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

“The Committee for a Healthy Future, Inc. ([c]ommittee) collected signatures on an initiative petition proposing that the [state] [c]onstitution be amended to increase the tax on tobacco products and to provide for the disbursement of [the] revenues”1 from such tax. The committee filed the signed initiative petition with the secretary of state, who sent copies of it to local election authorities to verify the signatures. The secretary of state rejected the petition after finding that it fell 274 signatures short of the required number in the Fifth Congressional District. The committee filed suit challenging that determination. Before trial, the Kansas City Board of Election Commissioners re-examined the signatures and identified 263 valid signatures that had not been included in the board’s original court. At trial, the committee presented evidence of more than 1,000 signatures from the Fifth Congressional District that had not been counted. The circuit court ordered the secretary of state to place the proposed amendment on the November 2006 ballot and the Supreme Court affirmed in Committee for a Healthy Future v. Carnahan, No. SC 88018 (Mo.banc 2006).

Before reaching the issues presented in this appeal, [the Court believed it was] important to make some general observations regarding the initiative process provided by the constitution. Nothing in our constitution so closely models participatory democracy in its pure form. Through the initiative process, those who have no access to or influence with elected represen-tatives may take their cause directly to the people. The people, from whom all constitutional authority is derived, have reserved the “power to propose and enact or reject laws and amendments to the Constitution.” When courts are called upon to intervene in the initiative process, they must act with restraint, trepidation and a healthy suspicion of the partisan who would use the judiciary to prevent the initiative process from taking its course. Constitutional and statutory provisions relative to initiative are liberally construed to make effective the people’s reservation of that power.²

The “[f]ailure to give the voter’s correct congressional district number is not of itself grounds” for invalidating a voter’s signature.³ Also, if the circulating affidavit substantially complies with the statute, it is “sufficient and clerical and merely technical errors are to be disregarded. The paramount concern in construing statutes governing initiative petitions is determining whether or not the statute makes a specified irregularity fatal.”⁴ If not, the court should not “make it fatal by judicial construction.”⁵ “[S]ection 116.040 [RSMo.] does not make any specified irregularity fatal. To the contrary, that section provides that the petition is sufficient if the form provided is followed substantially.”⁶

Moreover, the initiative petition did not violate Article 3, Section 50 of the Missouri Constitution by containing multiple subjects.

When reviewing a single subject challenge to an initiative petition, [the] Court must liberally and non-restrictively construe the petition in such a way that the provisions connected with or incident to the central purpose of the proposal are harmonized and not treated as separate subjects. A proposal may amend several articles in the constitution so long as all proposals are germane to a single purpose.⁷

[T]he clear, single purpose of the proposed amendment is to raise and disburse a tax . . . . The obvious negative impact that tobacco products have on public health is addressed by the proposal raising taxes on tobacco products and disbursing the funds to tobacco cessation programs and to public health programs that include treating tobacco-related illnesses. [The] proposal’s general purpose and the matters connected to it do not violate the single subject restriction of the state constitution.⁸

Statutes implementing the constitutionally created initiative process should not restrict or limit the electorate’s power. Although the implementing statutes are required to be followed, failure to adhere to mere technical formalities should not deny the people the power to propose changes to our laws or amendments to our constitution. Substantial compliance with the implementing statutes is all that is required.⁹

“The initiative petition’s general purpose and the matters connected to it do not violate the single subject restriction of Missouri’s constitution, nor does the petition appropriate money other than the new revenues it creates.”¹⁰

Assessment of Damages is Primarily a Function For the Jury

Kevin Knifong “was seriously injured when the battery of [a] Caterpillar front-end loader, on which he was working. . . , exploded.”¹¹ The explosion caused severe chemical burns and lacerations around his right eye. He became legally blind in that eye and “experienced problems with depth perception, dizziness, headaches, and double-vision.”¹² “There is permanent scarring around his right eye” and he is at risk of developing numerous other eye problems.¹³ His medical expenses were $7,400 and he lost $7,100 of income from the accident. He filed a products liability suit against Caterpillar. At trial, he introduced evidence that showed “that the design of the battery safety vent cap system was defective [because] it failed to properly vent the explosive gases”¹⁴ and allowed the battery to explode from sparks created by the battery terminal posts. The jury returned a verdict finding Knifong 10% at fault and Caterpillar 90% at fault; it assessed Knifong’s damages at $2,500,000. Caterpillar’s post-trial motions for new trial, remitter and judgment notwithstanding the verdict were denied. The court of appeals affirmed in Knifong v. Caterpillar, 199 S.W.3d 922 (Mo. App. W.D. 2006).

Excessive verdicts generally arise in two situations: (1) when the jury makes an honest mistake in weighing the evidence as to the nature and extent of the injury and awarding disproportionate damages; and (2) when the jury is biased by trial misconduct to award grossly excessive damages. In the first instance, remittitur is appropriate without re-trial, while in the second instance, a new trial is appropriate.¹⁵

“To be entitled to a new trial, based on a grossly excessive verdict for damages, actual trial error must be shown.”¹⁶

The party challenging the verdict as being excessive must show that the verdict, viewed in a light most favorable to the plaintiff, “was glaringly unwarranted and that some trial error or misconduct of the prevailing party was responsible for prejudicing the jury.” . . . [T]he size of the verdict alone will not establish the requisite bias, passion, and prejudice of the jury sufficient to order a new trial for an excessive verdict.¹⁷

“The assessment of damages is primarily a function for the jury.”¹⁸ “[T]here is no precise formula for determining whether a verdict is excessive. ‘Each case must be considered on its own facts, with the ultimate test being what amount fairly and reasonably compensates the injured party.’”¹⁹ “[A] ‘judgment may be based in part on “certain intangibles” that do not lend themselves to precise calculation, such as past and future pain, suffering, effect on life-style, embarrassment, humiliation, and economic loss.’”²⁰ The court did not agree that “compensatory damage awards must be remitted when the non-economic damages far exceed the economic damages.”²¹ “To apply solely a multiplier or comparative approach in determining damages as a matter of course in every case, could, in a given set of circumstances, violate the mandate that once liability is established, the plaintiff is entitled to fair and reasonable compensation for his damages.”²²

[T]he trial court declined to remit the jury’s compensatory damage award in that it determined the jury’s verdict was supported by the record as being fair and reasonable compensation for [Knifong’s] injuries caused by the battery explosion. . . . [W]e cannot say that the trial court abused its discretion in refusing to remit the jury’s award.²³

Public Use of a Parking Lot as a Short-Cut Did Not Establish a Prescriptive Easement

Jones-Festus Properties owned a shopping center in Festus that contained several stores. The parking lot could be entered from Vine Street, Truman Boulevard, and Cave Street. Shapiro Brothers operated a scrap metal business adjacent to the shopping center and used the parking lot to access its property. When Jones-Festus threatened to block Shapiro Brothers from using its parking lot, Shapiro Brothers filed suit seeking injunctive relief. Jones-Festus filed a counterclaim also seeking injunctive relief and damages for trespass. At trial, several witnesses for Shapiro Brothers testified that they had used the parking lot for many years as a short-cut. They acknowledged that they occasionally shopped at the stores in the shopping center and never had permission from the owners of the shopping center to use the parking lot as a short-cut. The witnesses also acknowledged that there were no signs or markings directing traffic on the parking lot; there was a wide area used by vehicles traveling across the parking lot, not a specific route. The trial court denied the relief sought by Shapiro Brothers, but granted injunctive relief and damages for trespass to Jones-Festus Properties. The Court of Appeals affirmed in Shapiro Brothers v. Jones-Festus Properties, No. ED 87743 (Mo. App. E.D. 2006).

“An easement by prescription is established by use that is continuous, uninterrupted, visible, and adverse for a period of 10 years.”²⁴ “‘The law does not favor prescriptive easements’ and a party claiming the existence of one must show the elements by clear and convincing evidence. Mere permissive use of land cannot ripen into an easement.”²⁵

[T]he public may[, however,] acquire the right to the use of a road or easement over the land of another, when such road has been established by adverse occupancy and use of the same by the public for a period of time equal to that prescribed by the statute of limitations. . . .²⁶

Moreover, “to establish an easement by prescription (1) the use must be for the prescribed period, (2) the use must be adverse, (3) the use must be under a claim of right, and (4) the owner must have notice of the use, its character and the claim of right.”²⁷ Here, “the evidence demonstrates that the general public did not claim any right to the area, but rather used the parking lot as a ‘short cut’ to access various public streets surrounding [it] as well as to patronize the shopping center.”²⁸ “In addition, Shapiro Brothers failed to establish the width and length of the prescriptive area.”²⁹

Also, “there was no public easement by virtue of common law dedication.”³⁰

To show common law dedication, a party must show that[:] (1) the owner, by unequivocal action, intended to dedicate the land to public use, (2) that the land dedicated was accepted by the public, and (3) that the land dedicated is used by the public. The owner’s intention to establish land for public use is the foundation of common law dedication, and only when this intention is unequivocally manifested, either expressly or by plain implication, can a dedication be found. . . . [T]he acts or declarations of the owner must convincingly demonstrate “a purpose to create a right in the public to use the land adversely to himself.”³¹

Shapiro Brothers failed to show that the [property owner] …intended to dedicate the land to public use. . . . [T]he alleged public roadway was poorly defined as far as the travel path and vehicles tended to drive in a wide swath of the area. The evidence presented simply demonstrated that the witnesses cut across the parking lot . . . for various reasons.³²

Jones-Festus invited the public onto its “parking lot for the purpose of accessing” the businesses located at the shopping center.³³ “There was substantial evidence supporting the trial court’s finding that there was no public easement by virtue of common law” dedication.³⁴

Evidence of Family Status is Generally Inadmissible

Elcille Brown filed a wrongful death suit against Robert Poetz, D.O., alleging that Dr. Poetz was negligent in failing to diagnose and treat her daughter’s tuberculosis. During the nine-day trial, Dr. Poetz testified, over plaintiff’s objection, that he had eight children – six of whom had been adopted. The jury returned a verdict for Dr. Poetz. Brown filed a motion for new trial, which was granted due to the admission of this evidence of family status. The court of appeals reversed, however, and reinstated the jury verdict in Brown v. Poetz, No. ED 87139 (Mo. App. E.D. 2006).

It is the general rule that, in an action for personal injury, evidence of a party’s family status is irrelevant and inadmissible. Such evidence is generally calculated to appeal to the sympathy of the jury. Even “though such evidence is inadmissible,” however, “it does not always constitute reversible error.”³⁵ “The admission of such evidence will only be considered reversible error where it appears that such evidence affected the merits of the case.”³⁶

Here, Dr. Poetz made only one reference to his adopted children throughout the entire trial. Significant medical testimony was presented on both sides by expert witnesses. Dr. Poetz provided substantial evidence that Brown’s daughter “failed to comply with his [repeated] recommendations concerning his care and treatment of” her, including his recommendation that she see a specialist and have a bronchoscopy test, which she refused.³⁷

In light of the significant medical testimony presented, the length of the trial, decedent’s failure to comply with the recommendations of Dr. Poetz, and the evidence that Dr. Poetz met the standard of care, we cannot conclude that the brief references at the beginning of direct examination of Dr. Poetz to his family status and his empathy for plaintiff affected the merits of the case. . . .[T]he trial court abused its discretion in granting plaintiff’s motion for new trial.³⁸

Moreover, during trial, “plaintiff presented a significant amount of testimony regarding her own family status”; she was a widow and had four children.³⁹

Missouri has adopted the rule of curative admissibility. This doctrine states that where an opposing party does not object to the introduction of improper evidence, the opposing party may introduce similar evidence to remove any unfair prejudice which may result from the original evidence.⁴⁰

“[H]ere, plaintiff was allowed to introduce evidence regarding her marital status, her children, and her grandchildren.”⁴¹ The testimony by both parties about their family status canceled each other out.

Trial Court Did Not Err in Admitting Videotape Illustration of Truck Involved in Accident

Michelle Black was a passenger in a rented U-Haul truck being driven by her friend. When her friend attempted to pass a vehicle in front of him, he lost control of the truck and swerved into oncoming traffic. Michelle died in the accident. Michelle’s parents filed a wrongful death suit against the driver and U-Haul. In the claim against U-Haul, the Blacks alleged that U-Haul mechanics had improperly serviced the truck the day before it was rented to Michelle’s friend. “Specifically, the Blacks alleged that [the] U-Haul[] mechanics had failed to install a critical cotter pin into the wheel assembly,” which led to the failure of the steering mechanism.⁴² At trial, U-Haul offered a “videotape of two driving tests conducted by [a] U-Haul[] employee.”⁴³ The video was offered to illustrate how a moving truck, virtually identical to the one being driven at the time of the accident, would handle without a cotter pin. The trial court admitted the videotape. The jury returned a verdict for U-Haul and the Blacks appealed. The court of appeals affirmed in Black v. U-Haul Company of Missouri, No. ED 86510 (Mo. App. E.D. 2006).

[V]ideotape evidence may be admitted for two purposes: (1) to re-create events at issue in the litigation; and (2) to illustrate physical properties or scientific principles that form the foundation for an expert’s opinion. When a video attempts to re-create the original event, the essential conditions must be “substantially similar” to those existing at the time of the accident. On the other hand, when the video is merely offered to illustrate the principles used in forming an opinion, the conditions need not be substantially similar.⁴⁴

“[T]he trial court correctly determined that the videotape evidence in question was not offered to illustrate or re-create precisely how the accident occurred.”⁴⁵ “[T]he video was admitted for the limited purpose of illustrating how a truck would handle without a cotter pin.”⁴⁶ “[T]he trial court did not abuse its discretion in admitting this videotape evidence.”⁴⁷

In Suit Against Municipality, Plaintiff Has Burden to Establish Waiver of Sovereign Immunity

Kody Maune was riding his bike with friends along a path in a Rolla city park. He turned his head to look at his friends “and ran into a yellow barrier partially blocking the right side of a bridge” he was riding towards.⁴⁸ “The City had erected the barrier to keep automobiles off the bridge.”⁴⁹ He filed suit against the city, alleging the barrier was dangerous. The city filed a motion for summary judgment supported by photos of the bridge and an affidavit from the parks and recreation director. The affidavit stated that “the barrier was not physically defective,” was “painted yellow, and extended. . . 47 inches across a 117-inch bridge entrance.”⁵⁰ The trial court entered summary judgment for the city and the court of appeals affirmed in Maune v. City of Rolla, No. 27287 (Mo. App. S.D. 2006).

A city and other public entities enjoy sovereign immunity except to the extent waived. Section 537.600 waives sovereign immunity for injuries caused by dangerous conditions on the public entity’s property if the plaintiff establishes: (1) “the property was in a dangerous condition at the time of . . . injury, [(2)] . . . the injury directly resulted from the dangerous condition, [(3)] . . . the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury that was incurred, and” (4) a public employee negligently or wrongly created the condition within the course of employment, or that the public entity had actual or constructive notice of the dangerous condition in time to have acted.⁵¹ “The plaintiff must establish these elements as part of its own case[;] . . . sovereign immunity is not an affirmative defense.”⁵² It is also plaintiff’s burden to establish a waiver of sovereign immunity as part of any pleaded theory against a public entity.

“[T]he statutory provisions that waive a public entity’s sovereign immunity” are strictly construed.⁵³ “A ‘dangerous condition’ under Section 537.600 requires a defect in the physical condition of public property. For property to be dangerous, there must be some defect, physical in nature, in the sovereign’s property.”⁵⁴ The “failure to perform an intangible act, ‘whether it be failure to supervise or warn[,]’ cannot constitute a dangerous condition of the property for purposes of waiving sovereign immunity.”⁵⁵

Moreover, “[a] landowner is not an insurer of the well-being of invitees, and generally is not required as a matter of law to protect invitees against open and obvious conditions. The landowner is entitled to expect that 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 protect themselves. . . . [T]he landowner may reasonably rely on invitees to see and appreciate risks presented by open and obvious conditions, and may reasonably rely on an invitee’s normal sensibilities to protect against same.⁵⁶

Prejudgment Interest Recoverable on Claim for Breach of Fiduciary Duty

Stephen Rois filed a breach of contract action against his former employer, H. C. Sharp Company, seeking payment of unpaid commissions. Sharp filed a counterclaim seeking damages from Rois for breach of his fiduciary duty by diverting revenues to a business he owned separately. The trial court entered judgment in favor of Sharp on both the claim of Rois and on Sharp’s counterclaim, and awarded actual and punitive damages to Sharp. The trial court did not award prejudgment interest to Sharp. The court of appeals remanded the case with instructions to the trial court to award Sharp prejudgment interest from the date its counterclaim was filed in Rois v. H. C. Sharp Co., No. ED 86794 (Mo. App. E.D. 2006).

Under § 408.020, RSMo., a creditor is entitled to prejudgment interest at the rate of 9% per annum “for money recovered for the use of another, and retained without [the] owner’s knowledge of the receipt. The general rule is that prejudgment interest is not recoverable in a tort action.”⁵⁷ Like all general rules of law, however, there are exceptions. “Where the defendant’s tortious conduct confers a benefit upon the defendant, prejudgment interest may be recovered by the plaintiff on [its] claim.”⁵⁸ A breach of fiduciary duty fits within this exception to the general rule and allows an award of prejudgment interest.

In order for prejudgment interest to be awarded, the claim for damages must be liquidated. A claim is liquidated “when the claim is fixed and determined or readily determinable, but it is sufficient if the amount due is ascertainable by computation or by a recognized standard. Merely denying liability does not render a claim ‘unliquidated.’”⁵⁹ Here, once the trial court determined that Rois breached his fiduciary duty to Sharp by diverting sales to his company, the measure of damages was readily ascertainable. While it might have proved difficult for Sharp to state with specificity what the profits were on the diverted sales, an exact calculation is not required for the claim to be liquidated. Sharp’s damages were liquidated in that the measure of damages was readily ascertainable.

“Under Section 408.020, prejudgment interest on liquidated claims is allowed only after demand for payment is made.”⁶⁰

The demand need not be in any certain form, but it must be definite as to amount and time. In the absence of a demand for payment prior to filing a lawsuit, the filing of the suit itself is sufficient to constitute a demand. Further, the petition need not make a specific request for prejudgment interest.⁶¹

A petition that includes a prayer requesting “that the court grant ‘such other relief as may be proper’ is sufficient.”⁶² Here, the filing of a counterclaim by Sharp requesting that the trial court grant such relief as it deems just and proper satisfies the demand requirement for the award of prejudgment interest. When § 408.020 is applicable to a case, as it is here, the award of prejudgment interest is not a matter of court discretion; it is compelled.

Footnotes

1 Committee for a Healthy Future v. Carnahan, SC 88018 (Mo. banc 2006).

2 Id.

3 Id.

4 Id.

5 Id. Citing United Labor Comm. of Mo. v. Kirkpatrick, 572.S.W.2d 449, 453 (Mo. banc 1978).

6 Id.

7 Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 830 (Mo. banc 1990).

8 Committee for a Healthy Future v. Carnahan, SC 88018 (Mo. banc 2006).

9 Id.

10 Id.

11 Knifong v. Caterpillar, Inc., 199 S.W.3d 922, 924 (Mo. App. W.D. 2006).

12 Id. at 931.

13 Id.

14 Id. at 924.

15 Id. at 927. Citing McCormack v. Capital Elec. Constr. Co., 159 S.W.3d 387, 394-95 (Mo. App. W.D. 2004).

16 Knifong at 927. Citing Barnett v. La Societe Anonyme Turbomeca Fr., 963 S.W.2d 239, 657 (Mo. App. W.D. 1997).

17 Id.

18 Knifong at 927. Citing McCormack at 395.

19 Id.

20 Knifong at 928. Citing Alcorn v. Union Pacific. R.R. Co., 50 S.W.3d 226, 250 (Mo. banc 2001).

21 Id. at 929.

22 Id. at 930.

23 Id. at 932.

24 Shapiro Brothers quoting Reardon v. Newell, 77 S.W.3d 758, 761 (Mo. App. S.D. 2002).

25 Id.

26 Shapiro Brothers quoting Terry v. City of Independence, 338 S.W.2d 769, 774 (Mo. banc 1965).

27 Shapiro Brothers citing Mackey v. Weakley, 439 S.W.2d 219, 225 (Mo. App. E.D. 1969).

28 Shapiro Brothers v. Jones-Festus Properties, ED 87743 (Mo. App. E.D. 2006).

29 Id. See Tadlock v. Otterbine, 767 S.W.2d 366, 368 (Mo. App. S.D. 1989).

30 Id.

31 Id. Citing Connell v. Jersey Realty & Investment Co., 180 S.W.2d 49 (Mo. banc 1944).

32 Id.

33 Id.

34 Id.

35 Brown v. Poetz, ED 87139 (Mo. App. E.D. 2006).

36 Id.

37 Id.

38 Id.

39 Id.

40 Id.Citing Hollocher v. Taylor, 506 S.W.2d 105, 106 (Mo. App. E.D. 1974).

41 Id.

42 Black v. U-Haul Company of Missouri, ED 86510 (Mo. App. E.D. 2006).

43 Id.

44 Id. Citing Grose v. Nissan North America, Inc., 50 S.W.3d 825, 830 (Mo. App. E.D. 2001).

45 Id.

46 Id.

47 Id.

48 Maune v. City of Rolla, No. 27287 (Mo. App. S.D. 2006).

49 Id.

50 Id.

51 Section 537.600.2, RSMo 2006.

52 Maune v. City of Rolla, No. 27287 (Mo. App. S.D. 2006). See Burke v. City of St. Louis, 349 S.W.2d 930, 931 (Mo. 1961) and Best v. Schoemehl, 652 S.W.2d 740, 743 (Mo. App. E.D. 1983).

53 Id.

54 Id. See State ex rel. Div. of Motor Carrier and R.R. Safety v. Russell, 91 S.W.3d 612, 616 (Mo. banc 2002); and Sisk v. Union Pacific R.R Co., 138 S.W.3d 799, 808 (Mo. App. W.D. 2004).

55 Id. See Russell at 616 and Sisk at 809.

56 Id. See Crow v. Kansas City Power & Light Co., 174 S.W.3d 523, 534 (Mo. App. W.D. 2005), citing Harris v. Niehaus, 857 S.W.2d 222, 226 (Mo. banc 1993).

57 Rois v. H.C. Sharp Co., 2006 WL 2947313*1, ED 86794 (Mo. App. E.D. 2006).

58 Id. Citing Vogel v. A.G. Edwards & Sons, Inc., 801 S.W.2d 746, 757 (Mo. App. E.D. 1990).

59 Id.

60 Rois citing Watters v. Travel Guard Inr’l., 136 S.W.3d 100, 111 (Mo. App. E.D. 2004).

61 Rois citing A.G. Edwards & Sons, Inc. v. Drew, 978 S.W.2d 386, 397 (Mo. App. E.D. 1998).

62 Rois citing Watters at 111 quoting Holtmeier v. Dayani, 862 S.W.2d 391, 406 (Mo. App. E.D. 1993).