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

Margaret Uxa strapped her 2½-year-old son in a child safety seat, known as a Cosco High Back Booster, which was properly secured in the back seat of her car. As she was attempting a left turn, another car that was traveling approximately 44 miles per hour collided with the side of her car. The driver of the other car was intoxicated. Her son, Benjamin, was transported to St. Louis Children's Hospital, where he was in a coma for four days following the collision and remained hospitalized for approximately 50 days. He suffered a number of permanent injuries to his brain, spleen, arm and leg. His total medical bills exceeded $160,000. The parents filed a products liability suit against Dorel Juvenile Group, the manufacturer of the car seat. At trial, the Uxa family introduced testimony from two expert witnesses that the car seat was defective and unreasonably dangerous in the event of a side collision, because it did not provide the necessary lateral protection with wider wings and more padding. The experts testified that the car seat allowed the child's head to leave the confines of the seat and hit the side of the car. The jury returned a verdict of $10.5 million for Benjamin and the Court of Appeals affirmed in Uxa v. Marconi, No. ED 81192 (Mo. App. E.D. 2003).

In a strict tort liability case arising from a design defect, the primary question is whether the product - because of the way it is designed - creates an unreasonable risk of danger to the consumer or user when put to normal use. The plaintiff in a design defect case must show that the product is defective because it is unreasonably dangerous and the defect caused his injuries. In Missouri, the design of a product is defective when a preponderance of the evidence shows that the design renders a product unreasonably dangerous. The concept of unreasonably dangerous is an ultimate issue presented to the jury without further definition. The jury gives this concept content by applying its collective intelligence and experience to the broad evidentiary spectrum of facts and circumstances presented by the parties.

Here, there was sufficient evidence for a reasonable jury to determine that the car seat was unreasonably dangerous and, therefore, defective. Plaintiff's theory was that the car seat was defective and unreasonably dangerous because it provided no side impact protection, and it should have had padded deep wings that would limit the head excursion of a child in a side impact collision. The testimony of plaintiff's experts showed that the design of the car seat was a substantial factor in producing the child's injuries, as its design allowed his head to come into contact with the interior of the car and that the cause of his brain injury was his head hitting the car.

To Be Liable For Injuries to Employee of Independent Contractor, Landowner Must Control the Manner in Which Work is Done

John Logan was fatally electrocuted while installing fiberoptic cable as an employee of Irby Construction Company. At the time of Logan's death, Irby was an independent contractor, working under a written construction contract with Sho-Me Electric Coop. His job was to attach fiberoptic cable to the structures supporting energized lines of Sho-Me. After Logan's death, his parents filed suit against Sho-Me, alleging that, as a supplier of electricity, Sho-Me had a non-delegable duty to provide the highest degree of care to prevent the death of Logan. The trial court granted Sho-Me's motion for summary judgment based on workers' compensation being the exclusive remedy, and the Court of Appeals affirmed in Logan v. Sho-Me Power Electric Cooperative, No. 25318 (Mo. App. S.D. 2003).

In 1991, the Supreme Court of Missouri abolished the inherently dangerous exception to premises liability. Landowner liability in such cases rests not on the nature of the activity employed in, but on the degree of control a landowner maintains over the construction. In order to impose liability upon Sho-Me, that company's involvement in the construction project must be substantial. The right to ensure proper performance of a contract is insufficient in itself to justify the imposition of such liability. The control must reach beyond merely securing compliance with the contracts. To demonstrate that Sho-Me retained possession of the land, it must be shown that Sho-Me controlled the job site and the activities of the contractor. Stated differently, the owner must be controlling the physical activities of the employees of the independent contractor or the details of the manner in which the work is done.

Here, the contract between Sho-Me and Irby placed Irby in charge and control of the job site. The control that Sho-Me had over the flow of electricity through the lines did not serve as control over the physical activities of Irby's employees or the details of the manner in which the work was done. Moreover, even though Irby was required to use materials required by Sho-Me, that is not sufficient to show substantial involvement by Sho-Me in overseeing the construction and justify imposing liability on Sho-Me. No provisions in the contract provide a basis for finding that Sho-Me retained such substantial oversight of the project, or the right to control the work, as to raise a genuine material fact issue regarding imposition of liability upon Sho-Me. The contract did not provide a means by which Sho-Me could or did control the physical activities of Irby's employees or the details of the manner in which the work was to be performed, to the extent required by Missouri case law to impose liability. The contract did not shift the duty from Irby to Sho-Me to provide reasonable and ordinary care to prevent injuries to Irby's employees.

For Duty to Exist, the Risk Must Be Foreseeable

Edward Grattan was driving down Ladue Road in St. Louis when his car was struck by six electrical wires from a fallen utility pole owned by Union Electric Company. The utility pole fell when another utility pole near it was struck by a trash hauling truck that had left the pavement and collided with the pole. The pole that was struck in the collision had been installed in 1963 or 1964. Grattan filed suit against Union Electric alleging that it was negligent in failing to adequately maintain its equipment and failing to adequately isolate the electrical lines. The trial court granted summary judgment to Union Electric and the Court of Appeals affirmed in Grattan v. Union Electric Co., No. ED 82923 (Mo. App. E.D. 2003).

In any negligence action, a plaintiff must establish the defendant's duty to protect the plaintiff from injury, the defendant's failure to perform that duty and the proximate causation of plaintiff's injury by that failure. Whether a duty exists is purely a question of law. The existence of a duty depends upon whether a risk is foreseeable. Foreseeability for purposes of establishing whether a defendant's conduct created a duty to a plaintiff depends on whether the defendant should have foreseen a risk in a given set of circumstances. The concept of duty takes into account the likelihood of future events leading to injury and the defendant's duty to take care to avoid them. One is not bound to foresee every possible injury that might occur.

To establish foreseeability, a defendant must be shown to have actual or constructive knowledge that there is some probability of injury such that an ordinary person would take precaution to avoid it. In this case, there was no evidence that the pole had even been hit and there was no basis for defendant to be charged with actual or constructive knowledge that there was a probability of injury. All of plaintiff's damages were caused by an off-road vehicle collision with a utility pole, which event is not reasonably foreseeable in the absence of special circumstances. Because, as a matter of law, the collision with the utility pole and the subsequent fall of the lines were not reasonably foreseeable, defendant neither owed nor breached any duty to plaintiff.

Arbitration Agreement is Still Enforceable Even Though Parts of it May be Invalid

John Swain purchased a vehicle service plan for his automobile from Auto Services, Inc., an Arkansas corporation. The agreement he signed when he purchased the plan required all disputes to be resolved through arbitration, to be conducted by a single arbitrator in Baxter County, Arkansas. When Auto Services refused to pay for repairs to his car, Swain filed suit against Auto Services in St. Louis County Circuit Court, alleging breach of contract and violations of various state and federal statutes. Auto Services moved to compel arbitration. Swain responded with an affidavit stating that the dealership from which he bought his car filled out the documents for him and told him that it was the only plan available. He did not have a chance to read it or discuss its terms with anyone before signing it. He did not know the plan had an arbitration clause in it. The trial court denied the motion of Auto Services to compel arbitration, but the Court of Appeals reversed in Swain v. Auto Services, Inc., No. ED 82788 (Mo. App. E.D. 2003).

Because the agreement relates to interstate commerce, the Federal Arbitration Act applies. By enacting the FAA, Congress adopted a liberal policy favoring arbitration. If a court determines by ordinary rules of contract interpretation that a valid agreement to arbitrate exists and that the dispute falls within the scope of that agreement, then arbitration must be compelled. Generally applicable state law contract defenses such as fraud, duress and unconscionability may be used to invalidate arbitration agreements without contravening the FAA. Adhesion contracts usually involve the unequal bargaining power of a large corporation versus an individual and are often presented in pre-printed form contracts. They are not, however, inherently sinister or automatically unenforceable. Our courts seek to enforce the reasonable expectations of the parties. Only those provisions that fail to comport with those reasonable expectations and are unexpected and unconscionably unfair are unenforceable.

The agreement to arbitrate in this service plan clearly is an adhesive contract. Swain is an individual consumer and Auto Services is a corporation - bargaining power was unequal. An average person would, however, reasonably expect that disputes arising out of an agreement like this might have to be resolved in arbitration. An agreement choosing arbitration over litigation, even between parties of unequal bargaining power, is not unconscionably unfair. On the other hand, the selection of Arkansas as the venue for arbitration is unexpected and unconscionably unfair. An average consumer purchasing a car in Missouri would not reasonably expect that any disputes under the service plan accompanying the car would have to be resolved in another state. Our courts will not enforce clauses selecting a forum outside Missouri that are unfair or unreasonable. Arkansas is not a neutral or reciprocal site and the clause selecting that state as the venue for all arbitrations is unfair and will not be enforced. The unenforceability of the venue provision, however, does not render the entire arbitration agreement invalid. If an unenforceable term is not essential to the entire agreement, then the rest of the agreement may be enforced. The venue provision is not essential to the enforcement of the remainder of the arbitration clause, as it is certainly possible to conduct an arbitration in some place other than Arkansas. To invalidate the entire arbitration agreement on the basis of the unfair location would undermine the liberal federal policy favoring arbitration agreements. In sum, the agreement to arbitrate is not unconscionable, but requiring arbitration in Arkansas is. Because the unenforceable venue provision is severable from the general agreement to arbitrate, the agreement to arbitrate is enforceable. On remand, the trial court may consider whether the existence of large arbitration costs - half of which Swain must pay for under the agreement - effectively preclude Swain from pursuing his claims and renders the agreement to arbitrate invalid.

For Workers' Compensaton Benefits, Injury Must Arise Out of Employment

Gregory Tanner was a sales manager for Crest Foam Corporation, which sold carpet pads. His territory consisted of Eastern Missouri and Southern Illinois. He was expected to make eight sales calls per day and was provided a toll-free telephone number by his employer. He was not provided a company vehicle, nor was he reimbursed for travel expenses incurred in his work. As he left home one morning, he told his wife he was going to make sales calls. Later that day, he was killed in a one-vehicle accident, as was his passenger, Lloyd Mimms. Both Tanner and Mimms were intoxicated at the time of their death. Tanner's wife testified that her husband and Mr. Mimms usually went fishing and drank alcohol when they were together. The Labor & Industrial Relations Commission awarded death benefits to Tanner's wife, but the Court of Appeals reversed in Tanner v. Crest Foam Corporation, No. 25511 (Mo. App. S.D. 2003).

The burden is on the claimant to prove that the injury arose out of and in the course of employment. "Arising out of" means that a causal connection exists between the employee's job duties and the injury. "In the course of employment" refers to the time, place and circumstances of an employee's injury. Whether an accident and the consequent injury arose out of and in the course of employment is ultimately a question of law. Here, there was evidence that there was only a social relationship between Tanner and Mimms, which usually resulted in the two of them drinking alcohol. Although the accident occurred in Tanner's sales territory, it occurred during an alcohol-related social dalliance by Tanner with Mimms. At the time of the accident, Tanner was engaged in pleasure purely his own. The overwhelming weight of the evidence requires a finding that the injury that resulted in Tanner's death did not arise out of or in the course of his employment. There was not sufficient competent evidence in the record to warrant the death benefits awarded to his spouse.

In Exercise of its Police Powers, a Municipality May Limit the Number of Liquor Licenses to be Issued

Paul and Martha Jordan made an oral request to the City of Centerville for a liquor license. The city had no ordinance at the time restricting the number of establishments that sold liquor. After this request was denied, the city enacted an ordinance that restricted the sale of alcohol within the city limits to one establishment. At that time, the Quick Stop held the only liquor license issued by the city. After this ordinance was adopted, the Jordans submitted a written application for a liquor license, which the city also denied. The Jordans filed suit against the city and the trial court held that the ordinance on which the city relied was arbitrary and unreasonable. The Court of Appeals reversed, however, in Jordan v. City of Centerville, No. 25548 (Mo. App. S.D. 2003).

A city may adopt ordinances for the regulation and control of the sale of intoxicating liquors within its limits where such ordinances are not inconsistent with the provisions of the state liquor control law. An ordinance of a municipality is presumed to be valid. Limitations on the number of liquor licenses issued by a municipality have been upheld by the appellate courts in Missouri. Adoption of an ordinance limiting the number of liquor licenses a municipality may issue that does not conflict with applicable state statutes is a legislative act that requires no prescription of standards or criteria. Here, the city's enactment of an ordinance limiting the number of liquor licenses that it would issue was a valid exercise of its police power.