by W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
Mr. Mun drank pitchers of beer at Stefanina's Restaurant late one evening. After leaving the restaurant, he drove his car on the wrong side of U. S. Highway 40 and collided with a car driven by Mr. Kilmer, who died at the scene. Two hours after the accident, Mr. Mun's blood alcohol content was .13%. Kilmer's family asked the St. Charles County Prosecuting Attorney to charge Stefanina's with violating §311.310 RSMo. because they wanted to bring a civil action against Stefanina's under §537.053 RSMo. Without a conviction of Stefanina's under §311.310 RSMo., the Kilmer family was barred from bringing a civil suit against it. The prosecutor declined to charge Stefanina's. The Kilmers filed a wrongful death suit against Stefanina's; the trial court granted Stefanina's Motion for Summary Judgment, because §537.053 bars a civil dram-shop action absent a conviction pursuant to §311.310 RSMo. The Supreme Court of Missouri reversed in Kilmer v. Mun, No. SC 81853 (Mo. banc 2000).
In Article I, Section 14, the Missouri Constitution provides that the courts of justice shall be open to every person and justice shall be administered without sale, denial or delay. This "open courts" provision has been in our state Constitution since the first Missouri Constitution of 1820. Although §537.053 recognizes a cause of action against a person licensed to sell intoxicating liquor, such cause of action could only be asserted where the person licensed to sell liquor has been convicted under §311.310. This requirement erects an arbitrary and unreasonable barrier. Where there is no prosecution and conviction, there is no remedy. Whether an injured party has a remedy under §537.053 depends entirely upon the decision of the elected county prosecuting attorney. If the county prosecutor decides not to prosecute under §311.310, then the injured party has no redress for the injury that is recognized by §537.053. A prosecuting attorney, not the legislative branch, decides whether there is a cause of action under §537.053; this violates separation of powers.
The prerequisite of a criminal conviction, in order for a plaintiff to proceed with a civil action, is both arbitrary and unreasonable. Where there is an injury that is legally recognized, as the dram shop injury is recognized in §537.053, the statute may not erect arbitrary or unreasonable barriers. A person who has an injury recognized by law has a constitutional right to a certain remedy. A barrier that subjects a recognized injury to the discretion of a prosecuting attorney violates this constitutional provision.
Hospital Liable for Breach of Fiduciary Duty by Wrongfully Releasing Medical Records
DePaul Health Center received a subpoena duces tecum, served by the husband of Mrs. Fierstein. It requested all records pertaining to Mrs. Fierstein's hospitalization during April 1994. A letter with the subpoena stated that the requested documents could be mailed to the husband's attorney to avoid appearing at the deposition. The Custodian of Records telephoned husband's attorney's office and was told that Mrs. Fierstein's attorney consented to the release of the records. The records custodian then mailed the subpoenaed documents to husband's attorney. Neither Mrs. Fierstein, nor her attorney, however, had given DePaul permission to release the records and they had not received notice that the medical records would be released to the husband's attorney prior to the scheduled deposition.
Mrs. Fierstein brought an action against DePaul for wrongful release of her medical records in breach of a fiduciary duty owed to her under the physician-patient privilege. The jury returned a verdict in her favor, awarding her $10,000 in actual damages and $375,000 in punitive damages. The trial court reduced the punitive damages to $25,000. The judgment of the trial court was affirmed, in all respects, in Fierstein v. DePaul Health Center, No. E.D. 76544 and E.D. 76518 (Mo. App. E.D. 2000).
Mrs. Fierstein had not waived her physician-patient privilege. If a physician discloses any information without first obtaining the patient's waiver, then the patient may maintain an action for damages in tort against the physician. It is irrelevant that there was a possibility the medical records ultimately would have been released. At the time DePaul produced the records, not only was the future release of the medical records speculative, but also there was no opportunity for Mrs. Fierstein to contest the release of those records. The DePaul Records Custodian neither secured Mrs. Fierstein's express consent to the release of the records nor contacted her attorney personally to obtain authorization to do so. Given the gravity of the information contained in her medical records, the jury could have viewed the conduct of DePaul's custodian as exhibiting a reckless indifference to the rights of Mrs. Fierstein to have her medical records remain private.
Grandparent Visitation Must be Minimal; Step-Grandparents Not Entitled to Any Visitation
Timothy Hampton filed a motion to modify the judgment dissolving his marriage with Stephanie Hampton and seeking termination of the joint legal custody he and his former wife had of their daughter Haley because of the impending incarceration of Stephanie. Haley's maternal grandfather and maternal grandmother, along with their respective spouses, intervened and sought grandparent visitation rights under §452.402 RSMo. The trial court granted visitation to the maternal grandparents (and their respective spouses) every other weekend while Haley's mother was incarcerated. The appellate court denied step-grandparent visitation and reduced the visitation of the grandparents in Hampton v. Hampton, No. W.D. 56614 (Mo.App. 2000).
Step-grandparents are not entitled to visitation. The definition of grandparent is "a parent of one's father or mother." Using the plain and ordinary meaning of the word "grandparent," the intention of the legislature was clear and unambiguous. By use of the word "grandparent," the legislature intended to authorize visitation only by the parent of a child's father or mother. The trial court misapplied the law when it awarded grandparent visitation rights to the step-grandparents.
Grandparent visitation granted pursuant to §452.402 RSMo. impinges on a parent's rights, protected by the Fourteenth Amendment, to make decisions without undue governmental interference in the rearing of a child. The grandparent visitation statute contemplates only a minimal intrusion on the family relationship. Grandparents are entitled to "occasional and temporary visitation." Application of the statute in a manner that constitutes more than a minimal intrusion on the family relationship is unconstitutional and prohibited. Here, the visitation ordered by the trial court exceeded a minimal intrusion; grandparent visitation every other weekend is not minimal. The case was remanded to the trial court with the instruction that the grandparent visitation be restricted to a minimal level.
Parents May Be Liable For Permitting 14-Year-Old Son to Drive a Riding Lawnmower on a Public Road
Mr. and Mrs. Riggs requested that their 14-year-old son drive the lawnmower on a public road to the church approximately two miles away to cut the grass there. His mother followed him in her car for part of the time, but then passed him and went ahead to the church to wait. While riding on the road, he saw three boys on their bicycles. Believing they were taunting him, he accelerated the riding mower and ran into one of the other boys, knocking him off his bicycle. Suit was filed against the Riggs, seeking damages under the theory of negligent entrustment. The trial court granted summary judgment to the Riggs, but the Court of Appeals reversed in Stonger v. Riggs, No. W.D. 57417 (Mo.App. W.D. 2000).
It is well-settled in Missouri, as in other jurisdictions, that parents are not liable in damages for the torts of their minor children merely because of their status as parents. There are, however, five recognized exceptions to the general rule. They are: (1) where the relationship of master and servant exists, (2) where a parent is negligent in entrusting to the child an instrument that is inherently dangerous, (3) where a parent is negligent in entrusting to the child an instrument that is likely to be put to a dangerous use because of the known propensities of the child, (4) where the parent fails to reasonably restrain the child from vicious conduct imperiling others, and (5) where the parent participates in the child's tortious act by consenting to it or ratifying it.
While a riding lawnmower is not inherently dangerous when being used by a 14-year-old to cut lawns, with proper instruction, here the mower was being operated as a motorized vehicle on a public road by a 14-year-old child without a license. Even if the mower was not inherently dangerous, the dangerous instrumentality exception applies in those situations in which a parent entrusts to a child an instrumentality capable of becoming a source of danger to others, when the law prohibits the entrusting of the instrumentality to the child, or if the parent knows that the child is likely to put it to a dangerous use. Thus, the second or third exceptions could apply as a basis for parental liability here. A jury could find that the parents were negligent by entrusting to their unlicensed 14-year-old son a self-propelled, motorized riding lawnmower and permitting him to drive it unsupervised and without instruction on a public road.
On Wrongful Death Claim, Medical Negligence Must Cause Death, Not Merely Accelerate It
While incarcerated at the Central Missouri Correctional Center, Joseph Super was treated by Dr. David White. After Super tested positive for tuberculosis, Dr. White prescribed Isoniazid (INH) for him. Thereafter, Super developed stomach pain, cramping, coughing and a fever. His condition continued to deteriorate, and several months later he died of cirrhosis of the liver, secondary to chronic active hepatitis C. His wife brought a wrongful death suit against Dr. White. A doctor, testifying as her expert, stated that Mr. Super died from cirrhosis of the liver and complications relating to it from the pre-existing disease of chronic active hepatitis C. He also stated that the administration of INH could aggravate chronic hepatitis C. The trial court granted summary judgment for Dr. White, and the Court of Appeals agreed in Super v. White, No. W.D. 57356 (Mo.App. W.D. 2000).
In a wrongful death action, the plaintiff must establish that "but for" the actions or inactions of the defendant, the decedent would have died. Proof of causation requires expert medical testimony when there is a sophisticated injury requiring surgical intervention or other highly scientific technique for diagnosis. Expert medical testimony is necessary to establish that the negligence of the health care provider has some causal connection with the injury, except where the want of skill or lack of care is so apparent as to require only common knowledge and experience to understand and judge it. Here, expert medical testimony was required to establish the requisite elements of the wrongful death claim. The plaintiff's expert stated that the administration of INH to the decedent could aggravate chronic hepatitis C, but it could not cause cirrhosis of the liver. He further stated that although it was possible the administration of INH led to the decedent's death, it was not possible to determine to a reasonable degree of medical certainty that it did. At best, the testimony of plaintiff's medical expert showed that Dr. White's actions or inactions with respect to the administration of INH may have accelerated the decedent's death from cirrhosis of the liver, but would not satisfy the "but for" test to succeed on a wrongful death claim. An action cannot be brought for wrongful death where the cause of death was merely accelerated. The expert medical testimony offered by plaintiff was insufficient to establish the necessary element of causation, i.e. that Dr. White's actions or inactions caused or contributed to cause the decedent's death.
Medical Negligence May Be Shown Without Expert Testimony When Facts Can Be Understood By Lay Persons
Louise Seippel, 83 years old, was given a barium swallow test at Heartland Hospital West in St. Joseph under the supervision of Dr. Lackamp. Prior to the test, Mrs. Seippel was alert and had no trouble breathing. After swallowing the barium water, she began aspirating. The test was terminated and she was placed on a gurney. Dr. Lackamp decided to send her home, rather than to the emergency room. On the way home, she became non-responsive and did not seem to be breathing. Her daughter administered pulmonary resuscitation and called 911. An ambulance arrived and took Mrs. Seippel to the emergency room, where she was determined to be brain dead. At trial, the plaintiff's expert testified that, with reasonable medical certainty, Mrs. Seippel's death was directly related to the barium swallow procedure and that the failure to initiate appropriate medical evaluation immediately following the change in her condition was a major contributing factor to her death. The trial court granted the defendants' motion for directed verdict, but the Court of Appeals reversed and remanded for a new trial in Seippel-Cress v. Lackamp, No. W.D. 56836 (Mo. App. W.D. 2000).
In the great majority of medical negligence cases, a submissible case may only be made by expert medical testimony. Where the matter at issue involves knowledge beyond that of the average juror, highly trained experts, knowledgeable in the field, are needed to aid the jury in reaching a conclusion on whether the conduct of the defendant doctor violated the standards expected of ordinarily careful, skillful and prudent doctors acting under similar circumstances. On the other hand, where the conduct in question does not involve skill or technique in an area where knowledge of such is unique to the medical profession and does involve a matter that a layperson could know, then such professional testimony is not necessary. No presumption of negligence is indulged in because of an adverse result. A physician or surgeon may be found guilty of a failure to exercise the requisite degree of care in the absence of expert testimony only in unusual circumstances. The exception to the requirement of expert testimony is tightly circumscribed in order to guard against the danger of permitting lay jurors to establish arbitrary standards relative to matters beyond their common experience and knowledge and to decide crucial issues upon nothing more than speculation or conjecture.
Here, the events following the termination of the barium test did not require expert testimony to show a breach of the standard of care. The average non-physician layperson knows that when the condition of a patient is altered unexpectedly during a medical procedure, a medical provider must determine the status of the patient and the cause of the alteration in order to know whether the matter involves a threat to the life of the patient. Laypersons know that when there is an unexpected and unusual change in the condition of the patient that gives evidence the patient is having significant difficulty, the medical provider cannot send that person home, as though everything were normal, without attempting to determine what is wrong with the patient. A prima facie case of negligence was created by the basic facts, which could be understood with the common knowledge and experience of laypersons. Even without expert testimony as to the standard of care, the plaintiff made a submissible case of negligence on her claim that defendants were negligent in failing to evaluate Mrs. Seippel's condition following the test and before releasing her from their care.
Public Hearing Not Required for City Ordinance Unless it is a Zoning Ordinance
The City of Green Ridge adopted an ordinance that regulated junkyards within the city. It required junkyards to be maintained in a sanitary condition, without accumulation of water, garbage, gasoline or oil, and also required the premises to be enclosed with an eight-foot wall or fence. The ordinance also declared non-conforming junkyards to be public nuisances. The city did not hold a public hearing before adopting the ordinance. The ordinance was challenged by Mr. Kreisel on the grounds that it regulated the use of buildings and land and was, therefore, a zoning ordinance, which was subject to the notice and hearing requirements of § 89.050 RSMo. The trial court found that the ordinance was a zoning ordinance and invalid, but the Court of Appeals reversed in City of Green Ridge v. Kreisel, No. W.D. 56936 (Mo. App. W.D. 2000).
Missouri has not adopted a specific definition for the term "zoning ordinance." The generally recognized definition of a zoning ordinance is an ordinance that regulates the use of land and buildings according to districts, areas or locations. The definition of zoning also includes division of land into zones, regulation of the nature of land usage and the physical dimensions of uses, including height, set-backs and minimum areas. Here the ordinance regulates the activities of a junkyard, irrespective of the location of the junkyard within the city. While zoning ordinances may address health and safety issues, an ordinance may address health and safety issues without becoming a zoning ordinance. The mere fact that a purpose of a zoning ordinance is to regulate public safety does not mean that all ordinances regulating health and safety are zoning ordinances.
Here, the purpose of the ordinance was to prevent junkyards from becoming public nuisances and to regulate potential nuisances for reasons of public health and safety. Nothing in the ordinance related to what property may be used as a junkyard or in what location or district junkyards are permitted. The ordinance was directed toward making junkyards sanitary and safe, limiting odor, pests and vermin, keeping nearby public areas clear, and enclosing junkyards for health and safety purposes. It was not a zoning ordinance, and the requirements of §89.050 RSMo. did not apply.
Building Owner Must Have Specialized Knowledge to Testify Regarding Its Value
Davis & Aubuchon hired H & B Masonry to erect a concrete block building for them. H & B purchased the concrete block from Kirchner. Because the block had some discoloration, Davis & Aubuchon deducted $10,000 from the $21,650 they agreed to pay H & B. H & B filed suit against David & Aubuchon and Kirchner. At trial, Davis testified that the $10,000 deduction was what he felt like because of the look of the building. He had no idea what the building was worth, because he was not familiar with real estate and no appraisal had been done. The trial court entered judgment in favor of H & B Masonry and against Kirchner for $10,000, but the Court of Appeals reversed in H & B Masonry v. Davis, No. E.D. 76251 and 76252 (Mo. App. E.D. 2000).
For breach of implied warranty, damages are based on the lower of the cost to repair or diminution in value. Under the cost rule, damages are measured by the cost to repair the defective work, while the diminished value rule measures the difference between the property's value with the defective work and what its value would have been if constructed correctly. Although an owner of real estate may testify regarding his opinion of its value, because an owner is presumed to be familiar with the property and its uses, such opinion evidence of the property value should be rejected where the record shows that the owner does not have specialized knowledge regarding real estate. Thus, the judgment of $10,000 was not supported by substantial evidence and the judgment should have been for the cost to repair the building, as shown by the evidence to be $2,400. Also, H & B was not entitled to prejudgement interest. All parties hotly disputed the correct amount of damages and, therefore, the amount of damages was unliquidated.
Default Judgment Should Be Set Aside Where Good Cause is Shown
Kevin Young filed a service letter suit against Safe-Ride Services. Because of corporate restructuring within the parent company, the summons and petition were forwarded to the wrong subsidiary. No answer was filed and a default judgment was taken for $750 in actual damages and $50,000 in punitive damages. Twenty-eight days after entry of the default judgment, Safe-Ride filed a motion to set it aside. The trial court denied that motion, but the Court of Appeals reversed in Young v. Safe-Ride Services, No. W.D. 57178 (Mo.App. W.D. 2000).
The discretion of a trial court to deny a motion to set aside a default judgment is subject to closer scrutiny on appeal than is the discretion of a trial court to grant a motion to set aside. An appellate court is more likely to interfere with the trial court's decision when the motion to set aside has been denied; this is because of the court's distaste for default judgments. Supreme Court Rule 75.01 allows the court to set aside a judgment within 30 days of entry upon a showing of good cause as to why the judgment should be set aside. Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. It is to be interpreted liberally, not only to prevent manifest injustice, but to avoid a threatened one, especially in cases tried without a jury, where evidence on one side only is presented. The modern trend is that document mishandling is good cause, sufficient to set aside a default judgment. Here, the chain of errors was not in accord with sound business procedures, but was not intentional or reckless. Safe-Ride demonstrated sufficient good cause from its corporate restructuring to set aside the default judgment entered against it.
Court Proceedings May Be Closed Only After Public Has Opportunity to Object
Charges were filed in the circuit court of the City of St. Louis against a police officer arising from the death of a burglary suspect under arrest. The officer filed a motion for change of venue. On the day the motion was set for hearing, both the prosecutor and defense counsel advised the judge that they agreed the hearing should be closed to the public. The trial court closed the courtroom and sheriff's deputies refused to allow anyone to enter. Upon request by the St. Louis Post-Dispatch, the Court of Appeals entered a preliminary order in prohibition, which was made absolute in State of Missouri ex rel. Pulitzer, Inc. v. Autrey, No. E.D. 77455 (Mo.App. E.D. 2000).
The Supreme Court of the United States has held that the press and general public have a First Amendment right of access to criminal trials. The Supreme Court has extended that right to encompass pre-trial proceedings. In order to ensure that the public's right of access to court proceedings is not improperly circumvented, the trial court must allow the public the right to object and must also make detailed findings, on the record, regarding a proposed closure.
Before a judge closes a courtroom, representatives of the press and public must be given an opportunity to be heard on the question of their exclusion. Implicit in the public's right to be heard is the right to immediate notice of the proposed closure. The Supreme Court has consistently ruled that the public should be allowed to be heard on the issue of closure. The right of public access is of little value when the public does not know of the proposed closing until minutes, or even seconds, before the courtroom is cleared.The Supreme Court has also held that the trial judge must make specific findings on the record that a substantial probability of prejudice to the defendant will occur if the proceedings are not closed to the public, and nothing short of closure will avoid that prejudice. The trial court must strike a balance between the public's right of access and a defendant's right to a fair trial. To accomplish that, the court may conduct the hearing in public with the evidence entered under seal and reviewed by the court in camera. The court could then make detailed findings recounting the prejudice on a sealed record. This procedure would protect both the public's First Amendment right of access and the defendant's Sixth Amendment right to a fair trial.
Initiative Petition Must Be Based on A Legislative Measure, Not an Administrative Act
The Gateway Green Alliance submitted an initiative petition to the city council of the City of Webster Groves requesting that a ballot proposition be submitted to the city voters. The proposal called for state and federal legislation that would require labeling on all food that contained any genetically modified organism. The city council declined to put the initiative on the ballot and the Gateway Green Alliance filed a mandamus action. The trial court denied the writ of mandamus and the Court of Appeals affirmed in State of Missouri ex rel. Gateway Green Alliance v. Welch, No. E.D. 76999 (Mo.App. E.D. 2000).
The initiative procedure is to be used to enact legislative matters only. The courts can make a threshold determination of whether the proposed ordinance is legislative or administrative in character, as only legislative measures are appropriate for the initiative process. A proposal is legislative if it is permanent or general in character and administrative if temporary or special in character. Here, the proposal was not legislative and was, therefore, an inappropriate subject for an initiative petition. The proposal was just a "public opinion poll" of the views of the city's populace on the issue of food labeling; as such, it was not legislation.
Non-Resident Bound by Forum Selection Clause in Non-Competition Agreement
Mr. Allen worked in the Texas office for Whelan Security Company, a St. Louis County business. After working there for a year, he was asked to sign a non-competition agreement by which he consented to jurisdiction in Missouri. Later, he resigned and went to work for a competitor. Whelan Security filed suit against him in the circuit court of St. Louis County to enforce the non-competition agreement. He filed a motion to dismiss for lack of personal jurisdiction and for improper venue, which the trial court granted. The Court of Appeals reversed, however, in Whelan Security Co. v. Allen, No. E.D. 77525 (Mo.App. E.D. 2000).
Parties to a contract may agree in advance to submit to personal jurisdiction in a given court by means of a forum selection clause because personal jurisdiction is an individual right capable of being waived. The court will enforce a forum selection clause unless the party seeking to avoid its application sustains a heavy burden to show that the clause is unfair or unreasonable. Inbound forum selection clauses are enforceable. The fact that an employment contract is a prerequisite to continued employment does not force the employee to accept and execute it; the employee has the option of foregoing the employment if the terms of the agreement are not satisfactory. Defendant failed to prove that defending the case in Missouri would be so gravely difficult and burdensome that he would be deprived of his day in court.