Gerard T. Noce's list of 2005's top cases

Dunn vs. Enterprise Rent-A-Car Co., 170 S.W.3d 1, Missouri Court of Appeals, Eastern District, No. ED83240, handed down April 12, 2005. This case held that an at-will employee could state a cause of action for wrongful discharge under the public policy exception to the at-will employment doctrine if the employee was terminated for reporting or objecting to conduct by the employer that the employee reasonably believed would have violated federal securities law.

Crow vs. Kansas City Power & Light Co., 174 S.W.3d 523, Missouri Court of Appeals, Western District, No. WD64229, handed down July 5, 2005. While a possessor of land may, under certain conditions, be subject to liability for injuries suffered by an invitee due to a condition on the land, the possessor's actions do not fall below the applicable standard of care if the possessor fails to protect invitees against conditions that are open and obvious as a matter of law. This case reaffirmed that an invitee has a duty to look and notice any conditions which are open and obvious.

Watson vs. Philip Morris Cos. Inc., 420 F.3d 852, 8th U.S. Circuit Court of Appeals, No. 04-1225, handed down Aug. 25, 2005. The plaintiffs in this class action alleged that the tobacco company defendants designed their cigarettes to deliver more tar and nicotine than their labels and advertising would suggest. The 8th Circuit held that the level of the Federal Trade Commission's regulation, and compulsion with its regulation, of the defendants' labels and advertising established that defendants were acting under the direction of a federal officer within the meaning of 28 U.S.C. Section 1142(a)(1). The court concluded that these defendants properly removed this action to federal court under this statutory section.

Humphrey vs. Glenn, 167 S.W.3d 680, Missouri Supreme Court, No. SC86035, handed down July 12, 2005. This case adopted Section 335 of the Restatement (Second) of Torts regarding a land possessor's tort liability to those persons that the possessor knows or should have known constantly trespass upon an area of his land containing artificial conditions. Under this section of the Restatement, the possessor is liable for failing to exercise reasonable care in warning the trespasser if the condition is one that the possessor has created or maintains; is to his knowledge likely to cause death or serious bodily harm to the trespasser; and is of such a nature that he has reason to believe that the trespasser will not discover it.

Ritchie vs. Goodman, 161 S.W.3d 851, Missouri Court of Appeals, Southern District, No. 26429, handed down March 21, 2005. This case held that neither Missouri's fairly recently amended dram shop statute in Section 537.053 RSMo., nor its zero tolerance motorist licensing law in Section 302.505 RSMo., provide any social host liability for those individuals who have been injured by an intoxicated person.

American Boat Company Inc. vs. Unknown Sunken Barge, 418 F.3d 910, 8th U.S. Circuit Court of Appeals, No. 04-3388, handed down Aug. 16, 2005. The plaintiff contended that it did not file its notice of appeal within the proper time because it did not receive the e-mail that the district court clerk's office had sent notifying plaintiff of the district court's denial of the plaintiff's post- judgment motion. The 8th Circuit held that a presumption of delivery and receipt applies to e-mail notices sent by the clerk's office. The circuit court, however, remanded the case back to the district court for an evidentiary hearing to determine whether the plaintiff could overcome this presumption.

Owens vs. Unified Investigations & Sciences Inc., 166 S.W.3d 89, Missouri Court of Appeals, Eastern District, No. ED84537, handed down May 17, 2005. This case held that a company hired by the insurer of an apartment building to investigate a fire in that building had no duty to the building's tenant to preserve allegedly defective smoke detectors. The tenant had no privity of contract with the investigator, and it was not foreseeable that any action of the investigator would cause the tenant any injury.

Chandler vs. Multidata Systems Intern. Corp. Inc., 163 S.W.3d 537 Missouri Court of Appeals, Eastern District, No. ED84192, handed down May 10, 2005. The Eastern District affirmed the dismissal of this products liability personal injury case under the doctrine of forum non conveniens. Even though one of the defendants was a St. Louis County defendant, the appellate court upheld the dismissal because the injuries occurred in Panama, multiple witnesses were located in Panama, responsible third parties could not be impleaded for lack of Missouri jurisdiction, and the burden on the trial court was high in accommodating the need for language interpretation and in applying Panama law.

State ex rel. Ford Motor Co. vs. Manners, 161 S.W.3d 373, Missouri Supreme Court, No. SC86065, handed down May 10, 2005. Section 506.150 RSMo. provides that service of process may be made upon a corporate defendant by, among other ways, delivering a copy of the summons and petition to a managing or general agent. This case defined a managing agent as one invested with some general powers which involve the exercise of independent judgment and discretion, as distinguished from an ordinary agent or employee who acts in an inferior capacity and under the direction and control of superior authority. It defined a general agent as one who is clothed with general authority to act for the corporation, or one who is authorized to transact the corporate business at a particular place or of a particular department.

Heartland Payment Systems L.L.C. vs. Utica Mut. Ins. Co., Missouri Court of Appeals, Eastern District, No. ED84636, handed down Oct. 11, 2005. This case held that even if an insurer's other insurance clause entitled it to a pro-rata allocation with another insurer, this allocation does not reduce the insurer's obligation to the insured. If one insurer is required to pay the insured more than its pro-rata share, then that insurer may seek contribution from the other responsible insurer.

Gerard T. Noce is a partner with the law firm of Burroughs, Hepler, Broom, MacDonald, Hebrank & True L.L.P. He has tried more than 130 jury cases to verdict in 22 counties throughout Missouri and in the Eastern and Western Missouri federal district courts.

Michael L. Young is an associate with the law firm of Burroughs, Hepler, Broom, MacDonald, Hebrank & True L.L.P. He focuses his practice in the areas of appellate litigation and insurance coverage.

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