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. 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.

Lawyers need to catch up with the times and incorporate video techniques into their trial presentations. Video is now inexpensive and easy enough that it can be used economically in most cases.

This post will discuss the use of video depositions for impeachment at trial. Impeachment is technique where an attorney uses the prior sworn testimony of a witness to demonstrate to the jury that the witness has changed his or her story. Impeachment with video is far more devastating to the liar on the witness stand than the traditional method using a written deposition transcript.

Impeachment with a deposition transcript can be a very effective means of demonstrating that a witness is a liar. The weakness of impeaching a witness with deposition transcripts is that it requires the jurors to hear testimony, remember the testimony, hear the lawyer read back a portion of a prior deposition transcript and mentally put the pieces together in a way that causes the jurors to believe the witness lied or changed her story. While almost all jurors can do this, the process requires concentration by the juror and it requires the juror to make assumptions about the witnesses’ body language during the deposition. The assumptions the jurors make may not be the assumptions the lawyer would like the jurors to make.

Video has obvious advantages. The jury sees and hears the witness answer a question at trial. Then the jury sees and hears the witness testify on video in a manner that directly contradicts the trial testimony. The jury can evaluate the witnesses’ body language both times. The jury can hear any nuances in the witnesses’ tone of voice. Video captures more of the truth. This is primarily an advantage for the impeaching lawyer. However, there will be times when the video demonstrates that the witness meant something different than what the lawyer would like to argue. The important thing to remember, however, is that the truth has been captured more fully and persuasively.

Technology by itself does not win trials. However, technology combined with aggressive, thorough preparation can make a tremendous difference in the outcome. Our firm’s practice is to videotape most depositions. We use a product called TrialSmart to display video depositions synchronized with the text transcript. It is a simple matter to synchronize the video depositions with the transcript for display at trial. We use a projector at trial so that the jury can see the impeaching testimony as large as life. The key to using this technology, is preparation. By carefully preparing for video depositions and taking the time to prepare video clips on key issues in our cases, we have had great success in developing compelling evidence at trial.

A fair and impartial judiciary is essential to the future of our nation, but it is not an easy objective to maintain. The judiciary’s mission places it in conflict with those who are in power. It has the task of protecting the rights guaranteed by our Constitution and our laws, regardless of the popularity, wealth, political affiliation, or power of the politicians and litigants affected by its rulings. There will always be forces opposed to a fair, impartial and independent judiciary. Our system of government, created with three coequal branches, virtually guarantees conflict between the judiciary and the other branches. Further, our legal system, based on an adversarial model of resolving disputes, guarantees that there will be winners and disappointed losers in every court case. We have an obligation as officers of the court to stand up for the judiciary when it is attacked for fulfilling its duty to uphold the law and the Constitution of the United States.

Preserving a fair and impartial judiciary is not a liberal or conservative issue. Historically, the courts have clashed with both liberals and conservatives, and we can expect this to continue. The courts were at odds with President Abraham Lincoln over slavery, with President Franklin Roosevelt over the New Deal, and with President George W. Bush over the Patriot Act. The courts act as a tempering influence on the party in power. It is essential that we protect and preserve this aspect of our judicial system. One only needs to look at the arrests and beatings of lawyers and judges in Pakistan to understand the importance of a fair, impartial, and politically independent judiciary. Those who would abuse or usurp political power fear such a judiciary.

What concerns me most about the current attacks on the judiciary is that there appear to be concerted efforts to make the judiciary more susceptible to political influence rather than less. For example, there is a movement to eliminate merit selection of judges in Missouri (known as the Missouri Plan). The attacks are couched in terms of making judges “accountable” to the people. In reality, they are designed to make the judiciary dance to the tune played by the politicians in power. These efforts seem designed to create a judiciary that follows the opinion polls rather than the law.

These attempts to make the judiciary more susceptible to political pressure are both shortsighted and foolish. History teaches us that the political pendulum swings back and forth, from Left to Right. The politicians who so desperately want judges who will fall in line with their legislative initiatives and executive actions forget that when the pendulum swings the other way, so will an elected judiciary. The judiciary must exert a steadying influence on our laws and our society, not act as a political bedfellow of the party in power. This is not to say that elected judges cannot be fair and impartial. Most serve the public with skill and honor. However, the public’s perception of the bench is not enhanced when judges are forced to raise significant amounts of money from people and businesses who will likely appear before them in court.

For the public to maintain confidence in our legal system, it must believe in the integrity and impartiality of the judiciary-and have a solid basis for that belief. For this to happen, lawyers must be part of the solution, not part of the problem. Rule 8.2(a) of the ABA’s Model Rules of Professional Conduct prohibit a lawyer from making “a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” Rule 8.3(b) also requires lawyers to report ethical violations by judges. Lawyers must zealously represent their clients, but Rule 8.4(e) requires lawyers not to “state or imply an ability to influence improperly a government agency or official.” As members of the bar and officers of the court, we must help our clients and the public maintain their faith in the courts and the legal system generally, even when we are helping them overcome erroneous rulings or malfeasance, when that occurs.

We can help improve the public’s confidence in the judiciary by helping to teach our clients about the judicial system. We need to explain that when a case goes to trial, it is usually because either the liability, the damages, or both are unclear. We need to stress that losing is always a possibility at trial, that having a good lawyer does not guarantee a win. A client who knows what to expect in court is much less likely to unfairly blame a loss on favoritism by the judge. Clients need to understand that one of the strengths of our system is that we have appellate courts that can fix the mistakes of lower courts. When a doctor amputates the wrong limb, there is no appeal that will undo the damage.

When we win at trial, we must have the humility to tell our clients they won because of the facts or the law; we should never suggest that we have an “in” with the judge. When we lose, we must have the courage to tell our clients that they lost because of the facts or the law, or even a legal error by the judge, but we must not suggest that the decision was the product of favoritism, cronyism, or being “hometowned.” We must not suggest that the judge is biased or intellectually challenged. We must show respect for the process and the system, regardless of the outcome. We must not let our egos interfere with the public’s respect for the legal system.

Tension between the judicial branch of our government and the other two branches is inevitable because the courts have the task of keeping them accountable to the Constitution and laws of the United States. As lawyers, it is our responsibility to help the public understand this role of the judiciary and the reason for the tension. It is our responsibility to stand up for the judiciary when the natural friction between the branches of government leads to efforts to destroy the independence, fairness, and impartiality of our judiciary. A good first step is to read about this issue at www.protectjustice.org or www.justiceatstake.org. Or get involved with one of the many state or local bar association efforts to defend the judicial branch against unfair attacks. Each of us has a unique position to help protect a fair and impartial judiciary. We need to take that responsibility seriously.

(Adapted from a column by Richard Morefield published in “The Brief”, the quarterly law magazine of the American Bar Association Tort, Trial & Insurance Practice Section)

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