The Flag, January - February 2023
Vol. 79, No. 1 / January - February 2023
W. Dudley McCarter
W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Potter, Neely & Hyde.
IN AN UNLAWFUL DETAINER ACTION, THE ONLY ISSUE IS THE RIGHT TO IMMEDIATE POSSESSION
Green Street 2900 Investors, LLC v. The St. Louis Woodworks, Inc., 654 S.W.3d 380 (Mo. App. E.D. 2022).
In Green Street 2900 Investors, LLC v. The St. Louis Woodworks, Inc.,2 St. Louis Woodworks argued the trial court erred in granting summary judgment for Green Street 2900 Investors, LLC because St. Louis Woodworks was lawfully in possession of the subject property under a properly executed option to renew the lease. The Missouri Court of Appeals-Eastern District affirmed the judgment.3
A person is guilty of “unlawful detainer” if they “willfully and without force hold over any lands, tenements or other possessions, after the termination of the time for which they were demised or let to the person . . .”4 “Unlawful detainer actions were created to operate quickly while avoiding the forceful and violent nature of property owners using self-help to enforce their right to possession of real property.”5
“The only issue we consider is whether Appellant exercised an enforceable option to renew the lease, extending its rights to possession. We hold it did not.”6 Since the lease expired and St. Louis Woodworks did not initiate an enforceable option to renew the lease, the court ruled, Green Street 2900 Investors, LLC is entitled to immediate possession of the property.7 “A court’s enforcement of indefinite lease terms at equity does not suggest courts can do the same in an unlawful detainer action and Appellant has provided no binding authority empowering a court or jury to define indefinite terms in an unlawful detainer action.”8
FOR A NEW TRIAL, JUROR MISCONDUCT MUST BE SHOWN TO BOTH OCCUR AND BE PREJUDICIAL
Harned v. Spurlock, 2022 WL 3589041 (Mo. App. W.D. 2022).
Dr. Daniel Spurlock and Meritas Health Corporation, collectively “the defendants,” appealed the trial court’s judgment pursuant to a jury verdict in favor of Katherine Harned on her claims for medical malpractice. The defendants argued the court erred in denying their motion for new trial on the basis of juror misconduct. The Missouri Court of Appeals-Western District ruled in Harned v. Spurlock that the trial court did not err in its judgment.9
“We will not disturb the court’s ruling on a motion for new trial based upon juror misconduct unless the trial court has abused its discretion.”10 The defendants bear the burden to “show both misconduct and prejudice resulting from that misconduct.”11 Under the Mansfield rule, “a juror’s testimony about juror misconduct is generally not admissible to impeach the jury’s verdict.”12 “Nonetheless, juror testimony is admissible to establish that a juror committed misconduct by improperly gathering evidence outside of trial.”13 “In cases of juror’s acquisition of extraneous evidence, once it has been found that a juror has committed misconduct by obtaining extraneous evidence against the court’s instructions, ‘such misconduct raises a presumption of prejudice, and the burden shifts to the opposing party to rebut the presumption’ by showing that no prejudice resulted from the alleged juror misconduct.”14 “To be prejudicial, the extraneous evidence obtained from the juror misconduct must be material to the consequential facts of the case.”15 “Allegations of juror misconduct are not self-proving and must be established by independent evidence.”16
The defendants’ allegations of juror misconduct were supported by similarly worded affidavits signed by three jurors, with each attesting that the challenged juror made “statements that she had conducted her own medical research on the [i]nternet regarding the drug” prescribed by the defendants.17 In response, Harned presented affidavits from the challenged juror, two jurors who sat next to the challenged juror during deliberations, and the foreperson. The counter affidavits stated the juror did not report conducting research on the drug or its side effects during the trial or deliberations.18
“The credibility of witnesses and the weight to be given to their testimony is a matter for the trial court, which is free to believe none, part, or all of their testimony.”19 “Because the trial court could have rejected the credibility of the Defendants’ affidavits, Defendants have not sustained their burden to establish that juror misconduct occurred,” the Court of Appeals ruled.20 “Even if the trial court believed that the Challenged Juror improperly gathered evidence concerning the drugs’ side effects during the trial, and that her research constituted misconduct, Harned sufficiently rebutted the presumption of prejudice because the extraneous evidence was not material to the consequential facts of this case.”21
POLICE PURSUIT WAS NOT THE PROXIMATE CAUSE OF FATAL COLLISION BETWEEN THE SUSPECT AND ANOTHER VEHICLE
Harris v. City of St. Louis, 2022 WL 6579557 (Mo. App. E.D. 2022).
The Circuit Court of the City of St. Louis entered judgment in favor of the City of St. Louis and several police officers (collectively, “the respondents”) on a petition for wrongful death, negligence, and negligence per se, filed by Jemerio Harris and Jacqueline Armstrong (collectively, “the appellants”). During a police pursuit, a suspect’s vehicle collided with Armstrong's vehicle, where Harris’ mother was the passenger. Armstrong sustained serious injuries while Harris’ mother died.22 The appellants argued the trial court erred in granting the respondents’ motion for judgment on the pleadings because the appellants alleged sufficient facts to establish that the respondents were the proximate cause of the appellants’ injuries.23 Specifically, the appellants contend that had respondents terminated the police pursuit in accordance with the City of St. Louis Metropolitan Police Department’s policies, the suspect would have returned to his home and the collision would have never occurred. The appellants insisted that since the respondents chose to continue the police pursuit in “a reckless and negligent manner, disregarding the danger to innocent bystanders,”24 the respondents caused the collision. The Missouri Court of Appeals-Eastern District affirmed the trial court’s judgment.25
In a negligence case, a plaintiff must prove the defendant owed a duty to the plaintiff, the defendant breached that duty, and the defendant breaching that duty was a “proximate cause” of the plaintiff’s injury.26 In Harris v. City of St. Louis, the trial court relied on the Supreme Court of Missouri’s decision in Stanley v. City of Independence as both cases involved plaintiffs who were injured as a result of motorists fleeing from the police. Relying on Stanley, the trial court found that “[a]ssuming all facts plead by the Plaintiffs are true, those facts do not establish any factual basis to support a finding of proximate cause of the collision between the suspect and Plaintiffs.”27
Like in Stanley, the suspect made the decision to flee from police, then sped through red lights and disregarded all traffic signals while unlawfully refusing to pull over in response to the officer’s use of lights and sirens. As in Stanley, “[t]here is nothing other than speculation to reach a conclusion that the officer’s conduct was a cause of the collision.”28 Other cases have followed the reasoning in Stanley,29 supporting the rationale used by the trial court in Stanley – “there is no way to tell whether the collision at issue would have been avoided if Respondents had abandoned their pursuit of Suspect.”30
“Appellants’ assertion that Respondents’ conduct proximately caused the collision at issue is supported by mere conjecture and speculation, not facts,” the Harris court ruled.31
CO-EMPLOYEE NOT LIABLE FOR INJURIES TO ANOTHER EMPLOYEE ARISING FROM EMPLOYER’S NONDELEGABLE DUTY TO PROVIDE A SAFE WORKPLACE
Channel v. Walker, 2022 WL 4474505 (Mo. App. W.D. 2022).
Sarah Channel, Lauren Channel, and Mary Channel (“the appellants” collectively) appealed the circuit court’s judgment granting Stephen Walker’s motion for summary judgment on the appellants’ “Second Amended Petition in Damages for Wrongful Death” which alleged that “Walker, among others, placed Thomas Channel at risk for injury not normally associated with his job, and as a direct and proximate result of Walker’s intentional and negligent acts, Channel was caused to suffer an untimely and agonizing death.”32 The appellants contended that the court erred in granting summary judgment to Walker, arguing that “where a transitory risk is created by the negligence of a co-employee in carrying out the details of their work, the co-employee breaches an independent duty of care that is separate and distinct from the employer’s nondelegable duty to provide a safe workspace.”33The Missouri Court of Appeals-Western District affirmed the court’s judgement for Walker.34
An employer’s nondelegable duty is broad in that it’s “the duty of the master to exercise reasonable care, commensurate with the nature of the business, to protect his servant from the hazards incident to it.”35 However, liability from an employer’s nondelegable duty to provide a safe workplace does not include transitory risks created by employees’ negligence in carrying out the details of their work.36 “A transitory risk created by negligent co-employees is a risk that can be considered so unforeseeable to an employer as to remove it from the employer’s nondelegable duty to provide a safe workplace.”37
In determining whether a co-employee can be liable for an employee’s injury under the common law, the co-employee’s negligence is assumed. What matters is whether the duty the co-employee breached was part of the employer’s duty to protect employees from reasonably foreseeable risks in the workplace. If so, the claim is barred.38
The summary judgment record shows that Walker’s actions and/or inactions “did not represent a transitory risk such that Walker breached an independent duty of care that was separate and distinct from the employer’s nondelegable duty to provide a safe workspace.”39
1 W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Potter, Neely & Hyde.
2 654 S.W.3d 380 (Mo. App. E.D. 2022).
4 Section 534.030.1, RSMo. Unlawful detainer actions are limited in scope and “summary in nature.” Wells Fargo Bank, N.A. v. Smith, 392 S.W.3d 446, 453 (Mo. banc 2013). The sole issue is right to immediate possession of real property. Goser v. Boyer, 633 S.W.3d 482, 486 (Mo App. E.D. 2021) (citing Fed. Nat. Mortg. Ass’n v. Wilson, 409 S.W.3d 490, 495 (Mo. App. E.D. 2013)). The “merits of the title” are not assessed and equitable defenses and counterclaims are not cognizable. § 534.210; Wells Fargo Bank N.A., 392 S.W.3d at 454.
5 654 S.W.3d at 388 (citing Krevet v. Meyer, 24 Mo. 107, 110–11 (Mo. banc 1856)).
7 Id. (citing Wells Fargo Bank, N.A., v. Smith, 392 S.W.3d 446, 456 (Mo. banc 2013).
8 Id. at 389 (citing Arnot v. Alexander, 44 Mo. 25, 27 (Mo. 1869)).
9 2022 WL 3589041 (Mo. App. W.D. 2022).
10 Id. at 3 (citing Ross v. Jeschke Ag Serv., LLC, 552 S.W.3d 719, 724 (Mo. App. W.D. 2018)).
11 Marcks v. Wilson, 615 S.W.3d 413, 417 (Mo. App. E.D. 2020).
12 Smotherman v. Cass Reg’l. Med. Ctr., 499 S.W.3d 709, 712 (Mo banc 2016) (citing Fleshner v. Pepose Vison Inst., P.C., 304 S.W.3d 81, 87 (Mo. banc 20210)).
14 2022 WL 3589041 at 4 (citing Smotherman, 499 S.W.3d at 712).
15 Smotherman, 499 S.W.3d at 712.
16 Meadowfresh Sols. USA, LLC v. Maple Grove Farms, LLC 586 S.W.3d 329, 350 (Mo. App. S.D. 2019).
17 2022 WL 3589041 at 3.
18 Id. at 4.
19 Smotherman, 499 S.W.3d at 711.
20 2022 WL 3589041 at 5.
22 Harris v. City of St. Louis, 2022 WL 6579557 (Mo. App. E.D. 2022).
24 Id. at 3.
26 Stanley v. City of Independence, 995 S.W.2d 485, 487 (Mo. banc 1999).
27 2022 WL 6579557 at 3 (citing Stanley, 995 S.W.2d).
28 Stanley, 995 S.W.2d at 488.
29 See Dilley v. Valentine, 401 S.W.3d 544 (Mo. App. W.D. 2013); Frazier v. City of Kansas City, 467 S.W.3d 327, 337 (Mo. App. W.D. 2015); and Throneberry v. Missouri State Highway Patrol, 526 S.W.3d 198 (Mo. App. W.D. 2017).
30 Stanley, 995 S.W.2d at 488.
31 2022 WL 6579557 at 7 (citing Stanley, 995 S.W.3d at 488; Dilley, 401 S.W.3d at 549; Throneberry, 526 S.W.3d at 211).
32 Channel v. Walker, 2022 WL 4474505, 1 (Mo. App. W.D. 2022).
35 Conner v. Ogetree, 542 S.W.3d 315, 322 (Mo. banc 2018).
36 McComb v. Norfus, 541 S.W.3d 550, 556 (Mo banc 2018).
38 2022 WL 4474505 at 6 (citing Conner, 542 S.W.3d at 324).
39 Id. at 9.