Tort Law

R. Max Humphreys, Esquire

Public duty doctrine does not expand a government entity’s sovereign immunity beyond what is intended by the statute establishing exceptions to sovereign immunity. Benson v. Kansas City, Missouri, Board of Police Commissioners, No. 74283 (Mo. App. W.D., May 15, 2012), Martin, J.

Plaintiff was injured in an automobile accident involving a police vehicle and filed a suit against the Board claiming negligence of the police officer was imputed to the Board under respondent superior. The Board filed a motion for summary judgment based upon their claim that since the officer was shielded by official immunity while acting within the scope of his public responsibilities, then no negligence could be imputed to the Board, his employer. The trial court granted a motion for summary judgment and on appeal.

Held: Reversed and Remanded.
The court of appeals determined that the Supreme Court had resolved the question involved in the case of Southers v. City of Farmington, 263 S.W.3d 603 (Mo. banc 2008). This was another police auto accident case and the court there had found that since the immunity of the government body was waived by § 537.600.1, where the incident involved the operation of a motor vehicle, then the public duty doctrine should not expand the scope of the sovereign’s immunity beyond that intended by statute.

Keith A. Cutler, Esquire

Competent testimony of third parties of probable or likely damage to plaintiff’s reputation is sufficient evidence of reputational harm in a defamation suit.   The Fireworks Restoration Company, L.L.C. v. Hosto, No. 97181 (Mo. App. E.D., May 9, 2012), Richter, J.

In an attempt to harm Plaintiff’s property damage restoration business, Defendant posted online made-up “customer reviews” of alleged negative experiences with the quality and customer service of Plaintiff’s business.  (Defendant was a former owner of Plaintiff, and had never been a customer.)  When Plaintiff learned the identity of the source of these false, negative “customer reviews,” Plaintiff filed suitagainst Defendant for defamation.   At trial, Plaintiff offered testimony from three persons in the restoration business who stated that, while the negative online reviews did not diminish their individual opinions of Plaintiff’s reputation, such reviews would almost certainly cause damage to Plaintiff’s reputation in the relatively small, tight-knit restoration business community.   The jury returned a verdict in favor of Plaintiff in the amount of $1 in actual damages, and $150,000 in punitive damages.   Defendant appealed, claiming that Plaintiff failed to make a submissible case by not adducing evidence of actual reputational harm.

Held: Affirmed.
 Typically, proof of actual harm to a defamation plaintiff’s reputation is required.  The evidence must not be too speculative and must be founded on more than the plaintiff’s embarrassment or perception of their own reputation. Defendant maintained that, because the persons who testified stated that their personal opinions of Plaintiff had not been diminished by the reviews, Plaintiff failed to demonstrate actualharm to its reputation. However, the court of appeals rejected Defendant’s argument that Plaintiff was required to locate and produce potential customers who actually saw the negative on-line reviews and declined to use Plaintiff’s business.  “With the internet, consumers are able to compare businesses and their wares with unprecedented speed.  Interpersonal contact is characteristically absent, so if a consumer declines to engage a business it encounters on the internet, that consumer continues his or her search and the business has no knowledge it has been passed by.  As such, it would be unreasonably burdensome to impose upon a business plaintiff the requirement that it locate potential customers that it never knew, in order to successfully demonstrate actual damage to its reputation.” Thus, the trial court did not err in denying Defendant’s motion for judgment notwithstanding the verdict.

In the absence of cross-claims between them, co-defendants are not “adverse parties” to each other.  Therefore, one co-Defendant is not bound as an adverse party by a summary judgment against the other.  Jefferson v. Lyon Sheet Metal Works, No. 96338 (Mo. App. E.D., May 9, 2012), Crane, P.J.

Plaintiff, a pedestrian, was hit by a truck.  The driver was an employee of one defendant, but had been subcontracted out as a driver to another defendant, and a dispute arose as to which defendant was vicariously liable for Plaintiff’s injuries. The trial court granted summary judgment in favor of one defendant on that issue, and that defendant was dismissed from the suit. Thereafter, on the basis of the summary judgment, Plaintiff sought to preclude the remaining defendant from arguing that the dismissed defendant was the one responsible for the accident. The remaining defendant argued that it was not an adverse party to the dismissed defendant’s motion for summary judgment; therefore, the remaining defendant was not bound by the summary judgment as an adverse party.  The trial court precluded the argument, the jury returned its verdict in favor of Plaintiff in the amount of $900,000, and the remaining defendant appealed.

Held: Reversed and remanded.
  Relying onHemme v. Bharti, 183 S.W.3d 593 (Mo. banc 2006) and Brown v. Harrison, 637 S.W.2d 145 (Mo. App. 1982), the court of appeals ruled that, in the absence of cross-claims, co-defendants are not “adverse parties,” even if their defenses conflict with each other or each contends the other is at fault.   Since the remaining defendant was not an adverse party to the dismissed defendant’s motion for summary judgment, the remaining defendant had no obligation to respond to the motion, nor was the remaining defendant bound by the summary judgment as an adverse party.   Moreover, under Missouri law, a defendant is allowed to introduce evidence which shows that it did not cause the plaintiff’s harm, and that the acts of a person other than defendant were the sole cause of plaintiff’s harm.   As such, the trial court erred in precluding the remaining defendant from arguing that the dismissed defendant was the one responsible for the accident.

Section 311.310, RSMo., does not provide a civil cause of action against homeowners for furnishing alcohol to minors.  Otte v. Edwards, No. 97404 (Mo. App. E.D., May 22, 2012), Sullivan, J.

Homeowners held a party at their home for their son and his friends, at which alcohol was consumed.  Plaintiffs’ decedent, a minor, was a friend of Homeowners’ son.  Decedent became intoxicated at the party, wandered onto the highway in front of Homeowners’ home, and was struck and killed by a vehicle.  Plaintiffs filed suit against Homeowners for wrongful death, basing their claim on a violation of  § 311.310, RSMo., which provides that it shall be a Class B Misdemeanor for a property owner to knowingly allow a minor to possess or consume alcohol on the property owner’s premises. Homeowners moved to dismiss the claim, asserting that § 311.310 does not give rise to a civil cause of action.  The trial court granted Homeowners’ motion to dismiss, and Plaintiffs appealed.

Held: Affirmed.
  InAndres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547 (Mo. banc 1987), the Missouri Supreme Court ruled that social hosts have no common law civil duty to abstain from furnishing alcoholic beverages to minors.  In 2005, § 311.310 was amended to add property owners as persons subject to the statute, but the court of appeals determined that the addition of property owners “did not add any civil liability to the statute where there formerly was none.”   Therefore, the trial court did not err in dismissing the lawsuit.