The Missouri Court of Appeals for the Eastern District held that an auto tort defendant is not entitled to a credit for the plaintiff’s settlement with a doctor who negligently treated the plaintiff’s injuries. Gibson v. City of St. Louis, et al., No. 95949 (Mo.App.E.D., September 20, 2011). Plaintiff suffered serious injuries in a one car accident.  Her injuries included a comminuted fracture of her right femur, a fracture of her right tibial plateau, a fracture of C7 facet joints and numerous lacerations and abrasions.  The plaintiff suffered further injury when a doctor negligently rotated her right femur.  She settled with the medical malpractice defendants for $80,0000 and released all of the medical malpractice defendants.  Plaintiff did not release her claims against the City of St. Louis for the original wreck injuries.

Plaintiff sued the City of St. Louis for the injuries she suffered in the car crash.  At trial, plaintiff’s counsel was careful to only admit evidence of injuries relating to the car crash and to exclude evidence of injuries relating to medical negligence.  At the conclusion of the trial, plaintiff was awarded damages of $63,600 after reductions for comparative fault.  The City moved to have plaintiff’s recovery reduced by the amount of the medical malpractice settlement pursuant to R.S.Mo. § 557.060.

The Court of Appeals noted that there were two injuries, not one indivisible injury.  Although it is difficult to distinguish pain from different injuries to the same body part, the Court did not believe that difficulty justified a credit for the defendant.  Further, the Court noted that the parties had been careful to exclude evidence of the problems associated with the medical negligence.  The Court stated that the auto tort and medical malpractice defendants were not “joint tortfeasors.”

In these situations, the outcome will hinge on the specific facts of the case including whether there were separate events, separate or distinguishable injuries and separate or distinguishable damages.  The case provides valuable insight for trial lawyers whose clients have multiple injuries and who need to avoid having a damages award reduced by a settlement for a separate injury.

One of the defendants had an epileptic seizure while driving his SUV.  The defendant drove over the back of the motorcycle ridden by the firm’s client and her husband.  The collision broke the client’s pelvis and lower leg and caused the death of her husband who was burned to death when the motorcycle became trapped under the SUV and caught fire. The widow retained Bottaro, Morefield, Kubin & Yocum, L.C. to file suit against the driver and against the driver’s doctor who was alleged to have negligently provided medical treatment to the driver.  It was alleged that the doctor never informed the driver that he might be at risk of having a seizure while driving and that the doctor never informed the driver that his alcohol consumption could dangerously alter the effectiveness of his epilepsy medicine.

The jury rendered its verdict for the widow and assessed 100% of the fault against the driver of the SUV.  The jury awarded the widow more than $1.3 million for the death of her husband and $1.1 million for her own personal injuries.  The case was unusual in that there are very few situations in which Missouri law permits anyone other than a patient to make a medical malpractice claim against a doctor.  Missouri law permits such a claim, however, when someone is injured because the doctor fails to warn a patient that it is not safe to drive either due to medical treatment that was provided or due to a patient’s lack of understanding about his medical condition.

This is believed to be the largest verdict in Clay County in 2010 and it is one of the top 10 verdicts in the Kansas City area. Congratulations to Rick Morefield and Pat Bottaro on an outstanding result.

Rick Morefield obtained summary judgment on behalf of his client South Metro Fire Protection District in the case of Holmes  v. South Metro Fire Protection District  and Phillip Brillhart.  The Jackson County Circuit Court entered summary judgment on February 19, 2010, just a few days before trial was set to begin.  The plaintiff alleged she had been sexually abused by Phillip Brillhart, her uncle, from the time she was three years old until she was 17 years old.  Brillhart was hired by South Metro Fire Protection District when the plaintiff was approximately 12 years old and after the abuse had allegedly continued for approximately 9 years.  Brillhart allegedly continued to abuse the plaintiff after he went to work at South Metro Fire Protection District.  Plaintiff sued defendant Phillip Brillhart for the sexual abuse. He had previously pled guilty and served a prison sentence for the abuse. The plaintiff also sued South Metro Fire Protection District alleging that the fire district was negligent in hiring, retaining and supervising Brillhart and she alleged that her injuries were a result of the actions of South Metro.  Morefield represented only South Metro Fire Protection District in this case.  Brillhart was not represented by counsel.

Morefield successfully argued that South Metro Fire Protection District was not responsible for plaintiff’s sexual abuse, and it had no basis to believe the abuse was occurring.  Plaintiff testified that Brillhart abused her in a wide variety of situations including family gatherings.  Plaintiff’s expert admitted under cross examination that the abuse would have continued even if Brillhart had been fired by South Metro Fire Protection District.  The court ruled that plaintiff failed to establish that South Metro Fire Protection District was negligent or that its actions caused injury to plaintiff.  Plaintiff will be permitted to proceed with her claims against Brillhart, the actual abuser.

In Missouri, an employer can be liable for negligent hiring or negligent retention only if the plaintiff succeeds in showing that: (1) the employer knew or should have known of the employee’s dangerous proclivities and (2) the employer’s negligence in hiring or retaining the employee was the proximate cause of plaintiff’s injuries. Moreland v. Farren-Davis, 995 S.W.2d 512, 517 (Mo. App. 1999); Butler v. Hurlbut, 826 S.W.2d 90, 92 (Mo. App. 1992).  Plaintiff failed to meet either of these requirements.

For further information about negligent hiring and retention issues in Missouri, contact Rick Morefield.

Why did the Salmonella outbreak occur?

Did individuals or corporations do something careless that led to Salmonella infected tomatoes and produce?

Did individuals or corporations fail to do something they should have done to prevent Salmonella from infecting produce, such as tomatoes?

If individuals or corporations did something careless or failed to do something necessary to protect the public health, what was the reason for their conduct?

Obviously, Salmonella is a serious public health issue, particularly for the elderly and small children. When someone becomes ill as a result of Salmonella poisoning, the most important thing is to get the person to a qualified medical professional for immediate treatment. Once everything has been done to protect the health of the victim, family members should try to gather the following important information:

1. Identify the product that the Salmonella came from (tomatoes, canned food, etc.)
2. Identify the store, farmer’s market, or individual from whom the product was purchased.
3. Try to identify where the store, farmer’s market or individual obtained the produce that they sold.
4. Notify public health authorities of the information you have obtained.
5. Contact a lawyer for advice on what to do next.

Not every public health issue results in litigation or even should result in litigation. The most critical issue is to attend to the medical needs of the person who suffered. Only after we know where the tainted food came from can we begin to investigate whether the Salmonella is a result of negligence or a result of uncontrollable environmental factors.  To determine if litigation is appropriate, it is essential to gather as much information as possible as quickly as possible. Without information about the source of the Salmonella tainted food, litigation is not an alternative.

In Kansas, any “occupier of land,” whether a private homeowner or a business is held to a standard of “reasonable care under all circumstances” to keep their property safe for everyone except trespassers. A business, absent unusual circumstances however, does not breach that duty of “reasonable and ordinary care” by not removing snow or ice from outdoor surfaces during a storm or for a “reasonable time thereafter.” This means that anyone visiting a business during a storm or shortly thereafter should be aware of the weather and its probable effect on the parking lots and sidewalks they intend to use.

Case Outlining the Laws in Kansas

One clear example of how the law in Kansas is applied to businesses is the case of Agnew v. Dillons, Inc., 822 P.2d 1049 (Kan. App. 1991). In that case the plaintiff, Agnew, was a customer who slipped and fell on the store’s entrance ramp during a winter storm. The evidence showed that the winter storm had not ended when the plaintiff slipped and fell. The Court also believed the evidence showed that “a reasonable time” had not passed after the storm ended to activate the store’s duty to remove the accumulated ice from the ramp. The Court found that even if the freezing precipitation had stopped when the plaintiff fell, such cessation was brief in duration as the precipitation was falling when Agnew entered the store and when emergency personnel arrived.

In reaching their decision, the Agnew court wrote “Clearly, a proprietor must use ordinary care to keep those portions of the premises which can be expected to be used (by customers) in a reasonably safe condition. However, a proprietor or operator of a trade or business is not an absolute insurer of the safety of customers . . . A business establishment, absent unusual circumstances, may await the end of a storm and a reasonable time thereafter to remove ice and snow from outdoor entrance walks, platforms, or steps because it is impractical to take action earlier.” The court wemt pm to reason that “every pedestrian who ventures out at such time (when the storm is occurring or shortly thereafter) knows he or she is risking the chance of a fall and of a possible serious injury.’”

The courts in Kansas have applied a similar analysis when the question deals with parts of property owned or controlled by a city. The Court in Speakman v. Dodge City, 22 P.2d 485 (1933) wrote “ . . . our Supreme Court has found that a municipality has no duty to clear streets and sidewalks of ice that has accumulated and become rough and rutted absent sufficient notice and opportunity to remedy the situation . . . The general rule with respect to snow and ice is that municipals are not held liable for injuries to persons occasioned by accumulations of snow or ice which at the time of the accident have been so recent that in the exercise of that reasonable and continuing inspection which the law requires it would not have discovered it in time to remedy it by the exercise of reasonable care. The city has a reasonable time for the removal of the snow after it has ceased to fall and may even wait for a change of temperature where the conditions are such as to render the work of removal impracticable.”

When the question deals with someone falling and injuring themselves at a private home, an often cited case is Jones v. Hansen, 867 P.2d 303 (1994). In Jones, the plaintiff was a social guest in defendant’s home. While visiting her friend, Jones fell down a flight of stairs, severely injuring herself. The Supreme Court reiterated the general rule that the duty owed by all property owners is one of reasonable care under all circumstances, to everyone except trespassers. The Court in Jones then wrote “Included in the factors that are to be considered in determining whether, in the maintenance of his property, the land occupier exercises reasonable care under all circumstances are the foreseeability of harm to the entrant, the magnitude of the risk of injury to others in maintaining such a condition of the premises, the individual and social benefit of maintaining such a condition, and the burden upon the land occupier and/or community, in terms of inconvenience or cost, in providing adequate protection.” The Jones court went on to write “In applying the duty of reasonable care under all the circumstances, we are mindful that Kansas has recognized that there are limits to reasonable care. For example, in Agnew v. Dillons, Inc., . . . the court of appeals . . . noted that a proprietor is not an absolute insurer of the safety of the customers . . . We believe that the Agnew rationale and those cases cited in support are supported by sound public policy. Because we have adopted a standard of reasonable care under all circumstances with respect to all persons who are on property with the occupier’s consent, we believe the Agnew case and reasoning therein applies with equal force and will help define the duty of ‘reasonable care’ in future premises liability cases.”

So as you can see, businesses and homeowners alike are required to take reasonable care to be sure their properties are safe after a storm has left snow or ice on the ground. But if someone falls while the storm is ongoing or during “a reasonable time thereafter,” the battle to obtain a recovery becomes a much steeper hill. The question to ask is always how will the Court in your case define “reasonable care” and “reasonable time.”

Drew Speicher