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

Jeremy Shumard, a minor, held a party at the home of his parents, which was attended by a number of high school students. Several of the guests collected money from their friends and obtained a keg of beer for the party. In addition to consuming beer, a number of the guests also drank vodka. At some point during the evening, several of the minors, including Kelsey Ritchie, left the party in a vehicle. Shortly thereafter, other guests also left in a vehicle that was soon speeding at 82 miles per hour and collided with the vehicle containing Kelsey Ritchie. Kelsey and another girl were killed in the accident. The parents of Kelsey Ritchie filed a wrongful death action against Shumard and his parents alleging that, under public policy and common law, social hosts who allow minors to drink alcohol on their property and then operate motor vehicles are liable for the negligence of the minors. The Shumards filed a motion to dismiss, which was granted by the trial court. The Court of Appeals affirmed in Ritchie v. Shumard, No. 26429 (Mo. App. S.D. 2005).

Neither common law nor statute imposes a duty upon social hosts to abstain from furnishing alcoholic beverages to individuals under 21. Imposing liability upon social hosts would have a substantial impact on everyday social and family affairs and, therefore, the parameters of any duty imposed on social hosts should be determined by the legislature. Moreover, unlike commercial vendors, social hosts do not realize any pecuniary gain from the furnishing of alcoholic beverages and for this reason they likewise have no incentive to encourage excessive consumption. In addition, the typical social host lacks the expertise required to evaluate the quantity of alcohol a guest can safely consume. Lastly, commercial vendors are able to insure themselves against the risks of furnishing alcoholic beverages, while such protection is not normally available to social hosts.

Missouri simply does not recognize the theory that a social host is civilly liable. While we acknowledge the court's power to modify the common law, we are not prepared to rule contrary to the evolving case law in this area. The legislature is better equipped to pronounce public policy relating to the consumption of alcoholic beverages by a minor in a social host setting. The plaintiff's petition did not state a legally recognizable cause of action. The public policy in Missouri is that the consumption, and not the furnishing, of alcoholic beverages is the proximate cause of injuries inflicted by intoxicated persons. Thus, the trial court properly dismissed plaintiff's negligence claims against the Shumards, including the claim of negligent supervision.

Abutting Property Owner Who Creates a Dangerous Condition on a Public Road is Liable for Foreseeable Injuries Caused Thereby

Archer-Daniels-Midland Co. (ADM) owns a soybean-processing facility on Holt Street in Mexico, Missouri. Holt Street runs through a residential neighborhood. Trucks filled with soybeans enter the facility via Holt Street. At times, there could be up to 30 trucks lined up on Holt Street waiting to enter the ADM facility. ADM had instructed the drivers of the "meal trucks" to pass the soybean trucks when there is a backup and to drive down the wrong side of the street to enter the ADM facility as a "first-priority" trucker.

One day, Christian Boggs arrived home from school and got on his bike to deliver newspapers. He went between the two trucks that were stopped in front of his driveway and was struck by a "meal hauler" truck heading toward ADM and driving west in the eastbound lane of Holt Street. Chris suffered serious and permanent injuries, including multiple fractures, internal injuries, head injuries and a crushed pelvis. He underwent multiple surgeries over several years. He filed suit against ADM and various truck drivers. The jury assessed 60% of the fault to ADM, 7% to Chris and awarded Chris damages of $3,278,000. ADM appealed and the Court of Appeals affirmed the verdict in Christian D. Boggs v. Lay, Nos. E.D. 83795 and ED. 83754 (Mo. App. ED 2005).

Whether a duty exists is purely a question of law. The judicial determination of the existence of duty rests on sound public policy. A number of policy considerations may justify the imposition of duty in particular circumstances, including the social consensus that the interest is worth protecting, the foreseeability of the injury and the degree of certainty that the plaintiff suffered injury, the moral blame society attaches to the defendant's conduct, the prevention of future harm, considerations of cost and the ability to spread the risk, and the economic burden on the actor and the community. While it is the general rule that an abutting property owner is under no duty to maintain the public road in a safe condition, this rule is not absolute. A person who creates a dangerous condition on a public roadway is liable for the foreseeable injuries caused thereby. A duty is imposed on an abutting property owner when he artificially creates, through negligence or affirmative action, a condition on the public road that makes passage unsafe. This dangerous condition must arise through the owner's affirmative actions and not his omissions. When the abutting property owner creates a dangerous condition on the public road, the law will impose a duty of reasonable care to guard the public from injury.

ADM's actions affirmatively created the dangerous condition on Holt Street and it had a duty to exercise ordinary care to guard the public from injury. The evidence in this case supports a finding that ADM should have foreseen that there existed some probability that an injury could occur. It knew its facility was in a residential neighborhood, that there were pedestrians, cyclists and children in the neighborhood and that trucks backed up on Holt Street while waiting access to the ADM facility. Moreover, ADM instructed the first-priority meal haulers to pass the parked trucks and drive down the wrong side of the narrow residential street in order to reach the facility. From these facts, ADM knew, or should have known, of a risk of harm to residents on bicycles sufficiently probable to create a duty. Actionable negligence requires a causal connection between the conduct of the defendant and the resulting injury to the plaintiff. A defendant's negligence need not be the sole cause of the plaintiff's injury. It is sufficient that the defendant's conduct be one of the efficient causes thereof, without which the injury would not have occurred. The blocking of the driveway by the truck drivers did not interrupt the chain of events set in motion by ADM but, rather, contributed to the events leading to the plaintiff's injuries. The truck driver's actions did not constitute an intervening cause so as to sever the causation between ADM's conduct and the plaintiff's injury.

Whether Words Are Defamatory is a Question of Law; Expressions of Opinion Are Privileged

Fred Weber applied for a permit with St. Louis County to construct and operate a trash transfer station. At a public hearing on Fred Weber's application, Thomas Diehl distributed a handbill entitled "Stop Fred Weber, Inc." and referring to Fred Weber as a trash terrorist. Weber filed suit against Diehl, alleging that the flyer was defamatory. The suit sought actual and punitive damages from Diehl and an injunction to stop distribution of the flyer. Diehl filed a motion to dismiss, which was denied by the trial judge. Diehl then sought a writ in prohibition, which the Court of Appeals granted and then made absolute in State ex rel. Diehl v. Kintz, No. ED 84905 (Mo. App. E.D. 2005).

In determining whether a statement of fact is defamatory, the words must be stripped of any pleaded innuendo and construed in their most innocent sense. The words must also be considered in context and given their plain and ordinarily understood meaning. The alleged defamatory words are to be taken in the sense which is most obvious and natural, and according to the ideas they are calculated to convey to those to whom they are addressed. Whether the language at issue is defamatory is a question of law. The First Amendment's guarantee of freedom of speech makes expressions of opinion absolutely privileged. The United States Supreme Court has rejected the notion that there is a wholesale defamation exemption for anything that might be labeled opinion, noting that expressions of opinion may often imply an assertion of objective fact. The test for an ostensible opinion is whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact. Neither imaginative expressions nor rhetorical hyperbole is actionable as defamation.

Exactly what constitutes a "trash terrorist" is unclear. The precise nature of the phrase "trash terrorist" notwithstanding, the phrase is not defamatory as a matter of law under the applicable standards. The term "terrorist" cannot be considered in isolation, but must be taken in context. The flyer was distributed in connection with a public hearing regarding the proposed trash transfer station. Taken in context, the use of the phrase "trash terrorist" reflects the writer's staunch opposition to the proposed trash transfer station. In addition, the phrase "trash terrorist" is properly characterized as imaginative expression or rhetorical hyperbole. The court also considers the chilling impact that might be suffered in public discourse if the underlying meritless action were allowed to proceed. Public hearings are conducted in part to encourage public discourse. The free exchange of ideas between citizens and government is a hallmark of democracy. Under the circumstances in this case, issuing a writ of prohibition is the proper remedy.

Evidence of Prior Occurrences Involving Substantially Similar Circumstances is Admissible Even Though Not Involving the Identical Product

Joel Stokes was severely burned when, as a 13-month old toddler, he pulled over a Kitchen Kettle deep fryer and hot oil spilled on him. The Kitchen Kettle was a cooker that could be used not only for deep frying, but also for other types of roasting, boiling, stewing and cooking. National Presto manufactured Kitchen Kettle and three other units that were designed for deep frying food - the FryBaby, FryDaddy and the GrandPappy models. Like the Kitchen Kettle, these units featured an aluminum pot with a cooking oil fill-line and plastic feet. Stokes' parents filed suit against National Presto for products liability and negligence. Stokes claimed that the Kitchen Kettle deep fryer was defective because it slid too easily; National Presto should have equipped it with rubber feet and an electrical cord that would have released when tugged by a young child. At trial, the trial court prohibited Stokes from introducing evidence of 24 other substantially similar "pullover" accidents involving the three other units manufactured by National Presto. The trial court ruled that the evidence of prior "pullover" accidents was limited to those involving a single product - the Kitchen Kettle. The jury returned a verdict for National Presto, but the Court of Appeals reversed and remanded for new trial in Stokes v. National Presto Industries, No. WD64182 (Mo. App. W.D. 2005).

Evidence of accidents similar to that suffered by the plaintiff generally is admissible in negligence and products liability actions. The key element is the similarity of the incidents. The similarity of the accident at issue and the previous incident must be sufficiently close to avoid undue prejudice and confusion. To be sufficiently similar, the accidents must be: (1) of like character, (2) occur under substantially the same circumstances, and (3) result from the same cause. The circuit court abused its discretion by applying the wrong standard of law. Rather than focusing on the similarity of the previous incidents, the circuit court imposed a ruling that it referred to as the "single product rule" and restricted evidence of prior incidents to those involving Kitchen Kettle units. If the prior incidents were similar to the one leading to the Stokes injuries, the circuit court should have permitted Stokes to present evidence of them. National Presto took advantage of the circuit court's erroneous ruling to emphasize to the jury the small number of Kitchen Kettle accidents. Although it knew that Stokes was prepared to introduce evidence of at least 24 other pullover incidents involving National Presto deep fryers, it suggested to the jury that it knew of only three prior incidents, all occurring before National Presto added a warning tag to the Kitchen Kettle units.

On retrial, the circuit court must determine whether or not the other pullover incidents involving Presto's other deep fryers were substantially similar to Stokes' accident. If the circuit court determines that the accidents were indeed substantially similar, the circuit court shall allow Stokes to introduce relevant evidence to substantiate the occurrence of the injuries in those substantially similar accidents. This does not mean, however, that it must allow Stokes to delve into all of the details of the prior incidents involving National Presto's other products. Such detail could be unduly prejudicial and cause confusion by becoming the proverbial side-show taking over the circus. What is relevant to Stokes' proceeding is the occurrence of injuries under similar circumstances. Stokes should be allowed to conduct discovery on claims involving similar incidents with National Presto's similar deep fryers after Stokes' injury.

At-Will Employee Has Wrongful Discharge Claim Under Public Policy Exception Even Though No Unlawful Act Occurred

Thomas Dunn began working for Enterprise Rent-A-Car Company in 1986, as an accountant. In 1994, he was promoted to vice president and corporate comptroller, a position he held until he was terminated in 2001. Dunn was responsible for certifying the company's financial statements. In 1998, he was directed to begin investigating issues to enable Enterprise to prepare for an initial public offering ("IPO"). While doing this, he reported to upper management his concerns about the imposition of a surcharge on daily rental customers, billing customers for damages to rental vehicles and the selective licensing of vehicles in certain states. He also raised concerns about the rate of depreciation Enterprise used on its vehicles. Dunn also advised upper management that Enterprise's depreciation rate of 2% was unrealistic and that 1.5% was the highest rate Enterprise could be able to use on daily rental vehicles. Enterprise decided to postpone its IPO, but terminated Dunn. After his termination, he filed suit against Enterprise alleging that he was wrongfully discharged in violation of public policy for reporting Enterprise's illegal business practices in Missouri and other states. At trial, Enterprise's motion for directed verdict on Dunn's claim that he was wrongfully terminated for refusing to commit an illegal act was granted, but was denied on his claim for blowing the whistle regarding Enterprise's alleged illegal business practices. The jury returned a verdict for Dunn in the amount of $4 million, but the trial court granted Enterprise's motion for judgment notwithstanding the verdict. The Court of Appeals affirmed the judgment NOV, but reversed and granted Dunn a new trial on his wrongful discharge claim based on the public policy exception in Dunn v. Enterprise Rent-A-Car Company, No. ED 83240 (Mo. App. E.D. 2005).

Generally, an employee who does not have a contract that contains a duration of employment is an employee at-will and may be discharged at any time, with or without cause, and the employer will not be liable for wrongful discharge. Missouri courts have, however, recognized public policy exceptions to the employment at-will doctrine. This exception provides that an at-will employee who has been discharged by an employer in violation of a clear mandate of public policy has a cause of action against the employer for wrongful discharge. An employee has a cause of action for wrongful discharge if he or she was discharged for: (1) refusing to perform an illegal act or an act contrary to a strong mandate of public policy, (2) reporting wrong-doing or violations of law or public policy by the employer or fellow employees to superiors or third parties, (3) acting in a manner public policy would encourage, or (4) filing a workers' compensation claim. In order to make a submissible case for wrongful discharge based on the first public policy exception listed above, the employee must demonstrate that the conduct required of him by the employer would have amounted to a violation of a statute, constitutional provision or regulation and also that his discharge was attributable to a refusal to perform the unlawful act. Here, Dunn presented evidence at trial to establish that the accounting methods Enterprise directed him to use in financial statements related to its IPO were not in accordance with generally accepted accounting principles and, therefore, contrary to SEC regulations. Even though Enterprise postponed its IPO, Dunn should still be protected by the public policy exceptions to the employment at-will doctrine for his refusal to perform those acts. It is illogical that the public policy exception to the employment at-will doctrine would fail to protect Dunn from termination because Enterprise ultimately did not complete the alleged unlawful act.

Public policy encourages employees to report suspected wrongdoing by co-workers. Public policy would certainly not be served by requiring an employee to wait until his or her employer completes the unlawful act before reporting it and before being protected by the whistleblower exception to the employment at-will doctrine. Merely because Enterprise decided to postpone its IPO should not diminish Dunn's claim that he was terminated from his employment for reporting Enterprise's accounting practices that were not in compliance with Federal Securities Regulations. Even though Enterprise's actions ultimately did not violate Federal Securities Regulations because it did not file the necessary IPO documents with the SEC, Dunn could still demonstrate at trial that he had a reasonable belief Enterprise would have violated securities laws by filing financial statements with the SEC that were not prepared according to GAAP and that Enterprise intended to do so. Viewed in the light most favorable to Dunn, he presented sufficient evidence at trial to make a submissible case on his claim that Enterprise terminated his employment for reporting conduct by it that he reasonably believed would have violated Federal Securities Regulations.

City May Acquire Property By Adverse Possession

In 1998, the City of Gainesville filed a petition to quiet title against the owners of four different parcels of real estate. The city alleged that it had acquired ownership of each parcel through adverse possession, because the city had openly, notoriously, and adversely occupied these four parcels since 1951 as part of the municipal airport. Prior to the presentation of evidence at trial, the property owners moved to dismiss the city's petition on the grounds that quieting title to these four parcels in the city, through adverse possession, would be an unconstitutional "taking" without just compensation. The trial court denied the motions to dismiss and entered judgment quieting title to each parcel in the city. The Court of Appeals affirmed in City of Gainesville v. Morrison Fertilizer, No. 26194 (Mo. App. S.D. 2005).

Public entities in Missouri can acquire title to real property by adverse possession. The elements necessary to establish title by adverse possession are: (1) the possession must be hostile and under claim of right, (2) possession must be actual, (3) possession must be open and notorious, (4) possession must be exclusive, and (5) possession must be continuous for the requisite period, which is 10 years. Viewed in a light most favorable to the judgment, the city acquired title by adverse possession to these four parcels many years prior to the institution of the city's quiet title action. A city is not prevented from acquiring land by adverse possession even though § 516.090, RSMo, prohibits a municipality from losing land by adverse possession.

Allowing a municipality to acquire ownership of land by adverse possession does not violate the constitutional prohibition against private property being taken for public use without compensation. A public entity's acquisition of private property for a public use by adverse possession extinguishes the former owner's constitutional right to receive just compensation. After the running of the statute of limitation, the original owner is no longer in a position to assert title to the property and it has effectively vested in the adverse possessor. A public entity is no longer "taking" private property after it acquires title by adverse possession. An owner of private property in Missouri has an adequate remedy, in the form of a timely-filed inverse condemnation action, if his or her property is taken by a public entity without payment of just compensation. An action for inverse condemnation lies if a public entity with condemning authority does not actually condemn a parcel of property, but nevertheless appropriates the property for public use. The failure of a public entity to initiate a condemnation proceeding does not leave a private property owner without a remedy. An owner can receive just compensation guaranteed by the Constitution, but filing an action for inverse condemnation before the expiration of the 10-year statute of limitations for adverse possession. Here, the property owners did not commence an action for inverse condemnation before the 10-year statute of limitations expired; thus, they lost title to their land by adverse possession and, once that occurred, their right to receive just compensation under Article I, Section 26 was extinguished.

Mechanic's Liens Are Remedial in Nature and Liberally Construed

Lake Ozark Construction Industries performed work as a subcontractor on the Osage National Golf Club project in Miller County. When not paid by the general contractor, Lake Ozark filed a mechanic's lien in the amount of $1,427,302. After it filed suit to enforce its lien, the owner of the property, Golf Trust of America, filed a motion for summary judgment contending that the single lien filed by Lake Ozark was invalid because it was filed on multiple lots - some contiguous and some non-contiguous. The trial court granted summary judgment to Golf Trust, finding that the entire lien was invalid because it sought to impose a blanket lien on lots that were not contiguous. The Court of Appeals reversed in Lake Ozark Construction Industries v. Osage Land Company, No. W.D. 63528 (Mo. App. W.D. 2005).

A mechanic's lien is a remedy in the nature of a charge on the land given by statute to secure a priority of payment for the performance of labor or the supply of material to buildings or other improvements to be enforced against the particular property in which they have become incorporated. Missouri lien statutes are based on and justified by the principle that those who have contributed labor or material to the improvement of property are entitled to look to the property for compensation. Because the mechanic's lien law is remedial in nature, it is to be liberally construed. As a general rule, statutes relating to mechanic's liens should be liberally construed in favor of lien enforceability. Missouri statutes allow the filing of one lien, commonly known as a blanket lien, for improvements to separate, but contiguous lots. Here, the Lake Ozark lien contained a description of property that covered non-contiguous lots, as well as contiguous lots.

Missouri courts have held that a description of non-lienable property in a lien is simply surplusage. If more land is described in the lien than is necessary, the lienable part will be charged. A lien statement may be regarded as "just and true," so as not to vitiate the entire lien, if the inclusion of non-lienable items is the result of honest mistake or inadvertence, without intent to defraud and if the non-lienable items can be separated from the lienable items. The lien was not invalid, in toto, for including a description of non-lienable property - the non-contiguous lots. The lien was invalid only as to the non-contiguous lots.