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

Valorie Travis was killed in a motor vehicle accident on Missouri Highway 13 in Johnson County. She had come to a stop while waiting to make a left turn. Meredith Stone rear- ended the Travis vehicle and forced it into the other lane of traffic, where it was struck by a vehicle being driven by Lowell Hulse. Mr. Travis filed a wrongful death suit against Stone, Hulse and Hulse's employer. The jury returned a verdict in favor of Mr. Travis and against Ms. Stone, but decided in favor of Mr. Hulse and his employer. After determining that one of the jurors visited the accident scene over the lunch hour during a break in the testimony of Travis's accident reconstruction expert, Travis filed a motion for new trial. The trial court denied the motion for new trial, but the Supreme Court of Missouri reversed in Travis v. Stone, No. SC 83551 (Mo. banc 2002).

Once it is established that a juror has gathered evidence extraneous to the trial, prejudice will ordinarily be presumed and the burden is on the respondent to overcome the presumption of prejudice. While a juror's testimony regarding misconduct affecting deliberations may not be used to impeach a jury's verdict, it is permissible to elicit testimony about juror misconduct that occurred outside the jury room, such as the alleged gathering of extrinsic evidence. Little weight is to be given the offending juror's assessment of the effect of this conduct. Although the juror stated that her observations did not enter into the deliberations, it must be assumed that her visit had an impact on her decision-making which, in turn, influenced her participation in the jury deliberations. This is not a case in which the juror happened to drive by the scene, but a case in which the juror visited the scene for the purpose of making observations. Here, the sight distances were critical issues in the case, and the expert testimony on those issues was split. Under these circumstances, the presumption of prejudice from the juror's visit to the accident scene was not overcome.

Drug Checkpoint on Highway Exit Was Not Unconstitutional Stop in Violation of the Fourth Amendment

Police officers from the City of Troy set up a drug checkpoint at a low traffic exit on Highway 61. Before the exit, signs were placed stating "drug enforcement checkpoint one mile ahead," and "police drug dogs working." At 11:00 p.m., Todd Mack swerved off the highway onto the exit and was stopped by the officers. They observed that Mack was nervous, had glazed and bloodshot eyes, and smelled of alcohol. After Mack granted the officers permission to search the vehicle, they found various narcotics and charged him with illegal possession of those drugs. His motion to suppress the evidence was granted by the trial court, but the Supreme Court of Missouri, in a 4-3 decision, reversed the trial court in State of Missouri v. Mack, No. SC 83894 (Mo. banc 2002).

The United States Supreme Court case of Indianapolis v. Edmond, 531 U.S. 32 (2000), disallowed evidence obtained through the use of drug checkpoints, absent "individualized suspicion" of wrongdoing. Here, the entire purpose of the drug checkpoint was to generate the suspicious conduct necessary to constitute "individualized suspicion" by deceiving drivers who were engaged in criminal activity into exiting the highway so as to avoid the checkpoint they expected to encounter at the next exit. It is reasonable to conclude that drivers with drugs would "take the bait" and leave the highway at this exit to avoid being questioned at the next exit. The checkpoint was set up in an isolated area offering no services to motorists. The defendant took the exit at 11:00 p.m., when there was even less reason for local traffic to be on the road. Even if the deceptive drug checkpoint scheme did not alone constitute individualized suspicion, defendant's particular conduct in exiting at the checkpoint must be considered. Here, the defendant suddenly veered off the highway onto the exit ramp as if he made the decision to exit upon seeing the signs that a checkpoint was one mile ahead. This evidence, when coupled with the deceptive checkpoint scheme, compels a finding of "individualized suspicion." The state met its burden of proof to show that the checkpoint stop was not a Fourth Amendment violation.

The dissent found that the police officers' own conduct demonstrated that their approach did not satisfy the individualized suspicion requirement of the Fourth Amendment. The argument that Mack swerved when he left the highway was an after-the-fact rationalization made to justify a stop that was clearly based on the fact that he exited the highway when he did – he was stopped because he exited, not because he swerved. Under Edmond, it is clear that where the primary purpose of a stop is generalized criminal activity, the stop fails to pass constitutional muster. The fact that the drug checkpoint in this case was set up as a ruse is not sufficient to take it out of the category of drug checkpoints disapproved in Edmond, for it does not create the type of "individualized suspicion" that the Fourth Amendment requires.

Developer's Claim For Damages Against City Was Barred By Prior Rezoning Litigation

The City of Chesterfield denied the rezoning request of Chesterfield Village for a 46-acre tract. Chesterfield Village filed suit against the city; the circuit court declared the city's refusal to be illegal and ordered the city to place a reasonable zoning on the tract. After the city rezoned the property to conform to the judgment, Chesterfield Village then filed a second suit against the city, seeking damages based on the city's initial refusal to rezone and alleging violations of both the United States and Missouri Constitutions. The circuit court dismissed the second suit and the Supreme Court of Missouri affirmed in Chesterfield Village v. City of Chesterfield, No. SC 83747 (Mo. banc 2002).

The claim for damages asserted by Chesterfield Village was merged into the earlier judgment and, thus, was barred by the doctrine of res judicata. Res judicata precludes relitigation of a claim formerly made. The doctrine applies not only to losers, but also to parties that prevailed in an earlier judgment. It precludes not only those issues on which the court in the former case was required to pronounce judgment, but to every point properly belonging to the subject matter of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time. It prohibits the "splitting" of a claim or cause of action; claims that could have been raised by a prevailing party in the first action are merged into, and thus barred by, the first judgment.

Here, the operative facts upon which both cases are based are the actions of the city in its initial refusal to rezone. Thus, the claim for damages of Chesterfield Village could have been included in the first action for declaratory relief. Chesterfield Village knew, at the time of the first suit, that it had a claim for damages. An injured party can assert a claim for damages, even though it may not know precisely the nature and extent of the damages. The damages that Chesterfield Village asserted in the second action were part of the claim in the previous action against the city for refusing to rezone. Since the factual basis for the claim was the same in both actions, a new legal theory does not allow a second lawsuit to be brought. Chesterfield Village could not split its claim, and any claim it had for damages was merged into the first judgment, precluding it from filing a second suit.

Radiologist Was Agent of Hospital In Medical Negligence Action

Two days after being involved in a car accident, Matthew Scott (17 years old) had a severe headache. His parents took him to St. Joseph's Health Center, where a CT scan of his head was conducted. Dr. Koch, a partner in Radiologic Imaging Consultants, read the CT film and concluded that the CT scan was normal. Matthew was given medication for his headache and sent home. The next day, his headache continued and the following morning, he collapsed. He was taken by ambulance to Barnes Hospital, where a spinal tap and CT scan revealed an infection of his brain. After surgery to remove infected brain tissue and portions of his skull, he remained in a coma for several weeks. His permanent injuries included paralysis on the right side of his body and he requires a permanent ventricular drainage tube in his brain. The Scott family filed a medical negligence action against St. Joseph's and Dr. Koch. At trial, the jury found that Dr.Koch was an agent of St. Joseph's and awarded Matthew damages in excess of $4,000,000. On appeal, the hospital contended that it could not be vicariously liable for the negligence of Dr.Koch, because he was not employed by it. The Court of Appeals rejected this argument and affirmed the verdict against the hospital in Scott v. SSM Health Care, #ED 79240 (Mo. App. E.D. 2002).

Even though the hospital did not employ Dr. Koch, set his hours or bill his patients, whether an agency relationship existed between the hospital and Dr. Koch was a question for the jury. There was sufficient evidence presented to support a finding that Dr.Koch was an agent of the hospital. Among other things, the hospital established the medical standards for radiological services at the hospital, had the right to require Dr. Koch to submit reports regarding radiological services performed at the hospital, required Dr. Koch to obtain approval from the hospital before changing the charges for his services, required Dr. Koch to be an active member of its medical staff, required Dr. Koch to maintain liability insurance in specific amounts, had the right to obtain insurance for Dr. Koch if he failed to obtain insurance, had the right to terminate Dr. Koch if dissatisfied with his performance, and provided nurses, technicians, office space, equipment, supplies and fixtures for the radiology department.

While Missouri courts have long recognized that physicians must be free to exercise independent medical judgment, the mere fact that a physician retains such independent judgment will not preclude a court, in an otherwise proper case, from finding the existence of an employer-employee or principal-agent relationship between a hospital and a physician. Courts in Missouri and other states have strongly rejected the notion that such a relationship cannot be found merely because the hospital does not have the right to stand over the doctor's shoulder and dictate to him or her how to diagnose and treat patients. There was sufficient evidence in the case to support the jury's determination that Dr. Koch was an agent of the hospital.

Party Not Entitled to Jury in Interpleader Action When All Tort Feasors Are Not A Party to the Interpleader

A multi-car accident in McDonald County was caused when a pickup, driven by Alice Doyle, crossed the centerline. The collision resulted in the deaths of five people (including Austin Phillips) and injuries to four people (including Samantha Phillips). Randall Phillips, the father of Austin and Samantha, filed suit against the defendant ad litem for Alice Doyle and against Curtis Dyer, who was driving the automobile that Austin and Samantha were in. Then, Allstate Insurance Company, which provided insurance for Ms. Doyle, filed a separate interpleader action, stating that the $300,000 of coverage under Ms. Doyle's policy was subject to multiple claims. Allstate's interpleader was sustained, and it was directed to pay the $300,000 into court. Randall Phillips filed a demand for a jury trial in the interpleader suit, which was denied by the trial court. The Court of Appeals affirmed the denial of a jury trial in State of Missouri ex rel. Philips v. LePage, No. 24391 (Mo. App. S.D. 2002).

There are two parts to an interpleader action; the first involves a determination as to whether interpleader is appropriate for the situation and the second involves a determination of the conflicting claims. The issue of whether conflicting claims in an interpleader action should be heard before a jury is one of first impression in Missouri. Generally, interpleader is considered an action in equity and, therefore, not triable to a jury. There is authority, however, that wrongful death or personal injury cross-claims are appropriate within Missouri interpleader. In Missouri, it is well-established precedent that a party generally is entitled to a jury trial in a civil action for a money judgment involving disputed facts. There is also authority in Missouri that legal claims in the second phase of an interpleader proceeding (including wrongful death claims) be heard by a jury.

Here, however, not all of the alleged tort feasors are present in the interpleader action. Mr. Phillips filed a separate wrongful death case and he is entitled to a jury trial in that case. His right of recovery is not limited to Allstate's liability under the policy it issued. The scope of the litigation, in terms of parties and claims, is vastly more extensive than the confines of the policy limits that Allstate paid into the court. The interpleader proceeding should not be used to accomplish purposes that exceed the apportionment of the policy limits based upon the claims of damage before the trial court in the interpleader action. Since Mr. Phillips was not limited to damages received from the insurance company, the apportionment from the interpleader action might only affect his separate wrongful death cause of action by reducing any recovery in that action based on damages received in the interpleader action. Thus, the trial court's denial of the jury trial demand in the interpleader action was not in error.

Evidence of Prior Accident Not Sufficiently Similar to Be Admissible

Nathan Govreau was seriously burned when gasoline shot out of the gas tank of the tractor he was operating and ignited. He filed suit against the seller of the tractor, Nu-Way Concrete Forms, seeking damages under strict products liability and negligence. His theory was that the original vented screw in the gas cap had been replaced by a solid screw. The trial court refused to admit testimony from Govreau's employer that when he purchased the tractor from Nu-Way, he saw gasoline spilling out of the gas cap of another unidentified tractor and a Nu-Way employee stated that it had a faulty gas cap. The jury returned a verdict in favor of Nu-Way and the Court of Appeals affirmed in Govreau v. Nu-Way Concrete Forms, No. E.D. 78966 (Mo. App. E.D. 2002).

Evidence of other accidents may be relevant (1) to prove the existence of a particular physical condition or defect, (2) to show that the defect or dangerous situation caused the injury, (3) to show the risk that defendant's conduct created, and (4) to prove that defendant had notice of the danger. The degree of similarity required for evidence that constitutes notice to defendant of prior similar accidents is less demanding that the similarity required to show that the same accident occurred on the occasion at issue. When evidence of other accidents is introduced to show notice of danger, the similarity in circumstances of the accidents need not be completely symmetrical. The trial court has broad discretion on questions concerning the admission or exclusion of evidence of similar circumstances. The appellate court's review is limited to whether the trial court abused its discretion in excluding the evidence; whether the trial court determined the relevance of the evidence; and whether it bore sufficient resemblance to the injury causing the incident, while it weighed the dangers of undue prejudice and confusion of issues against the factors favoring admissibility. Here, the differences between the two events were substantial. Govreau failed to show sufficient similarity between his accident and the spillage from a gas tank of a different tractor to give notice of a dangerous condition. The trial court's discretionary ruling excluding the evidence will not be disturbed.

School District Not Subject to Municipal Zoning Laws

To relieve overcrowding, the Normandy School District sought permission from the City of Pasadena Hills to erect modular classroom units on the grounds of an elementary school. The city denied the application, stating that the modular structure failed to comply with the city's zoning code. The school district appealed the denial to the city's Board of Zoning Adjustment, which denied the appeal. The school district filed suit alleging that it was exempt from the city's zoning ordinances. The trial court granted summary judgment to the school district and the Court of Appeals affirmed in Normandy School District v. City of Pasadena Hills, No. E.D. 79422 (Mo. App. E.D. 2002).

The Missouri Enabling Act, §§ 89.010-89.140 RSMo, provides cities the authority to enact zoning regulations. While § 89.020 provides a city with the power to regulate and restrict the location and use of buildings and structures, it contains no express grant of power to cities to regulate or restrict the location of schools or other public buildings. In the absence of an express grant of power to so ordain, municipal zoning ordinances cannot encroach upon or limit the absolute right of the state or its lawfully designated subdivisions or agencies to select, locate and acquire land and buildings for public use, such as schools. Cities have the right, in the exercise of police power, to regulate certain aspects of public school facilities, such as collecting fees for inspections of boilers and regulating sanitary conditions of restaurants and public school buildings. The power of cities to regulate buildings under the Zoning Enabling Act is limited to buildings, structures, and land for trade, industry or other purposes. These terms all relate to private property and the reference to "other purposes" does not extend the zoning power to restrict the use of public property for public purposes. Because the city's authority under the zoning code cannot extend to "restrict or limit the use of public property for public purposes," the city did not have authority to deny a building permit based on the school district's failure to comply with the city's zoning code.

City Ordinance Complied With Clear Title Requirement of City Charter

The City of Cape Girardeau adopted an ordinance submitting to the voters an increase on the hotel and restaurant tax to be used for the issuance of municipal bonds that would fund the construction of a performing arts center, museum and associated cultural facilities. The voters approved the proposition at a municipal election. James Drury filed suit challenging the validity of the ordinance, alleging that it violated the city charter's "clear title" provision. The trial court invalidated the ordinance, but the Supreme Court of Missouri reversed in Drury v. City of Cape Girardeau, No. SC83901 (Mo. banc 2002).

The courts are reluctant to invalidate local legislation for violation of the "single subject" principle. This reflects not just the court's traditional respect for the legislative branch and the accompanying presumption that its enactments are constitutional, but also a reluctance to strictly apply procedural rules in a way that might interfere with the functioning of the legislature. The court is guided by the principle that sound policy and legislative convenience dictate a liberal construction of the title and subject matter of enactments to maintain their validity. The clear title provision, like the single subject restriction, was designed to prevent fraudulent, misleading and improper legislation by providing that the title should indicate in a general way the kind of legislation that was being enacted. The touchstone of the clear title rule is that the bill's title cannot be underinclusive; the title need not, however, list every detail of the bill in order to be appropriately clear. A general title is only impermissible if it is so broad or amorphous that it effectively renders the single subject requirement meaningless or obscures the actual subject of the legislation.

The title may be expressed in a few words, but where it descends to particulars, the particulars stated become the subject of the act, which must conform to the title as expressed by the particulars. Where the title goes into such detail as would reasonably lead to the belief that nothing was included except that which is specified, then any matter not specified is not within the title. Keeping in mind the court's traditionally liberal construction of titles in the face of clear title challenges, the title here is sufficiently general that it does not misleadingly exclude portions of the ordinance from its subject matter. The provisions of the ordinance are sufficiently closely related to the single subject of the bill, which is sufficiently clearly expressed in its title, that the ordinance does not violate the city charter.

Small Loan Company Licensed By State, May Not Be Prohibited By Municipal Zoning Ordinance

Sunshine Enterprises received a license from the State of Missouri to operate as an under-$500 lender. Sunshine applied for a merchant's license with the City of St. Ann, but was denied. The city contended that an under-$500 lender was not covered in the permitted uses for its general commercial district and that it was a short-term loan establishment, similar to a pawn shop or check cashing establishment, which was prohibited in all zoning districts of the city. The trial court agreed with the city, but the Supreme Court of Missouri reversed in State of Missouri ex rel. Sunshine Enterprises v. Board of Adjustment of the City of St. Ann, No. SC-83503 (Mo. banc 2002).

Sunshine was not a pawn shop; pawn shops are defined and licensed under a different state law. Nor is Sunshine an establishment whose primary business is check cashing. When Sunshine lends money, it accepts a check for the amount of the loan, plus fees, post-dated to the due date. Sunshine's use of a check does not, however, make it a check-cashing business. Sunshine's primary business is making loans, not cashing third-party checks and performing related services. It is not an establishment whose primary business is check cashing. An under-$500 lending business has the similar characteristics as a financial institution. Under-$500 lenders – like banks, savings and loan associations and credit unions – offer unsecured loans to customers. Thus, an under-$500 lending business, licensed by the state, is a permitted use under the city's general commercial district ordinances.

Zoning ordinances are presumptively within the police power of a municipality. A city may not, however, enact ordinances that conflict with state statutes or regulations. An ordinance conflicts with state law if it permits something state law prohibits, or prohibits something state law permits. Here, state law authorizes under-$500 lenders and Sunshine operates a business permitted by state law. Where the city prohibits a business that state law permits, the city has the burden to show that the ordinance does not conflict with state law. The city has not shown that its ordinance was a valid exercise of its zoning power.

Change to Nature of Redevelopment Project Required TIF Commission Approval

The City of Ste. Genevieve created a tax increment financing commission and the commission recommended that the city establish a redevelopment area and approve a redevelopment project. The city subsequently adopted ordinances establishing the proposed redevelopment area and redevelopment plan. After soliciting proposals for the redevelopment, the city received a proposal that increased the cost of the project by more than $1,000,000. The city decided not to reconvene the TIF commission but, instead, adopted an ordinance amending the overall redevelopment plan that included the increased costs of the project. A declaratory judgment suit was filed by the Ste. Genevieve School District and Mr. Stewart, who was a taxpayer of the city. The trial court dismissed the suit, but the Supreme Court of Missouri reversed in Ste. Genevieve School District v. City of Ste. Genevieve, No. SC 83777 (Mo. banc 2002).

Both the school district and Mr. Stewart had standing to bring the declaratory judgment action. Missouri courts require that a plaintiff have a legally protectable interest at stake in the outcome of the litigation. The school district has standing by its power to appoint members to the TIF commission and also because the city's actions, if improper, would unlawfully deprive the school district of tax revenue. Under Missouri law, a school district that is threatened with the imminent unlawful deprivation of part of its funds has standing to seek a declaratory judgment challenging the statutory interpretation that would lead to the deprivation. Mr.Stewart also had standing, as a taxpayer, because the redevelopment project affected tax revenues for both the city and the school district.

Section 99.825 RSMo. prohibits a city from amending a redevelopment project if the amendment: (1)alters the exterior boundaries of the redevelopment area, (2) affects the general land uses established into the redevelopment plan, or (3) changes the nature of the redevelopment project without complying with the full procedures that are required when a redevelopment area or project is originally proposed. Here, the amendment to the redevelopment plan, if proven, changes the nature of the redevelopment project; it increases the cost of the project by more than $1,000,000, and also changes the focus of the project. Section 99.825 RSMo. requires a city to submit any amendment that significantly alters an already approved redevelopment project to the TIF commission for public hearings and a recommendation. If the allegations in the suit are true, the amendments approved by the city constituted a change in the nature of the project.