Lance Loewenstein, Attorney at Law PC 816-810-9920

Dad owns a car dealership, but forbade son from driving any vehicles on the lot. Son breaks in and takes a Lincoln for a joyride and crashes it, killing a motorist in the process. Is the dealers insurer liable to defend the wrongful death suit? The Court of Appeals said no last month, stating that the implication of permission to use an automobile is"...porvable by circumstantial evidence." There was none in this case, insurer is off the hook. See American Standard v. Stinson.

Every injury at work is covered by Worker's Compensation Insurance, right? Nope. In a case involving a fall by an employee in a motorcycle showroom, the Eastern District Court of Appeals this month reminds us that the "...Supreme Court requires a casual connection between in injury and a work activity OTHER than the fact that it occurred at work." That causal connection does not include someone making coffee for their own consumption, but does include someone tripping on stairs whlie walking from one work station to another. See Pope v. Gateway to the West.

Well, the Holiday Inn Riverport's owners had a really bad day in the Eastern District Court of Appeals. In October of 2001 it authorized a marketing company to send out 12,500 junk faxes (remember those?) in violation of the Telephone Consumer Protection Act which allows a $500.00 civil penalty PER FAX to be collected by the recipient. A class action case was settled for $5m, and the issue was whether or not the hotel's liability carrier had to pay. The court said no, refusing to associate civil "penalties" with civil "damages", the latter of which was covered under the policy. See Columbia Casualty Company v. HIAR Holdings.

What is a reasonable accommodation for an individual with a disability seeking advantages, facilities, services or privileges in a place of public accommodation? The Missouri Court of Appeals last week affirmed case doctrine that limits the accommodation to one that does not impose excessive costs or administrative burdens, or require fundamental alterations to the nature of the program, based on the individual facts of the case. Very often this doctrine is applied to employers or potential employers of disabled people. Here, a nursing college lost an appeal of their successful summary judgment motion based upon their refusal to provide a sign language interpreter for a student. See Wells v. Lester E Cox Medical Centers. See

Once evidence of Listeria was found in cheese produced by a Missouri Dairy, the Missouri State Milk Board embargoed the remaining cheese and successfully sued to order its destruction. One would not think that a dairy would appeal to keep its Listeria-infected cheese, but it did. And, last week, lost. The issue revolves around state police powers - and the Court of Appeals re-affirmed the idea that when probable cause exists for the State to believe there is an immediate threat to public safety, the State's action in the absence of proof is a valid exercise of police power. Very powerful, the State. See State v. Morningland.

Revised Statues, State of Missouri Chapter 578.176. Bear wrestling -- penalty. Any person who commits any of the following acts is guilty of a class A misdemeanor: (1) Bear wrestling; (2) Permitting bear wrestling to be done on any premises under his charge or control;... (3) Promoting, conducting, or staging bear wrestling; (4) Advertising bear wrestling; (5) Collecting any admission fee for bear wrestling; (6) Purchasing, selling, or possessing a bear which he knows will be used for bear wrestling; (7) Training a bear for bear wrestling; (8) Subjecting a bear to surgical alteration for bear wrestling.

So an employee of a funeral home (oddly enough) gets drunk and wrecks a company van, killing himself. Business is off the liability hook, right? Not here. The business owner was well aware of his employee's drinking problem and let him drive anyway, which was considered "negligent entrustment" by the court. The man's family is entitled to compensation as a result. Watch who you give the keys to - whether you are a business or an individual. See Hays v. Royer, W.D. Ct. App.

Most businesses have leases that make the business responsible for normal maintenance on the premises. But when does "maintenance" stop and "reconstruction" begin, incurring liability for the landlord. One Springfield landlord found out the hard way last week, ending up on the losing end of an Appeal. "The usual and ordinary meaning of repair does not include repairs structural in nature." the court ruled, pointing out that specific language would be required of the leasee is to make structural repairs. The plaintiff in the case? The father of two of the Defendants. See Whyzmusis v. Plaza Shoe Store.

So, the a contractor comes to your place and fixes up your bathroom for a couple of grand. Scallywag that you are, you refuse to pay. He files a "mechanic's lien" against your property and because you are a deadbeat scallywag you lose your house in foreclosure. Who gets paid first out of the proceeds of the foreclosure? Your plumber. The Missouri Supreme Court clarified last week that "...a mechanic's lien on a building...is given complete priority..." Yay for the plumber. IF he or she knows the statutory requirements precedent to filing a mechanic's lien, which can be discussed by calling our resident lien guru at Strawder & Loewenstein!

When is an injury at work not covered by workman's compensation insurance, rendering the employer liable for its negligence that would be otherwise protected by the Workman's Compensation statute? The Missouri Court of Appeals re-iterated last week that in the Show-Me State "...injuries sustained by employees in assaults at work arising from personal quarrels are not compensable." (under the workman's compensation statute) This eliminates an affirmative defense for employers when faced with lawsuits for their own negligence such assault and suggests that an awareness of an employee's potential danger leads to a potential duty to mitigate the danger for an employee while he or she is on the employer's premises from the known potential harm. See Flowers v. City of Caldwell Missouri.

Every contract in Missouri includes an implied promise that the parties will act in good faith - it's called the implied covenant of good faith and fair dealing. The Missouri Court of Appeals last week came up with a succinct definition of the duty in Jennings v. Missouri State University: "...this implied duty is to not use express contract terms in such a way as to evade the spirit of the transaction or to dent a party an expected contract benefit." Further confirmation that in the world of contract damages, some things you learned in Kindergarten!