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

Charles and Dale Glenn leased a farm in Mississippi County. They had problems with trespassers entering the property in trucks and leaving ruts in the fields. They put a purple slash of paint on trees near the entrance to the property to warn trespassers to stay out, but people continued to trespass. In an effort to further discourage trespassers, the Glenns installed a wire cable across the road leading to their fields. Although the Glenns initially put signs on the cable to mark it, trespassers often removed the signs, leaving the bare cable unmarked. One day, Eric Humphrey was four-wheeling near the Glenns' property. Looking for a shortcut to get to a gas station, he turned onto the entrance to the Glenns' property. He did not see the purple marks on the trees and thought it was a public road. He was going approximately 20-25 miles per hour. There were no signs, flags, or warnings of any type on the wire cable and it was stretched across the road at the height of a person riding a four-wheeler. Humphrey did not see the cable and drove right into it. The cable hit him in the face and neck - what witnesses referred to as being "clotheslined" - and he suffered serious injuries. He filed suit against the Glenns and, at trial, the jury awarded him $100,000 but assessed 50% of the fault to him. The Supreme Court adopted §335 of the Restatement (Second) of Torts, but remanded the case for instructional error in Humphrey v. Glenn, No. SC 86035 (Mo. banc 2005).

The general rule is that a possessor of land is not liable for harm caused to a trespasser by failure to put land in a reasonably safe condition. Missouri has, however, adopted various exceptions to the "no duty" to trespassers rule. For example, where the trespasser's presence becomes known, a duty of reasonable care is owed under the Restatement. Similarly, a possessor of land owes a duty of care to child trespassers for a dangerous artificial condition he or she maintains at a place on the land that children are likely to trespass. Also, a landowner may be held liable if he or she creates an artificial condition so close to the highway that it involves an unreasonable risk to children because of their tendency to deviate from the highway.

The principles set out in §335 of the Restatement (Second) of Torts are consistent with Missouri law. While Missouri follows a general rule of no liability to trespassers, that rule is based not on the wrongful nature of the trespasser's conduct, but on the landowner's inability to foresee the trespasser's presence and guard against injury. For this reason, exceptions generally have been recognized in Missouri and elsewhere when based on the existence of facts indicating that harm to trespassers should reasonably be anticipated by the landowner. Thus, the court hereby adopts the exception to the no-duty rule set out in §335 of the Restatement (Second) of Torts.

In adopting §335, this Court does not hold that a possessor of land owes the same level of duty to trespassers that is owed to licensees or invitees. The duty is a limited one. The possessor of land could not be found liable unless he or she created or maintained an artificial condition on land that was potentially dangerous to trespassers. The possessor of land is not required to eliminate the condition, but is required to use reasonable care to warn the trespasser of the condition and the risk. Here, the evidence was sufficient to make a submissible case that the Glenns knew or should have known there were constant trespassers on their property and failed to exercise reasonable care to warn trespassers of the cable. The trial court did not err in allowing the case to be submitted under §335.

A Person May Be Liable for Negligent Transmission of Venereal Disease if He Should Have Known He Was Infected

Sarah Ray filed a petition for dissolution of her marriage to Stanley Wisdom and included a count for tortious infection with the sexually transmitted disease of genital herpes. At trial, Sarah testified that, during her five year marriage, she had sexual relations only with Stanley. After experiencing swelling, pain and blisters in the vaginal area, she sought medical treatment and was diagnosed with genital herpes during August of 2002. Stanley testified that, during his marriage, he had a sexual relationship with another woman, but that she never indicated to him she had a sexually transmitted disease. He maintained that he did not knowingly give his wife herpes and he did not know he had the disease until November of 2003. Dr. Soudah testified on behalf of Sarah. He stated that it is possible for someone to infect another person even if they have not manifested any symptoms. The trial court granted Stanley's motion for directed verdict on the grounds that there was no evidence he had symptoms, or that he knew or should have known he had genital herpes; thus, he had no duty to protect his wife from infection. The Court of Appeals reversed, however, in Ray v. Wisdom, No. ED 85102 (Mo. App. E.D. 2005).

Spousal immunity does not bar an action against a spouse for negligent transmission of a venereal disease. The elements of such an action are: (1) a legal duty on the part of the defendant to conform to a certain standard of conduct to protect others against unreasonable risk, (2) a breach of that duty, (3) a proximate cause between the conduct and the resulting injury, and (4) actual damages to the claimant. One has the legal duty to exercise reasonable care by disclosing a contagious venereal disease before entering into sexual relations with another. In an action for negligent transmission of a venereal disease, a person is liable if he knew or should have known that he was infected with the disease and failed to disclose or warn his sexual partner about this unreasonable risk of harm before engaging in a sexual relationship. One who knows or should know that he or she is infected with genital herpes is under a duty to either abstain from sexual contact with others, or at least to warn others of infection prior to having sexual contact with them. Here, wife submitted sufficient evidence from which the jury could have determined that husband knew, or should have known, he had the disease. Dr. Soudah testified that a person who has the virus would exhibit symptoms at some point; it was very unlikely for a person who never exhibited symptoms to transmit the disease to another person. There is a reasonable inference that husband, who transmitted the disease to wife, had experienced symptoms. Husband admitted having an extramarital affair and never denied that he may have had symptoms. The jury should have been given an opportunity to weigh the testimony to determine if husband should have known he had the disease. There were questions regarding witness credibility on the weight of evidence; these questions should have been left to the jury.

Workers' Compensation is Exclusive Remedy for Death of Employee From Unsafe Workplace

John Dority died after the aluminum ladder he was moving came into contact with an uninsulated overhead electric power line while he was painting an apartment complex. His family filed suit against the owner of the power line, his employer, and the owner of the apartment complex. The plaintiff settled with the power company, but the trial court dismissed the claims as to his employer and granted summary judgment to the apartment complex owner. The Court of Appeals affirmed in Crow v. Kansas City Power & Light Co., No. WD 64229 (Mo. App. 2005).

Dority was acting within the course and scope of his employment when the ladder he was carrying touched the overhead power lines. The allegations against his employer, that it failed to provide him with proper training and equipment and failed to warn him of the risks associated with his work, were insufficient to confer subject matter jurisdiction on the trial court. They amount to nothing more than the allegation that Dority's employer negligently failed to discharge its non-delegable duty to provide him a safe workplace. This is not enough to move an employer outside the protection of the workers' compensation law's exclusive remedy provisions because, although an employer has a non-delegable duty to provide its employees with a reasonably safe place to work, a circuit court action for breach of that duty is excluded by the workers' compensation laws. An employee injured performing his work duties and sustaining his injuries because the workplace was unsafe has no common law suit against either the employer or the employer's agent, but is relegated to the benefits provided under the workers' compensation law. Allegations that the employer violated the Overhead Power Line Safety Act do not constitute an exception to the exclusive jurisdiction of the workers' compensation laws.

Regarding the claim against the apartment complex owner, a possessor of land is not an absolute insurer of the well-being of its invitees. Rather, a possessor of land is entitled to expect that its invitees will exercise ordinary perception, intelligence and judgment to discover open and obvious conditions, appreciate the risk they present, and take the minimal steps necessary to avert a tragedy. A possessor of land may reasonably rely on its invitees to see and appreciate the risk presented by an open and obvious, yet dangerous, condition on the land and to reasonably rely on the invitee's normal sensibilities to protect against such a condition. The trial court found that the existence of the overhead power lines at the rear of the apartment complex was open and obvious; Dority would have discovered the presence of the lines had he carried out his duty to look. Persons of ordinary intelligence are presumed to know the dangers attending contact with electrically charged wires. Dority was a person of ordinary intelligence. He had a duty to look for the wires and, in the eyes of the law, is presumed to have known of the existence of the power lines. Everyone has a duty to exercise due care for his own safety. The possessor of land is entitled to expect that an invitee will exercise ordinary prudence and judgment to take the minimal steps necessary to avert a tragedy arising from an open and obvious, yet dangerous, condition on the land, and may reasonably rely on them to employ the simple means at their disposal to prevent the harm from occurring.

Arbitration Provision in Wireless Telephone Contract Was Unconscionable

Jerry Whitney was a wireless telephone customer of Alltel Communication. Several years after signing his contract with Alltel, he received with his bill a document entitled "Terms and Conditions." It stated that the customer's use of Alltel services constituted acceptance of these new terms and conditions. It contained an arbitration provision, a limitation of liability section, and a provision stating that all claims must be arbitrated individually, without consolidation or class action treatment. Whitney filed suit against Alltel, challenging an 88 cent per month "regulatory cost recovery fee," alleging that this charge was deceptive because it implied a governmentally-mandated charge. He further alleged that Alltel violated the Missouri Merchandising Practices Act. Alltel filed a motion to compel arbitration, which was denied by the trial court. The Court of Appeals affirmed in Whitney v. Alltel Communications, No. WD 64196 (Mo. App. W.D. 2005).

Generally, applicable state law contract defenses, such as fraud, duress and unconscionability, may be used to invalidate arbitration agreements. Procedural unconscionability is involved with the contract formation process and focuses on high pressure exerted on the parties, fine print of the contract, misrepresentation or unequal bargaining position. Substantive unconscionability is based on undue harshness in the contract terms themselves. Generally, there must be both procedural and substantive unconscionability before a contract can be voided. Based upon the totality of the circumstances, the arbitration provision is unconscionable. Where an arbitration provision is so prohibitive as to effectively deprive a party of his or her statutory rights, the arbitration agreement may be invalidated. This follows a line of cases holding that an arbitration clause that defeats the prospect of class-action treatment in a setting where the practical effect affords the defendant immunity is unconscionable.

Since the amount Whitney alleged had been improperly billed to him was a total of $24.64, the costs of pursuing an arbitration would, for all practical purposes, prevent an aggrieved party from seeking redress for a violation of the Merchandising Practices Act. Since no single customer could undertake a case against Alltel, the company could continue its improper and deceptive charges ad infinitum, since none of its customers would have a practical remedy to bring about an end to the conduct. The average person would not reasonably expect that a dispute like this one would be required to be resolved through arbitration on an individual case by case basis. Such a requirement, if found to bar action such as this, would effectively strip consumers of the protections afforded to them under the Merchandising Practices Act and unfairly allow companies like Alltel to insulate themselves from the consumer protection laws of this state. This result would be unconscionable and in direct conflict with the legislature's declared public policy as evidenced by the Merchandising Practices Act and similar statutes. The arbitration provisions contained in the terms and conditions provided to Whitney by Alltel were both procedurally and substantively unconscionable as applied to this type of dispute.

Mechanic's Liens Are Remedial in Nature and Favorably Construed For the Lien Claimant

Bolivar Insulation Co., d/b/a A-1 Insulation, was a subcontractor to Bella Pointe Development on a condominium project owned by Trendwest Resorts. After not being paid, A-1 filed a notice of its mechanic's lien claim in the amount of $12,820 against Building C of the condominium development and, more than 10 days later, filed its mechanic's lien on the property. When that still didn't bring payment, it filed a lawsuit to enforce its mechanic's lien. Trendwest moved for summary judgment, contending that the mechanic's lien filed by A-1 did not state a just and true account or a true description of the property. The trial court granted Trendwest's motion, but the Court of Appeals reversed in Bolivar Insulation Company v. Bella Pointe Development, LLC, et al, No. 26641 (Mo. App. S.D. 2005).

Section 429.080, RSMo, does not require a lien statement to identify the exact date work was performed or material was provided. The statutes creating mechanic's liens are remedial in nature. Pleadings that set forth a lien and seek its enforcement are to be favorably construed and given the benefit of every reasonable and fair intendment. Here, the lien statement identified the location of the work by stating the delivery site and attaching a legal description of the real estate on which Building C is located. Determination of the adequacy of a lien statement turns on whether the statement provides information sufficient to enable the owner to investigate and determine the propriety of the lien claim. Failure to itemize individual prices for furnished material has never been regarded as fatal to the sufficiency of a subcontractor's lien statement. All that is required is that the lien statement advise the owner or the public of the total amount due and the nature of the materials furnished. The lien statement provided sufficient information to meet the requirements of §429.080. Moreover, Trendwest's claim that it did not owe the obligation for which A-1 sought relief because Trendwest had paid its contractor, Bella Pointe, did not entitle it to summary judgment, in that a property owner who has fully paid a contractor is still subject to a claim for mechanic's lien against its property by a subcontractor against which the contractor has defaulted.

Description in Deed is Sufficient if it Identifies the Property

The Jablonowskis owned real estate in Franklin County adjacent to property owned by the Logans. The prior owners of the Jablonowski property signed an easement deed conveying to the Logans an easement across the Jablonowski property. The easement deed granted to the Logans the right to build and maintain roads, sewers, electric and water service, consisting of a 60-foot strip of land on either side of the center line, due east to a point on the west bank of the Meramec River. The Jablonowskis filed a declaratory judgment action, asking that the easement deed be declared null and void due to uncertainty. The trial court denied this relief and granted to the Logans a 60-foot wide easement. The Court of Appeals affirmed, but modified the judgment to grant the Logans a 120-foot wide easement in Jablonowski v. Logan, No. E.D. 85009 (Mo. App. E.D. 2005).

If a grantor owns any real estate that corresponds in part to a described conveyance, the court may reject an interpretation that conveys nothing in favor of one that conveys something. Validity is favored over invalidity. A deed will be declared void for uncertainty of description only where, after resorting to oral or other extrinsic proof, that which was intended by the parties remains a mere matter of conjecture. Extrinsic evidence is always admissible to explain boundary calls. Generally, a deed's description is sufficient if it affords the means of identification of the property. A land description is sufficiently definite if one reasonably skilled in determining land locations can locate it. Here, a boundary survey of the property that depicted the location of the described center line was admitted during trial. Thus, the easement deed's description was sufficiently definite to identify the easement.

Missouri's long-standing cardinal rule of construction is that a deed must be construed as nearly as may be by the party's intentions, to be ascertained within the four corners of the instrument, the surrounding circumstances and conditions. Both Missouri courts and courts from other jurisdictions have determined that, when used as an adjective, the word "either" can be interchangeably with the word "each" or can mean "both." Mr. Logan testified at trial that when he discussed the easement with the owners of the property prior to the Jablonowskis, he suggested that 120 feet be the width of the easement. Thus, construing the deed as nearly as may be ascertained by the intention of the parties, to be ascertained within the four corners of the deed, the surrounding circumstances and conditions, the easement was 120 feet in width, 60 feet of which was located on each side of the described center line.

Continuing Wrong Doctrine May be Applied in Both Nuisance and Trespass Cases

The Cooks resided on property near a gas station owned by DeSoto Fuels. In 1993, the Cooks noticed an odor of gasoline in their well water and reported it to the Missouri Department of Natural Resources. In 1994, DNR issued a report that the Cooks' well was contaminated with gasoline and identified four nearby gas station sites, including the DeSoto station, as possible sources of the pollution. In 2000, the Cooks contracted to sell their property, but the contract was canceled when the buyer discovered the well contamination. In 2001, the Cooks filed suit against DeSoto seeking damages for trespass and nuisance claims. The Cooks alleged a continuous, ongoing and repeated flow of contaminants from DeSoto's property onto the Cooks' property. The trial court granted summary judgment to DeSoto based on the five-year statute of limitations in §516.120, RSMo., but the Court of Appeals reversed in Cook v. DeSoto Fuels, No. E.D. 84514 (Mo. App. E.D. 2005).

Certain types of physical invasions can constitute both a trespass and a nuisance. The Cooks' allegations that DeSoto caused gasoline to enter their property is a claim for both trespass and nuisance because that contamination involves a direct physical invasion that interferes with both the right to possession and the use and enjoyment of property. There is some authority for the proposition that a cause of action does not accrue until both the damages and the cause of those damages are reasonably ascertainable. When there are continuing or repeated wrongs that are capable of being terminated, successive causes of action accrue every day the wrong continues, or each time it gets repeated, the end result being that the plaintiff is only barred from recovering those damages that were ascertainable prior to the statutory period immediately preceding the lawsuit. The continuing wrong doctrine has been applied in both nuisance and trespass cases. The Cooks adequately presented a continuing trespass claim which, if proven, would permit them to recover those damages that accrued within the five-year period preceding their lawsuit. They are barred, however, from recovering any damages that were capable of ascertainment more than five years before the lawsuit.

For a temporary nuisance, much like a continuing trespass, the continuance of the nuisance each day is considered a repetition of the original wrong and successive actions accrue as to each injury. A 10-year period of limitation applies to temporary nuisances. The Cooks have adequately presented a temporary nuisance claim and are entitled to seek damages arising from the continued unreasonable interference with the enjoyment of the property within the 10-year period preceding the lawsuit.

Covenants Not to Compete Are Not Favored Under the Law

Pearl Copeland and LuAnn Helms were employees of Health Care Services of the Ozarks d/b/a Oxford Health Care. Each signed covenants not to compete more than a year after they became employees; they were required to sign the non-compete agreements in order to continue their employment with Oxford. The agreements prohibited each employee from competing with Oxford within a radius of 100 miles for a period of two years following termination of their employment by Oxford. Both Copeland and Helms resigned from Oxford and went to work for Integrity Home Care. Integrity applied for a contract with the Missouri Division of Aging to provide in-home health care services, as Oxford did under contract with the same agency. Integrity received a contract from the Division of Aging and both Copeland and Helms provided service for Integrity under that contract. Oxford filed suit against Copeland and Helms and the trial court entered injunctions against them, enforcing the non-compete agreements. The Court of Appeals reversed, however, in Health Care Services of the Ozarks v. Copeland, No. 26410 and 26452 (Mo. App. S.D. 2005).

A restrictive covenant in an employment agreement is only valid and enforceable if it is necessary to protect one of two well-defined interests, trade secrets and customer contacts, and if it is reasonable as to time and place. Covenants by employees not to compete with their employers after termination of employment are not contrary to public policy in Missouri, yet they are not favored. Such covenants are carefully restricted because they deal with restraints on commerce and limit an employee's freedom to pursue his or her trade. An employer cannot extract an enforceable restrictive covenant merely to protect himself from the competition of an employee. If a non-compete agreement is merely to protect the employer from the competition of its former employees, it is not enforceable.

An employer-employee relationship, standing alone, is not sufficient to cause a confidential relationship to exist as to knowledge that is the natural product of the employment. After leaving employment, an employee may carry on the same business as his former employer, using for his own benefit the things he had learned in the earlier employment. Necessarily, the former employee may use what he learned in the former employer's business, while engaged in business for himself or some business competing with the former employer. There was no evidence that Copeland or Helms acquired the type of influence over Oxford's clients to justify enforcement of a non-compete agreement that would preclude them from working for a competitor. Likewise, the record does not support Oxford's claim that Copeland or Helms possessed protectable trade secrets of Oxford. The trial court erred in concluding that the non-compete agreements signed by Copeland and Helms were enforceable.

Denial of Variance was Not Arbitrary or Capricious

Vatterott Construction Co. applied for three variances from the subdivision regulations of Jefferson County. Vatterott requested variances from the regulations that required: (1) at least two points of ingress and egress, (2) minimum easement rights regarding the width of access and easements for utilities and drainage, and (3) improvements to the easements. Vatterott contended that practical difficulties existed in meeting the regulations due to the topographic conditions and development surrounding the property, and also contended that developing the property without the variances would undermine the intent of the regulations, be detrimental to the public welfare and cause damage to other property in the area. Both the planning and zoning commission and the Jefferson County Commission denied the variances, and Vatterott filed a writ of certiorari with the trial court. The trial court reversed the commission and granted the variances, but the Court of Appeals upheld the Commission in State of Missouri, ex rel. Vatterott v. Rauls, No. ED 83197 (Mo. App. E.D. 2005).

The court reviews the decision of the agency rather than the judgment of the trial court. Appellate review is limited to a determination of whether the agency's action is supported by competent and substantial evidence upon the whole record or whether it is arbitrary, capricious, unreasonable, unlawful or in excess of its jurisdiction. To determine whether substantial evidence exists, the court views the evidence and all reasonable inferences in the light most favorable to the agency's decision. The authority to grant a variance should be exercised sparingly and only under exceptional circumstances. The determination of whether practical difficulties exist is a factual matter that is only reversible for an abuse of discretion.

Here, the commission heard evidence that the configuration of the property would not preclude a second point of ingress and egress, that it was possible for Vatterott to use some existing easements to make necessary improvements to the roads without granting a variance, and that there were no unusual topographic conditions located on the property differing from the characteristics of the surrounding property. The commission concluded that Vatterott's need for the variances was not due to any condition of the land itself, but due to its financial considerations. The commission was not bound to grant a variance that it believed would benefit the developer financially, but would also lead to the detriment of surrounding existing communities. The commission found that, without developing the property according to the regulated ordinances, the streets are not suitable for the increased traffic level. The commission also found that the creation of such a large subdivision would increase the population density and have a detrimental impact on the public welfare, and further found that compliance with the subdivision regulations was entirely within Vatterott's control. Moreover, the commission found that Vatterott did not prove there were practical difficulties preventing it from using the land for a permitted use and also determined that the creation of such a large subdivision would impact detrimentally on the welfare of the surrounding existing communities. The commission's ruling was neither arbitrary nor capricious.