Case Summary for January 23, 2007

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Case Summary for January 23, 2007

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. Tuesday, January 23, 2007
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SC87513
Kimberly Hodges v. City of St. Louis
City of St. Louis
Challenge of agency relationship and constitutional validity of Missouri statutory immunity cap on recoverable damages

In March 2003, a St. Louis police car, driven by a police officer the wrong way on a one-way street in the city of St. Louis, collided with a car driven by Kimberly Hodges' mother, who sustained multiple injuries. The mother sued the city of St. Louis, the police officer, the city's board of police commissioners and individual board members. The city moved to dismiss several times, each time alleging the sovereign immunity provisions of section 537.600, RSMo, protected it from liability. The court overruled the motions, and the city ultimately moved for summary judgment, again raising sovereign immunity as a defense. While the motion was pending, the mother died, and the court substituted Hodges to step in her mother's place as the plaintiff and to add a wrongful death action against the defendants. The jury found for Hodges and awarded her $1.2 million in damages. The trial court entered judgment against the city but reduced the amount of damages to $335,119 to reflect the limit of liability available under the sovereign immunity cap of section 537.610, RSMo. Pursuant to section 537.095, RSMo, the court also entered a partial judgment against the officer, the board and individual board members. The city and Hodges both appeal.

The city argues Hodges did not present enough evidence that the police officer involved in the accident was an agent of the city. It contends that the officer was an employee of the board and, therefore, that the board, not the city, is liable for the officer's actions. The city argues the state's sovereign immunity law, sections 537.600 to 537.620, RSMo, provides immunity for the city for lawsuits except for injuries resulting from "the negligent acts or omissions by public employees arising out of the operation of motor vehicles … within the course of their employment." The city contends that, because the officer is not an employee of the city, the operation of the police car was not within the course of city employment. It asserts, therefore, that it cannot be held liable and that the court should have sustained its motion for direct verdict or for judgment notwithstanding the verdict.

In response to Hodges' cross-appeal, the city argues the issues of the constitutional validity of the statutory cap and limitation of recovery in the sovereign immunity statutes were not preserved for appellate review. The city asserts that even if the constitutional issues were preserved for review, Hodges is entitled only to the reduced amount based on the statutory cap. It argues the cap does not violate equal protection because the cap does not infringe on a fundamental right of Hodges, there is no authority for any level of scrutiny other than the "rational relationship" test, and there is a rational relationship between the cap and the city’s interest.

In response to the city's appeal, Hodges contends that section 84.330, RSMo, specifically states that members of the city's police force are "officers" of the city and, therefore, there is an agency relationship between the city and its police officers as a matter of law. She argues the city may be held liable for the officer's negligent acts when using a police car while on duty. Hodges also contends the city is liable for the officer's negligent acts under the theory of respondeat superior, where the employer (the city) is responsible for its employee (the police officer) while the employee is working.

In her cross-appeal, Hodges argues that because the officer, as a city employee, was in a car accident with her mother, the officer's action fits within the statutory exception of sovereign immunity, and the city is liable under section 537.600(1). Hodges asserts that the cap on her recovery under section 537.610 violates equal protection because it denies her the right to recover the full amount of her economic damages. In a medical negligence claim, she contends, a party may recover full economic damages, with no cap on recovery, plus a capped amount of non-economic damages. Hodges further argues that she properly asserted her constitutional claim in trial court and that she preserved her claim throughout the proceeding.

Kansas City argues, as a friend of the Court, that without control over the board of police commissioners and its employees, the city of St. Louis cannot be held liable for the actions of the board's employees. Kansas City contends that, under section 432.070, RSMo, because Hodges cannot prove a written agreement establishing an agency relationship between the city and the police officer exists, the court cannot find that the officer was an agent of the city. Kansas City further asserts that the city of St. Louis has no control over the board of police commissioners, that no agency relationship existed, and that, therefore, the city cannot be held liable for the officer’s actions.

SC87968
Dianna Reagan, et al. v. County of St. Louis, Missouri
St. Louis County
Challenge to whether property rezoning constituted a taking

In April 1999, Dianna Reagan bought 4.7 acres of land in St. Louis County for $134,000. At the time of purchase, the land was zoned as "M-1" industrial, as it had been zoned since 1965. Surrounding land was zoned and developed for residential use. Reagan owned a construction business and planned to build an office building on the property she bought, but it is disputed whether Reagan ever applied for a building permit. In January 2001, in response to complaints by neighboring residents, a council representative prepared a resolution to rezone the land. In May 2001, the planning commission held a public hearing regarding the potential rezoning. In July 2001, the county rezoned Reagan's property to "R-3" residential district, thereafter preventing her from constructing the office building. In September 2002, Reagan sold the land for nearly $172,000. She subsequently sued the county, claiming its rezoning of her property constituted a regulatory taking under article I, section 26, of the Missouri Constitution and that its action violated her substantive due process rights. The trial court awarded Reagan $65,300 for the regulatory taking of property, but found for the county on the substantive due process claim. The county appeals the monetary award, and Reagan cross-appeals for the due process claim.

The county argues its rezoning ordinance is authorized under the state constitution to promote health, safety, morals, comfort and general welfare; to secure economic and coordinated land use; and to facilitate the adequate provision of public improvements. Also, it argues, Reagan's property did not constitute a taking under the state constitution because it did not impose a severe impact on property value based on the United States Supreme Court's analysis of economic impact of ordinances interfering with investment-backed expectations in Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978). In that case the Court held that land-use regulations destroying or adversely impacting the values of real estate are not takings and that showing that regulation prevents a use of property the owner previously had believed was permissible does not amount to regulatory taking. The county argues that the trial court miscalculated damages and that the $65,300 it awarded Reagan is not supported by the evidence. The city contends the proper measure of damages should have been the difference in fair market value, which was the price Reagan got when she sold the property in 2002. Finally, the county disagrees with the trial court's decision that it has to pay Reagan’s attorney's fees and costs. It argues counties are liable for attorney's fees and costs only when a statute explicitly provides for it; the county argues no statute explicitly provides for such liability in this case.

In response to Reagan's cross-appeal, the county argues it did not violate her substantive due process rights because she changed the basis of her substantive due process claim after her case was transfer to this Court, thereby waiving it. The county also asserts that Reagan did not have a property interest in the M-1 zoning for the property and that the rezoning to R-3 rationally was related to a legitimate government interest. The county asserts there was no regulatory taking to support the more than $83,300 additional damages Reagan requests. It further responds that the proper measure of damages is between the property's fair market value immediately before and after a taking; it argues the damages should not include money Reagan put into the property.

In response to the county's appeal, Reagan contends the trial court properly found the county's rezoning to be a regulatory taking because it violated her right to just compensation. She claims the rezoning prohibited her from constructing an office building on the property, devalued the property and cost her out-of-pocket expenses without advancing a legitimate public interest. She argues the record supported that her damages were $65,300. Reagan also argues the county is liable for attorney's fees and costs because the county did not raise its defense against such payment, statutory authority provides for a county to pay, and a trial court has discretion to award fees and costs under unusual circumstances.

In her cross-appeal, Reagan argues that the rezoning was a substantive due process violation because it was not done to further a valid public benefit, the private detriment outweighed any "public benefit," she had an investment-backed and justifiable expectation regarding the prior zoning of the property, and she was not made whole by the trial court's judgment. She argues, therefore, that she should be awarded all compensatory and consequential damages. She argues she is entitled to an additional $83,332 for money she spent preparing the property for development because under article I, section 26 of the Missouri Constitution, she did not receive full indemnity for the loss of damages.

Pacific Legal Foundation argues, as a friend of the Court, when a landowner purchases property prior to any act toward rezoning, the owner's expectations are more reasonable that the land would stay zoned as it is at the time of purchase. Also, it argues a landowner's reasonable expectations depend on the government's treatment of the property and surrounding development. Pacific argues that any conflict should be resolved in favor the landowner and that the facts of this case indicate Reagan had a reasonable investment-backed expectation.

SC87911
Larry Reichert, et al. v. The Board of Education of the City of St. Louis
City of St. Louis
Challenge to the right to change a union policy statement unilaterally

The city of St. Louis board of education and the International Union of Operating Engineers Local 2 agreed to a policy statement, to be in effect through June 2008, regarding the stationary engineers who maintain and operate pressure boilers owned by the board. Pursuant to the policy statement, the board hired Larry Reichert and others as stationary engineers. They were non-certified permanent employees under section 168.281, RSMo, and were part of the union's collective bargaining unit. In July 2005 the board changed the policy statement, without the union's consent, to allow people other than the specified stationary engineers the agreement reserved for them and hired other workers to do the union work. The board also placed the union workers on leave of absence with pay for the month of July. It later changed their leave of absence without pay, benefits, or the right to participate in the retirement system. Before the board changed the policy statement and replaced the union workers, the state department of elementary and secondary education identified the board as a "financially stressed district" under section 161.520, RSMo, with a projected deficit of more than $23 million by June 2006. The outsourcing saved the board $233,000. The union workers sued the board, seeking preliminary and permanent injunctions and asking to be reinstated. The trial court denied the motion for injunction, relying on Sumpter v. City of Moberly, 645 S.W.2d 359 (Mo. banc 1982), holding that the public sector labor law provides an organized conversation between public entities and their employees. The union workers appeal.

The union workers argue they are entitled to a permanent injunction to the policy change because they were employees and the board placed them on leave of absence without pay while allowing others to work in their place, in violation of sections 168.281 and 168.291, RSMo. They argue the terms of the policy statement between the union and the board could not be unilaterally altered by the board under section 105.520, RSMo.

The board contends the union workers are not entitled to an injunction because they properly were placed on leave of absence without pay under section 168.291, which gives the district the authority to lay off staff when there are insufficient funds, even if a binding agreement exists. The board argues it was permitted to alter the policy statement unilaterally under section 105.520, because the agreement was not a binding collective bargaining agreement. The board contends it lawfully amended the policy statement in accordance with the written terms of the policy and under section 162.621, RSMo. Also, the board argues it was reasonable to put the union workers and others on leave and outsource their jobs as necessary as it has discretion to make management decisions, such as outsourcing, based on a lack of school funding and strict budgeting laws.

SC87991
Philip White v. Mark Zubres, D.O., et al.
Jasper County
Applicable statute of limitations in medical malpractice case

On his doctor's order, Philip White underwent a full body bone scan in July 1998, after he complained of pain in his ribs. Radiologist Mark Zubres reviewed White's bone scan and found increased bone metabolism, or "uptake," in White's knees but could not determine if it was an abnormality that needed further investigation. Uptake may be a sign of normal bone degeneration or potentially life-threatening bone disease. Zubres thought the uptake was benign, given White's age, and reported the bone scan as normal. Zubres did not mention the uptake to White or to his doctor. In April 2002, White went to an orthopedic doctor complaining of knee pain. Tests revealed White had osteosarcoma, the most common type of malignant bone cancer. Four years after Zubres read his bone scan, White filed a medical malpractice lawsuit against Zubres and later added Wayne Putnam of Carthage Radiologists. White alleged Zubres failed to read the bone scan properly and failed to inform him of the actual results of the scan. Zubres moved to dismiss the suit, arguing the action was barred by the two-year statute of limitations of section 516.105, RSMo. White countered that his case falls within an exception to the statute. The trial court entered summary judgment for Zubres and Putnam. White appeals.

White argues his case fall within the exception of section 516.105(2), which provides a discovery rule in cases where the healthcare provider negligently fails to inform the patient of the results of medical tests. White argues Zubres knew the bone scan showed increased uptake, which could indicate a potentially life-threatening condition, but failed to inform White of the finding. White contends he filed his claim within two years of discovering Zubres' failure to inform. White also argues his case falls within the exception of 516.105 because Zubres failed to offer evidence that his failure to report the increased uptake in White's right knee was based on appropriate medical judgment that complied with the standards of care for radiologists when reading a bone scan.

Zubres responds that White's claim is barred by the two-year statute of limitations under 516.105 because White filed the claim four years after Zubres read the bone scan. Zubres asserts White's case does not fall within any of the exceptions to 516.105. He argues he had a right to summary judgment because the evidence presented at trial showed he reached his bone scan results using his medical judgment and interpretation of what he saw, and the results of the scan were given to White under the appropriate standard of care. In support of his claim, Zubres cites Davidson v. Lazcano, __ S.W.3d __, 206 WL 2128697 (Mo. App. 2006), which found that even a doctor's misdiagnosis is bound to the two-year statute of limitations.

Putnam responds that White's claim was filed outside the limitations for medical negligence claims set in section 516.105, and does not fall into any of its exceptions. Specifically, he contends, section 516.105(2) does not apply where the negligence alleged is the application of medical judgment in interpreting medical data. He asserts White's claim was filed too late because of the undisputed evidence Zubres used medical judgment in interpreting the bone scan as normal.