The Flag, May - June 2022

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.

STATUTORY CAPS ON PUNITIVE DAMAGES IS CONSTITUTIONAL FOR CAUSES OF ACTION THAT DID NOT EXIST IN 1820

All Star Awards v. HALO Branded Solutions, 2022 WL 1019012 (Mo. banc 2022).

A jury awarded All Star Awards & Ad Specialties Inc. $25,541.88 in actual damages after finding All Star’s employee, Doug Ford, breached his duty of loyalty to All Star and that HALO Branded Solutions conspired with Ford to breach this duty of loyalty. The jury found Ford and HALO tortiously interfered with All Star’s business, awarding All Star $500,000 in actual damages. The jury also assessed $5.5 million in punitive damages against HALO. The circuit court reduced the punitive damages award to $2,627,709 pursuant to § 510.265. All Star Awards & Ad Specialties Inc. appealed the circuit court’s decision to reduce the jury’s punitive damages award. The Supreme Court of Missouri affirmed the circuit court’s judgment in All Star Awards v. HALO Branded Solutions.²

Article 1, § 22(a) of the Missouri Constitution states, “the right of trial by jury as heretofore enjoyed shall remain inviolate,” meaning litigants pursuing legal claims today have a right to a jury trial if they would have enjoyed such a right at common law when the Missouri Constitution was adopted in 1820.³ “As heretofore enjoyed” limits the modern scope of the right to trial by jury.⁴ In 2005, the Missouri Legislature enacted § 510.265, capping the punitive damages amount litigants can recover. “Statutory caps on punitive damages violate the right to a trial by jury as provided by Article I, § 22(a) if the litigant’s common law cause of action existed in 1820 and the claim would have supported a finding of punitive damages in 1820.”⁵ However, if a legal cause of action didn’t exist in 1820 or the modern common law claim isn’t sufficiently “analogous” to a claim existing in 1820, then Article I, § 22(a) does not guarantee litigants the right to have a jury make an unlimited determination of damages, and the legislature may enact statutory limits on punitive damages.⁶

“All Star has, therefore, not demonstrated civil conspiracy to breach the duty of loyalty was a claim entitling it to punitive damages at common law in 1820, and the circuit court did not err in applying the cap in section 510.265 to the punitive damages arising from the modern claim,” the Supreme Court of Missouri found.⁷ It noted Missouri also didn’t recognize a cause of action for tortious interference with a business expectancy in 1820.⁸

STATUTE BARRING USE OF PUBLIC FUNDS FOR POLITICAL PURPOSES IS VALID

City of Maryland Heights v. State of Missouri, 638 S.W.3d 895 (Mo. banc 2022).

Officials of political subdivisions in St. Louis County sued Missouri, stating § 115.646, RSMo violates the First and Fourteenth amendments of the U.S. Constitution. Section 115.646 prohibits officials from directly using public funds to advocate, support, or oppose a ballot measure or candidate for public office. The circuit court agreed and entered a declaratory judgment that § 115.646 violated the officials’ right to free speech and was void for vagueness. The Supreme Court of Missouri reversed a circuit court’s decision in City of Maryland Heights v. State of Missouri.⁹

When the plaintiffs initiated their lawsuit, § 115.646 provided:

No contribution or expenditure of public funds shall be made directly by any officer, employee or agent of any political subdivision to advocate, support, or oppose any ballot measure or candidate for public office. This section shall not be construed to prohibit any public official of a political subdivision from making public appearances or from issuing press releases concerning any such ballot measure.

The circuit court declared § 115.646 violates the free speech clause of the First Amendment because “it regulates the officials’ speech based on the content of their speech and fails strict scrutiny.”¹⁰ However, the Supreme Court of Missouri disagreed that § 115.646 regulates officials’ speech, purports to regulate officials’ speech when they don’t use public funds, and prohibits the use of private or personal funds to subsidize officials’ speech. Rather, the Court ruled, § 115.646 regulates the use of public funds to subsidize the officials’ speech. “In other words, section 115.646 does not limit or prohibit officials’ speech; it merely prohibits them from using public funds to facilitate or augment that speech.”¹¹

The Court also found that the circuit court erred in declaring that § 115.646 is unconstitutionally vague in violation of the due process clause of the Fourteenth Amendment. “Although section 115.646 does not define ‘ballot measure,’ section 130.011(2) provides a definition of ‘ballot measure’ that, even though not strictly applicable to chapter 115, nevertheless comports with the common understanding of the phrase and refutes that it cannot be understood by a reasonable person.”¹²

CO-WORKER NOT LIABLE FOR BREACH OF EMPLOYER’S NONDELEGABLE DUTY OF CARE

Miller v. Bucy, 2022 WL 453331 (Mo. App. E.D. 2022).

Barbara Miller brought a wrongful death claim against co-employees alleging they acted outside the employer’s nondelegable duties and engaged in negligent acts which “purposefully and dangerously caused or increased the risk” of James Quinn’s death. The co-employees asked the court to dismiss the wrongful death claim on the basis that § 287.120.1 of the Workers’ Compensation Law prevented Miller from holding them personally liable for breaches of the employer’s nondelegable duties of care to Quinn. The circuit court dismissed Miller’s wrongful death petition, and Miller appealed the judgment. The Missouri Court of Appeals-Eastern District affirmed the dismissal in Miller v. Bucy.¹³

“[T]o maintain a negligence action against a co-employee, a plaintiff must show that the co-employee breached a duty separate and distinct from the employer’s nondelegable duty to provide a safe workspace for all employees.”¹⁴ An employer’s nondelegable duty to provide a safe workplace is limited to risks that are reasonably foreseeable.¹⁵ “[W]hen an employee’s injuries result from ... the manner in which the work was being done, the injuries are attributable to a breach of the employer’s nondelegable duty to provide a safe workplace.”¹⁶

The petition failed to state a claim for co-employee common law liability, the Court of Appeals found. “We note that our decision reflects the Supreme Court’s clear intention to restore the breadth of the Act as the near-exclusive remedy for workplace injuries and a shield to co-employee liability.”¹⁷

OFFICIAL IMMUNITY PROTECTS PUBLIC OFFICIALS FROM LIABILITY IN TORT FOR PERFORMING DISCRETIONARY ACTS

Conway v. Caldwell, 2022 WL 774549 (Mo. App. W.D. 2022).

A.J. was a little boy who died because of severe abuse from his father and stepmother after multiple hotline calls were made. Judy Conway, et al. (“appellants”) filed a petition alleging Rebecca Caldwell and other Missouri Department of Social Services employees (“respondents”) had a special duty to protect A.J. from foreseeable danger of harm from the father and stepmother. The circuit court ruled the respondents were protected by the official immunity doctrine. The appellants appealed the ruling, and the Missouri Court of Appeals-Western District affirmed the judgment in Conway v. Caldwell.¹⁸

Official immunity protects public officials who are sued in their individual capacities “from liability for alleged acts of negligence committed” when the official acts within the court of his or her official duties and acts without malice.¹⁹ “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.”²⁰ Official immunity, however, only “protects public employees from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts,” meaning official immunity doesn’t protect public employees from alleged acts of negligence when they perform ministerial duties.²¹ The question here is whether the respondents were performing discretionary acts or ministerial acts in their interactions with A.J. and his family.

The appellants argued that various statutes and protocols required Missouri Department of Social Services employees to report A.J.’s case “to the proper authorities” once A.J.’s family refused to cooperate, and this requirement rendered the MoDSS employees’ next steps ministerial in nature.²² However, while a statute or regulation may indicate a public official has the authority or duty to act in a certain situation does not indicate whether the act is ministerial or clerical, which is not covered under official immunity.²³ “Thus the relevant inquiry is not whether the law authorizes, regulates, or requires an action. Instead, it is whether the action itself is ministerial or clerical ... And[ ] even when a clerical or ministerial act appears to be authorized or required by statue, official immunity will still apply if the official retains authority to decide when and how the act is to be done.”²⁴

The Court of Appeals found the “MoDSS employees’ decisions as to what actions to take following hotline calls of abuse, followed by their own investigations and necessarily weighing the interest and safety of the child against the goal of keeping the family intact are equally far from the sort of ministerial or clerical acts contemplated by the ‘narrow’ exception to official immunity.”²⁵

Endnotes 

1 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. 

2 WL 1019012 (Mo. banc 2022). 

3 Dodson v. Ferrara, 491 S.W.3d 542, 553 (Mo. banc 2016). 

4 Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633, 638 (Mo. banc 2012). 

5 All Star Awards, WL 1019012 at 3 (citing Lewellen v. Franklin, 441 S.W.3d 136, 143 (Mo. banc 2014); Dodson, 491 S.W.3d at 557). 

6 Watts, 376 S.W.3d at 638. 

7 All Star Awards, WL 1019012 at 5. 

8 Id. 

9 638 S.W.3d 895 (Mo. banc 2022). 

10 Id. at 898. 

11 Id. See also Sweetman v. State Elections Enf ’t Comm’n, 732 A.2d 144, 157 (Conn. 1999). 

12 Id. at 899. 

13 2022 WL 453331 (Mo. App. E.D. 2022). 

14 Conner v. Ogletree, 542 S.W.3d 315, 319 (Mo. Banc 2018). 

15 Id. at 322. 

16 Id. at 327. 

17 2022 WL 453331 at 6. See also Brock v. Dunne, 637 S.W.3d 22, 3-4 (Mo. banc 2021). 

18 2022 WL 774549 (Mo. App. W.D. 2022). 

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

20 Id. 

21 Laughlin v. Perry, 604 S.W.3d 621, 627 (Mo. banc 2020). 

22 2022 WL 774549 at 6. 

23 Alsup, 588 S.W.3d at 191. 

24 Id. 

25 2022 WL 774549 at 6 (citing Alsup, 588 S.W.3d at 193-94).