The flag: Malicious prosecution lawsuits, official immunity, 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.

MALICIOUS PROSECUTION LAWSUITS ARE NOT FAVORED 
Ludwig v. Missouri Soybean Merchandising Council, 691 S.W.3d 13 (Mo. App. W.D. 2024). 

Dale Ludwig appealed a judgement in a malicious prosecution and civil conspiracy lawsuit entered by the trial court granting summary judgment in favor of the Missouri Soybean Merchandising Council, Missouri Soybean Association (MSA), and Foundation for Soy Innovation (collectively, “respondents”). The Missouri Court of Appeals-Western District affirmed the judgment in Ludwig v. Missouri Soybean Merchandising Council.¹ 

In 2013, the United Soybean Board retained a national accounting firm to perform a forensic review of the MSA’s accounting and business practices. The report “specifically identified Ludwig, the then-CEO of MSA, as being involved with several suspicious transactions and abnormal business practices that could constitute breaches of his fiduciary duty to MSA.”² MSA sued Ludwig in 2015 for alleged misconduct, including breach of fiduciary duty, fraud, negligent misrepresentation, unjust enrichment, and civil conspiracy.³ That lawsuit was later voluntarily dismissed without prejudice.⁴ In 2020, Ludwig sued each of the respondents for five counts of malicious prosecution – one for each theory of liability raised in the initial lawsuit – and one count of civil conspiracy.⁵ 

^“To succeed on a claim of malicious prosecution, the plaintiff has the burden of proving: 1) commencement of an earlier suit against plaintiff; 2) instigation of the suit by defendant; 3) termination of the suit in plaintiff’s favor ; 4) lack of probable cause for the suit; 5) malice by the defendant in instituting the suit; and 6) damages to plaintiff resulting from the suit.”⁶ 

“‘Because actions for malicious prosecution are disfavored under Missouri law,’ the five elements must be demonstrated by the heightened standard of strict and clear proof.”⁷ 

The Ludwig⁸ court noted: 

“Probable cause for a civil suit means a reasonable belief in the facts alleged, plus a reasonable belief that the claim may be valid.”⁹ “If it appears that a reasonably prudent person would have believed and acted under the circumstances as did the person who instigated the previous action, then [the] existence of probable cause is sufficiently established.”¹⁰ The issue of probable cause to bring the underlying lawsuit is separate from the issue of whether the allegations of the underlying lawsuit ultimately proved to be true.¹¹ “To make a submissible case for malicious prosecution, the plaintiff must prove lack of probable cause for the entire proceeding.”¹² 

The Ludwig court found the respondents had probable cause to bring the underlying lawsuit against Ludwig, “defeating an essential element of Ludwig’s malicious prosecution claim.”¹³ 

EMPLOYEES OF MISSOURI HIGHWAY TRANSPORTATION COMMISSION WERE PROTECTED BY OFFICIAL IMMUNITY 
State ex rel. Love v. Cunningham, 689 S.W.3d 489 (Mo. banc 2024). 

Austin Jarvis and Tonya Musskopf sued Stanley McFadden, the Missouri Highways and Transportation Commission (MHTC), and four MHTC employees in their individual capacities (the “employees”). The employees sought writs of prohibition from the Supreme Court of Missouri requiring the circuit court to vacate its order overruling the employees’ motions for judgment on the pleadings and to enter judgment for the employees. Because the Court “concludes official immunity bars the claims against the employees, this Court now makes permanent its preliminary writ.”¹⁴ 

In November 2021, Missouri Department of Transportation employee Kaitlyn Anderson died from injuries she sustained while working. She was pregnant with a son, who also died.¹⁵ Jarvis, the father of the unborn child, and Musskopf, Anderson’s mother, alleged the employees violated MHTC’s mandatory, non-discretionary rules, policies, and procedures requiring the provision and placement of a protective vehicle in advance of the work space at the crash location.¹⁶ 

“Broadly speaking, sovereign immunity protects governmental entities from tort liability and can be invoked when a governmental official is sued only in his or her official capacities … Official immunity, on the other hand, protects public officials sued in their individual capacities from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.”¹⁷ 

“Because [Jarvis] and Musskopf sued the employees in their individual capacities, sovereign immunity does not apply,” the Love Court ruled. 

“Official immunity is intended to provide protection for individual government actors, who despite limited resources and imperfect information, must exercise judgment in the performance of their duties.”¹⁸ “The purpose of this doctrine is to allow public officials to make judgments affecting the public safety and welfare without the fear of personal liability.”¹⁹ “A finding that a public employee is entitled to official immunity does not preclude a finding that he or she committed a negligent act – because official immunity does not deny the existence of the tort of negligence, but instead provides that an officer will not be liable for damages caused by his negligence.”²⁰ 

“‘Immunity’ connotes not only immunity from judgment but also from suit.”²¹ “Courts applying the doctrine of official immunity must be cautious not to construe it too narrowly lest they frustrate the need for relieving public servants of the threat of burdensome litigation.”²² 

In Love, the Court noted: “Official immunity does not apply, and public official may be personally liable for the damages the official caused, in two narrow exceptions: when public official fails to perform ministerial duty required of official by law, or when public official acts in bad faith or with malice.”²³ 

“Jarvis and Musskopf assert the allegations of their second amended petition satisfy both exceptions. This Court disagrees,” it notes.²⁴ 

"The conclusory allegations of ‘malice,’ ‘willfully wrong,’ and ‘bad faith’ are legal conclusions drawn by [Jarvis] and Musskopf from the facts alleged, and this Court’s standard of review provides this Court will not ‘blindly accept’ legal conclusions. … These factual allegations, if proven, establish at most an intentional policy violation, not that any employee performed a discretionary act with the actual intent to cause injury.²⁵ 

“Even if one were to argue the intentional policy violations amount to gross negligence or recklessness, official immunity still applies. Missouri does not recognize a cause of action for gross negligence, and official immunity applies to recklessness to the same extent as negligence.”²⁶ 

The Court concluded: “The facts [Jarvis] and Musskopf alleged, together with the reasonable inferences therefrom, do not establish that either narrow exception to official immunity applies.”²⁷ 

STATEMENTS OF OPINION ARE NOT DEFAMATORY 
Totta v. CCSB Financial Corp., 695 S.W.3d 197 (Mo. App. W.D. 2024). 

DeAnn Totta sued CCSB Financial Corp. for defamation, and the circuit court granted CCSB’s motion for summary judgment. Totta appealed the decision, and the Missouri Court of Appeals-Western District affirmed the judgment in Totta v. CCSB Financial Corp.²⁸ 

“The First Amendment’s guarantee of freedom of speech makes expressions of opinion absolutely privileged. Whether an alleged statement is capable of being treated as an opinion or as an assertion of fact is a question of law[.]”²⁹ “Terms that constitute ‘imaginative expression’ or ‘rhetorical hyperbole’ are not generally defamatory.”³⁰ 

To determine whether an ordinary reader would treat the statement as an opinion, the Missouri Court of Appeals examined the totality of the circumstances.³¹ 

“[E]ven statements which ostensibly accuse another of criminal conduct may constitute statements of opinion, since – when viewed in context – such statements may be merely an assertion ‘that the defendant disagrees with the plaintiff’s conduct and used pejorative statements or vituperative language to indicate his or her disapproval.’”³² 

The court noted: “Opinions are privileged where the speaker states the facts upon which the opinion is based, allowing the audience to form its own conclusions as to the opinion’s accuracy.”³³ 

Comment c to §566 of the Restatement (Second) of Torts, explains that “[a] simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is.” 

“Because the statements on which Totta bases her defamation claims were privileged statements of opinion, or were substantially true, we affirm the circuit court’s grant of summary judgment to CCSB.”³⁴ 

FOR NEGLIGENT HIRING CLAIM, THERE MUST BE A CAUSAL CONNECTION TO PLAINTIFF’S INJURIES 
Campbell v. Baxter International, Inc., 697 S.W.3d 36 (Mo. App. E.D. 2024). 

Anne Marie Campbell, Jane Doe #1, Jane Doe #2, and Jane Doe #3 (collectively, “plaintiffs”) appealed the trial court’s grant of judgment on the pleadings entered in favor of Baxter International, Inc. and Baxter Healthcare Corporations (collectively, “defendants”) on the plaintiffs’ claims for negligent hiring, negligent retention, and negligent supervision. The Missouri Court of Appeals-Eastern District affirmed the judgment.³⁵ 

The general elements of negligence are: (1) a legal duty owed to the plaintiff by the defendant; (2) a breach of that duty by the defendant; (3) proximate cause; and (4) injury to the plaintiff.³⁶ “All claims of negligence require the plaintiff to prove the defendant’s actions were the proximate cause of the plaintiff’s injury … The requirement of proximate cause ensures a defendant will not be held liable for events ‘too far removed from the ultimate injury or damage.’”³⁷ 

The plaintiffs argued they properly pleaded that the defendants’ negligence was the proximate cause of their injuries through allegations the defendants gave one of the defendants’ employees (“Employee”) the “tools and instrumentalities that [Employee] used to commit tortious and criminal acts against [Plaintiffs]” and failed to stop them from doing so.³⁸ The court notes, however: 

“Missouri case law requires ‘more of a causal connection’ between a defendant-employer and the alleged wrongs of an employee committed outside the scope of employment when plaintiff attempts to hold a defendant-employer liable for those wrongs. While Employee’s alleged conduct need not have occurred within the scope of his employment, ‘the employer must have played a [sufficient] role in bringing the offending employee into contact with the party who is thereby injured.’”³⁹ 

The court concluded: “Defendants having provided Employee with equipment and resources as part of his employment does not sufficiently establish Defendants ‘played a role in bringing [Employee] into contact with’ Plaintiffs for purposes of their negligence claims at issue in this case.”⁴⁰

Endnotes 

1 691 S.W.3d 13 (Mo. App. W.D. 2024). 

2 691 S.W.3d at 19. 

3 Id. 

4 Id. 

5 Id. 

6 State ex rel. Police Retirement Sys. of St. Louis v. Mummert, 875 S.W.2d 553, 55 (Mo. banc 1994) (emphasis added). 

7 Clark v. Ruark, 529 S.W.3d 878, 882 (Mo. App. W.D. 2017). 

8 691 S.W.3d at 21. 

9 Mummert, 875 S.W.2d at 555. 

10 Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 318-19 (Mo. App. E.D. 2010). 

11 Id. at 318. 

12 Joseph H. Held. Assocs., Inc. v. Wolff, 39 S.W.3d 59, 63 (Mo. App. E.D. 2001). 

13 691 S.W.3d at 23. 

14 State ex rel. Love v. Cunningham, 689 S.W.3d 489, 493 (Mo. banc 2024). 

15 Id.

16 Id.

17 State ex rel. Alsup v. Kanatzar, 588 S.W.3d 187, 190 (Mo banc 2019). 

18 Southers v. City of Farmington, 263 S.W.3d 603, 611 (Mo. banc 2008). 

19 State ex rel. Alsup v. Kanatzar, 588 S.W.3d 187, 190 (Mo. banc 2019) (alternation omitted) (internal quotation omitted). 

20 Southers, 263 S.W.3d at 611. 

21 State ex rel. Morales v. Alessi, 679 S.W.3d 467, 471 (Mo. banc 2023) (internal quotation omitted). 

22 Allsup, 588 S.W.3d at 191 (internal quotation omitted). 

23 689 S.W.3d at n. 12. 

24 Id. at 495. 

25 Id. at 497. 

26 Id. See also Southers, 263 S.W.3d at 610 n.8 (contrasting Missouri law with other jurisdictions, which have found immunity does not apply when a public employee acts with recklessness or gross negligence and noting Missouri does not recognize gross negligence). 

27 Id.

28 695 S.W.3d 197 (Mo. App. W.D. 2024). 

29 Nazeri v. Mo. Valley College, 860 S.W.2d 303, 314 (Mo. 1993). 

30 Totta, 695 S.W.3d at 204-205 (citing Nazeri, 860 S.W.2d at 314.). 

31 Henry v. Halliburton, 690 S.W.2d 775, 788 (Mo. 1985). 

32 Totta, 695 S.W.3d at 205 (quoting Henry, 690 S.W.2d at 788-89.). 

33 Id.

34 Id. at 212. 

35 Campbell v. Baxter International, Inc., 697 S.W.3d 36 (Mo. App. E.D. 2024). 

36 See Thornburg v. Federal Express Corp., 62 S.W.3d 421, 427 (Mo. App. W.D. 2001). 

37 Tharp v. St. Luke’s Surgicenter-Lee’s Summit, LLC, 587 S.W.3d 647, 657 (Mo. banc 2019). 

38 Campbell, 697 S.W.3d at 43. 

39 Id. (quoting Hare v. Cole, 25 S.W.3d 617, 621-22 (Mo. App. W.D. 2000).

40 Id. at 44 (citing Gaines v. Monsanto Co., 655 S.W.2d 568 (Mo. App. E.D. 1983)).