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

Patrick Downey died of lung cancer in 1999. During 1996, he had heart bypass surgery and, during his hospitalization for that surgery, two chest x-rays were taken. The x-rays indicated a lesion on his left lung. No further tests or evaluations were ordered in response to these x-rays. Mr. Downey first learned of the abnormality on his chest x-rays in 1998, during a visit to his primary care physician. He was then referred to a lung specialist and the lesion was diagnosed as cancerous. He died of lung cancer nine months later. His wife brought an action against Mr. Downey's primary care physician and the surgeon who performed the heart bypass surgery, alleging lost-chance-of-survival. Experts testified that Mr. Downey would have had a 50% to 75% chance of survival had he been treated in late 1996 or early 1997, but that his chance of survival was only 1% by November of 1998; at that time, the cancer was virtually incurable.

The jury returned a verdict in favor of Mrs. Downey, but awarded her damages of $0. The trial court instructed the jury to deliberate further, because the verdict was inconsistent and could not be accepted. After further deliberations, the jury again returned a verdict in favor of Mrs. Downey, awarding her damages of $0 but, in addition, finding that her husband lost a 5% chance of survival. The trial court then accepted the verdict. The Court of Appeals reversed, however, in Downey v. University Internists of St. Louis, No. ED 83231 (Mo. App. E.D. 2004).

There is a split of authority in the cases discussing a jury verdict finding for a plaintiff, but assessing no damages. One line of cases, which includes the federal courts and some state jurisdictions, considers such a verdict as a verdict for the defendant. The other line of cases holds that the verdict is inconsistent and cannot stand. The Missouri appellate courts have generally treated a verdict that finds a defendant negligent, but awards no damages, as inconsistent and invalid. The Supreme Court of Missouri has recognized the existence of these two lines of cases, but has not resolved the split of authority.

Jury verdicts are inconsistent when they are so contradictory that they cannot be construed with certainty, or when they cannot fairly be resolved as a definite finding in favor of either party. While a verdict should be construed liberally so that it may be given effect where possible, the verdict in this case cannot be upheld. The jury's award of no damages starkly contradicts its finding of the issues for the plaintiff and the loss of her husband's material chance of survival. Logically, an award of damages must follow from a finding of liability to compensate for the harm the patient has suffered. To allow an award of no damages when a patient has lost a material chance of survival is to value his life at nothing. While Mr. Downey suffered from other illnesses, he died from the cancer that the defendants negligently failed to diagnose, not some other ailment. Further, there was no evidence that the other ailments would have necessarily taken his life. In the absence of evidence that Mr. Downey died, or would have died, from the other ailments in August of 1999, his other ailments cannot explain an award of no damages. Even if the other ailments did shorten his life expectancy, they would then operate to reduce the percentage the jury would find as his lost chance of survival, but not to eliminate his damages entirely. The jury found that Mr. Downey had a material chance of surviving his cancer and that his chance of survival was lost due to the defendants' negligence. Its award of no damages to compensate him for the harm suffered, however, is inconsistent and will not support the entry of a judgment. Case is reversed and remanded for a new trial on all issues.

When an Employee is "Found Dead," There Must Be Some Evidence to Show That the Employee's Work Was a Substantial Factor in Causing His Death for Workers' Compensation Benefits to be Recoverable

Rollan Wagner worked as a carpenter for Yeargin Construction Co. He was assigned a job to replace a portion of the Formica edging on a beverage counter in a mess hall at Fort Leonard Wood. One morning, he was found lying on his back in the mess hall. A ladder was approximately four feet away, but the job he was doing did not require a ladder. Three years prior to his death he was treated by a physician for back and leg pain. During this treatment, he stated that he had fainting episodes and his heart rate was irregular. He told the doctor that his father had died at a young age from heart problems. His brother and sister had also died from heart-related problems. The doctor treating him for the back and leg problems made an appointment for him to have a cardiology evaluation. Wagner canceled that appointment, causing his physician to write him a letter expressing concern that his irregular heart beat might cause him to suffer a stroke, heart attack, or sudden death. According to Wagner's wife, he never went to the heart doctor. His death certificate stated that he died of natural causes, with the cause of death listed as cardiac arrest. Wagner's wife filed for death benefits under the Workers' Compensation Act. Her claim was denied by the Labor & Industrial Relations Commission and the Court of Appeals affirmed in Wagner v. Harbert Yeargin Construction Co., No. 26152 (Mo. App. S.D. 2004).

Wagner's wife contends that the commission erred in finding that Wagner did not sustain an accident arising out of, or in the course of, employment, because he was found dead on the job. She further argues that, since the cause of death cannot be determined, the "found dead" presumption applies and evidence was not presented to rebut that presumption. The presumption does not extend, however, to a showing of an accident. To permit recovery under the "found dead" presumption, the element of accident must plainly appear or be readily inferable from the surrounding circumstances.

The presumption may be applicable if, in the absence of contrary evidence, an employee is found injured or dead as a result of unexplained circumstances. The presumption is not applicable if the critical elements of "arising out of" or "in the course of" employment are lacking. There is sound logic in presuming that an unexplained injury or death, which occurs on the premises and during the time of employment has a causal connection with the employment activities. That, however, is far different from taking the further step of inferring that such an unexplained injury or death occurred by reason of accident, rather than from a natural cause. The "found dead" presumption was not applicable here because the evidence did not support a finding that Wagner's work was a substantial factor, or even a precipitating or triggering factor, in causing his heart attack.

Dangerous Property Exception to Sovereign Immunity Requires the Property Itself to be Dangerous

Two Missouri Highway Patrol troopers responded to an automobile accident on Missouri Highway13 in Greene County. The troopers barricaded one lane of traffic with traffic cones that forced all traffic to travel in the adjacent lane. Cleslie Allen was in one of the cars involved in the accident. He was removing debris from the roadway at the direction of the Highway Patrol troopers. While he was removing debris from the barricaded lane, one of the troopers removed the traffic cones and opened up the lane to traffic. Mr. Allen was then injured. He filed suit against the state seeking damages under the dangerous condition of public property exception to the sovereign immunity statute. In State ex rel. Nixon v. Westbrooke, No. 26113 (Mo. App. S.D. 2004), the circuit court was directed to dismiss the state of Missouri as a defendant in Allen's suit.

Under § 537.600, RSMo, the state enjoys sovereign tort immunity except for damages for negligent acts or omissions in instances prescribed therein. One exception is for injuries caused by the condition of a public entity's property if: the plaintiff establishes that the property was in dangerous condition at the time of the injury; that the injury directly resulted from the dangerous condition; that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred; and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition, or the public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Here, the property where the injury occurred was a roadway. The condition of the roadway was not the cause of Mr. Allen's injury. Rather, according to his pleadings, his injury occurred because of tortious actions by an intervening party or parties. The injury he allegedly sustained did not occur because the highway that was the location of the injury was, in and of itself, dangerous property. The concept of dangerous condition does not include property which is not itself physically defective, but may be the site of injuries as a result of misuse or other intervening act. Mr. Allen alleged injuries caused by the intervening acts of Highway Patrol troopers engaged in traffic control; the pleadings did not allege facts showing that the roadway where the injury occurred was physically dangerous.

Economic Losses From Defective Construction Cannot Be Recovered in a Negligence Action From a Third Party Where There is No Privity of Contract

The Summerchase Subdivision Homeowners Association filed suit against Taylor-Morley, the developer, and Perotti Brothers, one of Taylor-Morley's subcontractors, alleging that the retaining walls in the subdivision were defectively constructed. The suit alleged that the retaining wall constructed behind certain homes in the subdivision was moving and required repairs to prevent continued movement. The claim against Perotti Brothers was based on negligent construction. Perotti Brothers filed a motion to dismiss, contending that there was no privity of contract between it and Summerchase and that it could not be liable in negligence to a party with which it is not in privity. The trial court granted the motion to dismiss and the Court of Appeals affirmed in Summerchase Second Addition Subdivision Homeowners Association v. Taylor-Morley, Inc., No. ED 84250 (Mo. App. E.D. 2004).

Generally, a party is not liable in negligence for economic losses sustained by a third party with whom the party is not in privity. Although there are recognized exceptions to the rule of privity, they are not applicable here. In determining whether or not a defendant is liable to a third party with whom the defendant is not in privity, the court considers various conditions and circumstances. First, the court considers the policy concerns of exposing the defendant to an unlimited, indeterminate or excessive number of potential claimants and depriving parties of control over their contracts. Next, the court will consider the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.

Here, even if Perotti Brothers owed Summerchase a duty absent privity under a foreseeability exception, the nature of the injury claimed by Summerchase still precludes liability. As a result of the alleged negligent construction of the retaining wall, Summerchase maintains that the wall has moved and, thus, is in need of repair. This allegation is a claim for economic loss. Where the only damage complained of is an economic loss resulting from defects in the item built pursuant to a contract, a negligence action does not lie. The damages claimed by Summerchase preclude liability on the part of Perotti Brothers on a negligence theory without privity of contract.

Contract With Municipality Must Be in Writing and Signed to be Enforceable

The City of O'Fallon negotiated with Charles and Lisa Muncy to buy property owned by the Muncys, which the city planned to use for the construction of an overpass. A contract was prepared, which contained a provision stating that the city would return legal title of the northeast corner of the property to the Muncys so that they could use that portion for a highway sign. The agreement was signed by the Muncys, but was never signed by the city. The city paid $380,000 to the Muncys and the Muncys signed a deed transferring the property to the city. After the highway overpass was constructed, the Muncys requested that the city return legal title of the property to the Muncys. When the city refused, the Muncys filed suit against the city, alleging that representatives of the city had orally agreed to return title of the northeast corner to the Muncys and that equitable estoppel required the city to comply with its oral agreement. The trial court granted summary judgment for the city and the Court of Appeals affirmed in Muncy v. City of O'Fallon, No. ED 84058 (Mo. App. E.D. 2004).

Section 432.070, RSMo, requires all contracts with public entities to be in writing and signed. The requirements of § 432.070 for the execution of contracts by municipalities are mandatory, not merely directory, and a contract made in violation of the statute is void, not just voidable. The purpose of the statute is to protect the public entity. Due to the fact that municipalities represent the public, the courts should, without hesitation, enforce compliance with all mandatory provisions of the statutes intended to protect municipalities and their citizens. Unless exceptional circumstances exist, estoppel cannot be implemented to overcome the requirements of § 432.070, RSMo. Here, the agreement was not signed by the city and is therefore void and unenforceable. Moreover, because the Muncys were paid $380,000 by the city in exchange for the property, there are no exceptional circumstances that support the equitable estoppel theory relied on by the Muncys.

Default Judgment: One Set Aside and One Reinstated

In J. E. Scheidegger Co. v. Manon, No. 26061 (Mo. App. S.D. 2004), a default judgment was granted against the Manons in a suit brought against them by Scheidegger for breach of a commercial lease. The Manons had filed a motion to dismiss, which was denied. They failed to file an answer to Scheidegger's petition, but did respond to Scheidegger's discovery. On the day of trial, the trial court found the Manons to be in default for failing to file an answer and entered a default judgment against them for $43,957. Three days later, they filed a motion to set aside the default judgment under Rule 74.05. The motion included, as a meritorious defense, the argument that the names of the Manons did not appear in the body of the lease and that neither of them was liable as lessee on the lease. The trial court denied the motion, but the Court of Appeals reversed, finding that the trial court abused its discretion.

Here, the Manons satisfied the three requirements of Rule 74.05(d) in that (1) their motion was timely filed, (2) the motion contained facts constituting a meritorious defense and (3) the motion showed good cause for setting the judgment aside. A meritorious defense is not an extensive or full-blown defense, but simply an arguable theory. Although they did not specifically state a reason for failing to file an answer, their conduct was not intentionally or recklessly designed to impede the judicial process. Where reasonable doubt exists as to whether the conduct was intentionally designed or irresponsibly calculated to impede the work of the courts, it should be resolved in favor of good faith. By answering discovery requests, filing motions and appearing on the day set for trial, the Manons responded to the lawsuit in ways that suggest they were not trying to impede the judicial process.

On the other hand, in Snelling v. Reliance Automotive Inc., No. ED 84223 (Mo. App. E.D.), the appellate court reinstated the default judgment that the trial court had set aside. In this case, after Reliance was served with Snelling's suit, an attorney filed an entry of appearance for Reliance and, 53 days later, filed a motion to dismiss. Snelling filed a motion for default judgment, which the trial court granted in the amount of $209. Forty days later, after receiving a court cost bill, Reliance's attorney filed a handwritten motion to set aside the default judgment, which the trial court granted.

A motion to set aside a default judgment is governed by the sound discretion of the trial court. Our judicial system holds a distaste for default judgments and favors a trial on the merits. Here, however, Reliance's motion failed to assert sufficient facts to constitute both a meritorious defense and good cause, as required by Rule 74.05(d). A motion to set aside a judgment cannot prove itself; it must be verified or supported by affidavits or sworn testimony produced at a hearing on the motion. Reliance's motion set forth only conclusory statements that it had a meritorious defense and did not state any facts constituting a meritorious defense. While default judgments are generally disfavored, here the trial court abused its discretion in setting aside the default judgment because there was no evidentiary basis to support a finding of a meritorious defense.

A Municipality May Exercise Its Police Power in the Area of Public Health and Safety

Stifel Tielke was a journeyman sprinkler fitter licensed by St. Louis County, who had performed sprinkler fitter work for the state and federal governments. After completing a five-year in-house apprenticeship program, he applied for the sprinkler fitter examination with the City of St. Louis. The city rejected his application because he had not served a five-year apprenticeship in the Department of Labor-approved sprinkler fitter apprenticeship program under the direct supervision of a licensed journeyman sprinkler fitter, as required by the City of St. Louis Plumbing Code. Tielke sought review of this decision in the circuit court of the City of St. Louis on the grounds that the St. Louis city ordinance was unconstitutional. The trial court upheld the city's decision and the Court of Appeals affirmed in TGB v. City of St. Louis Board of Building Appeals, No. ED 84188 (Mo. App. E.D. 2004).

The St. Louis Plumbing Code did not violate the due process clauses of the Missouri and United States Constitutions. The due process clause is broad in application and permits great latitude to a city to regulate professions. This is especially true where the general nature of the business is such that, unless regulated, many people may be exposed to hazards against which the legislature can properly protect them. The test used to decide the validity of a state's police power is one of reasonableness. The exercise of police power will be upheld if any state of facts, either known or which could be reasonably assumed, afford support for it.

Ordinances regulating plumbing and the licensing of plumbers have been found to fall within a city's legitimate exercise of police power in the area of public health and safety. Sprinkler fittings are an integral part of a building's fire protection. Thus, the city has an interest in maintaining a standard of fire safety in order to protect its residents. It is reasonable for the city to have certain testing and licensing measures in place to ensure that all people working in this field adhere to the same standards. The challenged section of the St. Louis Plumbing Code is not unconstitutional.