The flag: Lost profits must be proven, State immune from suit, more

Compiled by W. Dudley McCarter

LOST PROFITS MUST BE PROVEN WITH REASONABLE CERTAINTY 
Earth to Go, Inc. v. City of Richland, 706 S.W.3d 310 (Mo. App. S.D. 2025). 

Earth To Go, Inc. leased a building from the city of Richland and claimed its leaking roof caused damages and lost profits. A jury found in favor of ETG and awarded $560,000 in damages, including lost profits. The Missouri Court of Appeals-Southern District found ETG failed to prove lost profits with reasonable certainty and remanded for a new trial on damages, without consideration of lost profits.¹ 

The Supreme Court of Missouri previously stated in Ameristar Jet Charter, Inc. v. Dodson Int’l Parts, Inc. that “[l]oss of profits refers to the amount of net profits a plaintiff would have realized if its clients had not been lost as a result of a defendant’s actions.”² 

When evaluating the sufficiency of evidence to sustain damages for lost profits, “the appellate courts of this state have made stringent requirements, refusing to permit speculation as to probable or expected profits, and requiring a substantial basis for such awards,” the Ameristar court stated.³ 

Here, the evidence presented was insufficient to prove the amount of ETG’s lost profits with reasonable certainty. The only evidence ETG presented at trial in support of its request for up to $3 million in lost profits was three orders from Office Depot for EarthWare products for less than $3,000 total. This evidence was followed by testimony that these orders had “enormous potential” that “could possibly sell out the plant” and generate business “estimated at $150 million[.]” 

“These speculations are exactly the kind of conjectural assumptions that are ‘disfavored by all Missouri courts that have addressed the issue of lost profits,’”⁴ the Earth to Go, Inc. court ruled. 

STATE IMMUNE FROM SUIT BY BIKE RIDER INJURED ON THE KATY TRAIL 
State ex rel. Dept. of Natural Resources v. Crane, 708 S.W.3d 157 (Mo. banc 2025). 

The Missouri Department of Natural Resources sought a writ of prohibition barring the respondent from proceeding further on the plaintiff’s injury claims. Because the Recreational Use Act, §§ 537.345 to 537.347 and § 537.351, protected the department from liability in the case, the Supreme Court of Missouri’s preliminary writ of prohibition was made permanent in State ex rel. Dept. of Natural Resources v. Crane.⁵ 

Scott Frey was injured while riding his bike on the Katy Trail. Frey filed a suit for damages against the department, claiming his injuries were caused by the dangerous condition of the bridge that caused his bike to get stuck.

The [act] creates tort immunity for landowners who open their land to the public free of charge for recreational use. The purpose of the [act] is to encourage the free use of land for recreational purposes in order to preserve and utilize our natural resources.

To establish immunity under the act, “the department must show: (1) it owned the land or structure where Frey was injured; (2) Frey entered that land or structure; (3) Frey’s entry was without charge; and (4) Frey’s entry was for recreational purposes.”⁶ Uncontested facts supported each element. 

The department cannot be liable to Frey under the act for injuries he sustained on the trail when he entered the trail without charge and for the purpose of recreation, the Court ruled. 

POSSESSOR OF LAND NOT LIABLE FOR UNFORESEEABLE ACTS OF THIRD PARTY 
Simmons v. Keat Properties, LLC, 717 S.W.3d 259 (Mo. App. E.D. 2025). 

A motorist drove his vehicle through a Starbucks café storefront in the Shoppes at Price Crossing in 2020, killing one person and injuring others. The plaintiffs brought negligence and premises liability claims against the property owner and Starbucks Corporation (collectively, “defendants”). The circuit court granted summary judgment in the defendants’ favor. The judgment was affirmed in Simmons v. Keat Properties, LLC.⁷ 

The Supreme Court of Missouri previously found that “[i]n any action for negligence, a plaintiff must establish the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant’s breach proximately caused the plaintiff’s injury.”⁸

A possessor of land generally does not owe its invitees a duty to protect them from the negligent or criminal acts of a third party because possessors are not insurers of their invitees’ safety.⁹ 

Under the “special circumstances exception,” negligent or criminal acts of a third party are foreseeable — and thus the possessor owes a duty to protect its invitees — when the possessor “knows or has reason to know of dangerous persons in general frequenting its premises.”¹⁰ 

A possessor has reason to know of dangerous persons frequenting its premises when prior similar incidents or the totality of the circumstances puts the possessor on notice of the risk.¹¹ 

Prior similar incidents only put a possessor on notice when they are “sufficiently numerous,” recent, and “similar in type to the prior specific incidents” to render further incidents foreseeable.¹² Here, the court found that the defendants had no reason to know of negligent persons frequenting its premises. 

The plaintiffs argued the configuration of the parking lot itself was the dangerous condition and the defendants had a duty to warn or take corrective action to remove the dangerous condition. 

The Missouri Court of Appeals-Western District previously found that “[g]enerally, the dangerous condition is some sort of artificial condition on the property itself, not a negligent or dangerous act of one of the inhabitants of such property.”¹³ 

The plaintiffs did not prove the parking lot, without third-party intervention, inherently posed a physical threat to invitees.¹⁴ The real danger was not the configuration of the parking lot, but the negligence of a third party in crashing through the café, the court found. 

THERE IS NO INDEPENDENT CAUSE OF ACTION FOR SPOLIATION OF EVIDENCE 
Sandbach v. KMS-KFC, LLC, 710 S.W.3d 119 (Mo. App. E.D. 2025).

There was destruction of video evidence in the respondents’ possession, which the appellants intended to use as evidence in their underlying action against the respondents. The appellants attempted to bring an independent lawsuit for the respondents’ spoliation of the video evidence. The appellants argued the circuit court erred in granting the respondents’ motion to dismiss for failure to state a claim. The judgment was affirmed in Sandbach v. KMS-KFC, LLC.¹⁵ 

Missouri does not recognize an independent cause of action for spoliation.¹⁶ Missouri courts have also consistently refused to recognize tort liability for spoliation.¹⁷ 

Instead, pursuant to long-standing precedent, “[i]n Missouri, if a party has intentionally spoliated evidence, indicating fraud and desire to suppress the truth, that party is subject to an adverse evidentiary interference.”¹⁸ The adverse inference “holds the spoliator to admit that the missing evidence would have been unfavorable to its position.”¹⁹ 

A minority of states have recognized a tort of spoliation. The states that have rejected a tort of spoliation offered several rationales for having done so, including the need for “finality of adjudication.”²⁰ Doing otherwise would invite endless rounds of derivative litigation.²¹ 

Similarly, courts generally have rejected an independent cause of action for spoliation to avoid duplicative litigation.²² Courts also have been skeptical of the highly speculative nature of money damages as a remedy for spoliation, the court stated.²³ 

The court concluded, in line with previous rulings, that an independent tort of spoliation is not recognized in Missouri, while stating that the ruling did not condone spoliation of evidence.

Endnotes
1 Earth to Go, Inc. v. City of Richland, 706 S.W.3d 310 (Mo. App. S.D. 2025). 
2 Ameristar Jet Charter, Inc. v. Dodson Int’l Parts, Inc., 155 S.W.3d 50, 54 (Mo. banc 2005) (citation omitted). 
3 Coonis v. Rogers, 429 S.W.2d 709 (Mo. 1968), 713-14; see Ameristar, 155 S.W.3d at 54. 
4 Tipton v. Mill Creek Gravel, Inc., 373 F.3d 913, 919 (8th Cir. 2004).
5 State ex rel. Dept. of National Resources v. Crane, 708 S.W.3d 157 (Mo. banc 2025).
6 State ex rel. Young v. Wood, 254 S.W.3d 871, 873 (Mo. banc 2008).
7 Simmons v. Keat Properties, LLC, 717 S.W.3d 259 (Mo. App. E.D. 2025).
8 Harner v. Mercy Hosp. Joplin, 679 S.W.3d 480 (Mo. banc 2023).
9 Meadows v. Friedman R.R. Salvage Warehouse, Div. of Friedman Bros. Furniture Co., 655 S.W.2d 718, 721 (Mo. App. E.D. 1983); Faheen, By & Through Hebron v. City Parking Corp., 734 S.W.2d 270, 273 (Mo. App. E.D. 1987).
10 Wieland v. Owner-Operator Servs., Inc., 540 S.W.3d 845, 849 (Mo. banc 2018). 
11 Id.
12 Faheen, 734 S.W.2d at 273-74.
13 Williams v. Barnes & Noble, Inc., 174 S.W.3d 556, 560 (Mo. App. W.D. 2005).
14 See Alexander v. State, 756 S.W.2d 539, 542 (Mo. banc 1988).
15 Sandbach v. KMS-KFC, LLC, 710 S.W.3d 119 (Mo. App. E.D. 2025).
16 Marmaduke v. CBL & Assocs. Mgmt., Inc., 521 S.W.3d 257, 270 (Mo. App. E.D. 2017). 
17 See id; see also Fisher v. Bauer Corp., 239 S.W.3d 693, 701 (Mo. App. E.D. 2007); Pikey v. Bryant, 203 S.W.3d 817, 825 (Mo. App. S.D. 2006); Brown v. Hamid, 856 S.W.2d 51, 56 (Mo. banc 1993); Baugher v. Gates Rubber Co., Inc., 863 S.W.2d 905, 914 (Mo. App. E.D. 1993).
18 Fisher, 239 S.W.3d at 701 (quoting Baugher, 863 S.W.3d at 907).
19 Marmaduke, 521 S.W.3d at 270.
20 Cedars-Sinai Med. Ctr. V. Superior Court, 954 P.2d 511, 516 (Cal. 1998); Dowdle Butane Gas Co., Inc. v. Moore, 831 So.2d 1124, 1135 (Miss. 2002); Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998).
21 Temple Cmty. Hosp. v. Superior Court, 976 P.2d 223, 229 (Cal. 1999) (citing Cedars-Sinai Med. Ctr., 954 P.2d at 515); see also Dowdle Butane Gas. Co., Inc., 831 So.2d at 1135.
22 Cedars-Sinai Med. Ctr., 954 P.2d at 520; see also Trevino, 969 S.W.2d at 952. 
23 Temple Cmty. Hosp., 976 P.2d at 275-276.