In Weiss v. Rojanasathit, No. 80304 (Mo. banc 1998), summary judgment in favor of the defendant doctor was upheld on the grounds that the plaintiffs medical malpractice action was barred by the two-year statute of limitations under § 516.105, RSMo. In 1991, Dr. Rojanasathit performed a gynecological examination on the plaintiff. The doctor sent the pap smear to an independent laboratory for analysis. Plaintiff was told she would be contacted if the pap smear was abnormal. Plaintiff was also told to return for a follow-up office examination in three months. The results of the pap smear test were abnormal, but the plaintiff was not advised of this. She also did not return for another examination. In 1995, another doctor examined the plaintiff and a pap smear test at that time revealed a cancerous condition. The plaintiffs medical malpractice action against Dr. Rojanasathit was filed in 1996. The trial court determined that the suit was barred by the two-year statute of limitations in §516.105 RSMo.; this was affirmed by the Supreme Court of Missouri.
The court rejected the plaintiffs invitation to adopt a discovery rule for medical malpractice cases. The plain language of §516.105 RSMo. states that such actions shall be brought within two years from the date of the act of neglect. The language of §516.105 does not permit the court to adopt the discovery theories urged by the plaintiff. The General Assembly evidenced its clear intent to limit a discovery rule to cases involving foreign objects. It is the function of the court to interpret the law, not to disregard the law as written by the General Assembly. While recognizing that a discovery rule for malpractice actions is appealing as far as justice is concerned, the court noted that the legislative branch of the government has determined the policy of this state and clearly fixed the time when the limitation period begins to run against actions for malpractice. Thus, this argument should be addressed to the General Assembly, not to the court.
The Supreme Court also held that the continuing tort theory has not been adopted in cases applying §516.105 RSMo. Under §516.105, the statute commences to run upon occurrence of the act of neglect, not upon the ascertainment of damage resulting from the wrong. Because continuing or subsequently developing damages or injuries do not start the running of §516.105 anew, the continuing tort theory does not apply to medical malpractice cases.
To Recover For Slip and Fall Injuries, Defendant Must Have Constructive Notice of the Dangerous Condition
In Emery v. Wal-Mart Stores, Inc., No. 80691 (Mo. banc 1998), Wal-Mart appealed the $528,000 judgment in favor of Emery, who slipped and fell in a Wal-Mart Store. The Supreme Court affirmed the judgment, finding that the plaintiff had made a submissible case as to Wal-Marts constructive notice of the dangerous condition.
Even though Wal-Mart had two employees in the area of the spill five to 10 minutes before Emery slipped and they saw no spill, Emery slipped on an item that the store knew was frequently spilled. Since this was a self-service store where customers continually handle the merchandise and spills were frequent in the aisles, a dangerous condition existed and the frequency of the occurrences were sufficient to show that it was foreseeable. Also, the jury could have concluded that, due to the nature of the spills and their frequency, the store could have taken additional precautions to warn or protect its customers, but failed to do so.
Further, the trial court did not abuse its discretion in permitting plaintiff to present evidence of prior spills. Evidence of prior occurrences similar to the one that injured plaintiff may be admissible to establish notice to the defendant of the existence of a dangerous condition The trial court is given wide latitude in determining whether such evidence is relevant and whether the circumstances bear sufficient resemblance to those causing the injury at issue. The verdict was not so excessive as to shock the conscience of the court; the trial court did not err by denying Wal-Marts motion for remittitur.
Custody Determination to be Based on Best Interests of the Child
In J.A.D. v. F.J.D., No. 80637 (Mo. banc 1998), the Supreme Court rejected the appellants contention that, in this dissolution action, her homosexual orientation was the sole reason for the trial courts order placing custody of the children with their father. The Court found that the trial courts judgment recited a number of reasons for placing custody with the father. Without question, the guiding star in a custody determination is the best interests of the children.
A homosexual is not ipso facto unfit for custody of his or her child, and no reported Missouri case has held otherwise. It is not error, however, to consider the impact of homosexual or heterosexual misconduct upon the children in making a custody determination.
The Court did, however, find that the trial courts restrictions on the mothers visitation rights were too broad, since they prohibited the children from being in the presence of any person known by the mother to be lesbian, except for the person who was a long time friend of the children. The trial court was directed to limit the conditions of visitation to apply only to those individuals whose presence and conduct may be contrary to the best interests of the children.
Hospital By-Laws Do Not Form A Contract Between the Hospital and its Medical Staff
In Zipper v. Health Midwest, No. W.D. 51357 (Mo.App. W.D. 1998), Dr. Zipper filed suit for the wrongful termination of his staff privileges. He alleged that the hospital breached a contractual duty to him by failing to follow its by-laws when it revoked his privileges. In a case of first impression, the court held that hospital by-laws do not constitute a contract between a hospital and its medical staff. While jurisdictions are split on this issue, a majority of states have held that hospital by-laws are binding, enforceable contracts once they are adopted by the hospitals governing board. The court, however, found that the minority approach -- i.e. that by-laws do not constitute a binding agreement between a hospital and its medical staff -- is more in accordance with Missouri law.
This decision was based on the reasoning that because hospitals have a pre-existing legal duty to enact by-laws and do so without the input of the medical staff, there is no mutuality of obligation between the hospital and its staff. The hospitals obligation to adopt by-laws is independent of any contractual right of a doctor on its staff. Because Missouri hospitals are required, by state law, to adopt by-laws and rules governing the professional activities in the hospital, there is no consideration from the staff that would form a binding contract. Also, a hospital has the right to unilaterally change its by-laws without the consent of its medical staff.
The court further stated that the public policy of Missouri supports this decision. A hospital must be able to exercise its discretion regarding physicians who are permitted to practice at the hospital; the grant of hospital privileges to a doctor does not confer absolute authority on the doctor to practice medicine at that hospital. The hospital must retain authority to restrict or revoke a staff members privileges by reasonable and non-discriminatory rules. Allowing a physician to seek damages for an alleged failure of a hospital to follow procedures established by its by-laws is counter to such policy and could undermine quality health care.
Interference With Business Expectancy Not Tortious if Justified
A jury verdict fr the plaintiff on a claim for tortious interference with business expectancy was reversed in Thomas Phelps Foundation v. Custom Insurance Company, No. 72867 (Mo.App. E.D. 1998). The plaintiff was a foundation subcontractor who had obtained workers' compensation insurance coverage through defendant. The defendant canceled the coverage for non-payment of premiums. Notice of the cancellation was sent to those named on the plaintiffs certificate of insurance, including a subdivision developer who had hired the plaintiff as a subcontractor to pour foundation walls for residential developments. Upon receiving notice of the cancellation, the developer terminated plaintiff from the subdivision work. The jury awarded the plaintiff $90,000 on its claim of tortious interference with business expectancy. The Court of Appeals reversed and remanded the case for entry of judgment in favor of defendant.
To make a submissible case of tortious interference with a contract or business expectancy, a plaintiff must plead and prove the following five elements: 1) a contract or valid business expectancy; 2) defendants knowledge of the contract or relationship; 3) intentional interference by the defendant inducing or causing a breach of the contract or relationship; 4) absence of justification; and 5) damages resulting from defendants conduct. The Court of Appeals held that there was insufficient evidence to support the elements of defendants knowledge of the business relationship, defendants intention to interfere with the relationship and absence of justification. The plaintiff failed to pay the premiums owed and, therefore, the defendant was justified in canceling the policy. One who has a present existing economic interest is privileged to interfere with anothers business expectancy to protect ones own economic interest. No liability arises for interfering with a contract or business expectancy if the action complained of was an act that the defendant had a definite legal right to do without any qualification. In short, the defendant was justified in canceling plaintiffs workers' compensation policy and notifying those named on the certificate of insurance -- there was no tortious interference.
Malicious Prosecution Can Be Based on Instigation or Continuance of Lawsuit Without Reasonable Grounds
In King v. Ryals, No. 72458 (Mo.App. E.D. 1998), the Court of Appeals reversed a judgment for the defendant in a malicious prosecution suit due to instructional error. The trial court submitted MAI 23.07 without the modification requested by the plaintiff. As submitted, the instruction required the jury to find that the defendant "instigated a judicial proceeding against plaintiff, which terminated in favor of plaintiff," rather than allowing the jury to find for the plaintiff if the defendant either "instigated" or "continued" a judicial proceeding against the plaintiff that terminated in plaintiffs favor.
Although MAI 23.07 does not contemplate a malicious prosecution action based on the defendant maliciously "continuing" a suit without reasonable grounds, Missouri law clearly permits a malicious prosecution action to be based on the malicious "continuation" of a suit. Thus, the trial court should have submitted the modified instruction proposed by plaintiff in lieu of MAI 23.07. If an MAI instruction is applicable, its use is mandatory and failure to do so is presumed prejudicial. MAI instructions reflect the law, however, and are not designed to make law or to confine the scope of lawsuits. They reflect the most common fact situations met in litigation,but are not appropriate for all cases.
Landlord Usually Has No Duty to Protect Tenants and Invitees Against Criminal Assaults From Unknown Third Persons
The owner of the South County Mall in St. Louis County was granted a summary judgment in a wrongful death action resulting from the abduction and murder of the plaintiffs mother in Wood v. Centermark Properties, No. 73248 (Mo.App. E.D. 1998). The decedent was abducted from the parking lot at 5:45 p.m. during mid-January, as she left her car that she parked in the designated employee area, approximately 100 yards from the entrance to Dillards, where she worked. Two security guards, assigned to patrol the parking lot, were on duty at the time. During the five years prior to the abduction of the decedent, 77 incidents of criminal activity had taken place at the South County Mall. These were primarily purse snatchings, shoplifting and similar crimes, but no abductions or murders. Approximately 10 years prior to this abduction, there was an abduction and murder at the mall. The Court of Appeals affirmed the summary judgment for the landlord.
Generally, the owner of a business property has no duty to protect an invitee from a deliberate criminal act by a third person. An exception to the general no-duty rule is the special facts and circumstances exception. The "violent crimes" component of this exception applies where: 1) there exists some relationship between the plaintiff and defendant that encourages the plaintiff to come on the premises; 2) there are prior specific incidents of violent crimes on the premises that are sufficiently numerous and reason to put a defendant on notice, either actual or constructive, that there is a likelihood that a third person will endanger the safety of defendants invitee, and 3) the incident causing the injury must be sufficiently similar in type to the prior specific incidents occurring on the premises that a reasonable person would take precautions to protect his or her invitees against that type of activity.
Here, the court concluded that the nearly 80 incidents of crimes at the mall during the prior five years were not sufficiently similar to the abduction and murder of the decedent to put the owner on notice of the danger. The purse snatching and shoplifting were not violent crimes such as murder or rape that involve severe bodily harm. The abduction 10 years earlier was too remote to invoke the exception to the general rule. In this case, there simply were not sufficient numerous, similar and recent crimes to put the defendant landlord on notice of the danger of the abduction and murder of the plaintiffs mother.
The court further held that the defendants employment of a security force to patrol the parking lot did not create an assumed duty to protect invitees from third-party criminal assaults. Finally, the court rejected the plaintiffs contention that the landlord owed a duty to the decedent to make common areas reasonably safe against foreseeable risks and that the landlord enhanced the risk to the decedent by requiring her to park in a remote area on the parking lot away from the malls main thoroughfares. In order to prevail on this theory, there must be evidence that the landlords negligence caused a condition of danger consisting of something greater than that presented on the street and in the neighborhood generally. Crime is a possibility and a threat at all times and in practically every place. Requiring the decedent to park in a remote area of the parking lot did not create a risk any greater than the risk of crime in general on the street and in the area.
Evidence of Plaintiff's Intoxication Admissible in Medical Malpractice Action
Mr. Dean was involved in an automobile accident and went to the emergency room at St. Anthonys Medical Center. While there, the emergency room physician smelled alcohol on his breath and ordered a blood alcohol content test, whic revealed alcohol content of .18. Based on his description of his pain, X-rays were taken of Deans face, but they revealed no fractures. After discharge from the emergency room, Dean continued to have pain in his jaw. Additional x-rays were taken by his personal physician and they revealed a fractured mandible. Dean then had surgery in which a metal plate was placed in his mouth. He contracted osteomyelitis, and underwent three additional surgeries.
In his medical malpractice action against St. Anthonys, evidence of his alcohol consumption was introduced over the objection of his counsel. The jury returned a verdict in favor of St. Anthonys. Was this evidence relevant? Yes, according to Dean v. St. Anthonys Medical Center, No. 71585 (Mo.App. E.D. 1998). Without regard to Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo.banc 1996), the Court of Appeals held the evidence of alcohol consumption was admissible because it was relevant and material to Deans ability to see, hear, perceive and observe. Although not offered to prove negligence, courts in Missouri have recognized that evidence of intoxication is nevertheless relevant because it relates to the credibility of the witness and his ability to accurately describe the events that took place. Deans intoxication was relevant to explain the emergency room doctors failure to diagnose the fractured mandible, because his complaints of pain (or the absence of such complaints) determined the nature of the doctors examination.
Both Meritorious Defense and Good Cause Required to Set Aside Default Judgment
In Gering v. Walcott, No. W.D. 54858 (Mo.App. W.D. 1998) a default judgment was entered against the Walcotts on May 15, 1997 in the amount of $1,000,000 in actual damages and $200,000 in punitive damages. On August 12, 1997, the Walcotts filed a motion to set aside the default judgment. In their motion and supporting affidavits, the Walcotts argued that they did not have the financial means to afford legal counsel. The trial court denied the Walcotts motion and the Court of Appeals affirmed the trial courts judgment.
Supreme Court Rule 74.05(d) requires the assertion of sufficient facts to constitute both a meritorious defense and good cause shown. Good cause encompasses conduct not intentionally or recklessly designed to impede the judicial process and a movant must be free from negligence in order to have a reasonable excuse for allowing a default judgment to occur. Here, the Walcotts simply ignored the litigation against them, did not attempt to represent themselves, and did not inform the court of their situation. By failing to respond in any manner, the Walcotts intentionally and recklessly impeded the judicial process.
While noting that the discretion to not set aside a default judgment is narrower than the discretion to set aside a default judgment, the Court of Appeals found that the trial courts denial of the Walcotts motion was not an abuse of discretion. The Walcotts failed to appear when summoned, ignored the case, and then requested a new trial when they were dissatisfied with the outcome.
Municipal Water and Sewer Fees Were Not Subject to Hancock Amendment Vote
In Mullenix-St. Charles Properties v. City of St. Charles, No. 73134 (Mo.App. E.D. 1998), Mullenix, as owners of apartment complexes, challenged the water and sewer fees assessed by the City of St. Charles as being invalid because not submitted for voter approval under the Hancock Amendment. Both the trial court and the Court of Appeals rejected that argument and held that the fees were user fees and not taxes subject to a vote under the Hancock Amendment.
Following the five part test set forth in Keller v. Marion County Ambulance District, 820 S.W.2d 301 (Mo.banc 1991), the court commented that revenue increases which are, in fact, fees for services rendered ordinarily are not taxes, unless the object of the fee is to raise revenue for the general fund of the governmen. Here, following the Keller criteria, the court found that (1) the bills were based on meter readings and were thus owed after the service was furnished, (2) the city charged only those customers who actually used sewer or water services, (3) the charges had a direct relationship to the level of services received, (4) the city was providing a service, and (5) sewer and water services have not been historically and exclusively provided by a governmental entity.
The court concluded that while these services have not historically been provided exclusively by a governmental entity, here the sewer and water services were supplied by a municipality to its citizens. The municipality billed the customers periodically for the actual amount of services supplied during the billing, based on metered usage. The fact that the bills also included administrative fees does not change the essential characteristic from user fees to taxes. In sum, the water and sewer bills were user fees, not taxes subject to the Hancock Amendment.
Contributory Negligence is a Defense to Economic Loss Claim
In Blackstock v. Kohn, No. 73101 (Mo.App. E.D. 1998), the Blackstocks asserted a negligence claim against their attorneys. The Blackstocks had taken a casualty loss deduction on their tax returns for boat docks that were damaged by the flood of 1993. The IRS disallowed the casualty loss deduction and also assessed penalties against them. In defense of the negligence claim, the attorneys asserted they made it clear to the Blackstocks that, to be entitled to the deduction, the Blackstocks must have entered into a binding agreement to purchase the docks prior to the flood. The Blackstocks denied they were told this.
The attorneys submitted a jury instruction, based on contributory negligence, which instructed the jury to find in favor of the defendants if the Blackstocks represented to the defendants that they had an agreement to purchase the docks prior to the flood. The Court of Appeals found that the submission of the contributory negligence instruction was proper and affirmed the jury verdict in favor of the attorneys.
Since Gustafson v. Benda, 661 S.W.2d 11 (Mo.banc 1983), Missouri appellate courts have uniformly held that comparative fault does not apply to cases involving economic loss. None of these cases specifically held, however, that contributory negligence remained in effect in economic loss actions. In 1995, the Eastern District took the next logical step and held that contributory negligence remains an absolute defense in cases involving only economic damages. Here, the court declined to follow the suggestion of the Blackstocks that neither comparative fault nor contributory negligence applied in economic loss cases. Contributory negligence is a defense in cases involving economic loss.