Medical Malpractice Case May Proceed on Res Ipsa Loquitor If Based on Expert's Opinion That Injury Would Not Have Occurred in the Absence of Defendant's Negligence
W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
"Janice Sides had a lumbar laminectomy with a spinal fusion.”1 She was discharged three days later. She later filed suit against the surgeon and the hospital alleging that she was infected by E. coli during the surgery. In her petition, “she alleged a res ipsa loquitor theory against [the] defendants on the basis that an infection in the surgical site . . . , such as that experienced by [her], does not occur in the absence of negligence.”2 Defendants moved to dismiss, contending that a medical malpractice action cannot proceed under res ipsa loquitor and that the plaintiff is “required to assert a specific negligence theory against medical malpractice defendants.”3 “Sides conceded that [she] could not prove specific” negligence, but argued that she “should be able to rely on expert testimony” under “res ipsa loquitor to show that defendants were negligent.”4 The trial court dismissed the suit, but the Supreme Court of Missouri reversed and remanded in Sides v. St. Anthony’s Medical Center.
“The issue before this Court is a narrow one: whether to permit medical experts to offer opinions on the issue of negligence of the defendants in a medical malpractice case that is brought on a theory of res ipsa loquitor rather than based on specific or general negligence.”5 “This Court joins with the 28 out of 36 other jurisdictions that have considered this question and answered in the affirmative.”6 “The doctrine of res ipsa loquitor is set out in Section 328D . . . of the Second Restatement of Torts.” The comment to that section expressly “endorses the use of expert testimony in medical malpractice res ipsa loquitor cases stating[:]”
[E]xpert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference. Such testimony may be essential to the plaintiff’s case where, for example in some actions for medical malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion. Restatement (Second) of Torts Sec. 328D, Cmt. d.7
The number of states adopting the use of res ipsa loquitor in medical malpractice cases continues to grow. See e.g. Keys v. Guthmann, 676 N.W.2d 354, 358-59 (Neb. 2004) . . . ; Green v. Owensboro Med. Health Sys., Inc., 231 S.W.3d 781, 784 (Ky. App. 2007) . . . ; and States v. Lourdes Hosp., 792 N.E.2d 151, 152 (N.Y. 2003). This Court finds the reasoning of Section 328D of the Restatement and the cases following it to be persuasive. Where a plaintiff is unable to show which specific act of negligence of the defendants caused his or her injury, but is able to show that all the potential causes are within the control or right to control of defendants, and that they have greater access to knowledge about the cause of the injury than does plaintiff, and a medical expert testifies that such injury does not occur in the absence of negligence of the defendants, then a prima facie case for medical malpractice has been made.
“As in other types of res ipsa loquitor cases, this doctrine simply allows the plaintiff who can show that the injury does not occur in the absence of negligence to present to the jury an inference that the defendants were negligent; the defendants of course can rebut that inference with evidence that they were not negligent.”8 “The ultimate burden of proof, as always, remains with the plaintiff to convince the jury that a defendant was negligent and that such negligence caused the plaintiff’s injury.”9
Plaintiff has “alleged that all defendants were in control or had a right of control of the instrumentalities from which her infection was obtained, that the infection in the surgical site itself is one that does not occur in the absence of negligence, that the defendants all were negligent, that she was unconscious and has no knowledge of how the infection occurred, and that the defendants have superior knowledge of how it occurred. Whether plaintiff[] will be able to meet [her] burden of proof under a re ipsa loquitor theory in this case,” whether “defendant’s negligence is responsible for the infection . . . Sides obtained in the surgical site, . . . and whether defendants” controlled or had a right to control the settings in which the infection may have occurred, are questions for determination below.10 Defendants may be correct that expert testimony will show that such infections often occur in the absence of negligence, and “that they did not have control or a right to control of the instrumentalities that may have caused the infection, and that it may have been acquired outside the operating room. If so, they may succeed in obtaining a defense judgment. [This Court] hold[s] only that plaintiff[] [is] not prohibited from relying on expert testimony in attempting to [prove her] res ipsa loquitor theory.”11
Negligence of Agent While Driving Automobile May Be Imputed to the Principal
Samuel Madden (nephew) was driving Sandra Bach (aunt) in an automobile owned by aunt when “[n]ephew rear-ended a fire truck [that] was parked partially in his lane with its emergency lights on.”12 At the time of the accident, nephew was driving his aunt to a meeting; she did not have a driver’s license and did not know how to drive. Aunt sued her nephew and the Winfield-Foley Fire Protection District. She settled with her nephew for $25,000 and dismissed him from the suit. Her case against the fire district went to trial. The jury found that she had suffered $100,000 in damages and apportioned 15 percent of the fault to the district and 85 percent to her. Aunt appealed, arguing that the trial court erred in instructing the jury that a percentage of fault must be assessed to her if the nephew failed to keep a careful lookout and was thereby negligent. “Aunt contends that Nephew’s negligence cannot be imputed to her since she was a passenger in the automobile and, despite owning the automobile, . . . did not have a . . . right to control [it.]”13 The Supreme Court affirmed the judgment of the trial court in Bach v. Winfield-Foley Fire Protection District.
“Agency is the fiduciary relationship resulting from the manifestation of consent by an agent to a principal that the agent will act on the principal’s behalf and subject to his control.”14 “Compensation is not essential to the creation or existence of the relationship; agency may be a wholly gratuitous undertaking.”15 “An agency relationship may still exist even if the parties did not intend to create the legal relationship or to subject themselves to the liabilities that the law imposes as a result. Leidy v. Taliaferro, 260 S.W.2d 504, 505 (Mo. 1953). A principal is responsible for the acts of her agent, as long as the agent is acting with actual authority. Lynch v. Helm Plumbing & Elec. Contractors, Inc., 108 S.W.3d 657, 660 (Mo. App. [W.D.] 2002).”16 “[W]hen a person operates an automobile of another while the owner is a passenger, acquiescing in the operation, there is a presumption that the driver is the agent of the owner and within the scope of his agency.”17
Here, “[a]lthough Aunt and Nephew may not have intended to create a principal/agent relationship, the evidence indicates that such a relationship existed between them…. Under the laws of agency, Aunt, as principal, did not need to control or direct every movement of her agent, Nephew, only the accomplishment of the final result.”18 At the time of the accident, nephew was driving aunt to her club meeting as he had been expressly authorized and directed to do. “Despite her inability to drive and her lack of a license, [she] had the right to control the automobile trip and [he] was acting in accordance with that direction. As such, a principal/agent relationship was created and [aunt] is responsible for nephew’s actions.”19 The dissent contended that the jury should not have been instructed to impute nephew’s negligence to aunt and commented that the net result is that an innocent bystander is denied “full recovery for her injuries.”20 Because aunt had “no realistic right of control over [nephew’s] actions,”21 the fact that aunt controlled the destination of the trip was not sufficient to establish a principal/agent relationship holding aunt liable for nephew’s negligence.
Direct Victim May Recover for Emotional Distress
During a June 2004 rainstorm, an automobile driven by Michael Jones spun across the median of Interstate 44 and collided with a tractor-trailer driven by Tommy Jarrett. The collision caused Jarrett’s knees to hit the steering wheel and dashboard, but he got out of his truck and ran to the automobile driven by Jones, where he saw Jones and his wife badly injured and also saw the body of their 2-year-old daughter, who was killed in the collision. Jarrett stayed there until the police arrived. Jarrett later filed suit against Jones seeking damages for his injuries and for post-traumatic stress disorder. The trial court granted Jones’ motion for summary judgment, finding that Jarrett was not in the zone of danger when he saw the young girl’s body. The Supreme Court reversed and remanded, however, in Jarrett v. Jones.22
As held in Bass v. Nooney Co.,23 “a plaintiff may recover for emotional distress provided: (1) the defendant should have realized that his conduct involved an unreasonable risk of causing the distress, and (2) the emotional distress or mental injury is medically diagnosable and is sufficiently severe as to be medically significant.”24 “The issue of liability for a bystander’s emotional distress was addressed seven years later in Asaro [v. Cardinal Glennon Memorial Hospital].”25 “In Asaro, the court held that a plaintiff may recover for emotional distress resulting solely from observing injury to a third party caused by a defendant’s negligence and recognized a new cause of action for bystander plaintiffs.”26 “This Court recognizes the view that a plaintiff may suffer some emotional distress as a direct victim and some emotional distress as a bystander. See Kapoulas v. Williams Ins. Agency, Inc., 11 F.3d 1380, 1384 (7th Cir. 1993)…. [T]his Court finds, however, that where a direct victim seeks damages for emotional distress, the more restrictive standards for bystander recovery are inapplicable to any part of his claim.”27
“The fact that … Jarrett got out of his truck and ran to check on the individuals in the other vehicle involved in the wreck does not render him a bystander at the time he observed the carnage of the wreck. Instead, [his] viewing [of the young girl’s body] and feeling grief over her death are inseparable components of the emotional distress he suffered as a result of the whole traumatic event, caused by … Jones’ negligence.”28 “Jarrett … seeks damages for emotional distress as a direct victim. Because [he] is a direct victim, the trial court erred in applying the bystander limitations to his claim of damages for emotional distress.”29
“Any action for negligence requires the plaintiff to establish that the defendant had a duty to protect the plaintiff from injury, the defendant failed to perform that duty, and the plaintiff’s injury was proximately caused by the defendant’s failure. Krause v. U. S. Truck Co., Inc., 787 S.W.2d 708, 710 (Mo. banc 1990). Where the plaintiff is a direct victim of the defendant’s negligence and seeks damages for emotional distress, the plaintiff is required to prove two additional elements: (1) the defendant should have realized that his conduct involved an unreasonable risk of causing the distress and (2) the emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant.”30 Here, Jarrett “set forth facts that would support a finding that [he] suffered post-traumatic stress disorder immediately after the accident and was treated for this disorder by his family physician.”31 He also “presented facts that would support a finding that the two additional Bass elements for recovering damages for emotional distress are met.”32 “The trial court misapplied the law when it applied the limitations for bystander recovery to the Jarretts’ direct-victim claim of damages for emotional distress.”33
The dissent contended that the expansion of the “direct victim” cause of action for negligent infliction of emotional distress in this case “will cause wildly incongruous, if not absurd, results.”34 “The holding of Asaro is unequivocal and unqualified: ‘[A] plaintiff may recover for emotional distress resulting from observing physical injury to a third person only if the plaintiff is within the zone of danger.’ Asaro, 799 S.W.2d at 596…. Asaro precludes the kind of ‘direct victim’ recovery the majority now approves.”35
Neither Amusement Park Nor City Are Liable for Deaths Resulting From Car Accident on State Highway
The parents and siblings of Kyle Vonder Haar were killed in a disastrous car accident on Interstate 44 while the family was on their way to Six Flags amusement park. The accident occurred near the exit for Six Flags, and within the City of Eureka. Traffic accidents were frequent in this area. Traffic often became congested at the Six Flags exit when the park was operating and both Six Flags and Eureka had discussed the traffic congestion problem with MoDOT for several years. Eureka sometimes assigned police officers to direct traffic at the exit. Vonder Haar filed suit against both Six Flags and Eureka, alleging negligence for their failure to alleviate the dangerous condition on Interstate 44. The trial court granted summary judgment to both Six Flags and Eureka and the Court of Appeals affirmed in Vonder Haar v. Six Flags Theme Parks.36
“[A] duty exists when an abutting landowner makes special use of the road by placing an obstruction on it for the owner’s purposes, or by using it as something other than a public road.”37 “Here, Six Flags neither placed an obstruction on the roadways, nor used them as something other than roads.”38 “[A] duty [also] exists when a landowner affirmatively creates a dangerous condition on the road, making passage unsafe.”39 “But, as a general rule, ‘there is no liability simply for traffic generated by being open for business.’”40 “In the absence of a particular relationship recognized by law to create a duty, one policy consideration that courts examine in determining whether a duty exists is the foreseeability of the injury. Foreseeability is established when a defendant is shown to have knowledge, actual or constructive, that there is some probability or likelihood of injury sufficiently serious that an ordinary person would take precautions to avoid it.”4 “Here, even if Six Flags foresaw the danger, MoDOT controlled the roadways, signage and stoplights. Appellant suggests that Six Flags could have extended its hours or staggered admissions to reduce the morning rush hour. This court declines to impose such a duty here.”42
The Vonder Haars were not on Six Flags’ property and Six Flags did not create a dangerous condition on I-44. “MoDOT possessed control of the roadways, signage and stoplights.”43 “As a matter of law, no duty was available for Six Flags to assume under the facts of this case.”44 The mere driving of automobiles on a roadway cannot be considered a nuisance. The public is entitled to full and free use of the roadway. The principles of nuisance law will not be expanded under these facts to create a duty.
As a municipal corporation, the City of Eureka “enjoys sovereign immunity when functioning in its governmental capacity….”45 In adopting zoning regulations for Six Flags, Eureka was operating in its governmental capacity, not in a proprietary capacity. Section 537.600, RSMo., “waives sovereign immunity for dangerous conditions on a public entity’s property.” “Appellant argues … that MoDOT’s ownership and control of the roadways do not preclude application of the waiver against Eureka because the city still maintains sufficient control to take precautionary measures, such as the use of city police to direct traffic at the intersections.”46 “’Our state constitution and statutes vest exclusive control, dominion, power and jurisdiction over state highways in the Missouri Highway & Transportation Department.’”47 Thus, the City of Eureka enjoys sovereign immunity as a matter of law.
Annexation Was Reasonable and Necessary for Proper Development of the City
Martin Marietta Materials “operates a quarry on a 600-acre tract in Cass County adjacent to the westernmost boundaries of the City [of Peculiar]. The land had been used as a quarry for more than fifty years…. In approximately three years, the supply of limestone in the existing quarry will run out. Portions of the quarry, which are no longer in use, have been reclaimed with top soil and grasses to be returned to agricultural use.”48 “[F]ollowing a public hearing, the City [of Peculiar] adopted an ordinance to annex the quarry property. The annexation was subsequently approved by 87% of the City voters.”49 “[T]he City filed a Petition for Declaratory Judgment under § 71.015 RSMo., seeking court approval of the annexation.”50 Martin Marietta Materials filed pleadings opposing the annexation. At the court hearing on the city’s petition,” the “City presented evidence that its population had increased by 84% since 2000 and that the residential growth pattern would move westward in the direction of the quarry, in 5-10 years. The former city administrator for the city testified that the City wanted to exercise influence over the 600-acre quarry site after the quarry operation ceased, to insure that future use of the land would be compatible with the development plans for the surrounding area.”51 Martin Marietta Materials “presented evidence from an urban planner … that there was ample undeveloped land within the City limits” and that “there was no need for the annexation because the City had adequate land to provide for growth.”52 “[T]he trial court determined that the City had complied with § 71.015 and had demonstrated that the annexation was reasonable and necessary.”53 The Court of Appeals affirmed in City of Peculiar v. Martin Marietta Materials, Inc.
“Section 71.015 RSMo., commonly known as the Sawyer’s Act, provides the statutory mechanism by which constitutionally chartered cities can pursue the involuntary annexation of adjacent incorporated land. To complete annexation, a city must: (1) propose an ordinance dealing with proposed annexation; (2) hold a public hearing prior to adoption of the ordinance; (3) seek a declaratory judgment authorizing the annexation; and (4) hold a public election where the majority of the electors of both the city and the land to be annexed approve the annexations. Section 71.015.1.”54 “In seeking a declaratory judgment to authorize the annexation, the City must file a petition alleging three elements: (1) the proposed annexed land is contiguous to the city and shares a common boundary that is at least 15% of the length of the perimeter of the entire land to be annexed; (2) ‘annexation is reasonable and necessary for the development of the city’; and (3) the city is able to provide municipal services to the annexed area within a reasonable time. Section 71.015.1(5)(b) – (c). The annexation cannot proceed unless the Circuit Court concludes that each of the elements pled in the petition is at least ‘fairly debatable.’”55
“The City has the burden of demonstrating that it was at least fairly debatable that the annexation was proper. Id. ‘Under this standard, the extent of judicial inquiry is whether substantial evidence has been presented by the City to support the determination of its governing body such that reasonable men could differ as to the necessity of the extension.’ City of Centralia v. Norden, 879 S.W.2d 724, 727 (Mo. App. [W.D.] 1994). There are no fixed rules in determining whether a city has met the prerequisites for a valid annexation; each case must be decided on its own unique circumstances. City of St. Peters v. Ronald A. Winterhoff Living Trust, 117 S.W.3d 698, 700 (Mo. App. [E.D.] 2003).”56 An annexation is “’essentially a legislative decision resting within the discretion of the City’s governing body.’”57 The Court cannot substitute “’its judgment as to the advisability or the wisdom of the proposed annexation for that of the City’s legislators.’”58
Missouri courts consider a number of factors in analyzing the reasonableness and necessity of annexation.59 “‘A case of reasonableness is made where it appears that the land annexed is so situated as to be adaptable to urban purposes, and necessary or convenient to reasonable exercise of the city government.’”60 “The evidence [produced by the city] indicated an urbanization trend surrounding three sides of the quarry property and a population growth pattern that suggests the annexation is based on reasonable foreseeability of the City’s need for development.”61 “The City’s interest in ensuring enforcement of regulatory requirements can be properly considered in determining whether the annexation is reasonable and necessary.”62 “[T]he record is sufficient to show the reasonableness and necessity of the annexation is fairly debatable based on the population growth and development surrounding the quarry, and the City’s corresponding need to enforce the current zoning requirements and influence future uses of the property.”63
For Trespass Action Involving Pollution, Proof of Actual Interference With Plaintiffs’ Possession of the Land is Required
Charles and Shirley Barnes own and operate Rocky’s Restaurant in Branson. Morris Oil Co. owns adjacent property on which it operates a petroleum bulk plant. During 1988, Morris closed two underground storage tanks. During that process, petroleum-contaminated soil was found. Morris hired an environmental firm to evaluate and remove the contaminated soil. As part of that firm’s evaluation, ground water and soil contamination were found on the Barnes’ property. The Barnes filed suit against Morris, alleging trespass. At trial, the jury was instructed that it could find for the plaintiffs if it believed that the contaminated ground water migrating from Morris Oil Company to plaintiffs’ property constituted an actual interference with the possession of plaintiffs’ property. The jury returned a verdict for Morris Oil and the Court of Appeals affirmed in Barnes v. Morris Oil Co.64
In Maryland Heights Leasing, Inc. v. Mallinckrodt, Inc., 706 S.W.2d 218 (Mo. App. E.D. 1985), the court “noted that, in Missouri, ‘trespass is described as a direct physical interference with the person or property of another.’ After reviewing a number of pollution cases from around the country, the eastern district” held that in pollution cases, proof of trespass “requires evidence that the pollution interfered with plaintiffs’ actual possession of their property,” not just interference with mere use and enjoyment.65
As held in Cook v. DeSoto Fuels, Inc., 169 S.W.3d 94 (Mo. App. E.D. 2005), “while there are differences between a trespass and a nuisance cause of action, the two are neither mutually exclusive nor inconsistent.”66 “While trespass involves interference with the plaintiffs’ possessory rights and requires an intentional act that results in a physical invasion of the plaintiffs’ property, nuisance involves an unreasonable land use that interferes with the plaintiffs’ right of enjoyment and does not require an intentional act…. The [plaintiffs’] allegations that [defendant] caused gasoline to enter their property can constitute 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.”67
Here, “the verdict-directing instruction on Plaintiffs’ trespass theory had to submit, as one of the ultimate facts, that the level of gasoline contamination on Plaintiffs’ property was so significant that it resulted in actual interference with Plaintiffs’ possession of their land.”68 The instruction submitted by plaintiffs “omitted this essential element and, therefore, failed to follow the applicable substantive law by submitting the ultimate facts necessary to sustain a verdict on Plaintiffs’ trespass theory. The trial court did not err in refusing [plaintiffs’ proposed instruction].”69
Forum Non Conveniens is To Be Applied With Caution
Doyle Campbell, an Iowa resident, filed suit in Harrison County, Missouri, against Shirley Francis, a Harrison County resident, and Commercial Federal Bank located in Lamoni, Iowa. Campbell alleged that Francis, who was Campbell’s property manager, converted funds from Doyle’s rental property and deposited those funds into her personal account at the bank. Both Francis and the bank filed motions to dismiss, based on the doctrine of forum non conveniens, contending that most of the witnesses resided in Iowa and they could not be compelled to testify in Missouri. The trial court granted both motions, but the Court of Appeals reversed and remanded in Campbell v. Francis.70
“The discretion given to trial courts in forum non conveniens cases is a ‘controlled’ discretion. Besse v. Mo. Pac. R.R. Co., 721 S.W.2d 740, 742 (Mo. banc 1986). ‘Trial courts are obliged to give attention to the doctrine and to dismiss cases that have no tangible relationship to Missouri.’ Id.”71 “The doctrine of forum non conveniens allows trial courts discretion to refuse to exercise jurisdiction, where jurisdiction and venue are otherwise proper, if the forum is seriously inconvenient for the trial of the action and a more appropriate forum is available to the plaintiff. State ex rel. Ford Motor Co. v. Westbrooke, 12 S.W.3d 386, 392 (Mo. App. [S.D.] 2000). The doctrine is to be applied with caution and only upon a ‘clear showing of inconvenience and when the ends of justice require it.’ Id. at 394. A plaintiff’s choice of forum should not be disturbed except for ‘weighty reasons’ and the case should be dismissed for forum non conveniens only if the balance is ‘strongly in favor’ of the defendant. Taylor v. Farmers Ins. Co., 954 S.W.2d 496, 501 (Mo.App. [S.D.] 1997).”72
Here, Francis is a resident of Harrison County, Missouri. “Missouri courts have noted that it is seldom impermissibly inconvenient to sue a defendant at that defendant’s place of residence.”73 “Although it is true that the courts of this state lack authority to compel witnesses from another state to attend civil proceedings, live testimony is not the only method by which a witness may be examined.”74 “’Having witnesses testify at trial by deposition remains an approved alternative.’”75 Also, the defendant’s “potential inability to bring cross-claims against [the bank]” if it is not subject to personal jurisdiction in Missouri, is not “controlling with respect to the convenience of litigating this action in Missouri.”76
“Defendant Francis also argues that the case would be a burden on the Missouri court system because the trial court might have to apply Iowa law to the case. However, Missouri courts are ‘capable of applying the laws of other states without creating an undue burden on the court system.’ Taylor, 954 S.W.2d at 502. The mere fact that the trial court must apply a foreign jurisdiction’s law to an action does not burden the court enough to support a dismissal. Id. The evidence and arguments put forth by Defendant Francis in support of her motion to dismiss, simply did not constitute the type of weighty reasons that tip the balance in a forum non conveniens determination strongly in favor of the defendant. For this reason, the forum cannot be said to have been seriously inconvenient for Francis. The circuit court abused its discretion in granting her motion to dismiss”77 and, because the bank’s motion relied on the same grounds, the granting of its motion was also an abuse of discretion. (In a footnote, the court observed that the bank waived its challenge to personal jurisdiction when it filed its motion to dismiss for forum non conveniens without challenging personal jurisdiction).
Footnotes
1 Sides v. St. Anthony’s Med. Ctr., No. SC88948 (Mo. banc 2008).
2 Id.
3 Id.
4 Id.
5 Id.
6 Id.
7 Id.
8 Id. See Martin v. Washington, 848 S.W.2d 487, 495 (Mo. banc 1993).
9 Id. See Hasemeier v. Smith, 361 S.W.2d 697, 700 (Mo. banc 1962); Weaks v. Rupp, 966 S.W.2d 387, 394 (Mo. App. W.D. 1998).
10 Id.
11 Id.
12 Bach v. Winfield-Foley Fire Protection Dist., No. SC 89001 (Mo. banc 2008).
13 Id.
14 Id., citing State ex rel. Ford Motor Co. v. Bacon, 63 S.W.3d 641, 642 (Mo. banc 2002).
15 Groh v. Shelton, 428 S.W.2d 911, 916 (Mo. App. S.D. 1968).
16 Bach v. Winfield-Foley Fire Protection Dist., No. SC 89001 (Mo. banc 2008).
17 Id., citing Perricone v. DeBlaze, 655 S.W.2d 724, 725 (Mo. App. E.D. 1983).
18 Id., citing Douglas v. National Life & Accident Ins. Co., 155 S.W.2d 267, 271 (Mo. App. 1941).
19 Id.
20 Id.
21 Id.
22 Jarrett v. Jones, No. SC 88700 (Mo. banc 2008).
23 646 S.W.2d 765 (Mo. banc 1983).
24 Jarrett v. Jones, No. SC 88700 (Mo. banc 2008).
25 Id., citing Asaro v. Cardinal Glennon Memorial Hospital, 799 S.W.2d 595 (Mo. banc 1990).
26 Id. at 596.
27 Jarrett v. Jones, No. SC 88700 (Mo. banc 2008).
28 Id.
29 Id.
30 Id., citing Bass, 646 S.W.2d at 772-73.
31 Id.
32 Id.
33 Id.
34 Id.
35 Id.
36 Vonder Haar v. Six Flags Theme Parks, No. ED 90105 (Mo. App. E.D. 2008).
37 Id., citing Boggs v. Lay, 164 S.W.3d 4, 15 (Mo. App. E.D. 2005).
38 Id.
39 Id. at 17.
40 Id., citing O’Neil v. ADM Growmark River Systems, Inc., 871 S.W.2d 54, 56 (Mo. App. E.D. 1993).
41 Id.
42 Id.
43 Id.
44 Id.
45 Id., citing Wollard v. City of Kansas City, 831 S.W.2d 2000, 2002 (Mo. 1992).
46 Id.
47 Id., quoting Crofton v. City of Kansas City, 660 S.W.2d 709, 717 (Mo. App. W.D. 1983).
48 City of Peculiar v. Martin Marietta Materials, Inc., No. WD 67943 (Mo. App. W.D. 2008).
49 Id.
50 Id.
51 Id.
52 Id.
53 Id.
54 Id.
55 Id., quoting City of Peculiar v. Effertz Bros., Inc., WD 67554 (Mo. App. W.D. 2008).
56 Id.
57 Id., quoting City of St. Charles v. Schone, 569 S.W.2d 769, 774 (Mo. App. E.D. 1978).
58 Id., quoting City of St. Charles.
59 See Effertz Bros, Inc., supra.
60 Id., quoting City of Perryville v. Brewer, 557 S.W.2d 457, 462 (Mo. App. E.D. 1977).
61 Id., citing Mayor of Liberty v. Beard, 613 S.W.2d 642, 654 (Mo. App. W.D. 1981).
62 Id., citing Beard at 654-55.
63 Id.
64 Barnes v. Morris Oil Co., No. 27987 (Mo. App. S.D. 2008).
65 Id., citing Maryland Heights Leasing, Inc. v. Mallinckrodt, Inc., 706 S.W.2d 218, 225-26 (Mo. App. E.D. 1985); see also Williams v. Monsanto Co., 856 S.W.2d 338 (Mo. App. E.D. 1993). 63 Id.
64 Id., citing Cook v. DeSoto Fuels, Inc., 169 S.W.3d 94, 102-103 (Mo. App. E.D. 2005).
65 Id., citing Williams, 856 S.W.2d at 340.
66 Id.
67 Campbell v. Francis, No. WD 68309 (Mo. App. W.D. 2008).
68 Id.
69 Id.
70 Id., citing Anglim v. Missouri Pac. R. Co., 832 S.W.2d at 304 (Mo. banc 1992).
71 Id., citing State v. Ivory, 609 S.W.2d 217, 220 (Mo. App. E.D. 1980).
72 Id., quoting Melton v. Ill. Cent. Gulf R.R. Co., 763 S.W.2d 321, 323 (Mo. App. S.D. 1988).
73 Id.
74 Id.