The Flag, May - June 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.

EVIDENCE WAS SUFFICIENT FOR JURY TO AWARD AGGRAVATING CIRCUMSTANCES DAMAGES IN MEDICAL NEGLIGENCE CASE         

Rhoden v. Missouri Delta Medical Center, No SC 98327 (Mo. banc 2021)

“John Henry Rhoden and Dorothy Jean Winfield (herein and collectively, “Plaintiffs”), as family representatives, filed suit against Missouri Delta Medical Center (hereinafter, “MDMC”) for the wrongful death of their father, Roosevelt Rhoden (hereinafter, “Decedent”). Plaintiffs claim the negligent care MDMC and two physicians it employed provided caused Decedent’s death. Following a trial, the jury returned a verdict in Plaintiffs’ favor and awarded $269,780.80 for economic damages, $300,000 for noneconomic damages, and $300,000 for aggravating circumstances damages.” Judgment was affirmed by the Supreme Court of Missouri in Rhoden v. Missouri Delta Medical Center, No SC 98327 (Mo. banc 2021).

“Whether there is sufficient evidence to support an award of punitive damages is a question of law, and this Court’s review is de novo.” Gilliland v. Mo. Athletic Club, 273 S.W.3d 516, 520 (Mo. banc 2009). In determining whether a claim is submissible, this Court views the evidence and all reasonable inferences therefrom in the light most favorable to the jury’s verdict. Laughlin v. Perry, 604 S. W.3d 621, 625 (Mo. banc 2020). Any adverse evidence and inferences are disregarded. Darks v. Jackson C[ou]nty., 601 S.W.3d 247, 259 (Mo. App. W.D. 2020). “Only evidence that tends to support the submission should be considered.” Blanks v. Fluor Corp., 450 S.W.3d 308, 401 (Mo. App. E.D. 2014).

When seeking punitive damages against a health care provider in a medical malpractice case, an award “shall be made only upon a showing by Plaintiff that the health care provider demonstrated willful, wanton or malicious misconduct with respect to his [or her] actions which are found to have injured or caused or contributed to cause the damages clamed in the petition.” Section 538.210.8, RSMo Supp. 2017. “For purposes of punitive damages, acting willfully, wantonly, or maliciously is equivalent to acting with a complete indifference to or in conscious regard for the rights or safety of others.” Bell v. Redjal, 569 S.W.3d 70, 89 (Mo. App. E.D. 2019).

“Viewing the evidence in the light most favorable to the jury’s verdict, it is clear Plaintiffs made a submissible case for aggravated circumstances damages because there was complete indifference to or conscious disregard for Decedent’s safety […] The events that occurred after breaching the standard of care form the basis for demonstrating aggravated circumstances damages were supported by the evidence.”

“Plaintiffs submitted substantial evidence to support the submission of an aggravating circumstances damages to the jury.” (Justices Wilson and Fischer dissented).
 

TO HAVE STANDING TO ASSERT A CLAIM FOR PROPERTY DAMAGE, PLAINTIFF MUST OWN IT OR HAVE A LEGALLY PROTECTIBLE INTEREST IN IT            

Bray v. Lee, No ED108971 (Mo. App. E.D. 2021)

“Appellant Dustin M. Bray appeals the trial court’s summary judgment against him on the basis that he lacked standing to recover for the January 2018 property damage to the rented residence located at 6169 Westminster Place in the City of St. Louis allegedly committed by the tenants […] who are the Respondents here. Respondents’ motions for summary judgment asserted as a matter of undisputed fact that Bray was not the owner of, and had no legally protectable interest in, the Westminster property and therefore could not recover for damages because he lacked standing.”

The trial court’s judgment was affirmed in Bray v. Lee, No ED108971 (Mo. App. E.D. 2021). A party seeking judicial relief with respect to property must have a valid interest in the property at issue.² In cases where the injury pertains to real property, the right of action, or standing, is in the present owner alone, and not in any subsequent purchaser or successor in title.³

The trial court reached the correct conclusion on this record that Bray lacked standing because he failed to produce any evidence that he had an ownership of any kind in this property. Bray certainly failed to establish that he possessed any written instrument conveying an interest in real estate and recorded in the office of the recorder of deeds in the jurisdiction where the real property at issue is located pursuant to § 442.380. RSMo § 442.380; see also RSMo § 442.390, § 442.400. The court found that Bray had no ownership or other legally protectable interest in the Westminster property and, as a result, had not met his burden of proof to establish standing.
 

EVEN THOUGH ROADWAY WAS FLOODED, STATE MAY STILL BE LIABLE IF IT SHOULD HAVE ANTICIPATED DRIVERS WOULD CROSS

Lee v. Missouri Department of Transportation, 618 S.W.3d 258 (Mo. App. W.D. 2021)

“Michael Lee (“Michael”) appeals from the judgment of the Circuit Court of Boone County dismissing his petition, which raised a claim of wrongful death stemming from the death of his daughter, Jessica Lee (“Jessica”).” The judgement was reversed in Lee v. Missouri Department of Transportation, 618 S.W.3d 258 (Mo. App. W.D. 2021).

Jessica and her four-year-old son drowned when Jessica attempted to cross a flooded state road. “Michael argues the circuit court erred in granting the Commission’s motion to dismiss because it failed to properly construe and apply the meaning of section 343A of the Second Restatement of Torts in that the Petition adequately alleged that the Commission should have anticipated the harm despite any knowledge or obviousness that may have existed on the part of Jessica particularly since the roadway was public, and the Commission had known of the dangerous condition since 2008.”

Section 343(A)(1) of the Second Restatement of Torts provides:

“A possessor of land is not liable to his [or her] invitees for physical harm caused to them by an activity or condition on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite the knowledge of obviousness.

(emphasis added).  Therefore, even if the flooded roadway is an open and obvious condition, the Commission is still liable if a factfinder determines it should have anticipated the harm. Additionally, comment f of section 343(A)(1) provides that the possessor’s duty of reasonable care:

may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm…. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to be a reasonable man in his position the advantages of doing so would outweigh the apparent risk.

In the instant case, the flooded portion of Southside Drive was the only route available to drivers to enter or leave the neighborhood where Jessica lived. Because the petition alleged that the Commission was aware this section of roadway was in the flood plain and should have known that this was the only route out of the area for numerous residents, a juror could determine that the Commission should have anticipated that a person with no alternative means of egress may proceed through the flooded portion of the roadway. In such cases, comment f of the Restatement provides that the possessor of land owes a duty to warn.”

In this instant case, “reasonable minds could differ on issues of fact as to whether the Commission should have anticipated whether drivers in Jessica’s position would continue through the hazard given that there no alternative routes.” 
 

LANDLORD NOT LIABLE FOR DOG BITE FROM DOG OWNED BY TENANT

J.D. v. Parrish, No. SD36791 (Mo. App. S.D. 2020)

“A.O. (“Plaintiff”), mother and Next Friend of the minor child J.D. (“Child”), appeals the judgment entered in favor of defendants Richard and Mary Parrish (“Landlords”) on Plaintiff’s claim for money damages arising out of personal injuries Child received as the result of a dog bite. The dog at issue (“the dog”) was kept on property owned by Landlords and leased to their tenant, Stephanie Lower (“Tenant”), the dog’s owner.” The judgment for the landlord was affirmed in J.D. v. Parrish, No. SD36791 (Mo. App. S.D. 2020).

In A.T. by R. T. v. Satterfield, 597 S.W.3d 797 (Mo. App. S.D. 2020), as here, the minor was bitten by a dog that was kept on premises owned by the defendant landlords. “The plaintiff claimed that the landlords allowed a nuisance to remain on their property when they permitted their tenant to harbor dogs – including the one that bit the child – that the landlord knew had vicious propensities.”… “We rejected that argument and upheld the trial court’s grant of summary judgment in favor of the landlords.”

“In so ruling, we concluded that ‘Missouri courts have refused to extend liability in negligence[] for harm caused by a domestic animal beyond owners, possessors, or harborers of animals.”… “Possessing the land on which the animal is kept, even when coupled with permission to do so, is not sufficient to make the possessor of land liable as a harborer. Satterfield, 597 S.W.3d at 800.”

Endnotes
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  Continental Coal v. MO Land Reclamation, 150 S.W.3d 371 (Mo. App. W.D. 2004).

3  Id.