The flag: Sovereign immunity, risk of injury, 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.

UNJUST ENRICHMENT CLAIMS AGAINST THE STATE ARE BARRED BY SOVEREIGN IMMUNITY  
Ramirez v. Missouri Prosecuting Attorneys’, 694 S.W.3d 432 (Mo. banc 2024). 

Benjamin Ramirez, on behalf of a putative class, sued the director of the Missouri Department of Revenue and the Missouri treasurer in their official capacities. In 2018 and 2019, Ramirez resolved criminal charges against him in Jackson County by pleading guilty and paying court costs, including certain mandatory surcharges, which then were paid to various funds, as authorized by Missouri statute. 

Ramirez alleged a single count of unjust enrichment and asserted that statutes authorizing the surcharges violate Article I, § 14 of the Missouri Constitution, which provides “[t]hat the courts of justice shall be open to every person, property or character, and that right and justice shall be administered without sale, denial or delay.” The circuit court concluded Ramirez’s lawsuit was barred by sovereign immunity and the statutes authorizing the surcharges do not violate the Missouri Constitution. On appeal, the Supreme Court of Missouri affirmed the judgment in Ramirez v. Missouri Prosecuting Attorneys’. ¹ 

Sovereign immunity is a common law judicial doctrine that bars lawsuits against government or public entities.² “[I]n the absence of an express statutory exception to sovereign immunity, or a recognized common law exception … sovereign immunity is the rule and applies to all suits against public entities.”³ 

Ramirez claimed sovereign immunity is at issue only in tort cases and does not apply to his non-tort unjust enrichment suit, citing § 537.600.⁴ However, the Court set precedent by applying sovereign immunity in non-tort cases like Garland v. Ruhl, wherein it found the state did not waive sovereign immunity to a claim for attorney fees related to a petition for review of a Family Support Division child support order.⁵

“Sovereign immunity applies to non-tort claims, such as Ramirez’s claim for unjust enrichment, and the only inquiry is whether the state waived its sovereign immunity through express statutory consent or a recognized common law exception,” the Court stated.⁶ 

“[T]his Court has never held that consent to waive nature of a claim as equitable or quasi-contractual and declines Ramirez’s invitation to so hold now. Such a holding would be contrary to this Court’s precedent recognizing sovereign immunity as the rule, not even the exception, and finding sovereign immunity applies to all suits against all public entities absent 'an express statutory exception to sovereign immunity, or a recognized common law exception.'"⁷

PERSON LIFTING WEIGHTS AT GYM ACCEPTED RISK OF INJURY
Moody v. Dynamic Fitness Management, Ltd., 2024 WL 3152095 (Mo. App. E.D. 2024). 

At her 25th class with a group trainer at Dynamic Fitness Management, Ltd., Melissa Moody was performing an 85-pound push press – where a participant takes a barbell off a rack at about chest height, drops their knees slightly, and then pushes the barbell overhead. As Moody attempted to lift the barbell, she said she “felt an excruciating pain shooting down her neck, shoulders and back.” She was later diagnosed with a herniated disk in her neck and underwent two surgeries.⁸ 

Moody sued DFM for damages arising from the injury she sustained while weightlifting during the group class led by a DFM trainer. A judgment was entered after a jury ruled in favor of Moody’s claim. DFM appealed the judgment, and the Missouri Court of Appeals-Eastern District reversed the judgment after finding Moody’s claim for negligence was barred by the doctrine of implied primary assumption of the risk.⁹ 

"The doctrine of implied primary assumption of the risk provides that ‘if a person voluntarily consents to accept the danger of a known and appreciated risk, that person may not sue another for failing to protect him from it.’ The participant in an activity is deemed to have assumed the risk of injury from those risks that are inherent to that activity.¹⁰

“The defendant owes no duty of reasonable care with respect to such inherent risks, and recovery on a claim of negligence by the participant against the defendant is completely barred. Nevertheless, a defendant still owes a duty of reasonable care ‘not to alter or increase’ the inherent risks of a particular activity.”¹¹ 

In Moody, the Court of Appeals stated it “must first determine whether the risk of sustaining an injury is inherent in performing an 85-pound push press during a group class led by a personal trainer.”¹² The court found that it is: 

“'For a risk to be inherent, it must be structural or involved in the constitution or essential character of something[.]' Here, the mechanism of injury is not only essential to the character of the activity in this case, it is itself the activity: performing an 85-pound press.”¹³ 

The Court of Appeals concluded: 

“Even viewed favorably to Moody, the evidence in this case demonstrates that the risk of being injured while performing the 85-pound push press in a group class without one-on-one supervision was inherent and known to Moody. To the extent the lack of an initial assessment increased that risk, that too was a risk of which Moody was aware and that she accepted when she voluntarily performed the exercise that caused her injury. Thus, her claim against DFM for negligence is barred by the doctrine of implied primary assumption of the risk.”¹⁴ 

REMEDY OF PUNITIVE DAMAGES IS SO EXTRAORDINARY IT SHOULD BE APPLIED SPARINGLY 
Frost v. PCRMC Medical Group, Inc., 694 S.W.3d 103 (Mo. App. S.D. 2024). 

Gregory Frost claimed he became addicted to opioids due to the negligence of PCRMC Medical Group, Inc., d/b/a/ Phelps Health Medical Group. A jury found that Frost incurred compensatory damages of $200,000, that comparative fault for the damages was 90% attributable to Frost and 10% attributable to PCRMC, and that PCRMC was liable for $500,000 in punitive damages. PCRMC appealed, and the Missouri Court of Appeals-Southern District reversed the punitive damage award.¹⁵ 

Under § 538.205(10), punitive damages are “intended to punish or deter willful, wanton or malicious misconduct, including exemplary damages and damages for aggravating circumstances[.]” 

The remedy of punitive damages “is so extraordinary or harsh that it should be applied only sparingly.”¹⁶ Punitive damages against a health care provider “shall be made only upon a showing by a plaintiff that the health care provider demonstrated willful, wanton or malicious misconduct with respect to his actions which are found to have injured or caused or contributed to cause damages claimed in the petition.”¹⁷ 

“For purposes of punitive damages, acting willfully, wantonly, or maliciously is equivalent to acting with complete indifference to or in conscious disregard for the rights or safety of others.”¹⁸ Punitive damages “are not generally recoverable in negligence actions because negligence, a mere omission of the duty to exercise care, is the antithesis of willful or intentional conduct.”¹⁹ 

A submissible case for punitive damages must provide clear and convincing proof,²⁰ including evidence “which instantly tilts the scales in the affirmative when weighed against evidence in opposition; evidence which clearly convinces the fact finder of the truth of the proposition to be proved.”²¹ 

Additionally, “[s]ubmission of a punitive damages claim to the jury warrants special judicial scrutiny”²² when determining “whether the conduct was so egregious that it was tantamount to intentional wrongdoing.”²³ “[T]he conduct must be such that injury is its natural and probable consequence.”²⁴ 

“In sum, there is an extraordinarily high bar for submission of punitive damages … Here, however … the actions and inactions by [PCRMC] at issue were not so egregious so as to warrant this harsh remedy.”²⁵ 

REFERENCE TO THE SIZE AND WEALTH OF THE DEFENDANT WAS PREJUDICIAL 
Wilkinson v. Stanley Fastening Systems, L.P., 693 S.W.3d 166 (Mo. App E.D. 2024). 

Andrew Wilkinson was struck in the eye by a staple fired from a pneumatic stapler manufactured by Stanley Fastening Systems, L.P. Wilkinson sued Stanley, and the trial court issued a judgment following a jury verdict in favor of Wilkinson’s products liability claim. 

Stanley appealed the judgment, arguing the trial court abused its discretion in not granting a mistrial after Wilkinson’s counsel repeatedly referred to Stanley as a “billion-dollar company,” which was in violation of the trial court’s order in limine prohibiting any argument regarding Stanley’s financial status. Stanley indicated “the prejudicial impact of the improper statements is shown by the jury’s verdict of $11 million,” which Stanley found excessive.²⁶ The Missouri Court of Appeals-Eastern District reversed the trial court’s judgment.²⁷ 

“It has been long established in Missouri jurisprudence that references to the size, wealth, and corporate status of a party during trial are improper when intended to arouse prejudice and not within the scope of legitimate argument.”²⁸ Such references can “entitle the victimized party to a new trial.”²⁹ When a party references the size and wealth of a defendant-corporation, it is presumable that the party hopes “to arouse some prejudice the jurors or some of them may have had for corporations, to help ‘drive home’ to the jury counsel’s scornful view of the conduct of defendant.”³⁰ “Such argument undermines judicial integrity,” the Wilkinson court stated. 

“Here, we are persuaded that the very large damage award supports finding prejudicial error in the trial court’s denial of Stanley’s request for a mistrial following Wilkinson’s counsel’s repeated improper references to Stanley’s financial status … Inflammatory references to the large size and wealth of a defendant are likely to provoke a jury to apply the ‘deep pocket’ theory of  liability and to enhance the size of the verdict relative to the defendant’s perceived ability to pay.”³¹ 

The court added: “The practical effect of the trial court’s handling of this matter allowed the defendant-corporation’s financial status to be improperly placed before the jury and impact its verdict.”³²

Endnotes  
¹ 694 S.W.3d 432 (Mo. banc 2024). 
² Allen v. 32nd Jud. Cir., 638 S.W.3d 880, 886 (Mo. banc 2022). 
³ Poke v. Indep. Sch. Dist., 647 S.W.3d 18, 21 (Mo. banc 2022) (quoting Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, 476 S.W.3d 913, 921-22 (Mo. banc 2016)). 
⁴ Ramirez, 694 S.W.3d 432. 
⁵ 455 S.W.3d 442, 446-48 (Mo. banc 2015). 
⁶ Ramirez, 694 S.W.3d 432 at 437. 
⁷ Id. at 438 (quoting Poke, 647 S.W.3d at 21). 
⁸ Moody v. Dynamic Fitness Management, Ltd., 2024 WL 3152095, 1 (Mo. App. E.D. 2024). 
⁹ Id. 
¹⁰ Id. at 2 (quoting Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo. banc 2014)). 
¹¹ Id. (citing Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 197-98 (Mo. banc 2014)).; see also Munoz v. Six Flags St. Louis, LLC, 670 S.W.3d 239, 243- 44 (Mo. App. E.D. 2023). 
¹² Moody, 2024 WL 3152095 at 3. 
¹³ Id. (quoting Coomer, 437 S.W.3d at 201). 
¹⁴ Moody, 2024 WL 3152095 at 4. 
¹⁵ Frost v. PCRMC Medical Group, Inc., 694 S.W.3d 103 (Mo. App. S.D. 2024). 
¹⁶ Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 110 (Mo. banc 1996). 
¹⁷ Rev. Stat. Mo. § 538.210.8. 
¹⁸ Bell v. Redjal, 569 S.W.3d 70, 89 (Mo. App 2019). 
¹⁹ Dodson v. Ferrara, 491 S.W.3d 542, 563 (Mo. banc 2016). 
²⁰ Rodriguez, 936 S.W.2d at 110. 
²¹ Peters v. General Motors Corp. 200 S.W.3d 1, 25 (Mo. App. 2006). 
²² Alcorn v. Union Pacific R.R. Co., 50 S.W.3d 226, 247 (Mo. banc 2001), overruled on other grounds by Badahman v. Catering St. Louis, 395 S.W.3d 29 (Mo. banc 2013). 
²³ Alcorn, 50 S.W.3d 226 at 248. 
²⁴ Id. 
²⁵ Frost, 694 S.W.3d 103 at 127. 
²⁶ Wilkinson v. Stanley Fastening Systems, L.P., 693 S.W.3d 166 (Mo. App E.D. 2024). 
²⁷ Id. 
²⁸ Id. at 171 (citing Porter v. Toys ‘R’ Us-Delaware, Inc., 152 S.W.3d 310, 324 (Mo. App. W.D. 2024); Gilbert v. K.T.I., Inc., 765 S.W.2d 289, 300 (Mo. App. W.D. 1988)). 
²⁹ Tucker v. Kansas City S. Ry. Co., 765 S.W.2d 308, 312 (Mo. App. W.D. 1988) (citing Green v. Ralston Purina Co., 376 S.W.2d 119, 127 (Mo. 1964); Higgins v. Terminal R.R. Ass’n. of St. Louis, 241 S.W.2d 380, 386 (Mo. 1951)). 
³⁰ Higgins, 241 S.W.2d at 386. 
³¹ Wilkinson, 693 S.W.3d at 175-76. 
³² Id. at 176-77; see also Green, 376 S.W.2d at 127.