The flag: Inherently dangerous activity, incorrect spelling in summons, and more

W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Neely & Gabris.

LOGGING IS NOT AN INHERENTLY DANGEROUS ACTIVITY THAT CREATES LIABILITY ON THE LANDOWNER
Holterman v. Copeland, 700 S.W.3d 333 (Mo. App. S.D. 2024). 

Lucas Holterman was injured while working for Holterman Logging on land owned by Laverne Copeland. Holterman sued Copeland on theories of premises liability and inherently dangerous activity. Finding that commercial logging is not an inherently dangerous activity, the Missouri Court of Appeals-Southern District affirmed the trial court’s ruling.¹ 

Landowners generally have a duty to use reasonable and ordinary care to prevent injury to invitees.²

There is also an expectation that “invitees will exercise ordinary perception, intelligence, and judgment to discover open and obvious conditions, appreciate the risk they present, and take the minimal steps necessary to protect themselves.”³ 

The independent contractor exception has its own exception: the inherently dangerous activity doctrine.⁴

“Whether an activity is inherently dangerous is initially a question of law for a court to determine if a party has (or could) make a submissible case. Once a court determines the case is submissible it becomes a question of fact for the jury.”⁵

The Holterman court noted, “An activity is not inherently dangerous just because it involves some degree of danger or risk. To qualify as inherently dangerous, the activity must involve a risk that is peculiar and not common[.]”⁶

"[W]e decline to expand the inherently dangerous activity doctrine and cause of action to include injuries to an independent contractor’s employees while logging or harvesting timber. First, it is common knowledge and a common risk that snags and dead limbs may fall and cause injury. This is a general risk not peculiar to logging activity.⁷

"The independent contractor rule removes Copeland from liability for Appellant’s injuries. Because Appellant cannot show that Copeland owed him a duty of care, an essential element of his premise liability claim, Copeland is entitled to judgment as a matter of law.⁸

INCORRECT SPELLING OF DEFENDANT’S NAME IN SUMMONS WAS MERE TECHNICAL ERROR  
Chick v. Moving Proz, LLC, 699 S.W.3d 449 (Mo. App W.D. 2024). 

Moving Proz, LLC appealed the trial court’s denial of its motion to set aside a default judgment as void pursuant to Rule 74.06(b)(4). Moving Proz asserted that the trial court did not have personal jurisdiction over Moving Proz because the summons incorrectly spelled its name. Moving Proz was identified as the defendant in the caption and in the body of the petition and its authorized registered agent was served with the summons and petition. However, the summons misidentified the defendant as “Moving Pros.”

Moving Proz argued service of the summons and petition to Moving Proz’s registered agent was “not sufficient to constitute service of process in a manner prescribed by rule or by statute.”⁹ The Missouri Court of Appeals-Western District affirmed the trial court’s ruling.¹⁰ 

“Service of process in a manner authorized by rule or statute is not rendered insufficient for purposes of bestowing personal jurisdiction over a defendant merely because of a technical defect in the defendant’s identification in either a petition or summons[,]” the Chick court stated. 

It noted the Supreme Court of Missouri addressed this issue in Parry v. Woodson.¹¹ “Parry has been relied on repeatedly by Missouri courts to find that personal jurisdiction existed over a defendant to support the entry of a judgment despite misidentification of the defendant in either the summons or petition.”¹² More recently, in the 1978 case of Watson v. Watson,¹³ the Supreme Court of Missouri “reinforced that misidentification of a defendant in either a petition or a summons will not defeat personal jurisdiction so long as the summons and petition are served on the right person, or on the person’s legal representative.”¹⁴

“The summons’s misidentification of the defendant as Moving Pros is a mere technical error. When the summons and Petition are read together, they plainly give notice that Moving Proz was the intended defendant such that the improper spelling of Moving Proz on the summons did not deprive the trial court of personal jurisdiction.”¹⁵

HIGHWAY CONTRACTOR NOT LIABLE FOR HIGHWAY DEFECT OUTSIDE AREA OF WORK 
Atchley v. Missouri Highways and Transp. Comm., 697 S.W.3d 90 (Mo. App. S.D. 2024). 

Appellants Brantley Atchley and Becky Jo Tittle appealed a grant of summary judgment in favor of defendant Apex Paving Company on a claim of negligence related to the wrongful death of their daughter. The appellants stated an alleged defect, a drop-off on the shoulder of Highway 153, created a dangerous condition that caused the crash and death of their daughter on April 26, 2020. 

The Missouri Court of Appeals-Southern District affirmed the judgment¹⁶ having found that “Apex had not performed any construction work in the area of the accident, nor were they responsible for designing, constructing or maintaining the allegedly unsafe shoulder of Highway 153.”¹⁷

“The primary duty to exercise reasonable care for the safety of the general public using a road or highway during improvements or repair rests on the road contractor, and the road contractor in this respect must act reasonably and with due regard to the rights of persons lawfully using the way and is liable for injuries resulting from negligence in the performance of his work. A road contractor contracting with a public body is not entitled to avail itself of the immunity of such public body for injuries resulting from either willful tort or negligence in the performance of the contractor’s public work.”¹⁸

In Atchley, the court noted it was undisputed that Apex:

1) did not design or construct the portion of Highway 153 where the defect was allegedly located; 

2) had not mobilized to that portion of Highway 153 and would not for some time; and 

3) “had not taken any action that made the condition complained of more dangerous than it was on the day Apex signed the contract.”¹⁹

“While Appellants are correct that no existing Missouri case law has been cited that limits a highway contractor’s duty to the ‘locus of construction,’ there are also no citations to any existing Missouri case law that imposes a common law duty on a highway contractor that has not yet begun working in the area of an alleged defect. We decline to impose such duty here.”²⁰

SAVINGS STATUTE BEGINS TO RUN ON THE DATE VOLUNTARY DISMISSAL IS FILED 
Winget v. K&S Associates, Inc., et al., 697 S.W.3d 111 (Mo. App. E.D. 2024). 

Amy Winget filed her initial petition against respondents K&S Associates and Horner & Shifrin on July 31, 2017. Winget filed a Notice of Voluntary Dismissal Sept. 27, 2021, and the trial court subsequently entered an order of dismissal a few weeks later. On Oct. 17, 2022, Winget refiled her case. The respondents filed motions to dismiss, alleging Winget’s claims were time-barred. The trial court dismissed Winget’s petition with prejudice, and the Missouri Court of Appeals-Eastern District affirmed the judgment.²¹ 

“Missouri’s savings statute affords prospective plaintiffs a one-year grace period within which to commence a new action if their previously filed, timely lawsuit resulted in nonsuit,” the Court of Appeals stated.²² The effective date of a voluntary dismissal is “the date such dismissal is filed, since it may be filed without order of the court.”²³ Any orders the court enters after a voluntary dismissal by a plaintiff are “nullities.”²⁴ “Once a plaintiff files a voluntary dismissal pursuant to [Rule 67.02], the trial court loses its jurisdiction as there is nothing before the court upon which to act.”²⁵ 

The savings statute in Winget began Sept. 27, 2021, when Winget filed a Notice of Voluntary Dismissal. Therefore, Winget’s refiling of her case Oct. 17, 2022, fell outside the one-year grace period.

Endnotes

1 Holterman v. Copeland, 700 S.W.3d 333 (Mo. App. S.D. 2024).

2 Woodall Christian Hosp. NE-NW, 473 S.W.3d 649, 653 (Mo. App. 2015).

3 Maune ex rel. Maune v. City of Rolla, 203 S.W.3d 802, 805 (Mo. App. 2006). 

4 Salmon v. Kansas City, 145 S.W. 16 (1912).

5 Hatch v. V.P. Fair Found., Inc., 990 S.W. 126,134 (Mo. App. 1998).

6 Holterman, 700 S.W.3d at 338.

7 Id. at 341. See also DeShambo v. Nielsen, 684 N.W.2d 332 (Mich. 2004); McCubbin By & Through McCubbin v. Walker, 886 P.2d 790, 804 (Kan. 1994); Peone v. Regulus Stud Mills, Inc., 744 P.2d 102, 107 (Idaho 1987).

8 Id. at 342 (Woodall, 473 S.W.3d at 654).

9 Id. at 455.

10 Chick v. Moving Proz, LLC, 699 S.W.3d 449 (Mo. App W.D. 2024).

11 33 Mo. 347 (1863).

12 Chick, 699 S.W.3d at 455-56. See, e.g., Aman Collection Serv., Inc. v. Burgess, 612 S.W.2d 405, 408-09 (Mo. App. W.D. 1981); Green v. Strother, 212 S.W. 399, 400-01 (Mo. App. 1919); Evans-Smith Drug Co. v. White, 86 Mo. App. 540, 545 (1901). 

13 562 S.W.2d 329 (Mo. banc 1978).

14 Chick, 699 S.W.3d at 456.

15 Id. See Watson, 562 S.W.2d at 332-33.

16 Atchley v. Missouri Highways and Transp. Comm., 697 S.W.3d 90 (Mo. App. S.D. 2024).

17 Id. at 95.

18 Best v. Fred Weber Constr. Co., 525 S.W.2d 102, 108 (Mo. App. E.D. 1975) (citing Joshmer v. Fred Weber Contractors, Inc., 294 S.W.2d 576, 582(2) (Mo. App. 1956)) (emphasis added); Phegley v. Porter-DeWitt Constr. Co., 501 S.W.2d 859, 863 (Mo. App. S.D. 1973) (emphasis added).

19 Atchley, 697 S.W.3d at 96.

20 Id.

21 Winget v. K&S Associates, Inc., et al., 697 S.W.3d 111 (Mo. App. E.D. 2024). 

22 Id. at 113 (citing MO. REV. STAT. § 516.230).

23 Fuller v. Lynch, 896 S.W.2d 764, 765 (Mo. App. W.D. 1995); Kirby v. Gaub, 75 S.W.3d 916, 918 (Mo. App. S.D. 2002).

24 Fuller, 896 S.W.2d at 765.

25 Kirby, 75 S.W.3d at 917 (citing State ex rel. Fisher v. McKenzie, 754 S.W.2d 557, 560 (Mo. banc 1988)).