The Flag, July - Aug. 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.

ORDER OF PROTECTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE OF STALKING

L.M.M. v. J.L.G., 619 S.W.3d 593, 595 (Mo. App. E.D. 2021).

L.M.M. filed a petition against J.L.G., the sister of L.M.M.’s boyfriend, seeking an order of protection. L.M.M accused J.L.G. of coercing, stalking, and harassing her. According to the petition, J.L.G. texted L.M.M. as often as 75 times a day, as well as texted and called L.M.M.’s employer to make false accusations against L.M.M. L.M.M. stated she was worried J.L.G. would come to her place of employment and continue to harass her on social media.² In L.M.M. v. J.L.G.³ the Missouri Court of Appeals-Eastern District reversed the trial court’s decision to grant an order of protection to L.M.M.

An adult may seek an order of protection under the Missouri Adult Abuse Act by filing a verified petition alleging domestic violence, stalking, or sexual assault. The petitioner has the burden of proof to establish the allegation by preponderance of the evidence, according to § 455.040.1 of the Revised Statutes of Missouri. The applicable portion of the statute in this case is stalking. Stalking occurs when “any person purposely engages in an unwanted course of conduct that causes alarm to another person.”⁴ “Where the petitioner does not present sufficient evidence that they fear physical harm or that a reasonable person would fear physical harm, an order of protection is not appropriate.”⁵ L.M.M.’s petition and testimony focused on J.L.G. calling L.M.M.’s employer to get her terminated from work. “However, L.M.M.’s fear that J.L.G.’s actions might cause her to lose her job does not meet the legal requirements for stalking, in that it does not establish a reasonable fear of physical harm.”⁶ “The Adult Abuse Act is intended to prevent potential violence, not hurt feelings or harm to reputation.”⁷ The Missouri Court of Appeals-Eastern District did not find “sufficient evidence” that L.M.M. feared she would be physically harmed, or that a “reasonable person” in L.M.M.’s situation would fear physical harm due to J.L.G.’s actions. Due to this, the appeals court ruled the trial court “erred in granting the full order of protection based on stalking.”⁸
 

MISSOURI FOLLOWS THE MASSACHUSETTS RULE; PROPERTY OWNER HAS NO DUTY TO REMOVE SNOW OR ICE THAT BLANKETS THE COMMUNITY

O’Donnell v. PNK (River City), No ED 108986 (Mo. App. E.D. 2021).

Colleen O’Donnell fell at the River City Casino due to accumulating ice from a winter storm. She filed personal injury claims and the trial court issued a summary judgement in favor of the casino, and the Missouri Court of Appeals-Eastern District later affirmed the trial court’s judgment, citing the Massachusetts Rule. Under the Massachusetts Rule, the “undisputed material facts demonstrate that River City [Casino] did not owe O’Donnell a duty of care in that the freezing precipitation that caused her fall was a natural accumulation general to the community, so River City is entitled to judgment as a matter of law.”⁹

While premise liability principles typically govern slip and fall claims against owners and possessors of property, Missouri has adopted an exception, commonly known as the Massachusetts Rule, that imposes “no duty to remove snow or ice that accumulates naturally and is a condition general to the community.”¹⁰ Additionally, Missouri courts have held “a property owner does not have a duty to remove, from its open-air parking lot, freezing rain, sleet, or snow, as it is falling” and “[t]o hold that duty … which would be virtually impossible to perform.”¹¹  However, as exceptions to the Massachusetts Rule, the Missouri courts have found a duty in cases where the property owner voluntarily assumed the duty to remove snow or ice either by agreement or through a course of conduct over a period of time.¹²

The court ruled (1) O’Donnell fell on naturally accumulating ice at the casino while freezing rain was still falling, (2) the icy conditions were consistent with what the rest of the community experienced, and (3) River City Casino did not change the physical condition of the ice. Based on these facts, that “warrant imposition of the duty-eliminating Massachusetts Rule.”¹³ Under the rule, for O’Donnell to have assumed the casino had a duty to clear the ice, the casino must have willfully attempted to alter the snow and ice conditions on its premises. River City Casino did not spread salt or snow melt, as well as did not shovel, scrape, or plow its premises before O’Donnell fell. While it did warn customers of the ice, helped customers to their vehicles, and requested an ice removal company, there has not been a Missouri case that “has found the course-of-conduct exception to the Massachusetts Rule in the absence of actual alteration of the snow or ice on the part of the defendant.”¹⁴

O’Donnell asked the court to abrogate the Massachusetts Rule, claiming it is outdated. O’Donnell argued the Massachusetts Rule may encourage landowners and occupiers to not address dangerous snow and ice conditions if it is naturally accumulating. The Court of Appeals declined O’Donnell’s request.
 

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN EXCLUDING EXPERT TESTIMONY

Gebhardt v. American Honda Motor Co., No WD 83786 (Mo. App. W.D. 2021).

Christopher Gebhardt was injured when the Honda ATV he was riding accelerated and flipped over. He filed a suit that alleged American Honda Motor Company and Honda of South Carolina Manufacturing (collectively “Honda”) had “strict product liability based on design defect design, failure to warn, and negligence.”¹⁵ The Circuit Court of Saline County granted summary judgment in favor of Honda, and Gebhardt appealed the decision, arguing the trial court “abused its discretion when it excluded Gebhardt’s expert under section 490.065, RSMo, and then erred by granting summary judgment based on Gebhardt’s failure to offer admissible expert testimony.”¹⁶ The Missouri Court of Appeals-Western District affirmed the trial court’s summary judgment as it did not find that the trial court’s exclusion of the expert’s opinion under was an abuse of discretion under § 490.065, RSMo. When deciding on a design defect case, the court’s primary inquiry is whether the product was designed in a way that created an “unreasonable risk of danger to the consumer or user” when used normally.¹⁷ The Court of Appeals ruled the trial court properly concluded that expert testimony was necessary since the alleged defect was outside the average juror’s routine experience.¹⁸ Section 490.065, RSMo, governs the admissibility of expert testimony. Missouri court oftentimes apply a three-part test that is used by several federal circuits: (1) the qualifications of the expert, (2) the relevancy of the testimony, and (3) the reliability of the testimony.¹⁹

The trial court found that Gebhardt’s expert was not qualified in the area of ATVs and that his opinions were not based on reliable principles.²⁰ “Under section 490.065.2, trial courts must act as gatekeepers to ensure that the testimony sought to be admitted . . . is ‘not only relevant, but reliable.’”  The trial court ruled there was an “analytical gap between the limited data provided and (the expert’s) opinion” and that the experts opinions were “substantially the product of assumption and conjecture.”²¹
 

ARBITRATION PROVISION IN EMPLOYEE HANDBOOK WAS NOT ENFORCEABLE

Harris v. Volt Management Corp., No ED 109162 (Mo. App. E.D. 2021).

Volt Management Corp., doing business as Volt Workforce Solutions (“Volt”), and Volt Information Sciences, Inc., appealed the Circuit Court of St. Louis County’s order denying their motion to compel arbitration. The appellants argued the circuit court “erred in denying their motion to compel arbitration because the arbitration agreement contains a valid delegation provision mandating that the arbitrator has the exclusive authority to decide threshold issues of arbitrability.”²² The appellants also argued that even if the delegation provision didn’t apply, the circuit court “still erred in denying their motion because a valid arbitration exists between the parties.”²³ The Missouri Court of Appeals-Eastern District affirmed the circuit court’s judgment.

Volt hired Jacqueline Harris as an at-will employee. Volt provided the respondent with the Volt Workforce Solutions Employee Guide, which contained the arbitration agreement, sometime after hiring her. Harris’s coworkers began harassing her, and she reported the harassment to her supervisor; she then began receiving hostile text messages directed at her and her son. Harris filed for orders of protection against two individuals she believed sent her the threatening messages. Once Harris’s supervisor learned about the pending orders, she informed Harris that her employment would be terminated if she did not cancel the orders of protection. Harris was terminated and she filed suit asserting claims for wrongful termination and retaliation. On the basis of the arbitration section of the employee guide, the appellants moved to compel arbitration of Harris’s claims.

If the motion to compel arbitration does not have any factual disputes between the parties, the denial of the motion is reviewed de novo.²⁴ If the parties disagree on whether an arbitration agreement exists, a question of fact arises and the circuit court must conduct an evidentiary hearing to determine if an arbitration agreement exists.²⁵

The Supreme Court of Missouri has held that ‘an employee handbook which was unilaterally prepared by an employer, and subject to change by the employer at any time, could not establish enforceable contractual rights.’ However, parties can create a valid arbitration agreement within an employee handbook by fulfilling the offer, acceptance, and consideration requirements applicable to all contracts, and by unambiguously agreeing that ‘binding arbitration will constitute the employee’s exclusive remedy for employment-related disputes.’²⁶

That would allow the arbitrator to answer the “question whether the parties’ dispute is subject to arbitration.’”²⁷

The appellants have the burden of showing that a valid agreement exits when seeking to compel arbitration.²⁸ In this case, the appellants retained the right to modify the employee guide, which included the agreements to delegate and arbitrate, without notice. The appellants’ promises were “illusory” and did not provide valid consideration, the Court of Appeals stated.²⁹

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, P.C.

2 L.M.M. v. J.L.G., 619 S.W.3d 593, 595 (Mo. App. E.D. 2021).

3 Id.

4 Section 455.010(14), RSMo (2016).

5 See id.; see also K.L.M. V. B.A.G., 532 S.W.3d 706, 710-11 (Mo App. E.D. 2017).

6 L.M.M., 619 S.W.3d 593 at 597.

7 Id.

8 Id.

9 O’Donnell v. PNK (River City), 619 S.W.3d 162 (Mo. App. E.D. 2021).

10 Richey v. DP Properties, LP, 252 S.W.3d 249, 251-252 (Mo. App. E.D. 2008).

11 Milford v. May Dept. Stores Co, 761 S.W.2d 231, 232-33 (Mo. App. E.D. 1988).

12 Otterman v. Harold’s Supermarkets, Inc., 65 S.W.3d 553, 556 (Mo. App. W.D. 2001).

13 O’Donnell, 619 S.W.3d 162 at 167.

14 Id. at 168.

15 Gebhardt v. American Honda Motor Co., 2021 WL 865300 (Mo. App. W.D. 2021).

16 Id.

17 Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 792 (Mo. App. W.D. 2008).

18 Gebhardt, 2021 WL 865300 at 4.

19 Id. (quoting State ex rel. Gardner v. Wright, 562 S.W.3d 311, 319 (Mo. App. E.D. 2018)).

20 Id.

21 Id. at 5-6.

22 Harris v. Volt Management Corporation, 2021 WL 1972434, 1 (Mo. App. E.D. 2021).

23 Id.

24 Thereoff v. Dollar Tree Stores, Inc., 591 S.W.3d 432, 436 (Mo. banc 2020). 

25 Id. (citing § 435.355.1, RSMO (2016)).

26 Harris, 2021 WL 1972434 (quoting Johnson v. Vatterott Educ. Ctrs., Inc., 410 S.W.3d 735, 738 (Mo. App. W.D. 2013)). 

27 Id. (quoting New Prime Inc. v. Olivera, 139 S. Ct. 532, 538, 202 L. Ed. 2d 536 (2019)).

28 Esser, 567 S.W.3d at 651. 

29 Harris, 2021 WL 1972434 at 7.