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Case Summary for September 11, 2013


Attached to the following docketed cases are electronic copies of briefs filed by the parties. These electronic briefs have been converted to PDF to accommodate various word processors. If you do not already have Acrobat reader, which is necessary to open the PDFs, you may obtain it free at the Adobe website. (A set of free tools that allow visually disabled users to read documents in Adobe PDF format is available from These briefs do not reflect any opinion of the Court about the appropriateness of the format of the briefs or the merits of the case, nor are they official court records. Copies of all briefs filed with the Court are available at the Supreme Court Building in the court en banc division.

The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit


9 a.m. Wednesday, September 11, 2013


Rafael Lozano v. BNSF Railway Company
Jackson County
Challenge to exclusion of evidence at trial

Listen to the oral argument: SC92996.mp3
Lozano was represented during arguments by Newton G. McCoy, a private practitioner from St. Louis, and BNSF Railway was represented by Craig M. Leff of Yeretsky & Maher LLC in Overland Park, KS.

Rafael Lozano works as an electrician at Burlington Northern and Santa Fe (BNSF) Railway. He alleges that as part of his employment, he suffered a hernia from being required to lift heavy end of train devices (ETDs) from locomotives when other employees left them in the cabs. Lozano brought an action against BNSF claiming negligence in placement of the ETDs. He sought to introduce evidence regarding alternative placement of the ETDs and testimony from other employees who experienced similar conditions. BNSF filed a motion in limine to exclude the evidence, which the trial court granted. Ultimately, the circuit court entered judgment in favor of BNSF. Lozano appeals.

Lozano argues the trial court erred in excluding evidence from admission at trial. He contends his evidence was relative to his theory of negligence because it presented an alternative for placement of ETDs. Lozano asserts the evidence made it more probable that BNSF was negligent and excluding the evidence prejudiced him. He argues the presence of ETDs in the train cabs was unsafe and created a tripping hazard, which made it more probable that BNSF’s negligence caused or contributed to his injury. Lozano also contends the witnesses should have been permitted to testify because their knowledge and experience gained from years of working with trains qualified them as experts. He asserts the testimony would have assisted the jury with understanding subjects with which they are not familiar.

BNSF responds the trial court correctly excluded the evidence from admission at trial. It argues Lozano failed to raise the argument on appeal that there was an alternative for the placement of ETDs and has, therefore, waived that argument. BNSF contends Lozano’s focus on the trial court’s ruling on the motion is misplaced and misleading because he is appealing the trial court’s reasoning for excluding evidence. It asserts the trial court correctly excluded evidence that ETDs cause tripping. BNSF argues the trial court also correctly excluded testimony of three witnesses because it was not necessary to the jury’s understanding of the evidence. It contends the testimony was duplicative of Lozano’s testimony and irrelevant to the trial.


John Templemire v. W&M Welding Inc.
Pettis County
Challenge to refusal of verdict directors

Listen to the oral argument: SC93132.mp3
Templemire was represented during arguments by Bryan T. White of White, Allinder, Graham, Buckley & Carr LLC in Independence, and W&M Welding was represented by James T. Buckley of Buckley & Buckley in Sedalia.

John Templemire was an employee of W&M Welding since October 2005 until his termination November 29, 2006. Prior to termination, Templemire was injured by a rail which fell from a forklift onto his foot. Following his injury, Templemire was restricted from certain functions by his doctor and put on light-work duty. He also filed for workers’ compensation. Following termination, Templemire brought this action claiming retaliation for filing a workers’ compensation claim. The trial court overruled W&M’s motion for directed verdict and Templemire’s submitted jury instructions containing verdict directors. The jury was instructed that Templemire should get relief if they found the exclusive cause of his termination was filing for worker’s compensation. The jury found for W&M and Templemire’s motion for new trial was overruled. Templemire appeals.

Templemire argues the trial court erred in refusing his verdict directors at trial. He contends jury instruction 23.13 misstates the law in workers’ compensation retaliation cases and directly conflicts with section 287.780, RSMo. Templemire asserts the instruction requires proof that workers’ compensation was the “exclusive cause” of discharge whereas the statute states liability attaches if workers’ compensation is a “contributing factor” in discharge. He argues the trial court should have accepted his “contributing factor” instruction and he was prejudiced by the court’s refusal. Templemire contends the jury should have been instructed that he was entitled to relief if the jury found he was discharged for a reason other than that given by W&M.

W&M responds the trial court did not err in refusing Templemire’s verdict directors at trial. It argues section 287.780 has been consistently interpreted to require retaliatory discharge claimants to prove the “exclusive cause” of the discharge was exercising a right granted by the statute and legislature. W&M contends the legislature is familiar with the “exclusive cause” construction and approved it as part of the law. It asserts the “exclusive cause” instruction is to be given regardless of the contributing factor standard used in other wrongful termination cases. W&M argues the jury was properly instructed and any other instruction would have given the jury a roving commission (jury can choose any fact(s) to impose liability) because it would not submit an ultimate issue to the jury for determination.

The National Employment Lawyers Association argues as a friend of the Court that the Court should abandon the exclusive causation standard for claims under section 287.780. It contends the standard is inconsistent with the plain language of the statute and fails to fulfill the purpose of the statute. The association asserts the Court should adopt a contributing factor standard for such claims because the standard would both be consistent with the standard used for other types of discharge claims and fulfill the statute’s purpose.

The Missouri Association of Trial Attorneys makes substantially the same argument, but adds that the exclusive causation standard comes from an outdated notion that direct evidence is required to prove employment discrimination. It also contends the standard is premised on the belief that a lower standard would encourage frivolous claims. The association asserts the plain language of section 287.780 and public policy favor abolishing the standard.

The Missouri Chamber of Commerce and Industry argues as a friend of the Court that the trial court correctly found the standard to be “exclusive cause.” It contends that is the standard applied in prior cases of this nature. The chamber asserts that if the court abandons the “exclusive cause” standard, then a “motivating factor” standard would fulfill the purpose of the statute and provide a definite standard for businesses to follow.

The Missouri Organization of Defense Lawyers makes substantially the same argument as the Missouri Chamber of Commerce and Industry.



John Coomer v. Kansas City Royals Baseball Corporation
Jackson County
Challenge to implied primary assumption of risk

Listen to the oral argument: SC93214.mp3
Coomer was represented during arguments by Robert W. Tormohlen of Lewis, Rice & Fingersh LC in Kansas City, and the Kansas City Royals were represented by Scott D. Hofer of Foland, Wickens, Eisfelder, Roper & Hofer PC in Kansas City.

John Coomer attended a Kansas City Royals baseball game Sept. 8, 2009, where he was struck by a hotdog during a Royals’ game tradition known as the hotdog toss. Coomer suffered an eye injury requiring surgeries for a detached retina and a cataract. He reported the injury to Royals personnel Sept. 16, 2009. At trial, the Royals filed for summary judgment claiming Coomer had implicitly assumed the risk because being struck by a hotdog was an inherent risk of attending a baseball game. The jury determined the Royals were not at fault for the hotdog incident. Coomer filed motions for a judgment notwithstanding the verdict and a new trial, which the circuit court overruled. Coomer appeals.

Coomer argues the trial court erred in overruling his motion for a directed verdict. He contends that the theory of primary implied assumption of risk is not applicable in this case because the risk involved here is not inherent to the game of baseball and because he is claiming negligence. Coomer asserts certain jury instructions were improper because coupled together they completely bar his claim even if the Royals are found negligent, which misstates the law. He argues the Royals failed to prove he was comparatively at fault because he did not act unreasonably when he was struck with the hotdog. Coomer contends the trial court should have instructed the jury regarding negligent supervision and training because they are not theories of imputed liability (attributing fault).

The Kansas City Royals respond the trial court correctly overruled Coomer’s motion for directed verdict. They argue implied primary assumption of risk is applicable because being struck by a thrown hotdog is an inherent risk of the hotdog toss at Royals’ games. The Royals contend Coomer consented to the risk by attending the game knowing the toss was an inextricable part of the experience. They assert the jury instructions were proper because they were consistent with implied primary assumption of risk and prevented a complete defense verdict if the jury found the Royals negligent. The Royals argue there was substantial evidence to support comparative fault because Coomer was aware hotdogs were being thrown and chose to look away from the hotdog being thrown in his direction. They contend the court correctly refused Coomer’s claims of negligent supervision and training because they had already admitted agency and theories of negligence would have been duplicative.


In re: Roger John Dade
Jackson County
Attorney discipline

Listen to the oral argument: SC92970.mp3
The Office of Chief Disciplinary Counsel was represented during arguments by Sam S. Phillips of the Office of Chief Disciplinary Counsel in Jefferson City, and Roger Dade represented himself. Judge Judy P. Draper, an associate circuit judge in the 21st judicial circuit (St. Louis County), sat in this case by special designation due to the voluntary recusal of Judge Richard B. Teitelman.

Attorney Roger Dade obtained his law license Sept. 11, 2003. On Aug. 11, 2005, he was admonished for engaging in the unauthorized practice of law in Kansas. Dade represented the Kansas based Sunshine companies as in-house counsel when a lawsuit was filed against them on Feb. 22, 2010. Despite not having a Kansas license, he appeared in Kansas district court to represent Sunshine in a hearing and signed another Kansas-licensed attorney’s name to a document without permission. Dade attended a law practice management course following an informal agreement with disciplinary counsel.

Disciplinary counsel argues Dade violated Rule 4-5.5(a) regarding practicing in an area in violation of the regulations of the legal profession in that particular jurisdiction. He contends Dade also violated Rule 4-8.4(d) regarding conduct that is prejudicial to the administration of justice. Disciplinary counsel asserts Dade should be reprimanded for his conduct because that is the most appropriate remedy.

Dade responds that he has stipulated to everything disciplinary counsel is arguing and finds that reprimand is the appropriate remedy for his actions.


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