by W. Dudley McCarter
Behr, McCarter & Potter, St. Louis
The Supreme Court of Missouri decided two cases that reaffirm the public policy in favor of open records. In the case of In re Transit Casualty Company in Receivership, No. SC 82520 (Mo. banc 2001), the St. Louis Post-Dispatch sought information regarding the compensation paid to the special deputy receiver of Transit Casualty Company. The receiver's compensation is paid from the assets of Transit Casualty Company and his compensation is reviewed, in camera, by the trial judge supervising the receivership. The compensation records are available to Transit Casualty's creditors and policy holders, as well as to the Department of Insurance. Transit Casualty asserted that disclosure of the receiver's compensation would harm Transit Casualty in litigation matters and violate privacy rights. Although the trial court agreed, the Supreme Court of Missouri reversed and remanded the case.
It is undisputed that there is a common law right of public access to court and other public records. Missouri statutes codify the presumption in favor of open records. The public policy behind open records and the public right of access is well established in Missouri; the rule has been mandated legislatively in numerous contexts. The public's right to inspect court and other public records comes not from any personal interest in the subject matter of the records; rather, the right stems from the public's presumed interest in the integrity and impartiality of its government. The presumption in favor of the public's right of access to court records cannot be overcome absent a compelling justification that the records should be closed. In order to close court or other public records, however, a court must identify specific and tangible threats to important values to override the importance of public right of access. All public employees enter public service knowing that their names, positions, compensation and terms of service will be accessible by any person under Chapter 610, RSMo. Public employees may not wish their employment contracts known, but this personal desire is insignificant when contrasted to the public interest. Here, the compensation paid to the receiver is subject to the presumption that the records should be open to the public absent a compelling justification that the records remain closed.
In Guyer v. City of Kirkwood, No. SC 82740, a police officer, employed by the City of Kirkwood, requested to see the internal police investigation report that resulted from a citizen complaint against him. The officer contended this was an open record under § 610.100, RSMo. The city contended that it was a personnel record that may be closed under § 610.021, RSMo. The trial court agreed with the city, but the Supreme Court of Missouri reversed and remanded.
Under § 610.100.2, incident reports are open records and investigative reports become open records when the investigation becomes inactive. Although personnel records may be closed under
§ 610.100, such permissive closure is subject to the requirement that records not be closed where disclosure is otherwise required by law. Where more than one provision of Chapter 610 applies to a record, the decision to open or close the record is based on the express public policy that all records of public governmental bodies are presumed to be open records and that the exceptions are to be strictly construed to promote that policy. In effect, the section that prohibits closure when disclosure is otherwise required by law is a tiebreaker to be used in favor of disclosure when records fall under two specific, but opposite, provisions of the Sunshine Law. Moreover, other provisions of Chapter 610 permit certain information in both investigative and incident reports to be redacted, as necessary, before the reports are made public.
Hospital May Be Liable for Giving Medication That Caused an Automobile Accident
Rosemary Schmidt went to the emergency room at Lafayette Regional Health Center requesting medication for her nerves. The staff physician examined her and administered Compazine, a drug known to cause drowsiness and dizziness. Schmidt was not warned that the drug could cause drowsiness or dizziness, or that she should not drive. Later, she left the hospital and a short time later, while driving home, crossed the center line and collided with a car being driven by Felicia Robinson. Robinson filed suit against the hospital and the trial court granted summary judgment for the hospital. The Court of Appeals reversed, however, in Robinson v. Health Midwest Development Group d/b/a Lafayette Regional Health Center, No. W.D. 58290 (Mo. App. W.D. 2001).
Robinson could not assert a claim for medical negligence because she was not a patient of the hospital. She could, however, assert a claim under a theory of general negligence on the theory that the medical staff owed a duty to the general public to warn its patient (Schmidt) not to drive while under the influence of Compazine. A common law duty may be imposed under circumstances of a given case based on public policy considerations. The law does recognize a duty on the part of a physician to warn the patient of risks associated with a drug prescribed by the physician. Public policy favors extending that duty to the general public because warning the patient not to drive while taking the medication not only protects the health and safety of the patient, but of the public as well. Schmidt's decision to drive after receiving the medication was not necessarily an intervening cause that broke the chain of causation. The injuries resulting from the patient's driving under the influence of medication could be found to be the natural, reasonable and probable consequence of the failure of the physician to warn the patient not to drive. The mere act of driving would not necessarily be an intervening cause since the patient was not aware of the side effects of the medication she had been given.
Recreational Use Act Provides Immunity to Union Electric Company for Boating Injuries on the Lake of the Ozarks
Michael Lonergan and several other passengers in a 21-foot boat being operated on the Lake of the Ozarks were killed when the boat collided with a boat dock. The U. S. Army Corps of Engineers authorized Union Electric to issue boat dock permits on the lake. The owner of the boat dock had not obtained a permit from Union Electric. The Lonergan family filed a wrongful death action against the dock owner and Union Electric Company. The suit alleged that Union Electric negligently failed to regulate and prevent obstructions to navigation on the lake. The trial court granted summary judgment to Union Electric and the Court of Appeals affirmed in Lonergan v. May, No. W.D. 58498 (Mo. App. W.D. 2001).
In 1983, Missouri adopted a version of the Recreational Use Act upon the enactment of § 537.345, RSMo. The purpose of the act is to encourage landowners to open their lands to the public for recreational use by restricting the landowner's liability. The act relieves the landowner of any duty to keep his land safe, so long as the owner does not charge a user fee. Although land being used for commercial purposes is not entitled to immunity, the area of the lake where the accident occurred was used primarily for recreational purposes. The occupants of the boat came to the lake to use it for recreational purposes and did so free of charge. The entire lake was not used for commercial purposes.
Moreover, the legislature could not have envisioned subjecting an entity such as Union Electric to liability for injury occurring anywhere on a body of water that covered more than 55,000 acres of land. It is impossible for Union Electric to police the entire lake for boating hazards; it cannot possibly protect people from risks inherent in water sports. To hold otherwise would thwart the purpose of the statute. Accommodating owners would fear liability and be discouraged from opening these lands up to the public and thereby denying citizens the use of Missouri's natural resources. Here, Union Electric's use of the property where the accident occurred was too far removed from its commercial purpose. The waterway where the accident occurred was entitled to the immunity protection of the Recreational Use Act because the primary purpose of the land was recreational.
Public Nuisance Must Be Shown By Defendant's Acts
Police officers for the City of St. Louis suspected prostitution activity in and around the Mansion Motel. Over a three- year period, police made 32 arrests near the property for various violations of state and municipal law, including assault, peace disturbance, and prostitution. The City filed suit seeking an injunction against the motel owner on the grounds that it constituted a public nuisance. Police officers testified that the hotel had a reputation as a place that promoted prostitution. Of the 32 arrests, only three actually took place inside the hotel. The trial court found that the hotel was a public nuisance, but the Court of Appeals reversed in City of St. Louis v. Varahi, No. E.D. 77802 (Mo. App. E. D. 2001).
A public nuisance is unreasonable interference with the public health, the public safety, the public peace, the public comfort or the public convenience. There must be some causal connection between the defendant and the alleged nuisance. Even if the defendant knows of the nuisance on the street, the evidence must show that the defendant's acts were the proximate cause of the creation of a public nuisance. Here, only three of the 32 arrests were connected to the hotel and there was no evidence that the prostitutes were agents or employees of the hotel or were controlled by the hotel. The evidence of three arrests and the reputation of the hotel as a place frequented by prostitutes is not sufficient to declare the hotel a public nuisance. Criminal conduct will not sustain liability for a public nuisance, unless it caused the nuisance. There was no substantial evidence to support a finding of causation.
In Medical Negligence Case, Plaintiff Must Show Damages Resulted From the Treatment
Shelly Hampton sought treatment for her headaches and jaw pain from James Jecman, a dentist who advertised as treating for TMJ care. Dr. Jecman diagnosed Hampton as suffering from TMJ disease. Dr. Jecman included cranial manipulation in his treatment. There is no recognized dental specialty board for cranial manipulation and it is not a treatment commonly used by dentists. Dr. Jecman treated Hampton for three years and routinely included in his treatment manipulation of her skull, neck, chest, shoulder and collar bone. He also applied braces to her teeth, though he was not certified as an orthodontist. After three years of treatment, Hampton discontinued seeing Dr. Jecman, but still suffered from the same symptoms. She then sought treatment from a board-certified orthodontist. Her condition improved under his care and her braces were necessary for six more years. She filed a medical negligence suit against Dr. Jecman alleging that he failed to explain the risks of the treatment or obtain her informed consent to the treatment. The jury returned a verdict in favor of Dr. Jecman and the Court of Appeals affirmed in Hampton v. Jecman, No. W.D. 57620 (Mo. App. W.D. 2001).
To prove a medical provider is negligent by failing to obtain informed consent, a plaintiff must present evidence of: (1) nondisclosure; (2) causation; and (3) injury. The standard of care in a medical negligence case may be established by the defendant's own testimony, even though the plaintiff has presented no expert witness. The purpose of the informed consent doctrine is to allow the patient to make a reasoned and informed decision whether to incur certain risks of a treatment or to choose one treatment over another, or even none at all. Nevertheless, recovery for failure to disclose information under the informed consent doctrine still requires some resultant damage. Here, there was no evidence establishing that the damage to Hampton's teeth or her continued headaches were caused by the cranial manipulation. There was no evidence to show that any damage to her resulted from the particular treatment provided by Dr. Jecman.
Municipal Regulation of Siren Use By Ambulance Conflicted With State Law and Was Void
The St. Charles County Ambulance District obtained a conditional use permit from the town of Dardenne Prairie allowing the district to build an ambulance facility. The permit granted by the town prohibited the use of a siren by an ambulance between 10:00 p.m and 6:00;a.m. The circuit court upheld the siren restriction, but the Court of Appeals reversed in St. Charles County Ambulance District v. Town of Dardenne Prairie, No. E.D. 78284 (Mo. App. E.D. 2001).
A municipality may enact regulations that supplement or enlarge provisions of a state statute by requiring more than what is required in the statute. When, however, the provisions of the local regulation and state statute are in irreconcilable conflict, the local regulation is void. A conflict exists if the local regulation permits what the statute prohibits or prohibits what the statute permits. State statutes permit an ambulance driver to use a siren as may be reasonably necessary. The conditional use permit restriction would negate this power vested in the ambulance driver's discretion to sound a siren so that life-saving services may be quickly rendered to the sick and injured. Because the town's restriction on use of a siren prohibited what the statute permitted, the restriction was void.
Validity of TIF Ordinances May Be Challenged in Declaratory Judgment Action
The City of North Kansas City adopted two ordinances pursuant to the state TIF statutes. As part of the TIF ordinances, the city designated a redevelopment area that included a 50-acre tract containing apartment properties owned by Northgate Apartments. The ordinances authorized North Kansas City to acquire the Northgate Apartments by eminent domain. Northgate Apartments filed a declaratory judgment action, alleging that the TIF ordinances passed by the city cause Northgate to suffer irreparable injury, including loss of tenants, loss of monthly income, diminished property values, and a cloud on its title. North Kansas City filed a Motion to Dismiss, which the trial court granted. The Court of Appeals reversed, however, in Northgate Apartments, L.P. v. City of North Kansas City, No. W.D. 58650 (Mo. App. W.D. 2001).
The Declaratory Judgment Act authorizes a party to seek a declaratory judgment to establish the rights, status and duties of parties so as to avoid loss and encourage settlement of disputes before litigation. A declaratory judgment action must satisfy four requirements: (1) a presently-existing justiciable controversy, (2) a legally protected interest, (3) a question ripe for judicial determination, and (4) no adequate remedy at law. Northgate Apartments seeks to have a declaration of the invalidity of the ordinances passed by the city made before any condemnation action is filed. This is an appropriate use of a declaratory judgment action; an injury need not have occurred prior to bringing a declaratory judgment action, since one of the main purposes of the remedy is to resolve conflicts in legal rights before a loss occurs. Since Northgate owned property within the designated redevelopment area, it has a legally protectable interest. Its allegations that the ordinances will create a cloud on its title to the property and will cause diminished property values is sufficient to demonstrate a justiciable controversy. Finally, even though no condemnation action has been filed, Northgate is still affected by the ordinances. It alleges damages now in a manner that would not be compensable in a later condemnation action, and the Declaratory Judgment Act gives it the right to seek to have the ordinances authorizing the condemnation declared invalid now, prior to the occurrence of any further damage.
Party Invoking Fifth Amendment is Still Entitled to Raise Affirmative Defenses
Velda City filed suit against its former mayor, Lottie Mae Williams, to recover money she received as salary. At the time of her election, the mayor received no salary, but during her term of office an ordinance was passed authorizing salary of $20,000 per year. In its suit to recover the money paid to her as salary, the city alleged that the ordinance authorizing her salary violated Article VII, Section 13 of the Missouri Constitution since it increased her compensation during her term of office. In response, Ms. Williams filed an answer asserting five affirmative defenses. During her deposition, she refused to answer questions and invoked the Fifth Amendment against self-incrimination. On motion filed by the city, the trial court struck her affirmative defenses and granted summary judgment to the city. The Court of Appeals reversed, however, in Velda City v. Lottie Mae Williams, No. E.D. 77832 (Mo. App. E.D. 2001).
Under the Fifth Amendment to the United States Constitution, the court may not punish a party for asserting a constitutionally protected privilege. The affirmative defenses of a defendant cannot be stricken if the Fifth Amendment was invoked in good faith and without request for affirmative relief. The affirmative defenses raised by her sought only to avoid liability on the city's claim; they sought avoidance, not affirmative relief. The trial court erred in striking her affirmative defenses.
Construction Work on Behalf of a Public Body Must Pay Prevailing Wage
A non-profit organization, Friends of the Zoo of Springfield, requested bids to construct a new reptile house for the zoo. The project would be funded by Friends of the Zoo and, when finished, donated to the city. The Missouri Division of Labor notified Friends of the Zoo that the request for bids violated the prevailing wage law and demanded that the invitation for bids be withdrawn. The city responded that prevailing wages were not required on the project. The division filed suit and the circuit court ruled that the project was not subject to the prevailing wage law. The Supreme Court of Missouri reversed and remanded, however, in Division of Labor Standards v. Friends of the Zoo of Springfield, No. SC 82858 (Mo. banc 2001).
Prevailing wages shall be paid to workers employed by or on behalf of any public body engaged in the construction of public works. Public works includes all construction for public use or benefit. The term public use or benefit necessarily includes construction that has a public body as the real and ultimate beneficiary. The real and ultimate beneficiary test focuses on the eventual recipient. The phrase "on behalf of" is broad and means "in the interest of" or "for the benefit of." A public body constructing public works may not circumvent the prevailing wage law by a carefully constructed legal facade. Where a private entity and a public body create a façade behind which the public body engages in public works, the workers are employed on behalf of the city.
Neighboring Property Owners Who Appeared at Board of Adjustment Hearing Become Parties Entitled to Notice of Certiorari Proceeding in Circuit Court
The Wolfners applied for a building permit to build a home on a lot in the City of Warson Woods that had been vacant for 50 years. The permit was denied because the lot was 7,500 square feet and 60 feet in width, whereas the city's ordinances required lots to be 8,750 square feet in area and 70 feet wide. The Wolfners requested a variance from the board of adjustment and mailed certified letters to adjoining property owners notifying them of the hearing. Three abutting landowners testified at the hearing and the board denied the variance. The Wolfners filed a petition for writ of certiorari to the Circuit Court of St. Louis County, which reversed the decision of the board. The circuit court judgment was reversed, however, in Wolfner v. Board of Adjustment of the City of Warson Woods, No. E.D. 77925 (Mo. App. E.D. 2001).
Section 89.110, RSMo, required the petitioner to give notice of the application for writ of certiorari to abutting property owners. Even though § 89.110 fails to include a notice provision, § 536.110 supplements this inadequacy and those two sections are read in pari materia. Section 536.110 directs that a copy of the petition be delivered or mailed to the agency and to each party of record. A party must receive notice that a petition for judicial review has been filed, because a party who has participated at the administrative level is entitled to recognition of its due process rights. Because abutting property owners appeared and testified at the hearing, they became parties of record and should have been given notice of the certiorari proceeding. If a party of record is not notified, the trial court lacks jurisdiction. Because the abutting landowners were parties of record to the administrative proceeding and were not given notice of the application for writ of certiorari, the trial court was without jurisdiction to enter its judgment.
In Medical Negligence Case, Instructions to Jury Cannot Assume Disputed Issues
A patient sought treatment from Dr. Dryden for problems she had with her female reproductive system, including vaginal discharge and abdominal pain. After examining her and reviewing her medical history, Dr. Dryden suggested a total hysterectomy. She stated that she only wanted a total hysterectomy because she thought that was necessary to cure her chronic problems. When she awoke from surgery, she learned that she had received a pelvic laparotomy, not a total hysterectomy. She continued to experience the same abdominal pain and vaginal discharge, and approximately one year later had a total hysterectomy performed by another doctor. After the hysterectomy, she did not experience further symptoms. She filed a medical negligence suit against Dr. Dryden and Dr. Fotopoulos, who assisted in the surgery. Her expert testified that, at the time of the surgery, she was suffering from PID, and that a total hysterectomy was necessary. He further testified that treatment with a pelvic laparatomy instead of a total hysterectomy violated the standard of care. Dr. Dryden testified that, as he began the surgery, he discovered that the mass on her ovary was not a malignancy, but a simple cyst. He decided not to perform a total hysterectomy because it was not medically indicated; he found no evidence of infection or inflammation that would have suggested chronic PID. He further testified that Dr. Fotopoulos only assisted in the surgery and made no decisions regarding the surgery. The expert for Dr. Dryden testified that because there was no evidence of inflammation or infection indicating PID, the surgery performed by Dr. Dryden was correct. The jury returned a $100,000 verdict for the woman, but the Court of Appeals reversed in Coon v. Dryden, W.D. 57866 (Mo. App. W.D. 2001).
First, Dr. Fotopoulos was entitled to a judgment in his favor. Physicians who act jointly in diagnosing and treating a patient owe the patient the same duty and are jointly liable for any negligence. Here, however, Dr. Fotopoulos did not diagnose the patient or recommend any treatment. He simply assisted Dr. Dryden. His only duty was to assist in the surgery to the required standard of care and there was no evidence that the surgery actually performed was done negligently. Next, the instructions to the jury regarding the patient's claim against Dr. Dryden were confusing. The instructions assumed that the patient suffered from chronic PID. Both Dr.;Dryden and his medical expert testified, however, that the patient did not suffer from chronic PID at the time of the surgery. Because the instruction to the jury removed from its consideration the disputed issue of whether the patient suffered from chronic PID, it failed to adequately instruct the jury as to what act by Dr. Dryden would constitute negligence. Because the jury instruction misdirected the jury, the case was remanded for a new trial against him.