Evidence Obtained During a Traffic Stop Was Unlawfully Seized
W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
On February 27, 2003, Kerstin Sund was driving on Interstate 44 when she was stopped at approximately 10:45 p.m. by a Eureka police officer. The officer observed the Sund vehicle drifting over the dashed white line between traffic lanes and wanted to determine whether the driver was intoxicated or falling asleep. After questioning Ms. Sund, he determined that she was not intoxicated or sleepy and told her that he was going to issue her a warning ticket. While filling out the warning ticket, he asked Ms. Sund other questions and she told him that she was a citizen of Sweden. After 15-20 minutes, the officer handed Ms. Sund the warning ticket, returned her license and cautioned her to be careful. As Ms. Sund was walking back to her vehicle, the officer asked her if he could search the trunk. When she declined, he then told her that she had a choice of consenting to the search or waiting about 40 minutes until a canine unit could arrive to conduct the search in his stead. Consent was then given and the trunk was opened. The officer found a partially opened duffle bag containing approximately 70 pounds of marijuana and Sund was arrested. Sund filed a motion to suppress the evidence, which was denied by the trial court. The jury found Ms. Sund guilty of drug trafficking in the second degree. The Supreme Court of Missouri reversed, however, in Missouri v. Sund, No. SC87747 (Mo. banc 2007), and held that the marijuana found in the trunk was obtained through an unlawful detention and should not have been admitted at trial.
“A routine traffic stop based upon an officer’s observation of a violation of state traffic laws is a reasonable seizure under the Fourth Amendment.”1 “’The fact that the police may detain a person for a routine traffic stop does not justify indefinite detention, however. The detention may only last for the time necessary for the officer to conduct a reasonable investigation of the traffic violation.’”2 The officer testified that he stopped Sund’s vehicle because it had crossed the line and wanted to ensure the driver was not intoxicated or asleep. “[T]he traffic stop was complete when the officer handed her the warning ticket, returned her license and told her to ‘be careful.’3 At that point, the officer was required to allow Ms. Sund ‘to proceed without further questioning unless specific, articulable facts created an objectively reasonable suspicion that the individual was involved in criminal activity.’”4
“As a rule, a motorist who is involuntarily stopped by a law enforcement officer, for whatever reason, is going to be very reluctant to leave the scene until it is perfectly clear that he or she is free to do so.”5 “For this reason, ‘while an officer does not need to inform a suspect that he or she is free to leave the scene in order for the encounter to become consensual… that option must be apparent from the circumstances.’”6 “Here, considering the totality of the circumstances, a reasonable person in Ms. Sund’s position would not have felt free to leave at the time that she opened the trunk in response to the officer’s demand that if she did not do so, he would call the canine unit to come search. It was nearly 11:00 p.m. on a cold night in late February; Ms. Sund was visiting the United States from Sweden. . . . The encounter was not consensual, but constituted a detention that was unreasonable because the officer did not have reasonable suspicion of criminal activity.”7
“It was only through Ms. Sund’s illegal detention that the officer was able to gain access to the trunk and its contents. The evidence found in the trunk must, therefore, be suppressed, for ‘evidence discovered and later found to be derivative of a Fourth Amendment violation must be excluded as fruit of the poisonous tree.’”8
Workers' Compensation is Not Exclusive Remedy When There is an Affirmative Negligent Act by a Fellow Employee
Eric Burns drove a concrete delivery truck for Kennon Ready-Mix. Lynn Smith was Kennon’s president and Burns’ supervisor. Smith attempted to weld the holes in a water pressure tank that was corroded and rusted. After finishing the welding, he told Burns to run the truck “’til it blows.” A month later, Burns sustained extensive injuries when the water pressure tank on the truck exploded as Burns was entering the cab of the truck and he was thrown to the ground. Burns sued Smith for his injuries, alleging that Smith’s conduct constituted an affirmative negligent act, which created an additional danger. The trial court held that Burns was not limited to workers’ compensation as his exclusive remedy and the Supreme Court of Missouri affirmed in Burns v. Smith, No. SC 87789 (Mo. banc 2007).
The exclusivity provisions of the Missouri workers’ compensation law (§ 287.120, RSMo.) “do not explicitly bar actions against fellow employees, as opposed to actions against employers. However, Missouri courts have interpreted that provision to extend the scope of immunity from liability to fellow employees, except in certain limited situations.”9 “‘An employee may sue a fellow employee for affirmative negligent acts outside the scope of an employer’s responsibility to provide a safe workplace.’”10 This is sometimes called the “something more” test.11 “The question of what constitutes ‘an affirmative negligent act’ has not proven susceptible of reliable definition and the courts have essentially applied the rule on a case-by-case basis with close reference to the facts in each individual case.”12 The term “‘affirmatively negligent act’ certainly includes the commission of an intentional tort and it has also been described in terms of ‘purposeful, affirmatively dangerous conduct.’”13 “[T]he notion of an affirmatively negligent act … can best be described as an affirmative act that creates additional danger beyond that normally faced in the job-specific work environment.”14
Here, the trial court did not err in entering judgment for the plaintiff and finding that there was “something more.” There was ample evidence that defendant negligently welded the rusted pressurized water tank and that he directed plaintiff to “run it ‘til it blows” – conduct that satisfies the “something more” test. “All witnesses agreed that placing a weld over rust and corrosion creates a dangerous condition that would eventually fail and that a welded, corroded, leaking water pressure tank could explode.”15 By directing the plaintiff to “run it ‘til it blows,” “defendant intentionally directed plaintiff to undertake an activity that defendant knew would result in a particularly dangerous event.”16 “Defendant’s conduct constituted an affirmatively negligent act by creating an additional danger beyond that normally faced by plaintiff in his job-specific environment.”17
Substantial Change in Circumstances is Not Required for Rearrangement of Joint Physical Custody
Kimberly Russell and Mark Russell had one child, a daughter, born during their marriage. When she was 3 years old, the marriage was dissolved and mother and father were awarded joint legal and physical custody of her. Father was awarded physical custody every weekend, on alternating holidays, and for one-half of the child’s summer vacation. After the dissolution decree, father’s active duty commitments to the National Guard increased and he was on active duty from March 1, 2003 to February 18, 2004. At the time of the dissolution, mother worked on weekends, but since the dissolution she had obtained full time employment Monday through Friday and the child started attending school. Mother filed a motion to modify, seeking a rearrangement of the father’s physical custody. The trial court agreed and changed the schedule so that mother would have custody one weekend per month and changed father’s weekend custody so that it began at 9:00 a.m. on Saturday, instead of 6:00 p.m. on Friday. Husband appealed and the Supreme Court affirmed in Russell v. Russell, No. SC 87917 (Mo. banc 2007).
“[J]oint physical and legal custody is the preference in dissolution actions.”18 “Changes such as those the circuit court made here – essentially a few hours a week – are not as drastic as a shift from sole custody of one parent to sole custody of another parent. The requirement that the change be substantial is no longer appropriate where simply shifts in parenting time are at issue. Courts should not require a ‘substantial’ change from the circumstances of the original judgment where the modification sought is simply a rearrangement in a joint physical custody schedule.”19
Here, the change in circumstances was sufficient to support the rearrangement in the joint physical custody schedule. Moreover, the modification was in the child’s best interests. “Because of mother’s new job, she was unable to spend the same amount of time with the child as before. In addition, the child will be able to spend Friday nights with her mother, instead of father’s sister, thus maximizing the amount of time the child will spend with a parent. In sum, the evidence shows that a change in circumstances in both the child and the mother has occurred and that the modification is in the best interests of the child.”20
Jury Verdict Assessing Zero Fault to Both Parties Was Not Inconsistent; Verdict Could Not Be Impeached
Howard Self owned a business that provided sound and lighting services. He contracted with Production Support Services (PSS) to provide equipment and services in connection with the Gore/Lieberman presidential campaign. His agreement required him to load certain PSS equipment onto his truck at the PSS warehouse. After Self loaded the equipment onto his truck, William Brunson arrived at the PSS warehouse, in his tractor-trailer, to also load PSS equipment. As Brunson started to back his tractor-trailer into the warehouse, Self decided to assist Brunson by acting as his “spotter.” positioning himself behind Brunson’s tractor-trailer. Self did not advise Brunson that he was going to act as Brunson’s spotter, but believed that Brunson knew he was going to do that because he could see Brunson looking at him in his mirrors. As Brunson backed up, one of the doors on his tractor-trailer opened up and crushed Self’s arm between the door and the warehouse. After Self screamed, Brunson moved his tractor-trailer forward and Self fell from the loading dock onto the ground.
Over several years, Self underwent multiple surgeries on his shoulder and it was permanently injured. Self filed a personal injury suit against both Brunson and PSS. PSS reached a settlement prior to trial. The jury returned a verdict assessing zero percentage of fault to both Brunson and Self and awarded no damages to Self. The Court of Appeals affirmed in Self v. Brunson, No. ED 87156 (Mo. App. E.D. 2006).
The jury did not render an inconsistent, ambiguous or self-destructive verdict by assessing zero fault to both parties. “‘It was within the purview of the jury to assess zero percent fault against each party.’”21 “The [MAI] verdict form directs the jury to award plaintiff damages only if it found a percentage of fault against defendant. Because the jury did not assess a percentage of fault against defendant, it did not award damages to plaintiff.”22 MAI 37.07 “’specifically allows the jury to find zero percent fault against both parties.’”23
Self filed post-trial motions supported by his affidavit describing a conversation he had after the trial with a juror, who told him that the jurors created their own verdict form by drawing on the board in the jury room the names of Brunson, Self and PSS as the parties against whom they assessed fault. The blanks on the verdict form were completed by the jury in the manner instructed by the form and PSS did not appear anywhere on the verdict form signed by the jurors. The verdict is not defective and cannot be impeached in this manner.
“An attack on a jury’s verdict is permitted when two conditions are met: (1) ‘the party in whose favor the verdict was returned must acquiesce in the proposition that the juror is competent to give such testimony,’ and (2) ‘the juror testimony must allege that extrinsic evidentiary facts were interjected into the jury’s deliberations, rather than merely jurors acted on improper motives, reasoning, beliefs, or mental operations.’”24 “An affidavit from a juror or any other person may not be used to impeach the verdict as to misconduct inside or outside the jury room, whether before or after the jury is discharged, as to ‘matters inherent in the verdict.’”25 Here, Self’s affidavit was not “competent to impeach the verdict because it involved ‘matters inherent in the verdict,’ rather than extrinsic evidentiary facts.”26
Defendant Had Sufficient Contacts With Missouri to Support Personal Jurisdiction Under the Missouri Long-Arm Statute
Sam Aldein operated S & R Auto Sales, a Missouri business that purchased automobiles from dealers and wholesalers. S & R purchased hundreds of automobiles for Sameer Asfoor and Mid-Continental Quality Autos. S & R purchased the automobiles in the name of Mid-Continental and shipped the automobiles to Mid-Continental in Florida. Mid-Continental agreed to pay S & R $150 per automobile. When Mid-Continental refused to pay S & R, S & R filed suit against it in the circuit court of St. Charles County, seeking recovery of $15,325. Mid-Continental filed a motion to dismiss for lack of personal jurisdiction, which the trial court granted. The Court of Appeals reversed, however, in Aldein v. Asfoor, No. ED 88385 (Mo. App. E.D. 2007).
“To subject a non-resident defendant to the Missouri long-arm statute, plaintiff must plead and prove: that the suit arose from any activity enumerated in the long-arm statute, §506.500 RSMo.; and that the defendant had sufficient minimum contacts with Missouri to satisfy due process requirements.”27 “The defendant’s minimum contacts must be such that maintenance of the action does not offend traditional notions of fair play and substantial justice.”28 There must be “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.”29 “The ‘purposeful availment’ requirement exists to prevent a defendant from being hailed into a particular jurisdiction solely as a result of random, fortuitous or attenuated contacts, or by the unilateral activity of another party or third person.”30
“Here, it is undisputed that Mid-Continental purchased ‘hundreds’ of automobiles in Missouri through [S & R]. The ‘transacts any business’ prong of the statute must be construed broadly so that even a single transaction may confer jurisdiction under the rule if that is the transaction sued upon.”31 “Moreover, [d]efendants purposefully availed themselves of the privilege of conducting activities within Missouri. Defendants contracted with [p]laintiff to purchase automobiles in Missouri so that [d]efendants could resell [them] for a profit. Plaintiff called [d]efendants to get approval for each automobile purchased. . . . Defendants mailed checks to wholesalers for the automobiles purchased. Then, [p]laintiff shipped the automobiles from Missouri to Florida for resale. These contacts were purposeful and cannot be considered random, fortuitous or attenuated.”32
“Defendant’s assertion that they should not be subject to Missouri jurisdiction because they are not authorized to do business in Missouri is without merit. A corporation need not be qualified to do business as a foreign corporation as a prerequisite to long-arm jurisdiction.”33 “Because [d]efendants transacted business in Missouri and had sufficient contacts with Missouri to satisfy due process requirements, the trial court erred in determining that it did not have jurisdiction over [d]efendants.”34
Flag Annexation Failed to Satisfy Statutory Requirement of Compactness
The City of Wentzville received a petition from the owners of a tract of property, referred to as the Burkemper property, requesting that the city voluntarily annex the property. Located between the boundary of the City of Wentzville and the Burkemper property was a tract of land owned by Shirley May Dodson. Because the city could not accomplish the voluntary annexation of the Burkemper property unless the property was contiguous and compact, it condemned a strip of the Dodson land 40’ wide and 2,038’ long. After the circuit court order of condemnation was issued and the commissioners assessed Mrs. Dodson’s damages from the condemnation, the city paid the commissioners’ award into the court registry. Then the city filed a petition for voluntary annexation of the Burkemper property. Mrs. Dodson filed a declaratory judgment action against the city, alleging that the city’s annexation was illegal, invalid and void because the city improperly used the power of eminent domain to condemn a 40’ wide strip of land for the purpose of establishing contiguity of the land to be annexed. The city filed a motion to dismiss that was granted by the trial court. The Court of Appeals reversed, however, in Dodson v. City of Wentzville, No. ED 87249 (Mo. App. E.D. 2007).
Under state law, a city “may annex unincorporated areas that are contiguous and compact to the existing corporate limits.”35 “The terms ‘contiguous’ and ‘compact,’ as defined in § 71.014, are not defined by the statute.”36 “‘Compact’ is defined in the dictionary as ‘firmly put together, joined or integrated.’”37 Here, the attempted annexation “does not meet the test of compactness.”38 “[T]he City attempted what is commonly referred to as a ‘flag annexation,’ whereby a long, narrow strip of land is utilized to connect the boundaries of the annexing municipality with the larger tract it seeks to annex. It is called a flag annexation because the tracts to be annexed, if viewed from an aerial perspective, resemble a flag, with the long, narrow strip of land being the flagpole, and the larger parcel the flag.”39 Such annexations do not meet the test of compactness.
“The Missouri legislature had decreed that annexations such as this, which occur without a vote of the electorate, are limited to those parcels that are contiguous and compact to a city’s existing boundaries. [If the courts] were to allow a city’s comprehensive plan and its own custom and practices to determine whether the requirement of compactness had been met, each city might become final arbiter of whether a tract was contiguous and compact by altering its comprehensive plan and modifying its custom and practices. [T]he argument that flag annexations have been the custom and practice of other cities in the county is unavailing.”40
The legislature has required that annexed land be both contiguous and compact to the annexing municipality. Here, the attempted annexation of the Dodson strip and the Burkemper tract does not meet the statutory requirement of compactness because of the shape of the tracts. The annexation does not make the city’s boundaries more regular, nor would the city and the annexed area be one closely-grouped solid tract of land. Nor would the resulting annexation have a small border in proportion to the contents or bulk of the city and its newly acquired annexed land.
Except in Unusual Circumstances, Expert Testimony is Necessary to Establish Standard of Care in Medical Malpractice Case
Harry McLaughlin, 64, fell on his back from a stepladder. His wife drove him to the emergency room, where Dr. Raymond Griffith diagnosed a dislocated shoulder. Dr. Griffith sedated McLaughlin and performed a traction/counter-traction reduction to manipulate the shoulder back to the correct anatomical position. After the procedure, McLaughlin’s shoulder was painful and swollen for more than seven months. McLaughlin filed a medical malpractice suit against Griffith, alleging that the reduction was unnecessary and negligently performed because McLaughlin’s shoulder was never dislocated.
At trial, plaintiff’s expert witness testified by video deposition. When asked if he was familiar with the standard of care required of an emergency physician, he said he wasn’t. When asked if the standard of care for an emergency physician required the physician to look at x-rays before attempting a reduction to a possibly dislocated shoulder, he said that it should be done. The trial court granted Dr. Griffith’s motion for directed verdict at the close of plaintiff’s case and the Court of Appeals affirmed in McLaughlin v. Griffith, No. 27679 (Mo. App. S.D. 2007).
To make a submissible case for medical malpractice, the plaintiff must show that the physician’s care: “(1) violated the applicable standard of care; (2) was negligently performed; and (3) injured [the plaintiff].”41 “Medical negligence is ‘the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant’s profession.’”42 “This standard of care generally must be established by expert testimony. An adverse result raises no presumption of negligence.”43
“An expert who testifies solely in terms of ‘standard of care,’ without reference to MAI 11.06 or comparable language, does not satisfactorily articulate the appropriate legal standard.”44 “Every medical negligence expert should be properly oriented with the established legal standard. Although the standard need not be recited in ritualistic fashion, the expert’s testimony in context should prove that the proper legal standard was used.”45 Here, the plaintiff’s expert never established the standard of care; “he specifically denied knowing the standard of care for emergency physicians.”46
“Plaintiffs’ fall-back argument is that they needed no expert testimony in this case, under the exception for cases where the skill or technique at issue is within general lay knowledge, as where a surgeon leaves a sponge in the body.”47 “This applies only ‘where the want of skill or lack of care is so apparent as to be within the comprehension of laymen and requires only common knowledge and experience to understand and judge it.’”48 “This exception is tightly circumscribed, lest lay jurors establish arbitrary standards on matters beyond their common experience and knowledge, and decide crucial issues on speculation, conjecture, and surmise.”49 “‘The great majority of malpractice cases’ require expert testimony, and the exception is limited to ‘unusual circumstances.’”50 Here, McLaughlin alleged that “Dr. Griffith misdiagnosed and mistreated [his] shoulder; medical matters not within common lay knowledge.”51 This case does not meet the “unusual circumstance” where expert testimony is unnecessary.
Footnotes
1 Sund, quoting State v. Barks, 128 S.W.3d 513, 516 (Mo. banc 2004).
2 Id.
3 Sund.
4 Sund, quoting State v. Granado, 148 S.W.3d 309, 311 (Mo. banc 2004).
5 Sund, quoting State v. Taber, 73 S.W.3d 699, 706 (Mo. App. W.D. 2002).
6 Sund, quoting State v. Shoults, 159 S.W.3d 144, 146 (Mo. App. E.D. 2005).
7 Sund.
8 Sund, quoting State v. Miller, 849 S.W.2d 649, 654 (Mo. banc 1995).
9 Burns v. Smith, No. SC 87789 (Mo. banc 2007).
10 Burns, quoting State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. banc 2002).
11 Burns, quoting State ex rel. Badami v. Gaertner, 630 S.W.2d 175 (Mo. App. E.D. 1982).
12 Burns, quoting State ex rel. Taylor v. Wallace, 73 S.W.3d at 622 (Mo. banc 2002).
13 Id.
14 Burns.
15 Id.
16 Id.
17 Id.
18 Russell, citing Margolin v. Margolin, 706 S.W.2d 38, 48 (Mo. App. W.D. 1990).
19 Russell.
20 Id.
21 Self, quoting Hitt v. Martin, 872 S.W.2d 121, 123 (Mo. App. E.D. 1994).
22 Id.
23 Self, quoting Miller v. Hanna, 757 S.W.2d 301, 304 (Mo. App. W.D. 1988).
24 Self, quoting Neighbors v. Wolfson, 926 S.W.2d 35, 37 (Mo. App. E.D. 1996).
25 Self, quoting McBride v. Farley, 154 S.W.3d 404, 407 (Mo. App. S.D. 2004).
26 Id.
27 Aldein, citing Consolidated Elec. & Mechanicals, Inc. v. Schuerman, 185 S.W.3d 773, 776 (Mo. App. E.D. 2006).
28 Aldein, citing Laser Vision Centers, Inc. v. Laser Vision Centers International, 930 S.W.2d 29, 32 (Mo. App. E.D. 1996).
29 Aldein, citing Capitol Indem. Corp. v. Citizens National Bank of Fort Scott, 8 S.W.3d 893, 901 (Mo. App. W.D. 2000).
30 Id. at 902.
31 Aldein, citing Laser Vision Centers v. Laser Vision Centers International, 930 S.W.2d 29, 32 (Mo. App. E.D. 1996).
32 Aldein.
33 Aldein, citing State ex rel. Nixon v. Beer Nuts, Ltd., 29 S.W.3d 828, 834 (Mo. App. E.D. 2000).
34 Aldein.
35 Section 71.014, RSMo.
36 Dodson.
37 Webster’s Third New International Dictionary 1966, p. 461.
38 Dodson.
39 Dodson, citing Reed v. City of Union, 913 S.W.2d 62, 64 (Mo. App. E.D. 1995).
40 Dodson.
41 McLaughlin, citing Boehm v. Pernoud, 24 S.W.3d 759, 761 (Mo. App. E.D. 2000).
42 McLaughlin, quoting Ladish v. Gordon, 879 S.W.2d 623, 628 (Mo. App. W.D. 1994).
43 Id.
44 McLaughlin, citing Ladish at 634.
45 Id.
46 McLaughlin.
47 McLaughlin, citing Cebula v. Benoit, 652 S.W.2d 304, 307 (Mo. App. W.D. 1983).
48 McLaughlin, quoting Hart v. Steele, 416 S.W.2d 927, 932 (Mo. 1967).
49 McLaughlin, citing Hurlock v. Park Lane Medical Center, 709 S.W.2d 872, 883 (Mo. App. W.D. 1985).
50 McLaughlin, quoting Seippel-Cress v. Lackamp, 23 S.W.3d 660 (Mo. App. W.D. 2000).
51 McLaughlin.