Tort Law

R. Max Humphreys, Esquire

Circumstantial evidence can be used to satisfy the requirement under the Dram Shop Act that the person serving alcohol to a visibly intoxicated person did so knowingly. Nokes, et al. v.  HMS  Host USA, LLC, No.73055 & 73056 (Mo. App. W.D., October 13, 2011), May, J.

The families of victims of an automobile accident brought this action against the corporations that operated a bar at Kansas City International Airport. The driver’s blood alcohol at the time of the accident was .169% 4 ½ hours after the driver left the bar.

A toxicologist testifying as an expert witness for Plaintiff gave his opinion that his blood alcohol would have been .10 when he ordered his second cocktail .15 when he ordered his third cocktail and .175 when he ordered his fourth cocktail. He also testified that the driver would have displayed significant physical dysfunction, a change in demeanor, a release of inhibitions, a loss of judgment and a loss of the fine sense of intellect after consuming that much alcohol.

The trial court had given Defendants a summary judgment and the court of appeals determined that the testimony created a triable issue of fact even when based on circumstantial evidence rather than direct evidence of the driver’s actions at the bar.

Western District refuses to change law regarding necessity of diagnosable illness to prove damages from negligent infection of emotional distress. Biersmith v. Curry Association Management, Inc., No. 73231 (Mo. App. W.D., October 25, 2011), Martin, J.

Plaintiff was stuck in an elevator in a building managed by Defendant and as a result he claimed psychological injuries consisting of loss of sleep and nightmares, but he did not seek or receive any medical treatment for his alleged psychological injuries. The trial court granted Defendant’s Motion for Summary Judgment and Plaintiff appealedpro se.

The court of appeals found no reason to change the law and Plaintiff did not cite any authority for his claim that a trend had developed allowing a cause of action for emotional distress without medical diagnosis. The court of appeals also allowed attorney fees to Defendant finding the appeal to be frivolous.