Case Summary for February 28, 2008

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Case Summary for February 28, 2008

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Thursday, February 28, 2008

_______________________________________________________________________________

SC88573
State ex rel. Union Electric Company, d/b/a Ameren UE v. The Honorable David A. Dolan
Scott County
Wrongful death against employer
Listen to the oral argument:

Ameren was represented during argument by Lawrence L. Pratt of St. Louis, and Friley was represented by Thomas K. Neill of St. Louis.

Angela Friley's husband was working for Asplundh Construction Corporation which contracted with Union Electric, d/b/a Ameren UE, to replace electrical transmission lines. In October 2005, while at work, Friley's husband was pulling an electrical wire across a county road when Linda Hampton struck the wire with her vehicle, resulting in Friley's husband's death. Friley sued Hampton and Ameren seeking recovery for damages for wrongful death. She sought to recover from Ameren under the theory it was a "host employer" and argued Ameren had a duty to make the job site safe for her husband. In April 2006, Ameren moved to dismiss Friley's lawsuit, asserting she failed to state a claim upon which relief could be granted. The circuit court overruled the motion as well as Ameren's motion to reconsider. In June 2007, Ameren sought a petition in prohibition or, in the alternative for mandamus, with this Court. This Court issued a preliminary writ in prohibition. Ameren seeks to make the writ absolute.

Ameren argues Friley failed to state a cause of action upon which relief could be granted because she did not allege Ameren controlled the job site and the activities of her husband and his employer, Asplundh. Ameren asserts she did not allege it was the landowner of the premises on which her husband's fatal injuries occurred; that Ameren controlled the job site and the activities of its independent contractor, Asplundh; or that his injuries were covered by Asplundh's workers' compensation insurance. It argues the provisions of the contract between it and Asplundh do not impose liability on Ameren and it did not owe a duty of care to her husband since the dangers posed to him by the electrical transmission wires were open and obvious. Ameren contends it has no adequate remedy to challenge the circuit court's orders overruling its motion to dismiss and its motion to reconsider the court's August 2006 order, by appeal or otherwise; and absent the issuance of an absolute writ of prohibition by this Court, Ameren will suffer irreparable injury.

Friley responds Ameren does not lack an adequate remedy at law and will not suffer irreparable harm if a writ is not issued. She argues Missouri law is clear that writs do not lie following the denial of a motion to dismiss for failure to state a claim upon which relief can be granted. Friley contends Ameren cannot demonstrate the circuit court acted without jurisdiction in overruling Ameren's motion to dismiss or motion to reconsider. She asserts Ameren may be held liable on a theory of premises liability, the theory it controlled the job site and activities, the theory the work to be performed was inherently dangerous and because Ameren failed to provide regulated safeguards and negligently hired an independent contractor. Friley further responds the contract between Ameren and Asplundh is sufficient to impose a duty on Ameren and there is no evidence in the record of workers' compensation benefits. She contends whether there was an open and obvious danger is not an issue addressed in a motion to dismiss.

SC88773
State ex rel. T.W. v. The Honorable David Mouton
Jasper County
Constitutionality of trying a juvenile in a court of general jurisdiction
Listen to the oral argument:

T.W. was represented during argument by James C. Egan of the public defender's office in Carthage, and the state was represented by John A. Nicholas of the Jasper County Prosecutor's Office in Joplin.

T.W., a 13-year-old, took a semi-automatic rifle to Memorial Middle School in October 2006, pointed the weapon at the principal and superintendent, and fired the gun into the ceiling. Two days after his arrest, he attempted to escape from confinement at the Jasper County juvenile detention center. The juvenile office charged him with first degree assault, armed criminal action, making a terrorist threat and attempted escape. In November 2006, the juvenile office moved to dismiss the juvenile petition and allow prosecution under general law. In January 2007, T.W. moved to declare section 211.071, RSMo, unconstitutional and remand to juvenile court. This section allows a juvenile between the ages of 12 and 17, who has committed an offense which would be considered a felony if committed by an adult, to be tried in a court of general jurisdiction and prosecuted under the general law. In February 2007, the state filed two additional charges: first degree assault and unlawful use of a weapon. In March 2007, T.W. objected to the information filed by the county prosecutor. In June 2007, T.W. filed a second amended objection to the information. In July 2007, T.W. argued he received ineffective assistance of counsel in the juvenile division. The circuit court overruled T.W.'s second amended objection to the information. In August 2007, T.W. filed a petition for writ of prohibition, which this Court granted. T.W. seeks to make the writ absolute.

T.W. argues the circuit court would act in excess of its jurisdiction if it allowed the state to prosecute him under the general law. He contends jurisdiction was not properly transferred from the juvenile division and he received ineffective assistance of counsel in the juvenile division proceedings. T.W. asserts he was denied due process and his case should be remanded because the circuit court misapplied the law and based on public policy and fundamental fairness. He argues if the writ is not issued, he will be irreparably harmed because he will be deprived of, or have limited access to, juvenile division services due to the fact that he will be 17 or 18 by the time the appeal process runs its course. T.W. contends he will have endured unwarranted delay and expense, as he will have already gone through the adult proceedings and been incarcerated in prison. He asserts he is entitled to a writ ordering the circuit court take no further action on the attempted escape charge, because the circuit court lacks jurisdiction over the charge in that, under the specific facts of this case, attempted escape can only be charged as a misdemeanor. T.W. contends the circuit court should be prohibited from taking actions on the two additional charges of 1st degree assault and unlawful use of a weapon, or they should be dismissed, because the circuit court lacked jurisdiction over the charges in that he was not specifically certified on these charges.

The state responds the circuit court had proper jurisdiction over the case. It argues the order dismissing T.W.'s juvenile case to allow prosecution under the general law had no flaws on its face and had not been challenged by T.W. The state contends T.W. had effective assistance of counsel at the juvenile division hearing and he was not prejudiced by his previous counsel's acts. The state contends the circuit court did not err in overruling T.W.'s second amended objection to the information because only the court of appeals is the appropriate forum in which T.W. may challenge the validity of the juvenile division order dismissing a juvenile petition by filing a writ of prohibition challenging the juvenile division order, or through seeking post-conviction relief under Rule 29.15. The state argues the circuit court retains proper jurisdiction of the attempt to escape charge because T.W. was under arrest for a felony offense and, since the case was removed upon dismissal of the juvenile petition, was a felony in and of itself when he attempted to escape from police custody. The state asserts the circuit court retains proper jurisdiction over the additional charges of 1st degree assault and a charge of unlawful use of a weapon because T.W. received notice he was been charged with felonies and the defense was not prejudiced by the amendment.

SC88779
State ex rel. Marianist Province of the United States v. The Honorable John A. Ross
St. Louis County
Statute of limitations on sex abuse case
Listen to the oral argument:

Marianist was represented during argument by Gerard T. Noce of St. Louis, and Visnaw was represented by Daniel W. Craig of Kansas City.

Robert Visnaw alleges he was sexually abused by former Marianst Brother William Mueller in 1984 and 1985 when Visnaw was a senior at St. John Vianney High School in Kirkwood. Mueller was employed at the school as an assistant vice-principal and told Visnaw he was performing "experiments." In 2006, Visnaw sued Mueller, the school and Marianist for the abuse that occurred on four separate occasions. Marianist moved for summary judgment arguing the statute of limitations had run and Visnaw should have filed before April 1993. Visnaw argues until 2005 everything he remembered occuring during his interactions with Mueller were non-sexual. The circuit court initially overruled the motion in July 2007. Marianist sought a writ of prohibition to prohibit the circuit court from taking any further action except to sustain Marianist's motion for summary judgment. In October 2007, this Court issued the preliminary writ. Marianist seeks to make the writ permanent.

Marianist argues it is entitled to a permanent order prohibiting the circuit court from enforcing its order overruling Marianist's motion for summary judgment because Visnaw's claim for abuse that allegedly occurred 22 years ago is clearly time-barred as a matter of law, in that a reasonable person who remembered participating in "experiments" in which he stripped down to his underwear, was blindfolded, hyperventilated, and had a knife held to his throat would have been put on notice of a "potentially actionable injury" as a matter of law.

Visnaw responds Marianist is not entitled to a permanent order because it failed to establish the circuit court lacked jurisdiction or acted in excess of its jurisdiction. Visnaw argues Marianist failed to establish it lacks an adequate remedy by trial and appeal or that this is a peculilarly limited situation, or an anomalous, phenomenal and exigent instance where absolute irreparable harm will result, and failed to establish that Visnaw's claims were clearly barred by the statute of limitations.

SC88840
State ex rel. A. Carlton Young and Arline E. Young v. The Honorable Gael D. Wood
City of St. Louis
Conditional immunity in recreational use act
Listen to the oral argument:

The Youngs were represented during argument by David B. Bup of St. Louis, and Shaw's family was represented by P. Dennis Barks of Hermann.

In April 2004, Dr. James Shaw was hunting on Carlton and Arline Youngs' property in Hermann. James Hartnagel was hunting on the property the same day. Shaw and Hartnagel did not know of each others' presence. Hartnagel shot Shaw, resulting in Shaw's death. Shaw's family sued Hartnagel and the Youngs for the wrongful death of Shaw. They contend the Youngs failed to warn the hunters. In May 2007, the Youngs moved to dismiss for failure to state a claim upon which relief can be granted or, in the alternative, for judgment on the pleadings. They argued they were entitled to immunity pursuant to sections 537.345 to 537.348, RSMo, the recreational use statutes. The circuit court overruled the Youngs motion, and they sought a writ of prohibition, which this Court issued in October 2007. The Youngs seek to make the writ permanent.

The Youngs argue they are entitled to an order requiring the circuit court to sustain their motion to dismiss and to dismiss the Youngs from the underlying lawsuit because they have a right to immunity under the recreational use statutes and because the circuit court had a corresponding and unconditional duty to dismiss them from the underlying lawsuit and failed to satisfy that duty. They contend the recreational use statutes contain clear and unambiguous language affording absolute immunity and establish they did not owe any duty to Shaw as a matter of law. The Youngs argue the application of recreational uses statutes is not contingent upon and does not require that a landowner open its land or otherwise make an invitation to the general public to be afforded immunity under the statutes, as the statute specifically grants immunity to the landowner as to the specific person for whom permission was given by the landowner.

Shaw's family responds the recreational use statutes do not apply to the Youngs "active negligence" in failing to warn Shaw of Hartnagel's presence. They argue the Youngs cannot satisfy their burden of proof for issuance of a permanent writ because the recreational use statutes do not grant absolute immunity to persons in similar circumstances as the Youngs from the type of claim asserted against them. The Shaws contend there is no established law that interprets the act that the Youngs have to provide persons in similar circumstances absolute immunity from any negligence claims such as the Shaws asserted. They argue there is no established law that interprets the act to say that a landowner need not open his or her land to the public in order to be afforded immunity under the recreational uses act. They contend the act does not provide absolute immunity from claims of the type asserted against the Youngs, in that the presence of a hunter on the premises who increases the danger to another hunter on the same premises is not a natural or artificial condition, structure, or personal property on the land; therefore, a failure to warn about the presence of such hunter can be active negligence from which a cause of action may arise.