17:17 PM

The Flag, Mar. - Apr. 2021

Vol. 77, No. 2 / Mar. - Apr. 2021

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, P.C.


Ferbet v. Hidden Valley Golf and Ski Inc., No. ED 108495 (Mo. App. E.D. 2020)

“Appellant Douglas Ferbet’s recreational outing with his family on January 25, 2013 to Respondents’ snow tubing hill in Eureka, Missouri ended abruptly when he slid down the hill seated on a large rubber inner tube, his dangling right foot engaged with the crevice in the sliding surface of the slippery slope breaking his leg in two places.”2 “Ferbet appeals the trial court’s summary judgment entered in favor of Respondents Hidden Valley and Peak Resorts (Hidden Valley) on Ferbet’s negligence claim in which he alleged that his injuries were caused by Hidden Valley’s negligent maintenance of the tubing hill. Hidden Valley sought summary judgment based on release-of-liability language in an agreement Hidden Valley required Ferbet to sign before selling snow tubing tickets to him and his family just before they headed to the hill.”3 The Trial Court’s grant of Summary Judgment was affirmed in Ferbet v. Hidden Valley Golf and Ski Inc., No. ED 108495 (Mo. App. E.D. 2020).4

“Hidden Valley’s snow tubing operation, located on a hillside adjacent to its ski resort, consists of a series of parallel and adjacent lanes descending down the hill. Customers slide down the lanes while perched on rubber inner tubes provided to them by Hidden Valley. Hidden Valley maintains the surface of the lanes covered in snow and ice and separates lanes from each other by raised rows of packed snow and ice.”5

In order to be permitted to buy tickets, customers were required to read and sign a document entitled Acknowledgement of Risk and Agreement Not to Sue.6 When Ferbet arrived with his family at the ticket window, he was presented with this one-page, single spaced, form agreement. He signed and dated the agreement in the spaces designated at the bottom, purchased tickets, and then proceeded to the tubing hill. Hidden Valley provided Ferbet an inner tube to use to slide down any of the tubing lanes he chose. And during what would turn out to be Ferbet’s last slide of the day, his right foot lodged into a crevice in the sliding surface fracturing his tibia and fibula when his momentum carried the rest of his body forward.7

“Ferbet filed suit alleging that his injuries and damages were caused by Hidden Valley’s negligent maintenance and operation of the tubing hill, specifically with respect to the dangerous condition of the sliding surface that he claims caused his injuries.”8 “Respondents filed their motion for summary judgment on the sole basis that Ferbet had released his claim against then by signing the agreement.”9

“In his response, Ferbet asserted that the release was unenforceable as against public policy. He also alleged that amusement park and recreational area operators such as Hidden Valley should be considered common carriers and therefore held to the highest degree of care, as opposed to ordinary care, and that an exculpatory clause should be unenforceable when the highest degree of care is owed.”10

“Here, since Hidden Valley has asserted the release as an affirmative defense, we review de novo the legal and fact questions (1) whether the release before us is enforceable to release Ferbet’s claims as a matter of law, and (2) whether Hidden Valley has established as a matter of undisputed fact that the injury-causing negligent conduct alleged by Ferbet is within the purview of this release. Alack v. Vic Tanny Intern. Of Missouri, Inc., 923 S.W.2d 330, 337 (Mo. banc 1996).”11

“While we may agree and acknowledge that there continue to be strong policy arguments why these anticipatory releases are problematic, e.g., the party best positioned to prevent the harm is relieved of liability and instead the burden of loss is placed upon the party least able to prevent it, the public policy implications of such releases have been litigated, analyzed, and largely decided by our Supreme Court. See Alack, 923 S.W. 2d at 334.”12

“This Court has already considered this exact same release in Guthrie v. Hidden Valley Golf and Ski, Inc., 407 S.W.3d 642 (Mo. App. E.D. 2013) (Van Amburg, J., dissenting), in which a divided panel of this Court affirmed summary judgment in Hidden Valley’s favor and found that the language releasing Hidden Valley from its future negligence was sufficiently clear and conspicuous. Id. at 648.”13

Our Supreme Court has defined a risk that is “inherent” to an activity as something “structural” or involving the “constitution or essential character” of the activity. Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 202 (Mo. banc 2014). And, generally, a participant is deemed to have assumed the risk of injury from the inherent risks of an activity that are known and understood, and the defendant is not liable for injuries stemming from such inherent risks because no duty is owed as to those risks. Id. at 197.

“We turn now to the crevice in the sliding surface that caused Ferbet’s injury and we find that an uneven sliding surface and the potential risks it creates for snow tubers are inherent risks of snow tubing because they are ’structural’ to the activity and involve the ’essential character’ of snow tubing. Coomer, 437 S.W. 3d at 202.”14

Looking to contract, specifically, we find it adequately notified Ferbet that there could be “[v]ariations in the surface upon which snow is conducted, which can vary from wet, slushy conditions to hard packed, icy conditions and everything in between.”15 “As a result, we find that to the extent the particular variation that resulted in Ferbet’s injury was the result of Hidden Valley’s negligence, then this release extinguished that claim.”16

“Missouri law applies a heightened degree of care only to be a very small number of well-defined activities including common carriers, such as railroads, buses, commercial airlines, streetcars, and elevator operators; electric companies; users of explosives; users of firearms; and motor vehicle operators. Chavez v. Cedar Fair, LP, 450 S.W.3d 291, 296 (Mo. banc 2014). Otherwise, the applicable standard is the ordinary degree of care. Id.”17

“In Missouri, neither the common carrier designation nor the application of the highest degree of care has ever been extended to amusement parks or recreation areas such as ski resorts or snow tubing hills. Id at 296.”18 “And, since this activity resembles both skiing and an amusement park ride, we decline Ferbet’s invitation to do so. Hidden Valley owed Ferbet a duty of ordinary care in connection with its operation and maintenance of its snow tubing hill.”19


Marcks v. Wilson, 615 S.W.3d 413 (Mo. App. E.D. 2020)

Donald J. Marcks (“Marcks”) appeals from the judgment of trial court denying his motion for judgment notwithstanding the verdict (“JNOV”), for additur, or for a new trial following a jury verdict in his petition for damages against Edward W. Wilson (“Wilson”).20 He asserts the evidence supported a finding of juror misconduct and argues the jury verdict rendered was against the weight of evidence. The judgment was affirmed in Marcks v. Wilson, 615 S.W.3d 413(Mo. App. E.D. 2020).21

“Marcks and Wilson were involved in an automobile collision in May of 2010. In April of 2015, Marcks filed a petition for damages for personal injuries, asserting that Wilson breached his duty of care to Marcks by negligently operating his vehicle, which resulted in the collision that caused permanent injuries to Marcks’s neck, back, and spine.”22

During voir dire, counsel for Marcks asked the venire panel if “there [was] anyone else here that considers a person getting injured in an automobile collision, and suing, that they consider it a payday?”23 “Neither of the two venirepersons later accused of juror misconduct responded. Likewise, counsel for Marcks asked if ‘anyone ha[d] a belief that someone should not recover damages for pain and suffering, inconvenience or any other damages in a case?’ Again, neither of the relevant venirepersons responded.”24

At trial, Marcks testified that he retired five years earlier then he planned to, resulting in a net reduced income of $139,460 and increased medical insurance premiums of $43,700 over that five-year period. He calculated that his total loss of income from the automobile collision was $185,143.00.25 “At the time of trial, he still experienced some neck pain and reduced range of motion. On cross examination, Marcks agreed that at the time of trial he was no longer receiving medical care for injuries related to the accident.”26

“After the trial, the jury returned a verdict in favor of Marcks and assessed his damages at $1.00.”27 The trial court entered judgment in accordance with the jury verdict. Marcks filed a motion for JNOV, for additur, or alternatively for a new trial, asserting, as relevant to this appeal, that (1) juror misconduct occurred when several jurors failed to disclose during the voir dire their antipathy towards monetary awards, which they voiced during deliberations, and (2) the verdict was against the weight of the evidence.28

At a hearing on the motion, juror Kimberly Frost testified, over Wilson’s objections, that the jury foreperson Rutz stated during deliberations and in the hallway outside the jury room that the case was ridiculous and a terrible thing, and that he did not believe in giving anybody money for lawsuits like this. Juror Frost likewise testified that juror Gassel stated that, in her experience, people do not sue or get compensation over “fender benders,” and elaborated that: “I don’t think it is right that [Marcks] should get any money because [Wilson] couldn’t see because the sun was in his eyes. These things happen all of the time.”29

The constitutional right to a jury trial in civil cases contemplates a fair and impartial jury. Fleshner v. Pepose Vision Institute, P.C., 304 S.W.3d 81, 87 (Mo. banc 2010). Thus, “it is the duty of a juror on voir dire examination to fully, fairly and truthfully answer all questions directed to him (and to the panel generally) so that his qualifications may be determined and challenges may be intelligently exercised.” Rinkenbaugh v. Chicago, Rock Island & Pacific RR. Co., 446 S.W.2d 623, 626 (Mo. 1969). Nevertheless, “[w]hile every party is entitled to a fair trial, as a practical matter, our jury system cannot guarantee every party a perfect trial.” Fleshner, 304 S.W.3d at 87. The party alleging juror misconduct bears the burden to show both misconduct and prejudice resulting from that misconduct. Williams v. Daus, 114 S.W.3d 351, 366 (Mo. App. S.D. 2003).30
“Showing jury misconduct is difficult, and Marcks has failed to do so here. Missouri follows the Mansfield rule, which is that jurors may not impeach their verdict by testifying to alleged misconduct or partiality by other jurors affecting deliberations. Matlock v. St. John’s Clinic, Inc., 368 S.W.3d 269, 271 (Mo. App. S.D. 2012). As long as a juror reaches the verdict on the basis of evidence presented at trial, that juror’s motives, reasoning, beliefs, or mental processes may not be attacked by other jurors. Fleshner, 304 S.W.3d at 87. This rule both effects courts’ objective to avoid endless litigation over the soundness of jury verdicts and recognizes the impossibility of corroborating or refuting a particular juror’s mental processes.  Id. at 87-88; see also Matlock, 368 S.W.3d at 273 (“[j]urors, as humans, are imperfect. It follows that jury deliberations also may be imperfect. Few deliberations, if seined and microscopically examined might not yield sound bites that skilled advocates could spin to raise prima facie doubt about a verdict, leading to evidentiary hearings where the deliberations and verdict itself are put on trial”).31

The two recognized exceptions to the Mansfield rule are when a juror gathers evidence outside what has been presented at trial, see e.g. Travis v. Stone, 66 S.W.3d 1, 3-4 (Mo. banc 2002) (juror visited accident scene during trial recess), or where a juror makes a statement during deliberations demonstrating ethnic, racial, or religious bias or prejudice against a party or witness, see Fleshner, 304 S.W.3d at 88-89 (juror made derogatory statements about witness’s Jewish faith in weighing testimony).32 “Only under these limited circumstances may the alleged juror misconduct then be examined to determine if it affected the verdict. Id.”33

Neither of these exceptions apply in this case. There is no allegation that any juror gathered extra-judicial evidence on their own, nor that any juror expressed an ethic, racial, or religious bias or prejudice against a party or witness. Without evidence of these two exceptions to the Mansfield rule, any allegations by other jurors of misconduct or partiality inside or outside the jury room are not cognizable evidence of juror misconduct, such that would allow a trial court to grant a new trial. See Williams, 114 S.W.3d at 369.34
We will reverse the trial court’s denial of a motion for additur or a new trial on the basis of an alleged inadequate jury award only if we find the trial court abused its discretion. Root v. Manley, 91 S.W.3d 144, 146 (Mo. App. E.D. 2002). The particular amount of the award alone does not establish that the verdict resulted from bias or passion. Tomlin v. Guempel, 54 S.W.3d 658, 659 (Mo. App. E.D. 2001). The determination of damages is primarily the jury’s decision. Id. The jury verdict must fairly and reasonably compensate the plaintiff for the injuries sustained and, in making this determination, the jury is tasked with judging witness credibility and weighing the testimony. Root, 91 S.W.3d at 146. The jury may believe or disbelieve any, all, or none of a witness’s testimony, including the plaintiff’s claimed expenses and damages. See Ball v. Allied Physicians Group, L.L.C., 548 S.W.3d 373, 388 (Mo. App. E.D. 2018).35

“While Marcks here claimed $185,143.00 in lost income from lost wages and his early retirement with corresponding increased medical costs, the jury awarded him only $1.00 for his damages.”36 On the evidence, the jury could have believed that although Wilson was at fault in causing the automobile collision, the accident was not the cause of Marcks’s neck pain. The jury could have disbelieved that Marcks’s decision to retire early from his job was due to the automobile collision.37 “Simply because a jury believes enough of the evidence to find liability for plaintiff does not mean the jury is also required to believe the plaintiff’s assessment of his own damages. See Davidson v. Schneider, 349 S.W.2d 908, 913 ( Mo. 1961). The record does not support a finding that the jury’s decision to award Marcks only $1.00 was evidence of bias or passion, rather than an assessment of the strength of Marcks’s evidence supporting his claims.”38


Allen v. State of Missouri, Nos. SD 36319 and SD 36328 (Mo. App. S.D. 2020)

“The 32nd Judicial Circuit Court (the State) appeals from a judgment entered in a personal injury action brought by Pamela Allen and Kelly Allen (referred to individually by their given names and collectively as the Allens) after Pamela fell down stairs in the basement of a building occupied by the State to conduct all circuit court operations, including storage of the State’s court records.”39

The Allens’ suit alleged that Pamela was seriously injured, and Kelly suffered loss of consortium, when Pamela fell down the basement stairs at the Cape Girardeau Common Pleas Courthouse (the Courthouse).40 “The Courthouse is an historical building located in downtown Cape Girardeau. Constructed in 1854, the Courthouse is a multi-level structure with a basement area commonly referred to as ‘the dungeon’.”41

“Due to space shortages, the State began storing inactive files in the basement of the Courthouse at the direction of the circuit clerk. The basement area had not been modernized since the Courthouse was originally constructed, and it was dark and damp. To access the basement, a person had to descend a set of concrete stairs, which were believed to be original to the Courthouse.”42

The stairs were not uniform in size, varying in slope, riser height and tread depth. The treads were not level, sloped downward as much as nine percent, and were narrower than modern stairs. The tread depth varied from 8 inches to 9 1/4 inches, meaning to descend that stairway required walking at an angle because adult feet would not fit on the treads. The concrete nosing was chipped in some areas. The riser heights varied from 7 3/4 inches to 8 1/2 inches. The stairway had one handrail, was illuminated by a single bulb, and had lower than normal headroom with pipes and wires running overhead.43
Pamela had worked in the land title business for many years. […] Some of the court records Pamela needed for her job were in the basement of the Courthouse. On August 26, 2013, Pamela received a request to retrieve “a couple of judgments.” The records she needed were in the basement of the Courthouse. She went to the Courthouse and requested a key to the basement from a State’s deputy clerk. Pamela was told by the clerk to “grab the key.” Pamela went to the entrance of the stairway to unlock the basement door. There were no warning signs posted on or near the basement doorway. After unlocking the door, Pamela began slowly descending the stairs at an angle because her feel did not fit on the stair treads. […] At the second or third step from the landing, Pamela stepped with her foot and felt it slip off the stair. She fell forward and hit the landing of the stairs. Pamela sustained several injuries, but the worst pain was in her left leg. […] Pamela was treated at the hospital emergency room and diagnosed with a broken left leg.44

“On September 7, 2013, Pamela was at home. She began having significant pain in her chest and back, and experienced breathing difficulties. She called 911 and was taken to the hospital. There, she was diagnosed with a deep vein thrombosis in her left leg and an acute saddle embolus. She was placed on blood thinners, and a filter was implanted to prevent further clots from traveling up her left leg. She was hospitalized for 12 days.”45

“The case was tried to a jury over three days in May 2019.”46 The jury apportioned 90% fault to the State and 10% fault to Pamela and assessed her total damages at $475,000. The court entered judgment in favor of Pamela and against the State in the amount of $427,500. The judgment was affirmed in Allen v. State of Missouri, Nos. SD 36319 and SD 36328 (Mo. App. S.D. 2020).47

Sovereign immunity is waived for injuries caused by the dangerous condition of a public entity’s property. Ford v. Cedar County, 216 S.W.3d 167, 170 (Mo. App. 2006). One element the Allens had to prove to make a submissible case against the State was that the “public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” § 537.600.1(2); see also Tillson v. Boyer, 939 S.W.2d 471, 473 (Mo. App. 1996).

“The State argues that the Allens did not make a submissible case because there was no evidence the State knew the stairs were in a dangerous condition. […] The Allens presented sufficient evidence to make a submissible case on the issue of notice of the dangerous condition.”

Viewed in the light most favorable to the verdict, the jury was presented with the following evidence. The basement stairs were not uniform in size. They varied in slope, riser height and tread depth. […] The riser heights varied from 7 3/4 inches to 8 1/2 inches. The stairway had one handrail, was illuminated by a single bulb, and had lower than normal headroom with pipes and wires running overhead. These constituted physical defects in the stairway. See Boever v. Special School Dist. of St. Louis County, 296 S.W.3d 487, 493 (Mo. App. 2009) (in order for property to be in dangerous condition pursuant to § 537.600.1(2), “it must exhibit a defect that is physical in nature”). All of these problems with the stairway had existed for many years prior to Pamela’s fall. The State used the basement for storage of inactive files and controlled public access to the stairway via a key.48

The evidence provided a sufficient basis to submit the issue of whether the State had actual or constructive knowledge of the dangerous condition of the stairway.49


The Fred Kemp Company v. Braselman, No ED 108418 (Mo App. E.D. 2021)

“The City of Black Jack (City) appeals from a judgment of the circuit court in favor of The Fred Kemp Company, LLC (Kemp) regarding a public nuisance. The circuit court found Kemp was not the owner or person in control of the property in question and reversed a hearing officer’s decision holding Kemp responsible for the nuisance.”50 The judgment was affirmed in The Fred Kemp Company v. Braselman, No ED 108418 (Mo App. E.D. 2021).

“Kemp developed the Jamestown Subdivision in the City of Black Jack, Missouri. On September 8, 1998, Kemp executed a document titled “Trust Agreement and Indenture of Restrictions of Jamestowne Subdivision(s)” (Subdivision Indenture).”51

In 2002, the City approved the final Jamestowne Subdivision plat, which unequivocally states, “. . . Kinsley Heights Drive, 50 feet wide, together with all cul-de-sacs and roundings located at the street intersections, which for better identification are shown hachured on this plat, are hereby dedicated to the City of Black Jack, Missouri for public use forever.”52

“In 2005, Kemp conveyed the property located at 13017 Kinsley Drive to Vernon D. Carter, Jr. Kemp completed construction and development of the Jamestowne Subdivision in 2008.”53

On June 23, 2017, more than eight years after Kemp’s final conveyance of property within the entire subdivision and twelve years after Carter purchased 13017 Kinsley Heights Drive, and the City sent Kemp a letter stating that the director had declared the portion of the street in front of 13017 Kinsley Heights Drive affected by water seepage issues to be a public nuisance.54

In response to the letter from the City, Kemp retained SCI Engineering, Inc. to determine the source of the water seepage on Kinsley Heights Drive. SCI Engineering investigated but could not conclusively determine the source of the water. In fact, there is no evidence in the record regarding the exact source of the water seepage, much less any determination as to who or what caused it.55

“Kemp requested a hearing before the City’s Department of Public Works (Department) and the Director appointed the administrative hearing officer.”56 A hearing was held, and the hearing officer issued Findings of Fact, Conclusions of Law and Order.57

“The hearing officer ordered Kemp to abate and eliminate the public nuisance at 13017 Kinsley Heights Drive by repairing or replacing any damaged portion of the roadway within a time period to be set by the City’s Department of Public Works. Kemp petitioned the St. Louis County Circuit Court to review the hearing officer’s decision.”58 The circuit court upheld the hearing officer’s findings that a public nuisance existed, but reversed the hearing officer’s finding that Kemp was in control and therefore responsible for the public nuisance on Kinsley Heights Drive.59

The powers of public subdivisions of the State are limited to those expressed or implied by statute, and any doubt is construed against the grant of power. Burks v. City of Licking, 980 S.W.2d 109, 111 (Mo. App. S.D. 1998) (citing State ex rel. St. Louis Housing Authority v. Gaertner, 695 S.W.2d 460, 462 (Mo. banc 1985)). Municipalities are creatures of statute and only have the powers granted to them by the legislature. Id. (citing State ex rel. Mitchell v. City of Sikeston, 555 S.W.2d 281, 288 (Mo. banc 1977)). Courts follow a strict rule of construction when determining the powers of municipalities. Id. If the intent of the legislature is clear and unambiguous from reading the language of the statute in its plain and ordinary meaning, we are bound by that intent and cannot resort to any statutory construction in interpreting the statute. See Goerlitz v. City of Maryville, 333 S.W.3d 450, 455 (Mo. banc 2011).60

Section 71.780 RSMO grants cities the power to suppress nuisances in a manner governed by city ordinance. However, the statute limits who cities may hold responsible for the expense of abating the nuisance to: (1) the owner of the property, (2) the occupant of the property, (3) the property itself, through a special tax bill.61

In contrast, Section 13-1(b) of the City Code governing the suppression of public nuisances in the City of Black Jack, expands Section 71.780 by providing that “[w]hen the director of public works, or his duly authorized agent, ascertains that public nuisance as described above exists, the director of public works, or his duly authorized agent, may serve written notice to the owner or other person in control of such property[.]” Section 13-1(b).62

However, in Section 71.780, the Missouri General Assembly solely authorized cities to hold owners and occupants of property responsible for abating nuisances on their property. We must strictly construe Section 13-1 of the City Code against its implementation of authority exceeding that grant to cities by section 71.780. Burks, 980 S.W.2d at 111. To the extent Section 13-1 of the City Code permits the City to hold persons deemed to merely be in control of property responsible for abating nuisances, it exceeds the statutory authority of Section 71.780.63

“Section 71.780 does not permit the City to hold parties responsible for nuisances unless they are the owner or occupant of the property. Thus, the hearing officer did not have the authority to order Kemp to abate the nuisance because Kemp was neither the owner or occupant of the property.”64


1 W. Dudley McCarter, a former president of The Missouri Bar, is partner in the St. Louis law firm of Behr, McCarter & Potter, P.C.

2 Ferbet v. Hidden Valley Golf and Ski Inc., No. ED 108495 (Mo. App. E.D. 2020).

3 Id.

4 Id.

5 Id.

6 Id.

7 Id.

8 Id.

9 Id.

10 Id.

11 Id.

12 Id.

13 Id.

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id.

20 Marcks v. Wilson, 615 S.W.3d 413(Mo. App. E.D. 2020).

21 Id.

22 Id.

23 Id.

24 Id.

25 Id.

26 Id.

27 Id.

28 Id.

29 Id.

30 Id.

31 Id.

32 Id.

33 Id.

34 Id.

35 Id.

36 Id.

37 Id.

38 Id.

39 Allen v. State of Missouri, Nos. SD 36319 and SD 36328 (Mo. App. S.D. 2020).

40 Id.

41 Id.

42 Id.

43 Id.

44 Id.

45 Id.

46 Id.

47 Id.

48 Id.

49 Id.

50 The Fred Kemp Company v. Braselman, No ED 108418 (Mo App. E.D. 2021).

51 Id.

52 Id.

53 Id.

54 Id.

55 Id.

56 Id.

57 Id.

58 Id.

59 Id.

60 Id.

61 Id.

62 Id.

63 Id.

64 Id.