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

Charles Moore, age 61, frequently ate at a restaurant in Springfield, Missouri. While there, he would talk to a 13-year old girl, whose family owned the restaurant. During one conversation, he asked her if she had ever had sex and if she wanted him to teach her how to have oral sex. He also told her that he would kill her if she told anyone about the conversation. When he returned to the restaurant two days later, the girl became afraid and told others about the conversation. The police were called and arrested Moore. He was charged with third-degree sexual misconduct for soliciting another person to engage in sexual conduct under circumstances in which he knows that his request or solicitation is likely to cause affront or alarm. He was convicted and required to register as a sex offender. He appealed to the Supreme Court, contending that the statute was an unconstitutional infringement on freedom of speech. The Supreme Court affirmed his conviction in State of Missouri v. Moore, No. SC 84495 (Mo.banc 2002).

The statute at issue, § 566.095, RSMo., involves both conduct, which the state can declare to be a crime, and speech. Where conduct and not merely speech is involved, the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. First Amendment principles do not always require that a statute be struck down, even though it is broadly drawn. If the statute may fairly be construed in a manner that limits its application to a core of unprotected expression, it may be upheld against the charges that it is overly broad. Here, the defendant asked a 13-year old girl to participate in the crime of statutory sodomy. An adult is deemed, under the law, to know that this conduct was likely to cause affront or alarm. In this case, the state met its burden of showing that the victim did, in fact, experience affront or alarm as contemplated by the statute. The solicitation by the defendant was not just speech, but conduct that the defendant is presumed under the law to know is likely to cause affront or alarm. As construed, the challenged statute does not violate the constitutional guaranty of freedom of speech. The dissent argued that the statute was, on its face, an unconstitutionally overbroad prohibition of speech protected by the First Amendment.

Batson Requires Race-Neutral Explanation Regardless of Defendant's Race

Troy Marlowe, who is white, was charged with resisting arrest and unlawful use of a weapon. During voir dire at the beginning of his trial, the prosecutor used a peremptory challenge to strike the only African-American on the jury panel. Marlowe's attorney raised a Batson challenge to this strike. In response to the Batson challenge, the prosecutor stated that the African-American stricken from the jury panel was a member of a class action lawsuit and had the impression that she would not be a good juror for the state. Defense counsel pointed out that another person on the jury panel was also part of a class action suit and that person was not stricken. The trial court upheld the strike of the African-American and Marlowe was convicted. His conviction was reversed, however, by the Supreme Court in State of Missouri v. Marlowe, No. SC 84282 (Mo.banc 2002).

Under the Equal Protection clause, a party may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror's gender, ethnic origin, or race. When a defendant believes that a strike was made on such grounds, a Batson challenge may be raised. The trial court must then require the state to come forward with a reasonably specific and clear race-neutral explanation for the strike. Assuming the prosecutor is able to articulate an acceptable reason for the strike, the defendant will then need to show the state's proffered reason for the strike was merely pretextual and that the strike was racially motivated. A white defendant may object to the prosecutor's peremptory challenge of a black venire-person. At the second stage of a Batson inquiry, the race-neutral explanation for the strike need not be persuasive. During the third stage, the opponent of the strike must show that the proffered reasons are merely pretextual. At issue is the plausibility of the explanation for striking the venire-person.

Here, a white venire-person who was not stricken was also involved in a class action lawsuit, which was the prosecutor's stated basis for striking the African-American venire-person. In determining whether the proferred reason for the strike was merely pretextual, the first factor to be considered is the existence of similarly situated white jurors who were not struck. The second factor is the degree of logical relevance between the proffered explanation and the case to be tried. Here, class action involvement is only marginally relevant to deciding charges in a criminal case. The prosecutor's failure to distinguish between the white venire-person and the stricken black venire-person – coupled with the low degree of logical relevance between the criminal case and the venire-person's class-action involvement – left the showing of pretext by the prosecutor unrefuted. The prosecutor's reasons for striking the African-American venire-person were pretextual.

Golf Course Not Liable for Injuries to a Trespasser

Robert Hogate was riding his bicycle on Art Hill in Forest Park. He rode his bike down the hill and onto the 4th fairway of the Forest Park Golf Course. He rode into the yellow rope that was strung along a newly sodded area of the fairway. He fell and sustained injuries. He filed suit against American Golf Corporation, which leased the golf course from the City of St. Louis. At trial, the general manager of the golf course testified that he was aware of Art Hill being used by bicyclists, but had no knowledge of people riding bicycles on the golf course. The jury found AGC 100% at fault and awarded Hogate $100,000. The Court of Appeals reversed, however, in Hogate v. American Golf Corporation, No. ED 80151 (Mo. App. E.D. 2002).

In Missouri, the status of the entrant on land of another determines the duty of care owed by the possessor of land. An invitee is a person who has been invited to enter the property with the expectation by the possessor of a material benefit from the visit. A trespasser enters the land without consent or privilege. A possessor of land owes invitees the duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection. Generally, a possessor of land does not owe a duty of care to a trespasser. The rule is based not upon the wrongful nature of the trespasser's entry, but rather it is based upon the inability of the possessor of land to foresee the presence of the trespasser and guard against injury. Here, there were paved paths in Forest Park on which to ride bicycles. Hogate did not utilize those paths, but rode across the fairway of the golf course. Bicycle riding is not an accepted purpose on a fairway of a golf course. Although there was evidence that AGC was aware of bicyclists on Art Hill, that does not support the conclusion that AGC should have been aware of bicyclists on the golf course. Hogate exceeded the scope of any invitation to him as an invitee on the golf course and was, therefore, a trespasser to whom AGC owed no duty. The dissent commented that there was sufficient evidence for a reasonable juror to conclude that AGC owed a duty to Hogate as an invitee or as a foreseeable trespasser.

Public Policy Favors Arbitration

Lafarge Corporation contracted with Dunn Industrial Group (DIG) for DIG to construct a new cement manufacturing plant that would be leased to the City of Sugar Creek. The contract between Lafarge and DIG contained an arbitration clause stating that any controversy or claim arising out of the contract, or the breach thereof, would be settled by arbitration. Disputes developed between Lafarge and DIG over changes in the scope of work and adjustments to the contract amount. DIG filed three mechanic's liens against the property and then filed a multi-count lawsuit in Jackson County, seeking recovery from Lafarge under claims of breach of contract, misrepresentation, quantum meruit and foreclosure of its mechanic's liens. Lafarge then filed a demand for arbitration against DIG with the American Arbitration Association, claiming damages for DIG's failure to properly and timely perform the construction. An equitable mechanic's lien action was filed in Jackson County Circuit Court by another contractor on the project, and that suit was consolidated with the suit filed by DIG. Lafarge filed a motion to stay litigation and compel arbitration, which the trial court denied. The Court of Appeals reversed, however, in Dunn Industrial Group v. City of Sugar Creek, WD 60718 (Mo. App. W.D. 2002).

State courts are bound by the provisions of the Federal Arbitration Act in cases involving interstate commerce. The FAA evinces a liberal federal policy favoring arbitration. A court must stay litigation and compel arbitration if it determines that the parties agreed to arbitrate the dispute. In construing arbitration clauses, courts have categorized such clauses as broad or narrow. A broad arbitration provision covers all disputes arising out of the contract to arbitrate. Here, all of the claims in DIG's suit against Lafarge arise out of or relate to the construction contract. Thus, DIG's claims fall within the substantive scope of the parties' arbitration agreement. Moreover, enforcement of the arbitration provision is not barred by Missouri's equitable lien statutes. While an equitable mechanic's lien action is the exclusive method of litigating liens and other claims regarding property, arbitration is a proceeding separate from litigation based upon its underlying purpose of encouraging dispute resolution without resort to the courts. Thus, the arbitration agreement between Lafarge and DIG is enforceable regardless of whether multiple mechanic's liens exist, creating a basis for an equitable mechanic's lien action. Furthermore, under the Supremacy Clause, the equitable mechanic's lien statutes cannot be applied to defeat the parties' arbitration agreement, which is covered by the FAA. Missouri's equitable mechanic's lien statutes will, therefore, not be applied to bar enforcement of Lafarge and DIG's agreement to arbitrate the underlying disputes. The trial court erred in denying Lafarge's motion to stay litigation and compel arbitration between Lafarge and DIG.

Statutory Limit on Contributions From Political Parties to Candidates is Constitutional

The Missouri Libertarian Party and one of its candidates filed suit challenging the limits that a political party may contribute to a candidate, as prescribed by § 130.032, RSMo. The party challenged these limits under Article I, § 8 of the Missouri Constitution, which states that no law shall be passed impairing the freedom of speech. The trial court found that the statute did not violate this section of the Missouri Constitution and the Supreme Court of Missouri agreed in Missouri Libertarian Party v. Conger, No. SC 84869 (Mo.banc 2002).

Article I, § 8 of the Missouri Constitution has never been held to give an absolute right to communicate ideas at all times and under all circumstances. The political contribution limits contained in § 130.023, RSMo. do not violate the right protected by the First Amendment to the United States Constitution. Missouri courts have also held that the right to free speech is subject to the state's inherent right to reasonably exercise its police power. Here, the right to free speech is necessarily subject to the state's inherent right – even in a political context – to exercise its police powers to protect the public from corruption and the appearance of corruption. The restriction on contributions in § 130.032 serves that purpose and is a proper exercise of the state's police power.

Motion to Transfer for Improper Venue Must be Granted if No Reply is Filed

Flordia Murray slipped and fell while walking across a parking lot at Lambert International Airport. She filed suit in the circuit court of the City of St. Louis against two construction companies working at the airport. One of the defendants, Vee-Jay Contracting, moved to transfer for improper venue, since it had no office or agent in the City of St. Louis. The trial court overruled the motion to transfer venue, but the Supreme Court of Missouri issued its writ of mandamus in State of Missouri ex rel. Vee-Jay Contracting Co. v. Neill, No. SC 84218 (Mo. banc 2002).

Supreme Court Rule 51.045 states that within 10 days after the filing of a motion to transfer for improper venue, an opposing party may file a reply denying the allegations. If no reply is filed, a transfer of venue shall be ordered where venue is proper. Here, no reply was filed in response to the motion to transfer. The plain meaning of Rule 51.045 mandates a transfer of venue if no reply is filed by the opposing party in response to a motion to transfer for improper venue. A judge must transfer venue if the opposing party does not reply to a proper motion to transfer. Here, the trial judge had a duty to transfer the case to a proper venue.

Subcontractor Not Liable for Injuries Sustained by Employee of Another Subcontractor

Todd Erdman was a carpenter for Interior Construction Services. ICS was a subcontractor to Fru-Con Construction Company, the general contractor for a two-level expansion project at Sigma Chemical Co. Condaire and Sachs Electric Co. were also subcontractors to Fru-Con on the project. During construction, Fru-Con directed the cement subcontractor to form large holes in the plant floor and install 4-inch steel kick plates around each such opening in the floor. Fru-Con required all openings in the floors to be covered with wooden plywood covers, installed by its carpenters. Fru-Con conducted various safety inspections and its employees inspected the openings every morning and evening to see that the covers were in place. While carrying materials over the floor with a co-worker, Erdman stepped into one of the openings, causing him to fall; his groin landed on the steel kick plate installed along the perimeter of the opening. His urethra was severed and he underwent reconstructive surgery. A wooden cover that should have been placed over the opening was standing against a wall 15 feet from the hole. He filed suit against Condaire and Sachs, contending that their employees had removed the cover from the opening. At trial, he introduced evidence that employees for Condaire and Sachs were the only workers in the area at the time the accident occurred. The jury returned a $700,000 verdict in favor of Erdman, but the Court of Appeals reversed in Erdman v. Condaire, No. ED 80447 (Mo. App. E.D. 2002).

A general contractor has a duty to use ordinary care to prevent injuries to invitees. In contrast, a subcontractor does not stand in the shoes of the landowner for purposes of determining liability for any injury on the premises during the course of construction. Here, Erdman was required to show that Condaire and Sachs, as subcontractors, either created the dangerous condition or had responsibility for and control over the area where the accident occurred. Condaire and Sachs did not create the opening in the floor when the concrete was poured, and they had substantially completed their work in the area 23 days prior to Erdman's accident. All employees at the work site had access to the floor where the accident occurred and there were several trades working in the area on a daily basis. There was no evidence presented that Condaire and Sachs had responsibility for and control over the area when the accident occurred. There was no evidence that Condaire or Sachs employees were in the area on the day of the accident. While Erdman presented evidence that there was no reason for any other worker besides Condaire and Sachs employees to be in the area, there was not substantial evidence to show Condaire and Sachs had responsibility for and control of the area where Erdman was injured.

Determination of Damages is Primarily for the Jury

John Othman, age 89, was entering a Wal-Mart store through the automatic doors. At the time he started through the doors, they began to close and he fell to the ground. He broke his femur, which required surgery and the insertion of metal pins into his leg. In his personal injury suit against Wal-Mart, the jury returned a verdict of $250,000, but found Othman 50% at fault. Wal-Mart requested remittitur on the grounds that the judgment was excessive and the result of passion by the jury. The Court of Appeals affirmed the verdict in Othman v. Wal-Mart Stores, No. E.D. 80597 (Mo. App. E.D. 2002).

The determination of damages is primarily for the jury. No precise formula exists for determining whether a verdict is excessive, and each case must be considered on its own facts. Ultimately, the test is what amount fairly and reasonably compensates the plaintiff for the injuries sustained. In determining whether an award is excessive, the following factors are considered: (1) loss of income, both present and future, (2)medical expenses, (3) plaintiff's age, (4) the nature and extent of plaintiff's injuries, (5) economic considerations, (6) awards given and approved in comparable cases, and (7) the superior opportunity for the jury and the trial court to evaluate plaintiff's injuries and other damages. Missouri appellate courts no longer engage in close scrutiny of the amounts awarded by juries for personal injuries, since the trial court is in a much better position than the appellate court to assess the verdict. Here, John was a relatively healthy 89-year old man who lived an independent and active life style. His medical bills were $34,000 and he underwent invasive surgery. The trial court did not err in refusing to grant remittitur.

To Prevail on Hostile Work Environment Sexual Harassment Claim, Employee Must Show That Employer Had Notice of Harassment

Jacqueline Mason worked in the bakery of a Wal-Mart Sam's Club. On several occasions, another employee in the bakery, Johnny Rowland, harassed her by, among other things, calling her a bitch, asking her if she had a boyfriend, and grabbing her breasts, hips, and buttocks. She filed suit against Wal-Mart under the Missouri Human Rights Act, alleging that Wal-Mart allowed a hostile work environment that perpetuated sexual harassment of female employees. During trial, the judge excluded the testimony of another Sam's Club employee that she had been told by other female employees they had been sexually harassed by Mr. Rowland. The jury returned a verdict in favor of Wal-Mart, but the trial judge granted a new trial on the grounds that the testimony of the other employee had been improperly excluded from evidence. The Court of Appeals, however, affirmed the jury verdict in Mason v. Wal-Mart Stores, No. WD 60686 (Mo. App. W.D. 2002).

Hostile work environment sexual harassment exists when sexual conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment. To prevail on a hostile work environment claim, a plaintiff must show that: (1) she is a member of a protected group, (2) she was subjected to unwelcome sexual harassment, (3) the harassment was based upon sex, (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the harassment and failed to take appropriate remedial action. An employer is liable for the sexual harassment of a co-worker by another if the employer knew, or should have known, of the harassment and failed to take prompt and effective remedial action. An employer can obtain knowledge in two ways: (1) actual notice where the employee has reported the conduct, and (2) constructive notice where the sexual harassment is so pervasive that the employer should have known of its existence.

Here, the testimony of another employee that other women at Sam's Club had told her of harassment by Mr. Rowland was inadmissible. If offered for the truth of the statement – that other women had complained to management about Mr. Rowland's conduct – it was inadmissible as hearsay. If offered to show constructive notice of Mr.Rowland's improper conduct, it did not have sufficient probative value since it did not establish the time frame in which Mr. Rowland's harassment of the other women occurred. Because the trial court had properly excluded this testimony, it abused its discretion in granting a new trial based on the exclusion of this testimony.

Missouri Follows Most Significant Relationship Test in Determining Choice of Law

Armstrong Business Services entered into a franchise agreement with H & R Block. Under the franchise agreement, Block granted to Armstrong the right to use the H & R Block service mark in connection with the preparation of income tax returns within a specified geographic area. Armstrong operated H & R Block franchises in nine states. Armstrong challenged the right of Block to terminate the franchise agreements. The franchise agreement stated that Missouri law governed the contract. Armstrong argued that the laws of the states in which the franchises were operating should be applied, instead of Missouri law, since those states had a materially greater interest in the controversy. The trial court applied Missouri law and the Court of Appeals agreed in Armstrong Business Services v. H & R Block, No. W.D. 60348 (Mo.App. W. D. 2002).

A fundamental principle of conflicts is that a forum state will always apply forum procedure, but it will choose the applicable substantive law according to its own conflict of law doctrines. Missouri follows the Restatement (Second) of Conflicts of Law in Contract Actions. Section 188 of the Restatement employs the most significant relationship test. That section identifies five potentially significant contacts to be considered in a contract case when determining which state has the most significant relationship to the transaction and parties. Those elements are: (1) the place of contracting, (2) the place of negotiation of the contract, (3) the place of performance, (4) the location of the subject matter of the contract, and (5) the domicile, residence, nationality, place of incorporation, and place of business of the parties. The principles of Section 6 of the Restatement must also be applied. They are: (1) the needs of the interstate and international systems, (2) the relevant policies of the forum, (3) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (4) the protection of justified expectations, (5) the basic policies underlying the particular field of law, (6) certainty, predictability and uniformity of result, and (7) ease in the determination and application of the law to be applied.

Applying these factors from the Restatement, Missouri has the most significant relationship to this transaction. Missouri is the state of incorporation of H & R Block, the location of the H & R Block headquarters, and the place of part performance under the contract. Additionally, application of the law of Missouri, as chosen by the parties to govern their franchise agreement, is consistent with the principle that the justified expectations of the parties be protected. Finally, the goals of predictability and uniformity will be met by applying Missouri law to the franchise agreements, no matter where the individual franchises are located. The contractual choice of law as agreed to by the parties in the franchise agreement is to be given effect, and Missouri law applies to this case.