption and injury.”6 “. . . [C]ivil lawsuits are not the only means of achieving social or economic objectives. The legislature may regulate alcohol consumption through a variety of criminal and civil liabilities and administrative enforcement actions. In Missouri, the legislature has chosen to address the problem of underage drinking by imposing penalties on the underage drinker and not by exposing the sellers of packaged liquor to civil liability.”7
Judgment is Presumed Paid 10 Years From the Date It Was Rendered
On September 13, 1994, Jerry Crockett obtained a judgment against Thomas Polen on a promissory note. During February of 2004, Crockett filed garnishments against Polen’s employer and received several payments on the garnishment. The garnishment against Polen’s wages continued through December of 2004. In January 2005, Polen filed a motion to quash the garnishment, alleging that the underlying judgment expired on September 13, 2004 because Crockett had not filed a motion to revive it prior to that date. The trial court denied Polen’s motion to quash, but the Court of Appeals reversed in Crockett v. Polen, No. WD 65445 (Mo. App. W.D. 2006).
“Under Section 516.350, RSMo., ‘judgments are conclusively presumed paid ten years after they were originally rendered unless a party has revived the judgment or entered a payment upon the record.’ Pirtle v. Cook, 956 S.W.2d 235, 238 (Mo. banc 1997).”8 “Once the conclusive presumption arises, the judgment cannot be revived and no suit can be maintained on it.”9 In a proceeding by a judgment creditor to revive a judgment, “the judgment debtor may come into court and show cause why the original judgment should not be revived.”10 “The debtor’s defenses are limited, however, to either the judgment does not exist or the judgment has been satisfied.”11 Here, Crockett failed to revive the judgment within 10 years. Thus, the only way in which Crockett’s writ of garnishment may be enforced beyond the 10-year statute of limitations is by payment on the judgment within the 10-year period.
“[F]or a payment to be effective in tolling the statute of limitations for purposes of reviving a judgment, the payment must be voluntary, or made with the consent of the payor.”12 When a defendant pays a judgment after execution or writ of garnishment in aid of execution has issued, courts have held that the payment was involuntary. Here, “all of the payments made by Polen were the result of a garnishment of his wages and, therefore, were involuntary payments; no payments were made by him that tolled the statute of limitations.”13 “All payments made after September 13, 2004 were improperly garnished from Polen because in the absence of revival of the judgment, the September 13, 1994 judgment was ‘conclusively presumed to be paid’ on that date.”14 “The trial court’s judgment is reversed and remanded with instructions to grant Polen’s motion to quash garnishment after September 13, 2004 and to order . . . Polen be reimbursed for all sums garnished after expiration of the judgment.”15
Doctrine of Unclean Hands to Be Used in the Discretion of a Court of Equity
Pony Express Community Bank loaned money to Northwest Commercial Park, Inc. and obtained personal guarantees from the corporation’s three principals and their spouses. The three principals were James Burkeybile, Larry Campbell and Brian Campbell. The bank required the guarantors to submit annual financial statements. After several years, Burkeybile did not provide his financial statement to the bank. The corporation defaulted on the note and the bank exercised its right of set-off against Burkeybile’s account. The bank also collected lump sum payments from Larry and Brian Campbell and released them from the guarantees. To collect the remaining balance due, the bank filed suit against Burkeybile, who then filed a third-party action against Larry and Brian Campbell seeking equitable contribution because he had paid more than his pro rata share of the note obligation. At trial, the Campbells asserted that Burkeybile had unclean hands that barred his recovery against them because of his failure to provide the bank with financial statements. The trial court rejected that defense and entered judgment in favor of Burkeybile and against Larry Campbell and Brian Campbell in amounts calculated to equalize the total payments to the bank as between the three guarantors. The Campbells appealed, but the Court of Appeals affirmed in Pony Express Community Bank v. Campbell, No. WD 66042 (Mo. App. W.D. 2006).
“[T]he unclean hands defense ‘will not aid wrongdoers who attempt to use it as a shield for their own misconduct.’”16 “The unclean hands defense is grounded upon the maxim that ‘[h]e who comes into equity must come with clean hands.’”17 “This maxim is not intended to benefit the defendant who invokes its protection, but to serve the interests of public policy and protect the integrity of the courts.”18 “Thus, in order to accomplish the policy goals underlying the maxim, Missouri courts have relaxed the general rule such that even when the parties have been found to be in pari delicto, relief has at times been awarded on the ground that in the particular case, public policy has been found to be best conserved by that course.”19 “[T]he doctrine of unclean hands is ‘not one of absolutes’ and can be used in ‘the discretion of a court of equity.’20 The doctrine should thus be ‘applied when it promotes right and justice by considering all of the facts and circumstances of a particular case.’”21
Here, “Burkeybile’s principal duty regarding the note was the same as that of the Campbells: to pay the balance due.”22 “Thus, even if Burkeybile’s failure to provide financial statements was ‘misconduct’ to the extent that such financial statements were required under the note, it was not misconduct of the sort required for application of the unclean hands doctrine to Burkeybile’s claim for contribution.”23 Burkeybile and the two Campbells were equal co-obligors on the bank loan and Burkeybile paid a disproportionate share of his obligation. “Under the facts and circumstances of this case, it cannot be said that application of the doctrine of unclean hands would promote right and justice.”24
Spoliation of Evidence
The Pikey family filed a wrongful death action against Dr. William C. Bryant, arising from the death of a family member. During Dr. Bryant’s deposition, he denied receiving from a hospital radiology department a CT report on the deceased. The Pikey family then filed a separate suit against Dr. Bryant seeking damages for the intentional spoliation of evidence. The trial court dismissed this suit and the court of appeals affirmed in Pikey v. Bryant, No. 27570 (Mo. App. S.D. 2006).
“‘Spoliation’ is the destruction, mutilation, alteration or concealment of evidence.”25 No Missouri case has directly ruled on whether or not intentional first-party spoliation of evidence is a recognized cause of action in Missouri. “When confronted by the issue of whether or not to recognize a claim for intentional spoliation of evidence, other jurisdictions, like Missouri, have refused to recognize such a tort where the facts of the case would not support a cause of action, even if the tort were recognized.”26 “At this time, only five states recognize a cause of action for first-party intentional spoliation. The majority of states have either expressly refused to recognize a separate tort for first-party intentional spoliation or declined to reach the merits of the issue and decided the case on other grounds.”27 “[T]he degree of the causal relationship between the intentional spoliation of evidence and the impairment of the injured party’s prosecution of the underlying action varies from state to state.”28 “And, because Missouri has not recognized this tort, the parameters of this causal relationship have not been defined in our state.”29
“[T]he party injured by spoliation must show more than the fact that potential evidence was intentionally destroyed.”30 “Without a causal relationship between such action and the disruption of the injured parties’ ability to successfully prosecute its civil action against the perpetrator, the injured party has failed to state a cause of action for intentional spoliation of evidence.”31 Here, “[p]laintiff’s petition contains no allegations of ultimate facts of a causal relationship between the intentional spoliation and the inability of the plaintiffs to prove the wrongful death action”;32 the petition “fails to allege a requisite causal connection. . . and, therefore, fails to state a cause of action for intentional spoliation of evidence.”33 “Because plaintiff’s petition fails to state a claim for intentional first-party spoliation of evidence, we do not reach the issue as to whether Missouri recognizes such a cause of action.”34
Good Fences, Good Neighbors, and Zoning Codes
Daniel and Carol Maguire erected an ordinary chain-link fence around their yard in 2004. They then became involved in a dispute with their neighbor, Dottie Crenshaw, regarding the property line. Crenshaw asked the City of Elsberry to issue an order requiring removal of the fence, but the city declined. Crenshaw then filed suit against the Maguires, alleging that the fence violated the Elsberry zoning ordinance that prohibited the construction of any “building” within 7.5 feet of a property line. The circuit court agreed and ordered the Maguires to remove the fence. The Court of Appeals reversed, however, in Crenshaw v. Maguire, No. ED 87223 (Mo. App. E.D. 2006).
“This case disproves Robert Frost’s rule that ‘good fences make good neighbors.’ The burning question is whether . . . an ordinary chain-link fence is a ‘building’”35 and, thus, prohibited by the City of Elsberry zoning ordinance. The Elsberry ordinance prohibits construction of any “building” within 7.5 feet of a property line. “In the ordinance, a building is defined as ‘any structure designed or built for the support, enclosure, shelter or protection of persons, animals, chattels or property of any kind.’”36 “Because no reasonable construction of the term ‘building,’ including how it is specifically defined within this ordinance, could include a chain-link fence,”37 the trial court erroneously ordered the removal of the fence. “The Maguires rely on Missouri case law, which they argue supports a property-owner’s right to freely use real property, unless expressly prohibited by law.”38 “[T]he Maguires [also] argue that ‘common sense’ dictates such a fence be permitted at or near a property line to prevent confusion over the true property line, as well as curtail adverse possession claims.”39 “The Maguires’ arguments [are both] sound in principle and grounded in the law. . . .”40
“Missouri courts have a well-established tradition of protecting real property-owners’ rights to freely use their property as they desire.”41 “’Restrictions on the free and untrammeled use of land are not favored by the law and will be narrowly construed.’”42 “’Restrictive covenants are to be strictly construed, are not to be extended by implication to include anything not clearly expressed by them. If there is substantial doubt of their meaning, such doubt should be resolved in favor of the free use of the property.’”43 “Missouri courts take the same approach regarding zoning ordinances, and have likewise held that ‘zoning ordinances, being in derogation of common law property rights, are to be strictly construed in favor of the property owner against the zoning authority.’”44 “Where a term in a zoning ordinance is susceptible of more than one interpretation, the courts are to give weight to the interpretation that, while still within the confines of the terms, is least restrictive upon the rights of the property owner to use his land as he wishes.”45 “In this case, there is no question that the zoning ordinance is being used to curtail the right of the Maguires to freely use their property.”46 “[T]he term ‘building,’ as it is defined in the relevant Elsberry zoning ordinance, does not clearly encompass a chain-link fence, such as the one bordering the Maguires’ property.”47 “[T]he court’s application of the Elsberry ‘building’ set-back requirement to this fence was an error and cannot stand.”48
Evidence Supported Damages for Aggravating Circumstances in Wrongful Death Action
Patricia Walker was driving “along Interstate 70 in Independence when she was struck and killed by a thirty-seven pound steel plate that flew through her windshield. It was later determined that the steel plate had fallen out of a truck carrying a load of scrap metal.”49 The truck was owned by American Compressed Steel (ACS). At the trial of the wrongful death suit filed by Walker’s family, evidence was presented that ACS was aware of the risk of death or injury to others from the failure of its drivers to safely secure the truckloads, but nonetheless left if up to the individual drivers to decide when and how to cover a particular load. There was also evidence that, prior to Walker’s death, there had been at least 10 incidents of metal objects falling out of an ACS truck. Plaintiffs presented expert testimony that the fatal incident was both foreseeable and preventable because the metal plate would not have fallen out of the truck had it been properly covered with a tarp. The expert also testified that ACS had shown a conscious disregard for public safety by failing to comply with federal and state law and industry standards regarding proper load security procedures. The jury awarded Walker’s family $2 million compensatory damages and $1 million in damages for aggravated circumstances. The Court of Appeals affirmed in Coon v. American Compressed Steel, No. WD 65185 (Mo. App. W.D. 2006).
"In awarding damages for wrongful death, the trier of fact may be allowed to consider ‘mitigating or aggravating circumstances attending the death.’”50 “Damages for aggravating circumstances are akin to punitive damages. Their purpose is to punish the defendant and deter further wrongdoing.”51 “Under a negligence theory, punitive damages are properly submitted upon evidence that the defendant knew or had information from which he, in the exercise of ordinary care, should have known that the alleged negligent conduct created a high degree of probability of injury, and thereby showed complete indifference or conscious disregard for the safety of others.”52 “To support a claim for punitive damages, the evidence of aggravating circumstances must be ‘clear and convincing.’”53 “The clear and convincing standard requires evidence which instantly tilts the scales in the affirmative when weighed against evidence in opposition; evidence which clearly convinces the fact finder of the truth of the proposition to be proved.”54
Here, “[t]he evidence at trial was sufficient to show, by clear and convincing evidence, that ACS should have known that its failure to routinely require drivers to secure loose pieces of scrap metal, by tarping or otherwise covering their loads, created a high probability of injury.”55 “Company management was aware of the laws and industry standards requiring that loads be covered or secured, but they nonetheless had a policy of giving drivers discretion in whether to follow the law. The evidence indicated that ACS showed complete indifference or conscious disregard for the safety of others.”56 There had been at least 10 prior incidents of scrap metal falling onto the roadway and ACS knowingly violated regulations and standards specifically designed to prevent the fatal injury that occurred here.
Violations of Municipal Ordinances are Quasi-Criminal in Nature
The City of Kansas City issued two summonses to Frederick McGary for violation of its nuisance ordinance, which prohibited unlicensed vehicles from being parked on the grass or dirt of residentially zoned property. The summonses were issued by a city code enforcement officer after a warning letter had been sent to McGary. The warning letter stated that a summons would be issued if the nuisances had not been removed within 10 days. At trial, testimony showed that a city inspector visited the property more than 10 days after the warning letter had been issued and observed unlicensed vehicles parked in the dirt or grass portion of the yard. Photographs of the vehicles were introduced into evidence. After the court’s finding of guilt, McGary appealed. The Court of Appeals affirmed the conviction in City of Kansas v. McGary, No. WD 66338 (Mo. App. W.D. 2006).
“Violations of municipal ordinances are quasi-criminal in nature.”57 “Nevertheless, guilt must be proven beyond a reasonable doubt and the rules of criminal procedure apply.”58 “Furthermore, municipal ordinance provisions imposing penalties are strictly construed against the municipality and will not be extended by implication.”59 “These principles also apply to violations of zoning laws where the municipality seeks to impose some penalty as opposed to civil relief.”60
Here, McGary testified that he had received the warning letter and understood that it was directed to the improperly licensed and improperly parked vehicles on his property. His own testimony acknowledged that a nuisance existed before he was charged with the ordinance violations and that the nuisance resulted from the vehicle problems. By his own testimony, he confirmed that a “nuisance existed from which he had actual or constructive notice and that the nuisance he was charged with permitting and not abating was the same nuisance of which he had knowledge and a warning.”61 The evidence was sufficient to support the conviction.
Under Dangerous Property Exception to Sovereign Immunity, Plaintiff Must Prove That Defendant Had Exclusive Control of the Property
Emery Ford died as a result of an accident that occurred when he lost control of his motorcycle on County Road 1451 in Cedar County. There were no witnesses to the accident. His parents filed a wrongful death action against Cedar County, alleging that, under § 537.080, Ford’s death was caused by a dangerous condition of the road. They further alleged that, as Ford was traveling southbound on County Road 1451, his motorcycle became airborne due to the slope of the road as it approached a bridge, causing him to skid off of the road and down an embankment. Finally, they alleged that the road was unsafe and dangerous and that the county had failed to warn of the unsafe and dangerous condition. Cedar County filed a motion for summary judgment stating that it did not have exclusive control and possession of that portion of County Road 1451 where the accident occurred, and that control of the road was with the commissioners of a special road district. The trial court granted summary judgment to Cedar County and the Court of Appeals affirmed in Ford v. Cedar County, No. 27409 (Mo. App. S.D. 2006).
“’Sovereign immunity is a judicial doctrine that precludes bringing suit against the government without its consent.’”62 “Section 537.600.1(2) RSMo. waives sovereign immunity for ‘[i]njuries caused by the condition of a public entity’s property[.]’ To trigger this exception, a plaintiff must prove: (1) a dangerous condition of the property; (2) that the plaintiff’s injuries directly resulted from the dangerous condition; (3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind the plaintiff incurred; and (4) that a public employee negligently created the condition or that the public entity had actual or constructive notice of the dangerous condition.”63 “With respect to the first element, ‘the term “of the property” includes having exclusive control and possession of the property.’64 ‘The plaintiff must establish these elements as part of its own case, because sovereign immunity is not an affirmative defense.’”65
Here, plaintiff was required “to show that Cedar County had ‘exclusive control and possession’ of County Road 1451 where the accident occurred.”66 “In its motion for summary judgment, [Cedar County stated] that Caplinger Mill Special Road District exercised responsibility for the portion of County Road 1451 where [the accident] occurred. A special road district is a separate public entity ‘capable of suing and being sued’ and ‘of contracting and being contracted with.’”67 “A public entity cannot be subject to suit for a dangerous condition that exists on property under the control of another public entity.”68 Cedar County’s motion for summary judgment established a right to judgment as a matter of law, because it negated a necessary element of plaintiff’s claim, i.e. that Cedar County had exclusive control and possession of the property where the accident occurred.
Footnotes
1 Snodgras v. Martin & Bayley, Inc., No. SC 87841 (Mo. banc 2006).
2 Id.
3 Id.
4 Greenlee v. Duke’s Plastering Services, Inc., 75 S.W.3d 273, 277 (Mo. banc 2002).
5 Snodgrass.
6 Id.
7 Id.
8 Crockett v. Polen, No. WD 65445 (Mo. App. W.D. 2006), quoting Pirtle v. Cook, 956 S.W.2d 235, 238 (Mo. banc 1997).
9 Id.
10 Crockett, quoting Elliott v. Cockrell, 943 S.W.2d 238, 329 (Mo. App. E.D. 1997).
11 Id.
12 Crockett, citing Eubank v. Eubank, 29 S.W.2d 212, 214 (Mo. App. 1930).
13 Crockett, citing Kinser v. Elkadi, 654 S.W. 2d 901, 903 (Mo. banc 1983).
14 Crockett, quoting Pirtle v. Cook, 956 S.W.2d at 238.
15 Crockett.
16 Pony Express, quoting Nelson v. Emmert, 105 S.W.3d 563, 569 (Mo. App. S.D. 2003).
17 Pony Express, citing 30A C.J.S. Equity § 102 (1992).
18 Id.
19 Pony Express, citing Smith v. Holdoway Construction Co., 129 S.W.2d 894 (Mo. 1939).
20 Pony Express, quoting Sangamon Assoc., Ltd. v. Carpenter 1985 Family Partnership, Ltd., 165 S.W.3d 141,145 (Mo. banc 2005).
21 Id.
22 Pony Express.
23 Id.
24 Id.
25 Pikey v. Bryant, citing Black’s Law Dictionary 1437 (8th ed. 2004).
26 Pikey, citing Baugher v. Gates Rubber Co., 863 S.W.2d 905, 909 (Mo. App. 1993).
27 Pikey.
28 Id.
29 Id.
30 Pikey, quoting Hannah v. Heeter, 584 S.E.2d 560, 573 (W.Va. 2003).
31 Pikey.
32 Id.
33 Id.
34 Id.
35 Crenshaw v. Maguire, No. E.D. 87223 (Mo. App. E.D. 2006).
36 Id.
37 Id.
38 Crenshaw, citing City of Louisiana v. Branham, 969 S.W.2d 332, 338 (Mo. App. E.D. 1998).
39 Crenshaw.
40 Id.
41 Crenshaw, citing Udo Siebel-Spath v. Construction Enterprises, Inc., 633 S.W.2d 86 (Mo. App. E.D. 1982).
42 Crenshaw, quoting Udo Siebel-Spath at 88.
43 Id.
44 Crenshaw, quoting St. Louis County v. Taggert, 866 S.W.2d 181, 182 (Mo. App. E.D. 1993).
45 Id.
46 Crenshaw.
47 Id.
48 Id.
49 Coon v. American Compressed Steel, No. WD 65185 (Mo. App. W.D. 2006).
50 Coon, quoting § 537.090, RSMo.
51 Coon, citing Elliot v. Kesler, 799 S.W.2d 97, 103 (Mo. App. W.D. 1990).
52 Coon, citing MAI 10.07; Hoover’s Dairy, Inc. v. Mid-Am. Dairymen, 700 S.W.2d 426, 436 (Mo. banc 1985).
53 Coon, quoting Lopez v. Three Rivers Elec. Co-Op., Inc., 26 S.W.3d 151, 160 (Mo. banc 2000).
54 Coon, quoting Peters v. General Motors Corp., 200 S.W.3d 1, 25 (Mo. App. W.D. 2006).
55 Coon.
56 Id.
57 City of Kansas citing Strode v. Director of Revenue, 724 S.W.2d 245, 247 (Mo. banc 1987).
58 City of Kansas citing City of Webster Groves v. Erickson, 789 S.W.2d 824, 826 (Mo. App. E.D. 1990).
59 Id.
60 Id.
61 City of Kansas.
62 Ford, quoting State ex rel. Div. of Motor Carrier and R.R. Safety v. Russell, 91 S.W.3d 612, 615 (Mo. banc 2002).
63 Ford, citing Tillison v. Boyer, 939 S.W.2d 471, 473 (Mo. App. E.D. 1996).
64 Id.
65 Ford, quoting Maune ex rel. Maune v. City of Rolla, 203 S.W.3d 802, 804 (Mo. App. S.D. 2006).
66 Ford, citing Rell v. Burlington Northern R.R. Co., 976 S.W.2d 518, 521 (Mo. App. E.D. 1998).
67 Ford, quoting §§ 233.025, 233.170 and 233.320, RSMo.
68 Ford, citing Summit by Boyd v. Roberts, 903 S.W.2d 631, 635 (Mo. App W.D. 1995) and Claspill v. State Div. of Economic Development, 809 S.W.2d 87, 89 (Mo. App. W.D. 1991).