The Flag: Mistrials, scare zones, and more
Vol. 79, No. 5 / Sept. - Oct. 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.
PLAINTIFF MUST PLEAD FACTS TO ESTABLISH LONG ARM JURISDICTION
Creative Compounds, LLC v. ThermoLife International, LLC, No. ED111095 (Mo. App. E.D. 2023).
Creative Compounds, LLC appealed the Circuit Court of Cape Girardeau County’s judgment granting ThermoLife International, LLC’s motion to dismiss for lack of personal jurisdiction. Creative argued the trial court erred in dismissing the case for lack of personal jurisdiction because ThermoLife’s tortious conduct was directed at and injured Creative in Missouri, subjecting ThermoLife to the personal jurisdiction of this state.1
Because Creative did not satisfactorily plead ThermoLife committed the tort of tortious interference with contract or business expectancy or injurious falsehood in Missouri, Creative did not adequately plead facts establishing personal jurisdiction over ThermoLife. The Missouri Court of Appeal-Eastern District affirmed the dismissal.2
The plaintiff has the burden to show the trial court’s exercise of jurisdiction is proper when a defendant raises the issue of personal jurisdiction in a motion to dismiss.3
The Supreme Court of Missouri has found that personal jurisdiction refers “to the power of a court to require a person to respond to a legal proceeding that may affect the person’s rights or interests.”4
Additionally, a court evaluates personal jurisdiction by considering the allegations in the pleadings to determine whether, if true, they establish facts that can invoke Missouri’s long-arm statute and support a finding of minimum contacts with Missouri that satisfy due process.5
In Missouri, to invoke long arm jurisdiction, a party must make a prima facie showing of the validity of his claim.6
Because Creative did not satisfactorily plead prima facie facts ThermoLife committed the tort of tortious interference with contract or business expectancy or injurious falsehood in Missouri, Missouri’s long arm statute does not attach.7 Thus, Creative did not adequately plead facts establishing personal jurisdiction over ThermoLife.8
AFFIDAVIT REQUIRED FOR MEDICAL MALPRACTICE CLAIMS MUST BE SIGNED
Cook v. Parkland Health Center, No. ED 111044 (Mo. App. E.D. 2023).
Jimmy D. Cook appealed the circuit court’s dismissal of respondents Dr. Lawrence R. Brown and Dr. Michael Clippard from Cook’s medical malpractice action. Cook asserted that a signed affidavit is not required to comply with the merit-certifying requirements of § 538.225 for medical malpractice claims and that the circuit court erred in dismissing Cook’s claim against Brown on the grounds that Cook failed to file a signed affidavit prior to the running of the statute of limitations.
Because Cook’s claim against Clippard sounded in medical negligence and necessitated expert medical testimony, an affidavit of merit was required. The Missouri Court of Appeal-Eastern District affirmed the circuit court’s judgment.9
Missouri courts have a two-part test to determine whether the plaintiff must file an affidavit of merit required by § 538.225.10 First, a court must determine whether a healthcare provider-patient relationship existed between the parties.11 Second, a court determines whether the “’true claim’ relates only to the provision of health care services.”12
Because both prongs of the test for an affidavit under § 538.225 are met here, an affidavit of merit was required for the claim against Clippard.
Cook asserts that because § 538.225 does not define the term “affidavit” we must apply the rules of statutory interpretation, which he claims supports a finding that the affidavit did not need a signature. However, Missouri holds that the signature of the affidavit is required for an affidavit to be effective.13 Specifically, the Supreme Court of Missouri held that “[t]he rule is well established in Missouri that an unsigned affidavit is no affidavit at all.”14
The Court held that Cook identified no Missouri jurisprudence allowing deviation from the clearly stated requirement that an affidavit must contain the signature of the affiant.15 The Court said it must follow this precedent and thus hold that a signature of the affiant is required for an affidavit to comply with § 538.225, otherwise it “is no affidavit at all.”16 Because the affidavit lacked a signature, Cook failed to comply with §538.225, and the circuit court was statutorily required to dismiss the claims against Brown, the Court held.
Cook alternatively argued that the circuit court erred in dismissing his claims because he should have been permitted to retroactively sign the affidavit under Rule 55.03(a).
Although Rule 55.03 generally allows a lawyer to correct a missing signature that certifies a filing, the rule does not supersede the signature requirement for affidavits set forth in Zitko and §538.225.
The Court has noted that statutory language, both in terms of directing a plaintiff to file an affidavit and directing the court to dismiss the action if an affidavit is not filed, demonstrates that the legislature intended the requirement that a plaintiff file an affidavit with the court be mandatory.17
TRIAL COURT ERRED IN GRANTING MISTRIAL NOT REQUESTED
Collier v. Steinbach, No. ED 110937 (Mo. App. E.D. 2023).
Andrea Steinbach appealed from the order of the trial court granting Anastasia Collier a new trial. Collier and Steinbach were involved in a motor vehicle accident on Hampton Ave. in the City of St. Louis. Collier filed a petition alleging Steinbach was negligent in turning left in front of her vehicle, causing a collision. During closing argument, Steinbach’s counsel stated, “This isn’t a game of Monopoly. This woman got up in front of you – and think about it. Put yourself in her shoes. She has to get up." Collier interrupted, approached the bench, and requested, “not only an instruction to disregard and admonish [counsel] in front of the jury, but [also] a mistrial, and sanctions, and fees, and fines.”
Collier’s counsel then asked, “Is the Court inclined to grant a motion for mistrial?”
The Court responded that it was inclined “to entertain anything that you guys want to do,” noting, “if you say, Judge, we want a mistrial, I just want you to know – you’ve got to pick. . .”
Collier consulted with her counsel, who told the trial court, “We would ask the Court instruct the jury to disregard those comments, admonish [counsel for Steinbach] in front of the jury, and then we’ll move on.”
When the jury returned, the court stated, “All right, ladies and gentlemen of the jury, I want you to disregard the previous statement you heard from [counsel for Steinbach]. [His] argument was totally improper, and has no place in any court, you are ordered to not consider it in your deliberations. Does everyone understand?”
It was determined that a yes was heard.
The jury returned a verdict in favor of Collier in the amount of $100,000 and assessed 85% fault to Steinbach and 15% to Collier. Collier filed a motion for a new trial. The trial court granted Collier’s motion for new trial, finding that although she only requested an instruction to the jury and admonishment of Steinbach’s counsel, it had “erroneously granted those requests and permitted the trial to continue.” The Missouri Court of Appeal-Eastern District reversed the granting of a new trial.18
During closing argument, it is improper personalization for counsel to ask the jury to put themselves in the place of the victim or another party.19
It has been repeatedly held that, “when the trial court sustains an objection to improper argument, and no further remedial action is requested, no error is preserved for appellate review.”20
Numerous Missouri cases have affirmed the trial court’s denial of a motion for new trial where a party fails to request a mistrial because the party has waived the right to claim error.21
The Court concluded, as in Glasgow v. Cole,22 that by declining to seek a mistrial, Collier implicitly decided the comment made by Steinbach’s counsel during closing argument was not so significant to require the drastic remedy of a mistrial and waived any potential prejudicial effect.
PATRON OF AMUSEMENT PARK ASSUMED RISK OF INJURY
Munoz v. Six Flags, St. Louis, LLC, No. ED 111118 (Mo. App. E.D. 2023).
Carly Munoz appealed from the grant of summary judgment in favor of Six Flags St. Louis, LLC d/b/a Six Flags St. Louis on Munoz’s negligence claim. The trial court granted Six Flags’ motion for summary judgment based on assumption of the risk due to the nature of the event, i.e., actors scaring guests during the park’s annual Fright Fest. The Missouri Court of Appeal-Eastern District affirmed the judgment.23
On Oct. 19, 2019, Munoz attended Six Flags’ Fright Fest with her cousin. Before attending Fright Fest, Munoz understood characters in the park would try to scare her. Munoz recalled walking when a clown jumped out in front of her “out of nowhere” and started “chasing” after 10-15 other guests in that area. Munoz was injured when she tripped.
The court found that the implied primary assumption of the risk doctrine states “if a person voluntarily consents to accept the danger of a known and appreciated risk, that person may not sue another for failing to protect him from it.”24 Further, the court noted the participant “is deemed to have assumed the risk of injury from inherent risks of an activity that are known and understood.”25 and the defendant is not liable for injuries stemming from such inherent risks because no duty is owed as to those risks.”26
The doctrine is generally applied to bar claims for injuries resulting from recreational or sporting activities as their inherent risks cannot be eliminated.
The court affirmed the trial court’s finding that Munoz’s injury was caused by the inherent risk she assumed, not by any allegedly negligent act by Six Flags or its actor. The court ruled that alleging a defendant was negligent is not enough to overcome the implied primary assumption of the risk doctrine, adding, “Munoz knew of and accepted the risk of being around other guests who were likely to run from Fright Fest actors, something she witnessed and was ‘perfectly obvious‘ to her for three hours before she was injured.”
Finally, though the court found no other Missouri cases involving assumption of the risk and “haunted” attractions, other jurisdictions have found attraction operators have no duty to protect a patron from his or her reaction to scares, including Griffin v. The Haunted Hotel, Inc.,27 where the California court applied the same test Missouri courts apply for assumption of risk as a bar to recovery.28
The court determined that Munoz knew characters at Fright Fest are expected to frighten patrons and knew the risk that frightened guests might fall while running away.
1 Creative Compounds, LLC v. ThermoLife International, LLC, No. ED111095 (Mo. App. E.D. 2023).
3 Babb v. Bartlett, 638 S.W.3d 97, 104 (Mo. App. E.D. 2021) (quoting Consol. Elec. & Mechs., Inc. v. Schuerman, 185 S.W.3d 773, 775 (Mo. App. E.D. 2006)).
4 State ex. Rel. Cedar Crest Apartments, LLC v. Grate, 577 S.W.3d 490, 493 (Mo. banc 2019) (quoting State ex rel. Bayer Corp. v. Moriarty, 536 S.W.3d 227, 230–31 (Mo. banc 2017)).
5 State ex rel. Key Ins. Co. v. Roldan, 587 S.W.3d 638, 641 (Mo. banc 2019) (quoting Cedar Crest Apartments, LLC, 577 S.W.3d at 496 n.5).
6 State ex rel. William Ranni Assocs., Inc. v. Hartenbach, 742 S.W.2d 134, 139 (Mo. banc 1987) (citing State ex rel. Deere & Co. v. Pinnell, 454 S.W.2d 889, 892 (Mo. banc 1970)).
7 Roldan, 587 S.W.3d at 643; Hartenbach, 742 S.W.2d at 139.
8 Roldan, 587 S.W.3d at 643; Babb, 638 S.W.3d at 104.
9 Cook v. Parkland Health Center, No ED 111044 (Mo. App. E.D. 2023).
10 Devitre v. Orthopedic Ctr. of St. Louis, LLC, 349 S.W.3d 327, 331–32 (Mo. banc 2011).
13 See Land Clearance for Redevelopment Auth. Of City of St. Louis v. Zitko, 386 S.W.2d 69, 78 (Mo. Banc 1964).
15 See Zitko, 386 S.W.2d. at 69.
17 Mayes v. St. Luke’s Hosp. of Kansas City, 430 S.W.3d at 260, 271–72 (Mo. banc 2014).
18 Collier v. Steinbach, No ED 110937 (Mo. App. E.D. 2023).
19 Henderson v. Fields, 68 S.W.3d 455, 473 (Mo. App. W.D. 2001).
20 Maloney v. Benchmark Ins. Co., 628 S.W.3d 667, 680 (Mo. App. W.D. 2021).
21 See Maloney, 628 S.W.3d at 681.
22 Glasgow v. Cole, 168 S.W.3d 511, 515 (Mo. App. E.D. 2005),
23 Munoz v. Six Flags, St. Louis, LLC, No. ED 111118 (Mo. App. E.D. 2023).
24 Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo. banc 2014).
25 Ferbet v. Hidden Valley Golf and Ski, Inc., 618 S.W.3d 596, 606 (Mo. App. E.D. 2020).
26 Ferbet, 618 S.W.3d at 606 (quoting Coomer, 437 S.W.3d at 197).
27 Griffin v. The Haunted Hotel, Inc., 242 Cal App. 4th 490 (2015).
28 Id. at 501.