Tort Law

Editor:
R. Max Humphreys, Esquire

Evidence of Plaintiff’s THC (Tetrahydrocanniabinol) level in his blood was erroneously admitted without some foundation testimony as to the effect of marijuana use on a person’s behavior and what level of THC indicates intoxication from marijuana.  Secrist v. Treadstone, et al., No. 73250 (Mo. App. W.D., November 1, 2011), Witt, J.

Plantiff was working in a building owned by Defendants when he sought to use an elevator and in the process fell down the elevator shaft suffering serious injuries.  The jury assessed 80% of the fault to Plaintiff.  Testimony was introduced during the trial of Plaintiff’s level of THC in his blood without any expert testimony as to what level of THC indicated intoxication.  The court also noted that marijuana, which produces THC can have the effect of positive tests for THC several days after its use.  So there is not necessarily a relationship between the presence of THC and the question of when it was ingested. 

Held:
Reversed and remanded.


Evidence that defendant had prevailed in prior trials was not relevant or admissible.  Moon v. Hy-Vee, Inc., No. 73695 (Mo. App. W.D., November 8, 2011), Newton, J.

Plaintiff was injured in a slip and fall in Hy-Vee and claims that Hy-Vee was negligent in maintaining their property in a defective or dangerous condition.  The Defendant Hy-Vee presented two expert witnesses, a surgeon and a floor safety expert at trial.  Plaintiff, in cross-examining these two experts, asked questions about their prior testimony in favor of Hy-Vee in other trials, specifying the cases by name and venue, and eliciting testimony that in each of the cases, that expert had testified along with the other expert and Hy-Vee had been represented by the same law firm.  The court then allowed Hy-Vee’s attorney to ask the experts what the outcome of each of those prior trials were.  They were either Defendant’s verdicts or verdicts for less than what the Plaintiff requested.

After a Defendant’s verdict, Plaintiff appealed, raising as error the admission of the testimony by these experts of the results of the trials they had previously testified in for Hy-Vee.  The court of appeals found the evidence totally irrelevant regarding the outcome of those trials.  The court noted that evidence of experts’ prior testimony on behalf of a party was certainly relevant on the witness’s credibility or possible bias, but the outcome of those cases had no bearing on any issue. 

Held: Reversed and remanded for a new trial.


Clinics and other health practitioners such as chiropractors, podiatrists, dentists, physical therapists, and optometrists have a right to a lien for their services in addition to hospitals and are not required to be supported by charity.  Kelly v. Marvin’s Midtown Chiropractic, LLC., No. 72747 (Mo. App. W.D., November 1, 2011), Howard, J.

Two individuals who were injured in automobile accidents settled their cases, and the attorney representing them who had received a notice of lien from Marvin’s Midtown Chiropractic Clinic held proceeds in escrow in the amount of said lien, and filed an interpleader action.

The trial court found that the chiropractic clinic was not entitled to a lien on the settlement proceeds under § 430.255, RSMo, because it was not supported in whole or in part by a charity.  As required under § 430.230, RSMo, the court of appeals found that § 430.230 provided lien rights to a public hospital or clinic, a privately maintained hospital clinic or other institution supported in whole or in part by charity, and a hospital duly incorporated under the laws of Missouri providing for the incorporation of eleemosynary institutions.  The court of appeals found that an amendment re-enacting § 430.225 changed the requirement that the hospital or clinic must be supported in whole or in part by charity.  That section defines clinic as a group practice of health practitioners or a sole practice of a health practitioner who has incorporated his or her practice.  A health practitioner is defined as a chiropractor licensed pursuant to Chapter 331, RSMo, a podiatrist licensed pursuant to Chapter 330, RSMo, a dentist licensed pursuant to Chapter 332, RSMo, a physical therapist licensed under Chapter 334, RSMo, a physician or surgeon licensed pursuant to Chapter 334, RSMo, and an optometrist licensed pursuant to Chapter 336, RSMo.  Therefore, it was obvious the intent of the legislature was to broaden the scope of the hospital lien law to include those additional persons or institutions.  Therefore, the lien of the chiropractic clinic was valid and enforceable.


Editor:
Keith A. Cutler, Esquire

Generally, letter-grade ratings by a better business bureau are subjective and not capable of being proven false.  Therefore, they are typically protected by the First Amendment and cannot form the basis for a defamation suit.  Castle Rock Remodeling, LLC, v. Better Business Bureau of Greater St. Louis, Inc., No. 96214 (Mo. App. E.D., November 1, 2011), Dowd, J.

For several years, Plaintiff was an accredited, dues-paying member of Defendant Better Business Bureau .   After a disagreement between Plaintiff and Defendant over how customer complaints were being reported and/or considered, Defendant gave Plaintiff a rating of “C ” (on an A-F scale).  Plaintiff filed suit for libel/slander, and tortious interference with business expectancy.  Defendant filed a motion to dismiss the petition for failure to state a claim, contending that the “C” rating and any statements used in connection therewith were opinion, and therefore, not actionable.  The trial court granted Defendant’s motion to dismiss and Plaintiff appealed.

Held: Affirmed.
   The test to be applied in determining whether a statement is an “opinion ” is whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact. Here, “neither the nature of the information provided nor the language used on BBB’s website would lead a reasonable person to believe that the rating is a statement of actual fact.” It was clear that the Defendant Better Business Bureau’s rating of “C” was a subjective opinion, not susceptible to being proven true or false.  Therefore, such statements of opinion are entitled to protection under the First Amendment, and cannot form the basis of a defamation lawsuit.


Vehicle covered by an “out-of-state” provision which increases its coverage to meet Missouri’s $25,000 minimum is not an “uninsured motor vehicle.”  State Farm Automobile Insurance Company v. Ardrey, No. 95936 (Mo. App. E.D., November 29, 2011), Mooney, J.

Defendant was involved in an automobile accident with an Iowa driver .  The Iowa driver ’s auto policy provided the $20,000 minimum liability coverage required under Iowa law .  The Iowa policy also contained an “out-of-state ” provision, which increased the coverage on the Iowa vehicle to the minimum limits required by the laws of another state if an accident occurred in that other state .   Pursuant to that provision, Defendant received a $25,000 settlement from the Iowa driver ’s insurance company .  Defendant then sought to recover against her own insurance company, claiming that the Iowa vehicle was an “uninsured motor vehicle ” as defined in Defendant ’s own policy, because the Iowa vehicle ’s policy limits were less than the minimum required by Missouri .   Defendant ’s insurance company denied coverage, and filed a declaratory judgment seeking a determination that the Iowa vehicle was not an “uninsured motor vehicle .”   The trial court determined that the Iowa vehicle was an “uninsured motor vehicle ,” and Defendant ’s insurance company appealed .

Held: Reversed.   The trial court based its decision on Adams v. King, 275 S.W.3d 324 (Mo. App. S.D. 2009).   Adams involved similar facts as those in the case at bar, except the policy language at issue in Adams did not obligate that defendant’s insurance company to increase the limits to meet Missouri’s minimum coverage requirement.   Because of that, the court of appeals in Adams determined that the vehicle in question in that case was an uninsured motor vehicle.   Here, however, the Iowa policy specifically provides that the limits of coverage on the Iowa vehicle are to be increased to the limits required by the state where the accident occurred.  Since the accident occurred in Missouri, the policy limits of the Iowa policy increased to $25,000 in this instance.  Because the policy limits on the Iowa vehicle, under these circumstances, was not less than the minimum required by Missouri, the Iowa vehicle was not an “uninsured motor vehicle” as defined in Defendant’s policy, and the decision of the trial court was reversed.


Even if prior complaints of pain are made, statute of limitations on FELA claim does not begin to run until employee knows or should know that he has a permanent injury.  Mickey v. BNSF Railway Company, No. 95110 (Mo. App. E.D., November 29, 2011), Clayton, III, J.

In September 2007, a railroad employee was diagnosed with degenerative disc disease, and was told by his doctor that he had a permanent disability in his back and his knees .   On May 12, 2008, Employee filed a FELA action against the railroad on account of said permanent disabilities .  The railroad argued that the claim was barred by the applicable three-year statute of limitations, because Employee first complained of back and knee problems in 2003. The trial court refused to give a jury  instruction which presented the issue of whether Employee knew or should have known of his injuries more than three years before the suit was filed .  The jury ultimately found in favor of Employee, and the railroad appealed .

Held: Affirmed.    Although Employee did seek medical treatment for his back and knees in 2003, he did not know at that time that the injuries were permanent .  His doctor at the time told Employee that there was nothing wrong with him, and that he would not have any permanent partial disability from the injury .   Employee did not know that he had suffered a permanent injury until he was advised thereof by a subsequent doctor in September 2007 .   “These permanent, work-related injuries which caused him to no longer be able to work were the injuries for which [Employee] filed a claim against [the railroad ].  Thus, based upon the record, there was no evidence to indicate that [Employee] knew or reasonably should have known he was permanently injured before September 2007, even given his continuing complaints of back and knee pain throughout the years .  Therefore, the trial court did not abuse its discretion in refusing to submit [the railroad ’s] proffered instructions  F and G concerning the issue of the statute of limitations to the jury .”