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Raymore Personal Injury Lawyers’ Analysis of Deposition Testimony of Slip and Fall Witnesses

Raymore personal injury lawyers and Belton, Harrisonville and Cass County personal injury attorneys will benefit from this continuing education post.  This is an exemplar status letter from a Raymore personal injury lawyer to his insurance defense client, who is attempting to avoid a personal injury slip and fall claim in the Circuit Court of Cass County at Harrisonville.

This post will assist Raymore personal injury attorneys and Cass County accident injury lawyers in understanding the analysis personal injury defense law firms use in evaluating the testimony of the victims and any witnesses.

The names and some identifying information has been changed to protect the privacy of those involved.

Contact Pleasant Hill personal injury lawyer Matt Hamilton at 816-540-4040 if you have been involved in a personal injury accident.  Each case presents its own unique facts and evidence.  You will want an experienced personal injury lawyer from Cass County to analyze your case to get the best advise on how to proceed with a personal injury claim.

June 26, 2010

Carol Pleasant

Raymore Restaurant’s Inc.

1478 Elm Hill Pike, Suite B6

Raymore, MO 64083

Re:    Case Style:           Harrison, Sandi v. Raymore Restaurant’s, Inc.

Case No.:              11 CV 278932, Circuit Court of Cass County

Date of Loss:        10/09/2008

RSKCo No.:          10478968

Claim No.:            074564-25979

Dear Ms. Pleasant:

Your Raymore personal injury lawyers took the depositions of the accident plaintiff, Sandie Harrison and Floyd Cass, former manager of Raymore Restaurants, Inc. who witnessed events just after the plaintiff’s alleged slip and fall were taken recently.  We have set forth a summary and our analysis of their depositions below for your review.

SANDI HARRISON

RAYMORE PERSONAL INJURY SLIP AND FALL VICTIM

Raymore personal injury accident victim Ms. Harrison is a lady in her middle eighties.  She is of medium height and weight.  She is well-spoken and comes across as intelligent, energetic, honest and frank.  However, she does get confused, has trouble remembering the facts in this case at times and seems frail.  Overall, she will make an above-average witness in front of a Circuit Court of Cass County personal injury jury.

Ms. Harrison is originally from Raymore, Missouri.  She has eleven children; eight girls and three boys.  The oldest child is John Cass, who is sixty-six years old.  Every Friday, and sometimes on Saturday, Ms. Harrison goes out to dinner with John.  For a number of years, they were regular customers of Raymore Restaurant’s.  However, since the restaurant closed in 2009, they now go to “Jim’s.”

Raymore personal injury victim Ms. Harrison is self-sufficient with some age-related limitations.  She lives by herself in Raymore, Missouri.  Her daughter and other relatives help her clean and move things from time to time.  Her son, John, drives her where she needs to go.  Ms. Harrison also needs help opening the door of his van and occasionally needs assistance getting out.  Otherwise, Ms. Harrison takes care of herself.

According to her testimony, Ms. Harrison is in excellent health for her age.  Ms. Harrison wears bifocal glasses.  She has good distance vision but needs the glasses to read.  It appears that her vision is as good as any normal person.  Ms. Harrison has a normal sense of balance and does not have a history of tripping over objects.  She also does not have a significant medical history.  These facts have been confirmed by our Lee’s Summit personal injury lawyers.

Ms. Harrison broke her left wrist approximately forty years ago in Harrisonville, Missouri.  She also was examined at St. Mary’s hospital in November of 2009 for pain.  She states that neither she nor the doctors discovered what was wrong with her.  Her only current health complaints are her occasional back pain and more constant arm pain.  These do not appear related to any Cass County injury accident.

The night of her personal injury slip and fall, Ms. Harrison and her son arrived at Raymore Restaurant’s at their usual time.  The weather was clear and the lighting had not changed from her prior visits.  Ms. Harrison remembers walking toward the Raymore Restaurant’s with her son, crossing a yellow striped handicapped area, tripping over something and falling down.  (Exhibit “A”).  When she looked up, she saw the car-stop just behind her.

Our Raymore personal injury lawyers revealed that Ms. Harrison was inconsistent in her testimony of whether she saw the car-stop before her fall.  Several times she stated that she saw the car-stop both before and after her personal injury slip and fall.  At other times, she stated that she does not remember seeing the car-stop before her fall.  In any event, she cannot think of anything that prevented her from seeing it.  She stated that no other witnesses saw her slip and fall.  Her son was near her at the time.  However, he was walking ahead of her with his back to her.  Ms. Harrison stated she was helped back into the Raymore Restaurant’s by a man and a woman, where she waited for an ambulance to arrive to treat her personal injury.

The Raymore personal injury slip and fall broke Ms. Harrison’s right wrist.  Also, her glasses fell off, were chipped, and needed to be repaired.  Otherwise, she suffered no significant injuries.  She now has a noticeable bump on her right wrist.  Dr. Jelley, her physician, informed her that the bump would dissipate over time.  Her last visit with Dr. Jelley was on December 11, 2008.  The bump on her wrist has not dissipated to date.  Presently, Ms. Harrison now has trouble lifting things and writing.  Ms. Harrison also cannot fully extend her right fingers.  Her arm still hurts and aches on a regular basis from the wrist down to her fingers due to this Raymore personal injury.  Tylenol relieves the pain for awhile. She no longer needs and does not expect to need future medical treatment for her injury.

Ms. Harrison stated to out Raymore personal injury attorneys that the employees of Raymore Restaurant were always kind to her.  She continued to frequent the restaurant even after her fall.  She knows and remembers personal injury clam defendant Floyd Cass and continues to be fond of him.

FLOYD CASS

RAYMORE PERSONAL INJURY WITNESS

Floyd Cass is a sixty year old man of medium height and weight.  He is well-spoken and comes across as both honest and forthright.  He remembers this Raymore personal injury accident well and will make an above-average witness in front of a Circuit Court of Cass County jury.  He was a manager at Raymore Restaurant for many years.  Although he no longer works for the company, he continues to have good will toward Raymore Restaurant.

The Raymore personal injury lawyers took the deposition of this accident witness.  Mr. Cass stated that the parking lot, including the area just outside of the restaurant where the plaintiff fell, was very well lit.  The lights were on twenty-four hours a day and were bright enough to read in.  The yellow striped handicapped area where the Raymore personal injury plaintiff claims to have fallen was not meant to be a walk-way for pedestrians despite the fact that patrons walked through it at times. (Exhibit “A”).  Mr. Cass stated that it was placed there to give customers that were in wheelchairs room to exit their automobiles.  The car-stops were placed at the end of the yellow striped wheelchair unloading area to prevent cars from bumping into each other in the parking lot.  The handicapped customers who parked in the yellow striped area would have entered the restaurant using the handicapped ramp, which was located some ten to fifteen feet away.

On the day of the plaintiff’s Raymore personal injury slip and fall, Mr. Cass was acting as a manager at Raymore Restaurant’s.  He remembers the weather as being both clear and dry.  He was working on the waiting line when a customer came into the restaurant and said that a patron had just fallen outside.  Mr. Cass immediately went outside to investigate.  Once outside, he saw Ms. Harrison lying across a car-stop just outside of the restaurant.  It was not the car-stop near the yellow striped handicapped area but rather a car-stop closer to the restaurant’s entrance.  She was lying on her side in a north/south direction with her head to the north.  Her legs were laying on the car-stop.  She was holding her right arm and looked to be in pain.

Mr. Cass immediately went inside and told an employee to call 911, which was Raymore Restaurant’s standard practice in those situations.  He then went outside to check on Ms. Harrison’s health.  Before the ambulance arrived, Ms. Harrison walked back into the restaurant with the help of her son.  It was thought that she would be more comfortable inside.  The ambulance arrived, took Ms. Harrison and her son to the hospital and Mr. Cass returned to his duties.

Our Raymore personal injury attorneys discovered an interesting fact from this accident injury claim.  Mr. Cass is sure that the plaintiff ate in the restaurant and then fell as she was leaving.  This is because Mr. Cass saw the check she used to pay for her meal that day.  In fact, Ms. Cass used the check to write down some of the plaintiff’s information on the Raymore Restaurant’s accident report.

In the weeks following this Raymore personal injury accident, Mr. Cass stated that Ms. Harrison continued to frequent the Raymore Restaurant’s restaurant as usual.  Neither Ms. Harrison nor the Raymore Restaurant’s employees bore any ill will towards each other and remained on very friendly terms.  The plaintiff’s Belton personal injury attorney failed to ask Mr. Cass whether he saw Ms. Harrison in pain or discomfort after her slip and fall accident injury.  Mr. Cass has previously told us that the plaintiff was in great pain in the weeks after her slip and fall personal injury accident.  Sometimes she could not eat and had to rest her head on a restaurant table during her meal because of the pain.  Mr. Cass did not volunteer this information.

Our Raymore personal injury lawyers took the recorded statement of this witness prior to his deposition.  In the recorded telephone conversation before his deposition, Mr. Cass also told this law office that the car-stop the plaintiff alleges to have fallen over was removed several weeks before the plaintiff’s fall.  The car-stop had deteriorated and needed to be replaced.  Mr. Cass believes that the car-stop was replaced the week of the plaintiff’s fall by Raymore Restaurant’s employees.  The day Ms. Harrison fell would have been the first time she had returned to the restaurant since the car-stop had been re-installed.  The plaintiff’s Belton personal injury attorney failed to ask Mr. Cass about this during his deposition.  Mr. Cass did not volunteer the information.

Mr. Cass testified that no one to his knowledge has ever reported tripping or falling over a car-stop at the Raymore Restaurant.  He remembers that a customer once slipped and fell in the parking lot during a rain storm.  However, he recalls no other personal injuries outside of the building.

ANALYSIS AND FURTHER HANDLING OF THIS

RAYMORE PERSONAL INJURY ACCIDENT CLAIM

The legal issues in this case will likely turn on whether the placement of the car-stop presented an unreasonable risk of harm to Ms. Harrison.  In Missouri, the elements of a submissible slip and fall case are (1) the existence of a property defect and (2) at least constructive knowledge on the defendant’s part.  Cox v. J.C. Penney Co., Inc., 741 S.W.2d 28, 29 (Mo. banc 1987).  First, a “defect” is a condition which creates an unreasonable risk of harm to a third party.  Wyatt v. Southwestern Bell Tel. Co., 573 S.W.2d 386 (Mo.App. 1978).  Owners, like Raymore Restaurant, have an obligation to exercise ordinary care to keep their premises in a reasonably safe condition.  Id. However, they are not an insurer and do not owe persons on their premises absolute safety.  Larrea v. Ozark Water Ski Thrill Show, Inc., 562 S.W.2d 790 (Mo.App. 1978).  Second, “knowledge” on the part of a defendant is established when the defendant knows or by the exercise of ordinary care can discover the existence of the “defect,” and thereafter, has sufficient time to either correct or warn of the condition.  McElroy v. S.S. Kresge Co., 244 S.W.2d 425 (Mo.App. 1951).  Generally, “knowledge” is easily established where the condition is structural, such as a car-stop, which has existed for an extended period of time.  Id. Thus, the Raymore personal injury plaintiff will need to show that there was a premises defect at Raymore Restaurant’s that created an unreasonable risk of harm to Ms. Harrison, thereby causing her accident personal injury.

Missouri law states that the presence of a car-stop, alone, is not a premises defect.  Hopkins v. Sefron Fibre Can Company, 390 S.W.2d 907, 912 (Mo.App. 1965).  However, the placement of the car-stop can be.  Alexander v. National Supermarkets, Inc., 616 S.W.2d 873, 875 (Mo.App. 1981).  Whether the placement of the car-stop amounts to a defect depends upon the circumstances of the case.  Id. These circumstances can include but are not limited to whether the car-stop was separate and isolated from the other car-stops, whether it was located near an entrance to the building, why the car-stop was placed where it was, where it was placed in relation to the parked cars, and whether it was concealed from view.  Id. In any event, if the alleged defect (the car-stop) is so open and obvious that the invitee should reasonably be expected to discover it and realize the danger, it is in “plain view” and is not a premises defect unless the land owner should anticipate harm despite the alleged defect’s obviousness.  Harris v. Niehaus, 857 S.W.2d 222 (Mo. banc 1993); Seymour v. Lakewood Hills Ass’n, 927 S.W.2d 405, 410 (Mo.App. 1996).

Our Cass County personal injury lawyers revealed in the depositions of Ms. Harrison and Mr. Cass strong evidence that the car-stop should not be considered a premises defect.  In her deposition, Ms. Harrison indicated several times that she saw the car-stop before she tripped over it.  The car-stop was not an isolated object in the parking lot.  It was placed along side other car-stops.  (Exhibit “A”).  Also, it was placed at the top of the yellow striped handicapped area as part of a row of car-stops.  Arguably, pedestrians would expect a car-stop to be there.  In addition, it was not concealed from view by another object.  There was no reason for Raymore Restaurant’s to anticipate that a customer would fall over the car-stop because no other falls had occurred.  These factors indicate that the car-stop was in “plain view” and not a premises defect.

In any event, Ms. Harrison’s failure to pay attention where she was walking should reduce any verdict she could receive through the application of comparative fault.  In Cox v. J.C. Penney Co., Inc., 741 S.W.2d 28 (Mo. banc 1987), the Missouri Supreme Court considered a case where a business invitee tripped over a luggage strap in a department store. Id. The Court stated that the personal injury plaintiff’s failure to pay attention where she was walking and failure to otherwise use ordinary care went to the issue of comparative fault and reduced the judgment she received.  Id. Here, too, we intend to show that the Raymore personal injury plaintiff failed to pay attention and use ordinary care.  Ms. Harrison stated that she knew there were car-stops in the parking lot.  She had been to the restaurant many times and was familiar with the layout of Raymore Restaurant’s well-lit parking lot.  She seems to have normal vision and was not carrying anything that would have obstructed her view.  There has been no indication that the car-stop was covered or hidden.  Thus, our Cass County personal injury lawyers will argue her comparative negligence in failing to use ordinary care should reduce any judgment she may receive.

The deposition of Floyd Cass casts further doubt upon the liability of Raymore Restaurant.  Mr. Cass came across as having a better memory of the events of that day than Ms. Harrison.  He stated that Ms. Harrison did not fall near the yellow striped handicapped area as she claims. (Exhibit “A”).  Rather, he states she fell close to the restaurant’s entrance.  If the Cass County personal injury jury believes his testimony, the plaintiff’s Raymore personal injury lawyers’ theory that the placement of the car-stop at the top of the yellow striped handicapped area was a premises defect would not apply.  If the Cass County jury believes Ms. Harrison’s testimony that she fell in the yellow striped handicapped area, the Raymore personal injury plaintiff will still need to show that the car-stop was a dangerous condition on the property.

Our Lee’s Summit personal injury attorneys intend to take the deposition of John Floyd, the plaintiff’s son, in the near future to get his version of where the personal injury accident occurred.  His testimony will also provide evidence of how Ms. Harrison’s personal injury has affected her.  A summary and an analysis of his testimony will be provided to your offices shortly thereafter.  We also intend to get the medical records from the plaintiff’s eye doctors.  These records should tell us whether the plaintiff had any eye conditions that would have hampered her ability to see the car-stop at Raymore Restaurant.

As always, our Raymore accident injury law firm will keep you apprised of any significant developments as they occur.  If you have any questions or if I can help in any manner, please feel free to contact me.

Very truly yours,

Matthew J. Hamilton

Raymore Personal Injury Lawyer

MJH/ # 7094564

Personal Injury, Slip and Fall & other Injuries on Property l Leave A Comment

Harrisonville Personal Injury Lawyer Analysis of a Property Damage Civil Fraud Case – Roof Collapse

A Raymore, Belton and Harrisonville trial lawyer will find the following legal memorandum helpful as an outline of property damage lawsuits that will go to trial.

Cass County, Missouri attorneys will be assisted from analyzing this memorandum as it gives the inside perspective of the insurance company and it Cass County attorneys.  The analysis used will be the same as other similar lawsuits.

The analysis is helpful for Harrisonville, Cass County, Missouri Breach of Contract and civil Fraud cases.  Names and identifying information has been changed to protect the privacy of the litigants involved.

Questions regarding large property damage claims should be directed to our Cass County law firm.  816-540-2161.

December 6, 2011

VIA FACSIMILE AND U.S. MAIL

Mr. Vance Prewitt

200 Belton Plaza

4330 Belleview

Raymore, MO 64083

Fax: 816/540-3147

Re:    Lee’s Summit Services, Inc. v. Harrisonville Grocery, Inc.

Policy No.:          3214-70-15

Our Claim No.:    06040-25789

Date of Loss:      6/23/2008

Dear Mr. Prewitt:

We have had the opportunity to review and summarize the facts and law in this case in detail.  I have set forth our findings in detail below.  This summary should assist you through the mediation process.

CASS COUNTY ATTORNEY

STATEMENT OF THE CASE

This lawsuit arises out of the collapse of a roof at 400 Atlantic Avenue, Harrisonville, Cass County, Missouri on June 23, 2008.  There are two defendants in this action, Harrisonville Grocery, Inc. (hereinafter “Harrisonville Grocery”), and Raymore Contracting, Inc..  Defendant Harrisonville Grocery is a former owner of the building that sold the property to Chris and Scott Mueller.  Harrisonville Grocery is represented by Matthew J. Hamilton, a Belton/Raymore personal injury attorney (auto accident).  Defendant Raymore Contracting, Inc. is a company that performs roof repairs.  It was contracted by defendant Harrisonville Grocery on several occasions to repair water leaks in the building.  Raymore Contracting, Inc. is represented by Jennifer L. Grove of Peculiar, MO.

Plaintiff Lee’s Summit Services, Inc. (hereinafter “Lee’s Summit”) is a Missouri corporation owned by Chris and Scott Mueller.  Chris and Scott Mueller have executed a contract which purports to assign their rights to sue in this matter to Lee’s Summit.  Lee’s Summit Services is represented by Rich Livingston, Harrisonville personal injury lawyers.

Plaintiff Euro International Group (hereinafter “EIG”) is a Missouri corporation that was a tenant in the building at the time of the roof collapse. EIG is represented by Joe Hamilton, a Pleasant Hill auto accident lawyer.

Defendant Harrisonville Grocery is a prior owner of the property at 400 Atlantic Avenue, Harrisonville, Cass County, Missouri.  On February 16, 2008 plaintiff EIG entered into a lease agreement with Harrisonville Grocery. Plaintiff EIG agreed in section twenty-five of said agreement that it would release parties, such as the defendant Harrisonville Grocery, from liability for property damage by any casualty, such as the damage alleged in plaintiff’s Petition, if the plaintiff was carrying insurance for said loss. EIG has acknowledged that it was carrying insurance covering the property for which it seeks recovery in this case.

Records and deposition testimony provided by Raymore Contracting reflect that its workers, Sonny Illig and Sean Ireland, were called out to Harrisonville Grocery on four occasions.  On January 11, 2008, Raymore Contracting located and fixed four leaks in the northwest corner of Harrisonville Grocery’s building.  They also found, patched and repaired numerous field seams in the roofing membrane; and caulked and patched a number of scuppers in the northwest corner of the building.  On February 1, 2008, they checked on their repairs to the roof and noted no additional leaks at that time.  On February 22, 2008, Raymore states that Harrisonville Grocery hired the company to find and repair leaks in the northwest corner of the building.  Upon arriving, Raymore workers found water ponded in the northwest corner of the roof.  The workers believed the leaks were coming from additional breaches in the field seams of the roof’s membrane.  Those areas were patched and repaired.

Raymore Contracting took several photographs of the roof on its visits to Harrisonville Grocery’ building.  The pictures show the repair work completed by the men.  One of pictures even documents a roofer for Raymore Contracting standing in the ponded water on the northwest corner of the roof.  From the pictures, it does not appear that the professional roof repairmen of Raymore Contracting noticed any signs that the roof might collapse.

On or about March 11, 2008, a Real Estate Sale Contract was executed wherein defendant Harrisonville Grocery conveyed the aforementioned property to Chris and Scott Mueller.  Under the contracts in the sale, plaintiff EIG became the tenant of Chris and Scott Mueller.

On approximately March 20, 2008, workers for Raymore Contracting were again called out and repaired additional leaks in the northwest corner of the building.  Over three months later, on June 23, 1998, a large strong rain storm hit the Harrisonville, Cass County, Missouri area.  During the rain storm, the roof of the building collapsed.

Lee’s Summit is currently making the following claims against Harrisonville Grocery.  It claims that Harrisonville Grocery breached its real estate sale contract and escrow agreement with them by failing to repair or make financial provisions to repair the roof.  Lee’s Summit claims that Harrisonville Grocery represented in these contracts that the roof had been adequately and sufficiently repaired.  Lee’s Summit also claims that Harrisonville Grocery represented that it would repair any remaining roof leaks.  In addition, Lee’s Summit claims that our client negligently maintained the building prior to the sale and should have known that the leaks would saturate the insulation and cause water ponding on the roof.  It claims that the roof leaks saturated the insulation board underneath the roof, causing an excessive load on the structure which led to the roof’s collapse.  Lee’s Summit claims approximately $1,100,786.70 in damages.

The Petition for Damages of plaintiff EIG against Harrisonville Grocery alleges counts of negligence and breach of contract.  EIG claims that Harrisonville Grocery represented to EIG, during its ownership of the building, that the roof leaks and ponding would be corrected.  It claims that these representations amounted to an oral agreement to make the repairs. EIG also claims that Harrisonville Grocery owed them a duty of care to maintain and repair the roof.  The company asserts that the promised repairs were not made and that the failure to repair led to the roof collapse.  Plaintiff EIG seeks damages for repairs, inventory damages, loss of business and consequential damages allegedly sustained because of the collapse.  EIG claims approximately $406,602.51 in damages.  The plaintiff EIG made a claim and was paid by its property casualty insurance carrier for its losses in the collapse.

SUPPORTING LAW

HARRISONVILLE TRIAL ATTORNEY ANALYSIS

1.      It is unlikely that Lee’s Summit Service’s negligence claim will succeed because Harrisonville Grocery owed no duty to inspect, repair or maintain the property after it was sold.

There is presently no indication that defendant Harrisonville Grocery had a duty to prevent the roof collapse because other parties owned, possessed and controlled the property when the collapse occurred.  Plaintiffs must show the presence of a duty in order to maintain a negligence claim. Mediq PRN Life Support Services, Inc. v. Abrams, 899 S.W.2d 101, 109 (Mo.App. E.D. 1994).  In Missouri, lessors have no duty to inspect, repair or keep property in a reasonably safe condition unless they retain possession and control over the property or sign contracts creating such duties. Dean v. Gruber, 978 S.W.2d 501, 503 (Mo.App. W.D. 1998); Stark v. Lehndorff Traders Venture, 939 S.W.2d 43, 45 (Mo.App. W.D. 1997).  As the Missouri Supreme Court has stated:

[I]n instances where ownership or possession changes during the useful life of the real property, the common law generally affords protection to former owners and occupiers as opposed to persons owning or occupying at the time of injury. The common law seldom results in liability for former owners or operators who are not connected to the property at the time of the injury.

Blaske v. Smith & Entzeroth, Inc., 821 S.W.2d 822, 830 (Mo. 1991).

Here, the Muellers closed on the property on May 1, 2008.  At the time of the collapse, Harrisonville Grocery did not possess or control the property.  Consequently, Harrisonville Grocery had no duty to inspect, repair or keep the property in a reasonably safe condition.  Plaintiffs’ negligence claim cannot be proven without evidence of a duty to the property.

2. There is presently no indication that Harrisonville Grocery made fraudulent representations to Lee’s Summit Services.

The fraudulent representation claims of plaintiff Lee’s Summit Services are not supported by evidence at the present time.  The elements of a submissible case of fraud in Missouri  are: (1) a false material representation; (2) the speaker’s knowledge of its falsity or its ignorance of its truth; (3) the speaker’s intent that it should be acted upon by the hearer in the Muellerer reasonably contemplated; (4) the hearer’s ignorance of the falsity of the statement; (5) the hearer’s reliance on its truth, and the right to rely thereon; and (6) proximate injury.  Mobley v. Copeland, 828 S.W.2d 717, 724 (Mo.App. 1992).  Specifically, fraudulent representations arise from two events, either an affirmative misrepresentation was made or passive non-disclosure occurred.  Affirmative misrepresentations may be either completely false or half-truths which convey or create the same impression. Maples v. Charles Burt Realtor, Inc., 690 S.W.2d 202, 209 (Mo.App. 1985).  Here, there is no evidence that Harrisonville Grocery should have suspected that the roof would collapse.  The roof showed no problems other than occasional roof leaks, which had occurred for years.  Harrisonville Grocery hired Raymore Contracting, which sent professional roof repairmen to the property to repair the leaks when they occurred.  These roofers detected no sign that the roof could collapse on the multiple occasions they visited the site.  They detected no risks even when standing in the area where the roof collapsed.  Further, Lee’s Summit Services will have difficulty showing that they did not know of the roof problems that were detectable.  They will also have difficulty proving that they both had the right to and did rely on the roof’s good condition. This is because Lee’s Summit Services inspected and accepted the condition of the roof prior to the sale of the building.  They also signed contracts stating that they accepted the condition of the roof.  Thus, there is presently no evidence to support several elements of Lee’s Summit Services’ fraudulent representation claim against Harrisonville Grocery.

3.      Harrisonville Grocery will not be liable for fraudulent representations based upon a failure to disclose.

Lee’s Summit Services claims that Harrisonville Grocery failed to disclose the leaky nature of the roof.  It is unlikely that these claims can succeed.  This is because (1) the sale was made “as is,” (2) Lee’s Summit Services inspected the premises and (3) Lee’s Summit Services approved of the premises.  Generally, “fraud will not lie for tacit non-disclosure.”  Blaine v. J.E. Jones Constr. Co., 841 S.W.2d 703, 706 (Mo.App. 1992). However, a duty to disclose does arise “when a classical fiduciary relationship exists or where one party has superior knowledge which is not within the fair and reasonable reach of the other party.” Ringstreet Northcrest, Inc. v. Bisanz, 890 S.W.2d 713, 720 (Mo.App. W.D. 1995); Blaine, 841 S.W.2d at 705.  Missouri courts look to an open-ended list of factors to determine whether a duty to disclose exists.  Ringstreet Northcrest, Inc., 890 S.W.2d at 721; Blaine, 841 S.W.2d at 707.  Specifically, the courts emphasize the relative intelligence of the parties to the transaction, the relation the parties bear to each other, the nature of the fact not disclosed, the nature of the contract, whether the alleged concealer is a buyer or seller, the importance of the fact not disclosed and the respective knowledge and means of acquiring knowledge of the parties. Id. We have checked with our Lee’s Summit personal injury lawyers and they concur with this analysis.

Missouri courts have specifically stated that there is no duty to disclose defects where (1) the property was sold “as is,” (2) the buyer was informed of the building’s prior problems, (3) the buyer inspected the premises, and (4) the transaction was between businesses.  Ringstreet, 890 S.W.2d at 724.  Furthermore, Missouri courts hold that a non-fiduciary party to a contract has no duty to disclose facts “that normally can be ascertained by a reasonable inquiry.”  Blaine, 841 S.W.2d at 708; Fairmont Foods Co. v. Skelly Oil Co., 616 S.W.2d 548, 550-51 (Mo.App. 1981); Barylski v. Andrews, 439 S.W.2d 536, 542 (Mo.App. 1969); see also Kansas City Downtown Minority Dev. Corp. v. Corrigan Assoc. Ltd. Ptr., 868 S.W.2d 210, 221 (Mo.App. W.D. 1994)(stating that the undisclosed fact must be undiscoverable in the exercise of due diligence).  Here, no fiduciary relationship existed between Harrisonville Grocery and Lee’s Summit Services.  The sales contracts show that the property was sold “as is.”  The sales contracts also show that Lee’s Summit Services was informed of the roof’s prior water problems.  Lee’s Summit Services inspected and accepted the premises.  Lee’s Summit services is a business, not an individual.  In addition, the known roof problems could be ascertained by a reasonable inquiry into the building’s history. Lee’s Summit Services will be unable to successfully claim fraudulent representations based on a duty to disclose for these reasons.

4.      Defendant Harrisonville Grocery had no duty to plaintiff EIG.

Our Harrisonville personal injury attorneys have uncovered no indication that defendant Harrisonville Grocery owed a duty to plaintiff EIG in negligence.  In Missouri, a plaintiff must present substantial evidence of every fact necessary to establish the liability of the defendant to present a submissible case of negligence.  Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723, 724 (Mo. banc 1982).  In any negligence action, the plaintiff must establish (1) the existence of a duty on the part of the defendant to protect plaintiff from damage, (2) failure of the defendant to perform that duty, and (3) that plaintiff’s damage was proximately caused by defendant’s failure.  Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 710 (Mo. banc 1990).  The existence of a duty is a matter of law and is thus a question for the court.  Bunker v. Association of Missouri Electric Cooperatives, 839 S.W.2d 608, 611 (Mo.App. 1992).  Plaintiff EIG must show a legal relationship between it and defendant Harrisonville Grocery that created a duty that was breached to prevail in its negligence claims.  Here, the plaintiff states in its Petition that “defendant Harrisonville Grocery owed EIG a duty to exercise reasonable care and caution in maintaining and repairing the subject property….”  This language, in essence, states that defendant Harrisonville Grocery had the duties of a landlord.  Thus, plaintiff EIG must show a landlord/tenant relationship between it and Harrisonville Grocery to establish its alleged duties in negligence.

Our Harrisonville Attorney’s analysis indicates no landlord/tenant relationship existed between Harrisonville Grocery and plaintiff EIG at the time of the alleged loss.  The traditional elements of a landlord-tenant relationship are: (1) an express or implied contract between the parties, (2) the creation of an estate in the tenant, either at will or for a specified term, (3) a reversion to the landlord, and (4) the transfer of exclusive possession and control to the tenant.  Newcomb v. St. Louis Office for Mental Retardation & Developmental Disabilities Resources, 871 S.W.2d 71, 73-74 (Mo.App. 1994);  Friend v. Gem International, Inc., 476 S.W.2d 134, 137-38 (Mo.App. 1972).  Here, two of the required elements are missing from plaintiff EIG’s case.  First, Harrisonville Grocery had sold the property and, thus, transferred EIG’s lease agreement (the contract) to the new owners, Chris and Scott Mueller before the time of the collapse.  Second, there was no reversion at the end of tenant EIG’s lease to Harrisonville Grocery.  At the end of the term of the plaintiff’s lease, the property would have reverted to Chris and Scott Mueller, not Harrisonville Grocery.  Accordingly, no landlord/tenant relationship existed between the two parties at the time of the alleged loss.  Defendant Harrisonville Grocery owed no duty to plaintiff EIG to maintain or repair the subject property at that time and plaintiff EIG lacks evidence to establish a duty in negligence.

5.      Plaintiff EIG contractually waived its right to recovery in this case.

Our Harrisonville lawyer’s analysis indicates Plaintiff EIG, in its lease agreement, waived its right to recover from Harrisonville Grocery.  Under Missouri law, no right of recovery for property damage exists on behalf of a lessee against a lessor when the lessee (1) agrees to waive its right to recover for property damage covered by casualty insurance, and (2) obtains casualty insurance for its property  loss.  Disabled Veterans Trust Co. v. Porterfield Construction, Inc., 996 S.W.2d 548, 552 (Mo.App. W.D. 1999).

Plaintiff EIG’s suit alleges that Harrisonville Grocery is liable for damage due to acts or neglect that are incident to the June 23, 1998 casualty.  Once the property was sold and Defendant Harrisonville Grocery turned over possession and control of the property to Lee’s Summit Services, Harrisonville Grocery neither assumed nor owed any duties to EIG that related to the property.  The acts or omissions alleged by EIG relate to when Harrisonville Grocery was its landlord.  Assuming that Harrisonville Grocery had a duty to EIG, then Plaintiff EIG waived its right to recover from Defendant Harrisonville Grocery.  The case of Porterfield, supra, had a nearly identical waiver of subrogation clause to the clause in this case.  In Porterfield, the court held the clause to be an enforceable waiver of recovery rights.  Here, the Lease between EIG and Harrisonville Grocery stated as follows:

As part of the consideration for this Lease, each of the parties hereby releases the other party hereto from all liability for damage due to any act or neglect of the other party (except as hereinafter provided) occasioned to property owned by said parties which is or might be incident to or the result of fire or any other casualty against loss for which either of the parties is now carrying or hereafter may carry insurance; provided, however, that the releases herein contained shall not apply to any loss or damage occasioned by intentional act of either of the parties hereto, and the parties hereto further covenant that any insurance that they obtain on their respective properties shall contain an appropriate provision whereby the insurance company, or companies, consent to the mutual release of liability contained in this paragraph.

Several of the original clauses to the lease were amended to allow Harrisonville Grocery to be liable in specific situations where it was negligent.  No such changes were made to this clause.  This indicates that the parties intended it to be enforceable as written.  Further, several of the original clauses in the lease were crossed out and deleted when the parties did not intend for them to be a part of the contract.  The above clause was not altered in any way.  This also indicates that the parties intended for the clause to be enforceable.

Assuming that Defendant Harrisonville Grocery had duties to Plaintiff EIG, those duties arose because Harrisonville Grocery was a party to the lease.  See infra.  As such, defendant Harrisonville Grocery has the right to seek protection under its provisions.  See Butler v. Mitchell-Hugeback, Inc., et al., 895 S.W.2d 15, 21 (Mo. banc 1995)(granting summary judgment on behalf of a third-party beneficiary to a contract that contained a waiver of recovery clause in a building collapse case).  EIG was carrying insurance, and was in fact paid by its insurance carrier for that loss.  EIG does not allege that that Harrisonville Grocery acted willfully, wantonly, or in a premeditated manner.  As such, EIG has, in all likelihood, waived its right to recover against Harrisonville Grocery in this action, just as the lessee waived its right to recover against the lessor in Porterfield, supra.

6.      No consideration could have supported the alleged contract between EIG and Harrisonville Grocery.

There is no indication of any consideration for the alleged oral contract that plaintiff EIG claims was breached.  In Missouri, the essential elements of a contract are: (1) competency of the parties to contract; (2) subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation. Hyatt v. Trans World Airlines, Inc., 943 S.W.2d 292, 296 (Mo.App. 1997); Shapiro v. Butterfield, 921 S.W.2d 649, 652 (Mo.App. 1996); Cash v. Benward, 873 S.W.2d 913, 916 (Mo.App. 1994).  A valid contract must include an offer, an acceptance and consideration. Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. banc 1988).  Here, plaintiff EIG claims that an oral contract to repair roof leaks, conditions causing leakage and to prevent ponding on the roof of a building was breached.  The plaintiff has not pled that any consideration supported this alleged contract.  There is no indication that any consideration did support the alleged contract.  Id. Monthly lease payments were made to Harrisonville Grocery during the time that it was the building’s landlord.  EIG has argued that signing the tenant estoppel certificate could be consideration for the alleged contract.  However, the lease agreements were the consideration for the lease contract, not any alleged subsequent agreement.  In addition, the tenant estoppel certificate was signed after the time that EIG alleges the oral contract was formed.  Also, EIG has already alleged that the estoppel agreement was signed to facilitate the sale of the subject property, not as consideration to perform repairs on the property.  As such, plaintiff EIG cannot succeed on its breach of contract claim under Missouri law according to the analysis of our Harrisonville auto accident law firm.

Moreover, if the plaintiff claims that Harrisonville Grocery had the duties of a landlord at the time the alleged contract was formed, then no consideration was present and no contract could have been formed.  Landlords have duties to maintain and repair the common areas of the property. Dean v. Gruber, 978 S.W.2d 501, 503-04 (Mo.App. W.D. 1998).  “[A] promise to do that which one is already legally obligated to do cannot serve as consideration for a contract.” Zipper v. Health Midwest, 978 S.W.2d 398, 416 (Mo.App. W.D. 1998); Wilson v. Midstate Industries, Inc., 777 S.W.2d 310, 314 (Mo.App. 1989) quoting City of Bellefontaine Neighbors v. J.J. Kelley R. & B. Co., 460 S.W.2d 298, 301 (Mo.App. 1970)).  Here, plaintiff EIG claims that an oral contract to repair roof leaks, conditions causing leakage and to prevent ponding on the roof of a building was breached.  If Harrisonville Grocery was the landlord of EIG at the time the alleged contract was formed, then Harrisonville Grocery would have already had these duties to the plaintiff.  Therefore, the alleged contract would be based upon the pre-existing duties of Harrisonville Grocery and, again, no consideration would be present.  No contract was formed.

I hope that this case summary will be of assistance to you during the mediation process.  As always, if you have any questions or concerns or if you would like to discuss this matter further, please do not hesitate to call.

Very truly yours,

Matthew J. Hamilton

Pleasant Hill Cass County Personal Injury Lawyer

General l Leave A Comment

Belton Auto Accident Attorney – How Personal Injury Testimony is Analyzed by Insurance Companies – Exemplar Letter

Belton personal injury attorneys will find the following document of assistance in preparing lawsuit strategies for Cass County auto accident lawsuits.  Names and identifying information have been changed to protect the identity and privacy of those mentioned.

Belton auto accident analysis by lawyers will benefit from learning the investigation, analysis and strategies employed by insurance companies.

March 2, 2011

VIA INTERNET E-MAIL AND U.S. MAIL

Keith E. Lees

Litigation Claim Representative

CASS COUNTY INSURANCE GROUP

Harrisonville Personal Lines

P.O. Box 68451

Belton, Missouri 65201

Keith.Lees@thebeltoninsurer.com

Re:     Case Style:  West, Michelle v. Ratcliffe, Theodora

Circuit Court of Cass County, Missouri at Harrisonville

Case No.:     00-CV-220007,.

Claim No.:   543 AL 54777

Our File:      06235-27526

Dear Mr. Lees:

Our Belton personal injury lawyer had an opportunity to take the deposition of Plaintiff Michelle West in the above-referenced Belton auto accident.  Also, plaintiff’s Lee’s Summit auto accident lawyer has taken the deposition of Defendant Theadora Ratcliffe.  This correspondence sets out a summary and our analysis of their depositions for your review.

MICHELLE WEST

Belton Auto Accident Personal Injury Plaintiff

Michelle West is a slightly overweight fifty year old single woman.  She comes across as honest, forthright and generally pleasant.   She will make an average witness before a Cass County Circuit Court jury.

Ms. West lives in Belton, Missouri.  She was a postal employee delivering the mail and a construction worker operating machines outdoors for many years. Presently, she works at Answer, an answering service located in Raymore, Missouri.  Plaintiff has a history of depression but testified that she has not been depressed for approximately one year and has not needed her anti-depressant medication.  She denies ever having back pain or other significant medical problems before the Belton auto accident in this case.

Ms. West claims that on March 18, 2009, she was attending a wake for a friend at Carson Funeral Home in Belton, Missouri.  After the wake, Ms. West was exiting the funeral home with Norma Beck, Lana Pratt, Sandy Leroy and Barbara Crown.  She remembers crossing the parking lot and hearing her friend, Sandy Leroy, screaming “look out.”  When Ms. West looked, she saw Ms. Ratcliffe’s automobile just a few feet from her.  Ms. West tried to avoid the automobile, was unable to do so and was struck by its back passenger side bumper.  She could not estimate the automobile’s speed.  The contact knocked her off the ground and back onto the asphalt parking lot.  At first, Ms. West thought that she had not received personal injury.  However, she quickly discovered that she was unable to get up.  She does not remember experiencing pain at the time.  Ms. West remembers one of her friends holding her head and praying for her until the ambulance arrived.

At Belton Research hospital, Ms. West was treated for a lower back injury, a broken front tooth, a deep 2.5 centimeter cut to her chin and a substantial skin wound to her face.  While at the Belton hospital, the plaintiff remembers experiencing generalized pain in her mouth, face, legs, knees, pelvis, neck, lower back and foot.  Ms. West stated that she had scabbing over a large potion of her face during her stay at the Belton hospital.  She believes that her physicians failed to diagnose her facial tattooing during her hospital stay because of the scabs that covered the tattooed area.  During her stay at Belton hospital, the plaintiff stated she had trouble moving her mouth and jaw to the extent that a dentist had to adjust it.  The dentist also repaired her broken front tooth.  After seven days at the hospital, she was released to go home.

Ms. West walked with the use of a walker for two months after her release from the hospital because of the pain in her knees and lower back.  She had friends come over to help her cook and clean during that time because of her limited ability to move.  Thereafter, the Belton auto accident victim walked with a cane for approximately four months.  When the plaintiff began using a cane to walk, she returned to work.  She switched to the night shift at Answer so that she could take more breaks because of fatigue.  The plaintiff did not experience a change in her rate of pay as a result of this change in working shifts. She claims to have lost nearly eight weeks of work because of personal injury from the Belton auto accident.

Plaintiff claims and appears to have facial tattooing on her left check just above her mouth.  To reduce the tattooing, she has had several hydroquinone treatments to bleach her skin.  She claims her doctors recommend that she undergo laser facial surgery, which will treat her facial tattooing as it stands.

Plaintiff claims that she needs to attend physical therapy every few months to keep her body from experiencing pain in her lower back.  Ms. West testified that she has little or no remaining nerve damage to her face.  She claims that the affected area of her cheek only “feels funny.”

THEADORA RATCLIFFE

Belton Auto Accident Personal Injury Defendant

Theadora Ratcliffe is a 78 year old woman of average build and appearance.  She comes across as pleasant, honest and forthright.  She can, however, be defensive at times and needs to be reminded to remain calm.  She will make an average witness before a Cass County Circuit Court jury.

Ms. Ratcliffe lives by herself at her home in Belton, Missouri.  She does not know the plaintiff. On March 18, 2009, she attended the wake of her sister-in-law Kathleen Pihr.  Ms. Ratcliffe parallel parked her 1999 Lincoln Continental on the street right next to the entrance to the parking lot of the funeral home.  (Exhibit “1,” attached hereto).  The wake ended at approximately 7:30 p.m.. Ms. Ratcliffe walked to her car alone and waited to give her daughter a ride to Ms. Ratcliffe’s home.

After waiting a short amount of time, Ms. Ratcliffe attempted to back her car into the parking lot to pick up her daughter.  She got in her car, started the engine and looked back to see if anyone was behind her.  Seeing no one, she backed the car into the parking lot to take the car to where her daughter was located.  At this point, Ms. Ratcliffe remembers that the car’s motor started racing and began to move at an even speed backwards.  She estimates the car’s speed at five miles per hour.  She repeatedly tried to apply the brakes; however, the automobile did not stop until it caused the auto accident with the corner wall of Carson Funeral Home.  She did not realize that her automobile had contacted the plaintiff.

Neither Belton Municipal Court nor the Cass County Sheriff’s Department issued Ms. Ratcliffe a traffic ticket for this Belton auto accident, in spite of the personal injury.  Therefore, no Belton criminal defense lawyer was retained.

Ms. Ratcliffe saw the plaintiff lying on the pavement to the side of where her car had passed when she got out of her car.  She stated “I was just beside myself,” meaning that she was shocked and worried, when she saw the plaintiff.  Ms. Ratcliffe stated she began shaking and “couldn’t hardly talk” because she was worrying about the condition of the plaintiff.  Ms. Ratcliffe received a small bump on her head from hitting the steering wheel when her car had its auto accident with the funeral home.  She requested no personal injury or medical treatment.  Ms. Ratcliffe regularly checked on the plaintiff’s condition while the plaintiff was in the hospital.  Upon advice from her family, she never personally contacted the plaintiff.

FURTHER HANDLING

OF THIS BELTON AUTO ACCIDENT

PERSONAL INJURY CLAIM

The plaintiff presently claims past medical expenses of $19,846.98.  The medical expenses arise from her stay at Belton Research Hospital, her physical therapy, cosmetic treatment for her facial tattooing, dental care, ambulance service, repairs to her eyeglasses, and a small amount of pain medication.  She claims $4,025.00 in future medical expenses for cosmetic surgery to treat her claimed facial tattooing.  She claims $2,410.89 for the seven weeks of work she allegedly missed. Her total special damages amount to $26,282.87.  This amount does not include any personal injury damages she may receive for her pain and suffering, future physical therapy, any lingering discoloration to her face or the alleged nerve damage to her left cheek.

Our Lee’s Summit auto accident lawyer took her deposition.  When the plaintiff testified in her deposition, she did not give the impression that she was exaggerating her personal injury medical claims.  The facial tattooing was visible at a distance.  It is also appears that she has nerve damage to the left portion of her face.  Specifically, it appears as though the left corner of her mouth and that area of her cheek hang slightly lower and do not react to her facial movements as the right side of her face does.

The medical review completed for us by Doctor Benson indicates that the auto accident personal injury to her lower back is more of a degenerative long term condition as opposed to a traumatic injury caused only by the car accident in this case.  However, there is no evidence as the present time indicating that Ms. West had trouble with her back before this Belton auto accident.  The condition in her lower back may simply be a long term degenerative condition that showed its symptoms only after the plaintiff was struck by our client.  Overall, the plaintiff will likely make a sympathetic and believable witness to a Cass County Circuit Court jury.  With the special damages she claims, which appear to be for the most part reasonable for the personal injuries, the verdict range could easily be in the $50,000.00 to $75,000.00 range.  While we could attack the claimed need for laser surgery on the basis of the lack of notation of facial tattooing in her medical records while in the hospital, her explanation seems logical.  Regardless, even if you eliminate the future charge for that future procedure, she still has specials of about $22,000.00.  This being a liability case, I suggest we begin negotiations and try to save something off of your limits.

As always, we will continue to keep you advised of significant events as they occur.  If you have any questions or if we can help in any manner, please feel free to contact our offices.

Very truly yours,

Matt Hamilton, Belton personal injury lawyer

matthamilton@law-kc.com

Enclosure

MJH/ # 735659

Cass County & Johnson County Auto Accidents l Leave A Comment

Belton Driving While Intoxicated Criminal Defense – Cass County Auto Accident Personal Injury – Can the Debt be discharged in Bankruptcy?

Cass County, Missouri criminal defense attorneys will find the following Memorandum beneficial should similar issues arise in their criminal defense practice.  This Memo is posted with permission of the participants for that purpose.  The names of the parties have been changed for privacy purposes.

Belton auto accident attorneys and victims should contact our Cass County personal injury attorneys at our Pleasant Hill law firm (816) 540-4040 with specific questions regarding their case as different answers will result with different case facts.

Our Cass County criminal defense attorneys should be contacted for anyone with a case in Belton Municipal Court of Cass County Circuit Court as the law regarding their case may differ.

Memo

To: Mark Holrom

From: Matt Hamilton, Belton criminal defense attorney discussing Cass County Circuit Court matters

Subject: Belton Price Chopper et al. v. Mitchell — viability of having the debts rendered non-dischargeable because of Ms. Mitchell’s driving while intoxicated (DWI) condition during the Belton auto accident that caused personal injury.

Date: July 29, 2008

______________________________________________________________________________

Issue:

1.     Can Ms. Mitchell’s debts be rendered non-dischargeable because she operated her automobile driving while intoxicated, with a B.A.C. in Belton measured at .088, one and one-half hours after the Belton auto accident?

2.     Can Belton Price Chopper’s property damage claim be included as non-dischargeable because Ms. Mitchell was driving while intoxicated (DWI) – alcohol?

3.     Are we required to specifically plead which section of § 523 we wish to have Ms. Mitchell’s debt rendered non-dischargeable under?

4.     Are other exceptions to discharge available besides the “driving under the influence” (DUI) in Cass County, MO exception?

Conclusion:

1.     Yes, § 523 of the code renders debts non-dischargeable if incurred as the result of driving under the influence (DUI) of alcohol under Missouri law and the bankruptcy court can determine Ms. Mitchell as having driven under the influence (DUI) in Belton, Cass County under Missouri law.

2.     No, property damage claims are not allowed under § 523 (a)(9); however, property damage claims are non-dischargeable under other portions of § 523.

3.     Yes, the Bankruptcy Code requires that a litigant 1) plead which section of § 523 that the debt is non-dischargeable under and 2) the material facts supporting the claim.

4.     Yes, the defendant can argue that Ms. Mitchell’s actions were willful and malicious conduct under § 523 (a)(6) even though success under this section is highly improbable.

Analysis:

I. It is likely that the plaintiff will be able to render Ms. Mitchell’s debt for the damages to Mr. and Mrs. Dixon non-dischargeable under § 523 of the Bankruptcy Code. The Bankruptcy Code does not discharge debts that are incurred as a result of driving under the influence of alcohol. Driving under the influence of alcohol is determined by the law of the state in which the debt was incurred. Ms. Mitchell’s debt to the plaintiff’s arose in Belton, Cass County Missouri and Ms. Mitchell can be found guilty under Missouri state law in Cass County Circuit Court at Harrisonville. Further, it is not necessary for the Debtor to actually have been found guilty by Missouri. The bankruptcy court will apply state law to make an independent determination regarding whether the Debtor was driving under the influence (DUI) in Belton irrespective of what the Circuit Court of Cass County, Missouri at Harrisonville determines.

Discharge for driving while intoxicated (DWI) is determined by Title 11 U.S.C. § 523 (a)(9) of the Bankruptcy Code. It provides in pertinent part that “a discharge under § 727 of the bankruptcy code does not discharge an individual debtor from any debt … (9) for death or personal injury caused by the debtor’s operation of a motor vehicle if such operation was unlawful because the debtor was driving while intoxicated from using alcohol, a drug, or another substance.” Id.

Driving while intoxicated in Belton or Cass County for purposes of § 523 is determined by looking to the law of the state where the event occurred. Commercial Union Insurance Company v. Christiansen (In re Christiansen), 80 B.R. 481, 482 (Bankr. W.D. Mo. 1987). Bankruptcy courts establish driving while intoxicated (DWI) by a preponderance of the evidence standard. Willison v. Race, 198 B.R. 740, 762 (Bankr. W.D. Mo. 1996); Simpson v. Phalen, 145 B.R. 551, 554 (Bankr. N.D. Oh. 1992). Missouri law states that “a person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated (driving while intoxicated – DWI) or drugged condition.” RSMo § 577.010.1 (1986). “[A] person is in an ‘intoxicated condition’ in Belton when he is driving under the influence (DUI) [sic][of] alcohol, a controlled substance, or drug, or any combination thereof.” RSMo § 577.001.2 (1986).

Driving under the influence (DUI) in Belton or Cass County can be shown in two ways. First, it can be established through scientific tests, such as the Intoxilyzer 5000, that measure the amount of alcohol in the blood. Second, driving under the influence (DUI) in Belton or Cass County can be established through circumstantial evidence, such as physical observations of witnesses. If an Intoxilyzer test does not conclusively establish alcohol content over the necessary eight hundredths of one percent, the second method can be employed. Specifically, Missouri law as applied in Cass County Circuit Court states that:

[a]ny charge alleging a violation of Section 577.010 … shall be dismissed with prejudice if a chemical analysis … demonstrate[s] that there was less than eight-hundredths of one percent of alcohol in the defendant’s blood unless…

(2) There is evidence that the defendant was driving under the influence of a controlled substance, or drug, or a combination of either or both with or without alcohol; or

(3) There is substantial evidence of driving while intoxicated from physical observations of witnesses or admission of the defendant.

Section 577.037.5, RSMo (1986).

Thus, a test showing a blood alcohol content over .08 is not indispensable to a conviction of driving while intoxicated (DWI) in Belton Municipal Court or the Circuit Court of Cass County at Harrisonville, Missouri.

Missouri courts such as the Circuit Court of Cass County have established the level that a person must be driving under the influence (DUI) by alcohol to sustain a conviction under Missouri law either in Belton Municipal Court or Cass County Circuit Court. Belton criminal defense attorneys and Cass County criminal defense lawyers apply this standard.  This is also applied in the same manner by Lee’s Summit criminal defense attorneys.  On several occasions, the Missouri Supreme Court has summarized the necessary evidence to establish driving under the influence. The Court states that:

Any intoxication that in any manner impairs the ability of a person to operate an automobile is sufficient to sustain a conviction…. A jury would readily understand that what is meant by an ‘intoxicated condition’ in connection with a charge of this nature is drunkenness to such an extent that it interferes with the proper operation of an automobile by the defendant.

State v. Raines, 62 S.W.2d 727, 729 (Mo. 1933)(emphasis added); accord State v. Cox, 478 S.W.2d 339, 341-42 (Mo. 1972).

Thus, a person can be convicted of driving under the influence (DUI) in Belton Municipal Court or Cass County Circuit Court when their alcohol consumption interferes with the proper operation of their vehicle as determined by the trier of fact.

Tests showing alcohol in a defendant’s blood can be combined with testimony of impaired abilities by intoxicants. Evidence that a person had intoxicants in their system coupled with eye witness testimony that the person was affected by an intoxicant has established convictions for driving while intoxicated (DWI) in Belton Municipal Court or Cass County Circuit Court. State v. Falcone, 918 S.W.2d 288, 292 (Mo.App. 1996). Also, convictions for driving while intoxicated (DWI) have been affirmed where defendants have measurable amounts of alcohol in their system and police officer’s observe the defendant affected by the use of alcohol. State v. Meanor, 863 S.W.2d 884, 891 (Mo. 1993). Thus, the presence of alcohol in the blood coupled with testimony of intoxication by a witness is sufficient to convict one of driving under the influence (DUI) in Belton Municipal Court or Cass County Circuit Court under Missouri law.

Once driving under the influence (DUI) is established by the Belton Municipal Court Judge or the Cass County Circuit Court Judge, an additional element is required to have the debt rendered non-dischargeable. In 1987, the Bankruptcy Court for the Western District of Missouri stated that courts must also determine whether the debtor’s intoxication was a causal factor in the accident to determine non-dischargeability under § 523 (a)(9). Christianson, 80 B.R. at 484. Thus, a connection between the accident and the Debtor’s intoxicated condition is required to establish a debts nondischargeability.1

It is likely that applying the foregoing analysis in the instant case would render the debts in this adversary action nondischargeable. First, Belton police records and Belton police testimony establish that Ms. Mitchell had a moderate odor of alcohol about her, had watery, glassy, bloodshot eyes, failed to simultaneously keep her eyes closed and touch the tip of her nose just after the Belton auto accident, and admitted that she had consumed “cough syrup” before the Belton automobile accident. (See Alcohol Influence Report). This case can be analogized to Meanor where the defendant smelled of alcohol, displayed slurred speech, was impaired according to police testimony, tested a B.A.C. of .02 but was nevertheless convicted of driving while intoxicated (DWI). Meanor, 863 S.W.2d at 887. This evidence can also be analogized to Falcone, where the defendant failed some but not all field sobriety tests, admitted to taking Lorazepam,2 did not test for alcohol in her system, but was nevertheless convicted for driving while intoxicated (DWI). Falcone, 918 S.W.2d at 293; See also State v. Friend, 943 S.W.2d 800, 802 (Mo.App. W.D. 1997)(convicting for driving under the influence (DUI) of methamphetamine by showing signs of impaired abilities but not testing for alcohol consumption). Thus, the evidence of impairment in this case is similar to evidence of impairment in other cases where defendants have been convicted of driving while intoxicated (DWI).3

The eye-witness evidence of impairment is supported by the blood alcohol content of Ms. Mitchell’s blood. One and one-half hours after the Belton automobile accident, Ms. Mitchell tested a B.A.C. of .088. (See Alcohol Influence Report). First, it must be remembered that the test was unreliable in measuring Ms. Mitchell’s B.A.C. at the time of the accident due to the lapse of time. See RSMo § 577.037.5 (1)(considering tests as unreliable when taken after an excessive amount of time has elapsed).4 Despite this deficit, the evidence will support intoxication for non-dischargeability reasons. In Meanor, the defendant’s B.A.C. of .025 was combined with the evidence of impairment to sustain the conviction of driving while intoxicated (DWI). Meanor, 863 S.W.2d at 887. Here, too, evidence of Ms. Mitchell’s B.A.C. of .088 can be combined with evidence of her impairment to convince the Bankruptcy Court that she was driving while intoxicated in Belton. Thus, Ms. Mitchell’s B.A.C. will support the argument that she was driving while intoxicated in Cass County, Missouri.

Finally, it can be established that Ms. Mitchell’s driving under the influence (DUI) in Belton was a causal factor in the Cass County personal injury auto accident. There is testimony available from the police that the two reasons the Belton auto accident occurred where because of driving “too fast” and “drinking.” (See Missouri Uniform Accident Report at 3). This testimony can satisfy the requirement that the driving while intoxicated was a causal factor in the Cass County auto accident.

In conclusion, it is likely that the personal injury auto accident damages arising from the bodily injuries of Mr. Dixon will be non-dischargeable under § 523(a)(9). Evidence of Ms. Mitchell’s impaired condition combined with the evidence of alcohol in her system can establish “intoxication” under Missouri law. Also, the Belton Police Department auto accident report can establish that a causal factor in the automobile accident was Ms. Mitchell’s driving while intoxicated (DWI). Thus, the bankruptcy Court can conclude that Ms. Mitchell was driving while intoxicated in Belton under Missouri law and her debts arising from that condition are non-dischargeable under § 523.

II. It is unlikely that the Dixons or Belton Price Chopper will be able to recover property damages from Ms. Mitchell because the drunk driving exception to discharge under Chapter 7 only renders damages from personal injury or wrongful death non-dischargeable. The driving while intoxicated (DWI) exception to discharge states that “a discharge under § 727 of the bankruptcy code does not discharge an individual debtor from any debt … (9) for death or personal injury caused by the debtor’s operation of a motor vehicle if such operation was unlawful because the debtor was driving while intoxicated from using alcohol, a drug, or another substance.” 11 U.S.C. § 523 (a)(9)(emphasis added). No mention is made of punitive damages or property damages in this section of the Code. Id. Cases in the Western District of Missouri have held that property damages and punitive damages are non-recoverable under § 523 (a)(9). In re Higgins, 161 B.R. 993, 996 (Bankr. W.D. Mo. 1993). There is no apparent case law allowing property or punitive damages under the driving under the influence (DUI) exception to discharge. Further, corporations with damages, such as Belton Price Chopper, have added troubles under § 523 (a)(9). This is because “only individuals can bring a cause of action for personal injury [under § 523(a)(9)].” Id. Thus, damages from personal injury and wrongful death are unavailable under the driving while intoxicated (DWI) exception to discharge under Chapter 7.

Note that punitive and property damages are available for other non-dischargeable debts. For example, property damages are available for fraud under § 523(a)(2), defalcation in a fiduciary capacity under § 523(a)(4), and willful and malicious injury under § 523 (a)(6).6 11 U.S.C. § 523.

III. Bankruptcy law dictates that a litigant plead the specific section of § 523 and the underlying facts supporting the cause of action that is the objection to the dischargeability of the debt. However, complaints under § 523 (a)(9) are not required to be plead with particulary. The Bankruptcy Code applies Rule 12 of the Federal Rules of Civil Procedure.” FED. R. BANKR. P. 7010. Rule 12 states that “[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. FED. R. CIV. P. 12. If a more definite statement is required, it is within the sound discretion of the Bankruptcy Court to allow the plaintiff to amend the pleading. In re Universal Foundry Co., 163 B.R. 528, affirmed 30 F.3d 137 (Bankr. E.D. Wis. 1993). Despite the requirements to include information in pleadings, this information does not include specific evidence. Only fraud claims need to be pled with particularity. See, e.g., In re Volpert, 175 B.R. 247 (Bankr. N.D. Ill. 1994). Thus, complaints to object to the dischargeability of debts must be specific enough to allow the opposing party to reasonably respond but need not be plead in particularity.

A complaint to determine a debt’s discharge is sufficiently specific when it specifically alleges actions that warrant denial of discharge and the resulting injury to the creditor. In re Kelpe, 98 B.R. 479 (Bankr. W.D. Mo. 1989). Conversely, complaints objecting to the discharge of debts are insufficiently particular if they fail to identify either the specific subsection of § 523 or underlying facts supporting such grounds. In re Smith, 82 B.R. 113 (Bankr. D. Ark. 1988). Further, tracking the statutory language but failing to state the material facts supporting the claim for discharge amounts to a failure to state a claim for discharge. In re Burrow, 131 B.R. 113 (Bankr. E.D. Ark. 1991). Thus, complaints objecting to the discharge of debts must both state the specific sections of § 523 and allege the material facts supporting the claim.

Note that it is unlikely that a substantial advantage will accrue if an ambiguous complaint is submitted. The Debtor has already sent correspondence to this firm regarding the applicability of § 523 (a)(9) to this action. See Belton Price Chopper v. Mitchell Correspondence file. In addition, Amy Short questioned the debtor regarding the Debtors driving while intoxicated (DWI) during the Belton auto accident at the initial meeting of the creditors on May 18th. See Letter from Amy Short to Roger Ang of Federal Ins. Co. (May 22, 2008). Consequently, any element of surprise is absent. Further, it is unlikely that other sections of § 523 can be used to render Ms. Mitchell’s debt non-dischargeable under § 523. See infra issue IV. At 9 (exploring the viability of driving under the influence (DUI) in Belton Cass County, Missouri as willful and malicious conduct under § 523). Finally, a risk is present that an ambiguous complaint will annoy the bankruptcy judge. Thus, it is unlikely that a substantial advantage will be gained if the Complaint to Object to the Dischargeability of the Debt does not state what portion of § 523 is to be applied.

IV. It can be argued that Ms. Mitchell’s actions were willful and malicious when she chose to engage in driving while intoxicated in Belton before traveling to work and traveled too fast on icy roads. However, it is highly improbable that this argument will elicit success. Section 6 of 11 U.S.C. § 523 states that bankruptcy does “not discharge an individual debtor from any debt… (6) for willful and malicious injury by the debtor to another entity or to the property of another entity….” 11 U.S.C. § 523 (a)(6). Before the driving while intoxicated (DWI) exception was added to the Code, driving under the influence (DUI) cases were successfully objected to as willful and malicious actions. See, e.g., In re Callaway, 41 B.R. 341, 346 (E.D. Pa. 1984)(stating that the voluntary acts of drinking and then driving while intoxicated are sufficiently intentional and deliberate to render drunk-driving liability non-dischargeable).7 Thus, the willful and malicious conduct exception to discharge has been used in driving under the influence (DUI) criminal defense cases.

It can be proposed that this logic should be revived and applied to the instant case. The argument progresses as follows. First, Ms. Mitchell admits to willfully consuming intoxicants on the morning of the Belton auto accident in Cass County, Missouri. (See Missouri Uniform Accident Report at 3). Second, Ms. Mitchell displayed malicious conduct when she purposefully drove on icy roads knowing that she had consumed a substantial amount of intoxicants. Id. Further, Ms. Mitchell knowingly drove the motor vehicle at excessive speeds for the conditions of the road at that time. Id. Thus, it can be argued that Ms. Mitchell acted willfully and maliciously pursuant to the collision on January 25, 2006.

It is highly improbable that this argument will be successful. First, prior to the enactment of the driving under the influence (DUI) exception to discharge, the Western District of Missouri did not recognize driving while intoxicated (DWI) as willful and malicious conduct. See In re Bellmer, Civil Action No. 79-6042-CV-SJ (Bankr. W.D. Mo. 1980)(explicitly rejecting that reckless disregard of the rights of another, without more, can suffice as proof of willfulness or malice in a drunk driving case). Second, the enactment of the drunk driving exception supercedes the line of cases that find driving while intoxicated (DWI) as willful and malicious. 11 U.S.C. § 523 (a)(9). Thus, it is inconsistent to argue that Congress intended drunk-driving to both be explicitly non-dischargeable in § 523 (a)(9) and implicitly non-dischargeable in § 523(a)(6). Third, the Western District of Missouri and the Eighth Circuit have explicitly rejected the argument that drunk driving, in itself, is willful and malicious conduct. Cassidy v. Minihan, 794 F.2d 340, 343 (8th Cir. 1986). Thus, there is a substantial body of applicable law rejecting the argument that Ms. Mitchell’s drunk driving was non-dischargeable under the willful and malicious exception to 11 U.S.C. § 523.

In summary, a good faith argument is available to reverse the law of the eighth circuit and include driving under the influence (DUI) in Belton, Cass County, Missouri as willful and malicious conduct. However, this reversal is unlikely because of the precedent established and followed in this circuit. A Cass County criminal defense attorney or a Belton auto accident lawyer advocating this argument faces opposing arguments that it is against the will of Congress, contrary to the clear statutory language of § 523, contrary to the case law in the district and circuit courts, and has never been adopted by this district at any date. Thus, it is highly improbable that Ms. Mitchell’s driving under the influence in Belton, Cass County can be successfully placed under the willful and malicious conduct exception to discharge.

Note that other sections of § 523 appear equally inapplicable to the facts in the instant case. Debts in bankruptcy are non-dischargeable when they are taxes, obtained by false pretenses, fraud in a fiduciary capacity, larceny, child or spousal support, through a fine or penalty or forfeiture to a governmental unit, or educational loans. They are also non-dischargeable when waived by the debtor or made through commitments to federal depository institutions. With the exception of driving while intoxicated under § 523, no other portions of 11 U.S.C. § 523 seem applicable to this case.

1Note that a substantial body of bankruptcy courts presume that the intoxication was a causal factor in the incident and do not require a litigant to independently prove it. However, the Bankruptcy Court for the Western District of Missouri has already considered this fact and determined that a litigant must independently establish the causal connection. Christiansen, 80 B.R. at 484, n. 3.

2A sedative drug.

3Indicators of intoxication have been held sufficient to supports verdicts of “intoxication” in a number of cases where field sobriety tests could not be performed. State v. Burris, 729 S.W.2d 661, 663 (Mo.App. S.D. 1987); State v. Jackson, 643 S.W.2d 74 (Mo.App. 1982); State v. Powell, 618 S.W.2d 47 (Mo.App. 1981); State v. Laws, 547 S.W.2d 162 (Mo.App. 1977).

4Note that expert testimony could be included to create an inference that a blood alcohol content of .088 one and one-half hours after an incident was really over the legal limit of .08 at the time of the Belton auto accident.

5Mr. Meanor’s blood sample was unreliable regarding his B.A.C. at the time of the accident because he sustained injuries at that time and could not be tested. His blood sample was taken “later that morning” at the hospital. Meanor, 863 S.W.2d at 887.

6None of these section of the Code appear applicable to the present case absent other information, such as some willful or fraudulent conduct by Ms. Mitchell. See issue IV. at 9 (examining the application of the willful and malicious conduct exception to the facts in this case).

7For other case citations, look to Cassidy v. Minihan, 794 F.2d 340, 343 (8th Cir. 1986).

Cass County & Johnson County Auto Accidents, Criminal Defense l Leave A Comment

Harrisonville Products Liability – Defective Product Design Defect Testimony – Memo of law on admissibility of lay defendant’s employee

Memo

To: Cass County products liability attorneys in Raymore, Belton, & Harrisonville interested in admissibility of trial of lay opinion testimony

From: Matt Hamilton, Harrisonville products liability attorney for accidents & injury

Subject: Ragsdalle v. Rim-rock, — Employee is burnt by molten metal and sues claiming a defective safety guard.

Date: July 29, 2010

______________________________________________________________________________

Issue:

  1. May employees of the defendant corporation testify as to their opinions that the guard was unsafe when they have no training in the area and are not experts?

Conclusion:

1) Yes, non-experts can testify as to their opinions under the sound discretion of the trial court in Cass County, Harrisonville, Raymore & Belton products liability injury accident lawsuits if they are witnesses/observers to events relating to the cause of action and it is impracticable to place the facts before the jury in such a way that they can draw their own conclusion from the facts.

In any event, it is likely that the defense will succeed in suppressing the opinion testimony.

Analysis:

A. Either way, it is within the discretion of the trial court to decide whether a non-expert’s opinion testimony will be allowed.

Cass County Circuit Court injury accidents under Missouri law:

In order for a witness to give an opinion as an expert it must appear that by reason of education or specialized experience he possesses superior knowledge respecting a subject about which persons having no particular training are incapable of forming an accurate opinion or drawing correct conclusions. Shelby County R-IV School District v. Herman, 392 S.W.2d 609, 616 (Mo. 1965). The necessity for admission of opinion testimony, expert or otherwise, rests in the sound discretion of the trial court. Yocum v. Kansas City Public Service Company, 349 S.W.2d 860, 864 (Mo. 1961).This applies to all civil cases in Missouri where the issue is presented by, for example, a Lees Summit auto accident lawyer.

B. It is unlikely that the opinion testimony will be allowed if the opinion is one that the lay jurors could make themselves when looking at the facts.

If the subject is one of everyday experience, where jurors are competent to decide the issues, then opinion testimony is properly rejected.” Wessar v. John Chesik Motors, Inc., 623 S.W.2d 599, 600 (Mo.App. W.D. 1981).This means, for example if a Harrisonville personal injury attorney in a products liability lawsuit attempts to get opinion testimony in where the jurors can make their own decision as it’s in the common experience of people, the opinion testimony will not be let into evidence by the Cass County Circuit Court Judge.

Expert opinion should not be admitted unless it is clear that jurors themselves lack experience or knowledge of the subject and are incapable of drawing correct conclusions from the facts proved.”1 State v. Cummings, 714 S.W.2d 877 (Mo.App. 1986).

The court in this Harrisonville products liability personal injury lawsuit was as well qualified as the witness to evaluate the state of the evidence. The witnesses were unqualified to give authoritative opinions. Their testimony was properly confined to that which related to their observations of the occurrence. Scott v. Scott, 612 S.W.2d 61, 63 (Mo.App. W.D. 1981).

The Lees Summit products liability attorney‘s witness had expertise in one area but no expertise in a closely related area. The court allowed him to give an opinion in his area of expertise but refused to allow him to give an opinion outside of his area of expertise without further qualifications. State v. Williams, 654 S.W.2d 292, 293 (Mo.App. 1983).

If the area is one in which lay Cass County jurors are likely to be conversant, or the issue is one of everyday human experience, then it is proper to reject opinion testimony on the subject. State v. Jordan, 751 S.W.2d 68, 78 (Mo.App. 1988).

Where a witness in Cass County Circuit Court expresses an opinion that is not acquired in anticipation of litigation, and the witness is not retained to testify to that opinion, it is error not to let the witness testify only because he expressed an opinion during his testimony. Krug v. United Disposal, Inc., 567 S.W.2d 133, 135-36 (Mo.App. 1978).

C. The employees can testify as to their personal observations and the Cass County Circuit Court can allow them to give an incidental opinion. The personal injury plaintiff could argue that the opinions were Jack Danison’s and John Pierson’s own observations as to the condition of the guard before the accident. The defendant can argue that neither of them are experts and can only state what they observed and not conclusions from those observations.

Observations of fact by a witness through their own experience do not constitute opinion testimony or improper expert testimony. State v. Simpson, 793 S.W.2d 182, 186 (Mo.App. 1990).

Owners and employees of a construction company who participated in construction work that gave rise to a Belton auto accident lawyers’ cause of action were not “expert witnesses,” and their testimony was therefore admissible even though they were not disclosed as expert witnesses in response to interrogatories. This was because the witnesses were observers and participants in the events and transactions of the case. The court stated that if some of their testimony incidentally called on their learning and experience for conclusions and opinions, the witnesses were still not “expert witnesses” within the meaning of Rule 56.01(b)(4). Owen v. City of Springfield, 741 S.W.2d 16 (Mo. 1987).

1Note that this is a criminal case.

Products Liability l Leave A Comment

Harrisonville, MO Wrongful Death Attorney – Products Liability Case Analysis Letter

January 30, 2011

Wrongful Death Attorney statement to a personal injury mediator in advance of mediation.

The following is a statement from a defective products liability attorney handling a Cass County at Harrisonville, Missouri wrongful death case after transfer from Cass County Circuit Court in Harrisonville, Missouri.

The names and some information has been changed to protect the identity of the wrongful death victim’s family.  This will give the reader an example of the types of information considered by defective products liability attorneys in wrongful death lawsuits.

FAX:  776-3379

Mr. Bill Harrison

K.C. MEDIATION/ARBITRATION

430 Belleview, Suite 200

Harrisonville, Missouri 64701

Re:      Case Style: Karen A. Stevens, et al. v. Cass County Paint Manufacturing, Inc.

Case No.:        98-7566-CV-W-BB in the USDC WDMo

Accident Date:            August 11, 2011

Our File No.:  06427-2486

Dear Mr. Harrison:

This wrongful death products liability lawsuit is scheduled for mediation at our office on Thursday, February 1, 2011, beginning at 11:30 a.m.  Pursuant to Ms. Johnnie Baker’s correspondence of January 10, 2011, here is our mediation statement.  This case is pending in the United States District Court for the Western District of Missouri at Kansas City.  This is after transfer from the Circuit Court of Cass County, Missouri at Harrisonville.  It is presently set for trial on February 26, 2011, in front of Judge John Maughmer.  The parties have agreed to participate in this mediation.

PARTIES

Karen Stevens and her children (Annette and Alex), represented by attorney Scott Mach, filed suit against Defendant Cass County Paint Manufacturing, Inc. (hereinafter “Cass County Paint”) for wrongful death based on defective product liability.  Specifically, Plaintiffs contend that James Stevens died on August 11, 2007 while using Stain Paint Blocker 1000, a paint product manufactured by Cass County Paint.  Mr. Stevens was married to Karen Stevens at the time and is the father of Annette and Alex.  In their Harrisonville, Missouri wrongful death attorney’s first amended complaint, Plaintiffs assert the following claims against Cass County Paint:  Strict Liability (Product Defect), Strict Liability (Failure to Warn), Product Liability (Negligently Supplying a Dangerous Instrumentality), and Negligence.

Cass County Paint is represented by Matt Hamilton, a Pleasant Hill wrongful death attorney.  It is expected that Candice Hall, the adjustor handling the claim on behalf of Forge Insurance, will also be attending the mediation.

STATEMENT OF FACTS

At the time of his death, James Stevens was working for Harrisonville Painting, Inc., for whom he had worked for approximately eight (8) years.  Mr. Stevens was Harrisonville Painting’s most experienced painter.  Sometime between 3:00-3:30 p.m., Mr. Stevens went down into the basement of a residence in Lee’s Summit, Missouri to begin spraying Stain Paint Blocker 1000 on several doors and cabinets.  At approximately 3:50 p.m., Matt Veisides, a co-worker, advised Mr. Stevens that he was leaving the house.  While Mr. Veisides did not enter the basement, he could tell that Mr. Stevens was spraying and wearing a respirator due to the fact that Mr. Stevens’s voice was muffled when he acknowledged hearing Mr. Vleisides.  At that point, Mr. Stevens was the only person at the Cass County, Missouri Harrisonville residence.

After Mr. Stevens did not come home that evening, his wife, Karen, and mother-in-law, Marcia Cass, went to the worksite at approximately 11:00 p.m.  They found Mr. Stevens lying on the basement floor.  They went to a nearby house to get help and to call the paramedics.  Before the paramedics arrived, John Heisel, Jennifer Cunard and Mary Jones (who were at the neighboring house and who did not know the Steven’s) went down to the basement to check on Mr. Stevens’ condition and to perform CPR if needed.  After partially removing Mr. Stevens’ respirator to attempt CPR, Mr. Heisel realized that Mr. Stevens had suffered a wrongful death.

Upon their arrival, Harrisonville, Missouri police and Cass County, Missouri fire department personnel confirmed that Mr. Stevens had been dead for some time.  Due to there still being a strong odor of paint fumes, the fire department opened the windows and brought in a fan in order to ventilate the basement.  There were two small windows in the basement, both of which were covered with plastic upon their arrival.  Mr. Stevens was not using a fan when he was spraying.

The autopsy report indicated that the cause of death was hydrocarbon inhalation toxicity.  A toxicology report acknowledged the presence of hydrocarbons in Mr. Stevens’ body similar to those contained in Stain Paint Blocker 1000.  Karen Stevens told the investigating Harrisonville police officer that James Stevens “had told her the last time he used his respirator, it was not working properly.”  A copy of the police report is attached hereto as Exhibit A.  The autopsy report, a copy of which is attached hereto as Exhibit B, further indicated that the respirator straps were “less elastic than expected.”

Stain Paint Blocker 1000 is an undercoater paint product.  It is white in color and is primarily used to paint over marks, spots, etc.  The undercoater is applied and then paint can be applied over it.  Prior to 1993, the product was referred to as “Wipe Out”.  As indicated on its warning labels, Stain Paint Blocker 1000 is for professional use only.  Furthermore, the back label on the container indicates, among other things, that users should use an appropriately fitted respirator and use only in well-ventilated areas to avoid breathing the product vapors.  Copies of the front and back labels are attached hereto as Exhibit C.  Finally, the material safety data sheet for Stain Paint Blocker 1000 indicates, among other things, that excessive/prolonged inhalation can cause brain and/or central nervous system damage and that intentional misuse through deliberate inhalation may be harmful or fatal.  A copy of the product material safety data sheet is attached hereto as Exhibit D.

PROCEDURAL HISTORY

Plaintiffs originally filed their petition against Cass County Paint in October of 2008.  In June of 2009, Plaintiffs joined 3-M and The Cass County Paint Company as co-defendants.  3-M allegedly manufactured the respirator that Mr. Stevens was wearing at the time of his wrongful death.  Cass County Paint allegedly was the retailer from whom the respirator was purchased by Pro Painting.  The court approved the wrongful death settlements between Plaintiffs and the co-defendants in September of 2010.  3-M settled the claims against it for $137,500.00 and Cass County Paint settled the claims against it for $115,000.00.  Cass County Paint is entitled to a credit in the amount of those settlements ($42,500.00) against any verdict rendered against Cass County Paint.

In October of 2010, the wrongful death attorney for Cass County Paint filed a motion for summary judgment wherein it primarily argued that under Missouri law Cass County Paint had no duty to warn of open, obvious, and commonly known dangers and that Stain Paint Blocker 1000 is not unreasonably dangerous when put to its reasonably anticipated use.  There is nothing to suggest that any additional warning would have altered Mr. Stevens’ behavior.  It is apparent from the discovery conducted in the case that Mr. Stevens was well aware of the need to wear a respirator (he was wearing a respirator at the time of his death) and to spray Stain Paint Blocker 1000 with adequate ventilation (he had communicated the need for ventilation to others).  Furthermore, Plaintiffs cannot establish that Mr. Stevens still would have died had he been spraying while wearing an appropriately fitted and properly working respirator and/or with adequate ventilation.  Our contention is especially supported by the fact that Mr. Stevens had sprayed the product (while wearing a respirator) for more than seven (7) years without any prior problems.  The court has not yet ruled on the motion.

Finally, in October of 2010, both parties filed Daubert challenges against each other’s expert.  Plaintiffs have retained Dr. Patrick McIver to serve as their warnings expert while Cass County Paint has retained Dr. Dan Horst to serve as its human factors expert.  Both parties contend that the opinions to be offered by both experts are not based on any relevant or reliable data, objective criteria, or authoritative publications.  In particular, Dr. McIver could not cite to any authorities (other than Prosser on Torts) for his opinions and essentially acknowledged that whether the labels used the signal word “danger” instead of “warning” likely would not have affected James Stevens’ behavior.  The court has not yet ruled on these motions.

PLAINTIFFS’ ALLEGED DAMAGES

The Harrisonville wrongful death attorneys for Plaintiffs have produced bills related to Mr. Stevens’ funeral expenses in the amount of approximately $7,000.00 which are not in dispute.  Furthermore, Plaintiffs’ economist, Dr. John Ward, hired by the Lee’s Summit wrongful death lawyers opines that Mr. Stevens’ lost future income and lost future services to his spouse (who has since remarried) and children is $1,020,818.00.  As with any economist, the adjustments given by Dr. Ward for inflation, wage growth, etc. and the values given by Dr. Ward for loss of services for household work, child supervision, and guidance and counsel are subject to attack.  Nevertheless, Mr. Stevens, who was 30 years old when he died, presumably would have been able to keep working for another 30-35 years and would have provided benefit to his family if not for his wrongful death.

DEFENDANT’S PRODUCTS LIABILITY WRONGFUL DEATH DEFENSES

The Harrisonville personal injury attorneys for Plaintiffs are solely alleging that Stain Paint Blocker 1000 was unreasonably dangerous due to its inadequate warnings; they are not alleging that Stain Paint Blocker 1000 was unreasonably dangerous due to its chemical composition.  Plaintiffs are primarily arguing that the product labeling and material safety data sheets do not warn a user that excessive inhalation can cause death.  Furthermore, they contend that Cass County Paint did not follow the industry labeling guidelines since the product label has the signal word “warning” rather than “danger.”  Cass County Paint concedes that the product label should contain the signal word “danger.”  However, that concession should be irrelevant, and thus inadmissible, because Plaintiffs’ own warnings expert, Dr. McIver, acknowledges that research indicates that there is no significant difference in user behavior between the two signal words (e.g., the word “danger” rather than “warning” does not significantly alter user behavior).  Based on their own expert’s testimony, even if the label contained the signal word “danger”, there is nothing to suggest that it would have in any way altered James Stevens’ behavior.  Cass County Paint will file an appropriate motion in limine in this regard.

Even if Cass County Paint’s motion for summary judgment filed by the Cass County products liability attorneys is denied, the Harrisonville wrongful death attorneys for Plaintiffs will have a difficult time making a submissible case against Cass County Paint based on inadequate warnings.  The Stain Paint Blocker 1000 warnings were adequate in that the most important thing they could communicate is for the user to wear a properly fitting and properly working respirator.  Plaintiffs have no expert who will say that if James Stevens had a non-defective, properly functioning respirator on while he was spraying on August 11, 2007, then vapors from Stain Paint Blocker 1000 would have killed him.  Mr. Stevens had used Stain Paint Blocker 1000/Wipe Out for seven (7) or more years without his wrongful death as long as he wore a respirator that fit and worked properly.  If his respirator had been fit and worked properly on August 11, 2007, then he would not have died.  The fact that his respirator did not firmly fit is supported by the following:  (1) the respirator strap was less elastic than expected; (2) Mr. Stevens had complained of problems with his respirator the last time he used it before his death; and (3) Mr. Stevens had facial hair on the day he died even though the respirator warnings (copies of which are attached hereto as Exhibit E) advised against facial hair in order to ensure that the respirator fit properly.  If it fit properly, then it necessarily follows that the respirator did not function properly since every other time Mr. Stevens sprayed Stain Paint Blocker 1000 while wearing a properly fitting and functioning respirator he did not die.  Under both scenarios, James Stevens’ wrongful death was not caused by the Stain Paint Blocker 1000 warnings.

Furthermore, Cass County Paint is confident that even if the court submits this case to the jury, it will be exonerated.  The evidence demonstrates that James Stevens and/or 3-M is liable for the majority, if not all, of the fault.  As mentioned above, the evidence demonstrates that Mr. Stevens failed to ensure that his respirator was fitting and/or working properly on August 11, 2007.  If it fit properly, then it necessarily follows that the respirator was defective, for which 3-M is responsible.  Furthermore, Mr. Stevens failed to open all windows or use a fan in the basement where he was spraying, despite the fact that he was well aware of the need for adequate ventilation when spraying. Both of the windows in the basement were covered with plastic, thereby preventing ventilation.  These facts can only demonstrate that Mr. Stevens’ death was attributable to his own negligence and/or a defect with the respirator rather than inadequate warnings on the Stain Paint Blocker 1000.

PRIOR SETTLEMENT DISCUSSIONS

The Lee’s Summit products liability lawyers for Plaintiffs initially demanded $1,000,000.00 and Cass County Paint responded by offering $50,000.00.  Plaintiffs thereafter reduced their demand to $950,000.00.  Cass County Paint has made no response to such demand.  Plaintiffs’ Harrisonville personal injury attorney has acknowledged posturing the case for settlement in the neighborhood of $750,000.00.  All of these settlement discussions took place before the filing of Cass County Paint’s motion for summary judgment and the Daubert challenges.

CONCLUSION

Plaintiffs should have difficulty in (1) avoiding summary judgment; (2) making a submissible case on the warnings issue; and (3)  convincing a federal court jury that Stain Paint Blocker 1000 is an unreasonably dangerous product due to its inadequate warnings.  There is a good chance that Dr. McIver, should he be allowed to testify at all, will not be allowed to testify regarding the improper use of the signal word “warning” rather than “danger”.  Frankly, Plaintiffs have nothing which demonstrates that the warnings were inadequate, thus causing the wrongful death.  Mr. Stevens was wearing a respirator, which he knew should fit and work properly, and knew to ventilate the area when spraying (yet did not do so on August 11, 2007) – what additional warnings could Cass County Paint have given?  The simple fact is that everyone knows that breathing paint fumes, either intentionally or unintentionally, can be dangerous and that certain precautions need to be taken when utilizing such products.  Mr. Stevens’ wrongful death in Harrisonville, though tragic, was not the fault of Cass County Paint.

I hope that the information set forth herein and in the attached exhibits will help clarify the issues we will be discussing on Thursday.  I look forward to seeing you.

Very truly yours,

Matt Hamilton

matthamilton@law-kc.com

personal injury wrongful death attorney

Products Liability, Wrongful Death l Leave A Comment

Harrisonville Missouri Auto Accident – Attorney Analysis of Witness Statements to Insurance Company

This is an example of an insurance company interview analysis.  The names and some facts have been changed to protect the privacy of the people and companies involved.  Reading this will assist a personal injury auto accident attorney or automobile accident victim in knowing the point of view of an insurance company in analyzing witness and victim statement.

September 28, 2009

Ms. Joanne Frankhurst

The H_______ Insurance Company

P.O. Box 905

Harrisonville, MO 64701

Re:      Kurst, Jerry and Judy v. Hart, Robert

Case No.:       CV39-438 CC

Claim No.:      68 AL 8814 and 698 AL 8107

Our File No.:  0602-2571

Dear Ms. Frankhurst:

I have interviewed several parties that have provided information relevant to our investigation. Summaries of what has been discovered are as follows:

Personal Injury Auto Accident Defendant – Robert Hart

Mr. Hart is a long-time resident of Harrisonville, Missouri. For thirty-three years, Mr. Hart served as the postmaster of Raymore, MO before retiring in 1978. He is a decorated World War II veteran. Mr. Hart has never committed a crime and has no recent traffic violations.

Mr. Hart received the purple heart when a grenade took one of his eyes in World War II. The Department of Motor Automobiles does not consider Mr. Hart’s lost eye a handicap for driving purposes. He takes blood pressure medication, arthritis medication, and an aspirin a day. Mr. Hart’s arm shows shrapnel scars from a battle injury. It has never impaired his abilities. Mr. Hart had not consumed any intoxicants the day of the accident. He comes across as alert, intelligent and honest. He will make a good impression to a jury.

This Harrisonville, Missouri auto accident occurred on July 12, 2006 at 1:34 p.m. on King Hill Avenue. Mr. Hart was coming out of a Dairy Queen parking lot, the only Cass County business operating in the area at that time. There was a lot of traffic. From Mr. Hart’s view, a car was parked on the street immediately to the left and a van was parked to the right of the Dairy Queen’s exit. These factors caused Mr. Hart to put his signal on, wait two or three minutes, and then slowly pull out into the traffic. Mr. Hart repeatedly looked left, right and forward before pulling out. Further, he glanced forward within 30 seconds of pulling his car into the traffic and did not see another automobile.

The truck driven by the Kursts pulled up to a stop sign directly across from Mr. Hart while he was waiting to exit the Harrisonville Dairy Queen. Mr. Hart’s automobile was clearly within the view of the Kursts. The Kursts intended to cross the street and enter the Harrisonville, MO Dairy Queen parking lot. The auto accident occurred when the two automobiles attempted to cross King Hill Avenue at approximately the same time. The point of impact was on the driver’s side of the Kursts’ truck. It occurred just before the Kursts crossed the center line of King Hill Avenue. Due to the position of the roads, the Kursts’ automobile was turning slightly to the left when the auto accident occurred. Mr. Hart was turning to the right and may have entered the street first. Neither automobile was traveling over five miles per hour.

After the auto accident, Mr. Hart and the Kursts exchanged insurance company names in the Harrinsonville, Missouri Dairy Queen parking lot. Both automobiles suffered minor damage. Mr. Hart was not hurt. No emergency automobiles were called to the auto accident scene for either party. The police accident injury report indicates that two persons had personal injury. The Kursts refused medical treatment and, initially, did not appear injured. However, the Kursts began to complain of back and neck pain when the police arrived. Specifically, when the Harrisonville, Missouri police officer asked Mr. Kurst if he was hurt, Mr. Kurst hesitated, looked to his wife, and said to her “your back hurts, doesn’t it?” Mrs. Kurst hesitated as if she did not know what Mr. Kurst was talking about. Then, she stated that her back did hurt. There is no evidence that the Kursts were driving while intoxicated in this Harrisonville, Missouri auto accident.

Mr. Hart received a ticket for failing to yield at the auto accident scene. He plead guilty in the Circuit Court of Cass County, Missouri at Harrisonville. He did not have a Harrisonville criminal defense attorney at that time. Mr. Hart feels that he was not totally at fault in the Harrisonville automobile accident.

Witness – Eve Johnson

Eve Johnson lives in Harrisonville, Missouri. She was working in the Dairy Queen at the time of the automobile accident. She did not actually see the auto accident occur. However, she talked to the Kursts a few days after the accident and reports that they told her that they expected to “get some money” out of the wreck. She states that the Kursts were “O.K.” before the Harrisonville Municipal police arrived but started complaining of pain thereafter. She heard the Kursts cussing about the damage to their new truck. Eve believes that the Kursts are at least partially at fault for the Cass County personal injury auto accident.

Reputation witness – Tessa Johnson

Tessa Johnson is the daughter of Eve Johnson. They live and work at the Harrisonville Dairy Queen together. She did not witness the Cass County auto accident but knows the Kursts’ reputation for suing people in the area on questionable claims.

Witness – Sandy Grey

Sandy Grey was working at the Dairy Queen on July 12, 2006. She witnessed the Harrisonville automobile accident between the Kursts and Mr. Hart. We have contacted her and expect to take her statement in the near future.

It is my opinion a counterclaim should be filed on behalf of Mr. Hart for the property damage to his automobile. A possible theme for this case is that the plaintiffs were “cruising for a bruising” by using this minor incident to finance treatment for their preexisting medical problems.

I look forward to continuing to work with you on this case and will keep you updated as our investigation develops. If you have any questions or if I can help in any manner, please feel free to contact me.

Very truly yours,

Matt Hamilton

Cass County & Johnson County Auto Accidents l Leave A Comment

Harrisonville, MO Personal Injury Auto Accident Attorney Resolves Cass County Lawsuit – the case study of Richards v. Carlson

To:  Casualty Claims Examiner

Insurance Group

6301 James A. Reed Road

Kansas City, Mo 64133-4775

May 1, 2009

Re:                            Jo Richards

Your Claim Number:      00-512796

Your Policy Number:     04-117-01

Your Insured:              William Carlson

Date of Loss:                November 18, 2005

Our Harrisonville, Missouri auto accident lawyers handled this case in response to a Lees Summit personal injury attorneys’ request concerning our position in regard to the auto accident personal injury suffered in the above referenced matter, the following was submitted.

CLAIMANT

Ms. Jo Ellen Richards was a 55 year old married Caucasian female who resided in a rural area just outside of and had an auto accident in Harrisonville, Missouri.  She and Robert W. Richards had been married for 27 years. She was employed as a supervisor at a therapeutic group home for MBCH-CFM helping victims of injury auto accidents in Harrisonville, Missouri.

LOCATION AND TIME OF HARRISONVILLE, MISSOURI AUTO ACCIDENT

On November 18, 2005, at approximately 5:25 p.m., while on the way to her home after work,  Mrs. Jo Ellen Richards sustained serious personal injury near Harrisonville, Missouri when a automobile she was driving on Highway YY about three (3) Miles West of Harrisonville, Missouri, was struck by the insured who had crossed the center line.

THEORY OF LIABILITY – NEGLIGENCE

Our Harrisonville, Missouri automobile accident attorneys determined liability in this car wreck was based upon statutory and common law negligence and particularly, the failure of Mr. Carlson to control his vehicle.

This Harrisonville automobile accident would not have happened had it not been for the drunken, reckless, careless and negligent operation of Mr. Carlson‘s vehicle.  Mr. Carlson needed a Harrisonville, Missouri criminal defense attorney.  He was charged with driving while intoxicated in Cass County Circuit Court.  Mr. Carlson failed to observe traffic rules, crossed over the center lane and struck my client in the driver’s side door continuing down the left side, hooking into the left rear wheel well causing her vehicle to flip into the north ditch.  Mr. Carlson was also charged with violating Missouri statute 565.060, which is felony assault in the second degree.  This is a Class C felony criminal violation punishable by one to seven years of incarceration and up to $5,000.00 in fines in Cass County Circuit Court in Harrisonville, Missouri.  This felony criminal violation alleged he caused serious personal injury in the auto accident while he was driving under the influence (DUI) in Harrisonville, MO.  Mr. Carlson was intoxicated, inattentive and exhibited lack of control over his vehicle all of which contributed to the car accident, injuries and damages suffered by Mrs. Richards.  He eventually plead guilty to this charge and served jail time in Cass County jail.

PERSONAL INJURIES AND PAIN AND SUFFERING

Our auto accident attorney in Harrisonville, MO alleged that as a result of Mr. Carlson’s negligent conduct, Mrs. Richards suffered the following injuries:

She has had and still has throbbing aching pain in her right wrist; she received a tearing in the scar tissue in her right breast which had to be replaced.  She suffered and continues to suffer pain on the right side of her body to include her shoulder, neck, leg, ankle, knee, and back.

Fortunately, Mrs. Richards had received and continued to receive excellent medical care from Cass County Medical Center in Harrisonville, Missouri with the continuing expense and lifestyle disruption which was expected to continue for the rest of her life.  However, this care had not corrected her physical condition to the level prior to the Cass County automobile accident which consequently had not allowed her to resume normal activities enjoyed prior to the accident.    Our Cass County personal injury attorneys felt that because of complications directly arising out of the negligence of Mr. Carlson’s actions Ms. Richards should have been, under these circumstances, been compensated for her pain and suffering, hospitalization, medical bills, prescriptions and lost wages and other attendant damages.  We contacted our associated who were Lees Summit automobile accident attorneys and they agreed.

Prior to November 18, 2005 Mrs. Richards had no health issues.  She had not seen a doctor for other than routine annual exams at Cass County Medical Center in Harrisonville for several years.  Even though she did not seek hospitalization at the time of the auto accident, the personal injury damages she sustained became immediately evident when she couldn’t sleep because of the pain.  The next morning she went to the Emergency Room.  From that day forward she had constantly lived in pain.  One health issue had transgressed and developed into another to include diagnosis with Raynauds and MCTD.  As she had no health issues prior to this Harrisonville, MO automobile accident, these subsequent diagnosis were the direct and proximate cause of the Cass County auto accident.

She is now required to have her heart, lungs, kidneys and liver examined every three to twelve months to check for ongoing damage.  She is still suffering with excruciating chronic pain in her joints, muscles and nerves.  She suffers from insomnia and has had to take numerous medications for stabilization of this pain.  She is now considered “high risk” and suffers from a suppressed immune system.

Our Harrisonville, MO personal injury attorney submitted a list of expenses/damages due to the injuries sustained by Ms. Richards which arose out of the Cass County, MO automobile accident.  The impact which occurred on November 18, 2005 caused serious personal injuries to Mrs. Richards and she had suffered and will continue to suffer ongoing current pain as well as future pain and suffering as a result of your insured’s unlawful conduct.

Set forth below were Mrs. Richards’s itemized damages:

SPECIALS

1.   Miami County Medical Center                                        $1,332.50

2.   Louisberg Family Care/Dyck                                          $ 252.00

3.   Miami County Medical Center                                        $3,311.40

4.   Neurology Consultant/Ryan                                         $795.00

5.   Olathe Medical Center/Miami/Nosti                         $5,133.90

6.   Olathe Medical Center/Stallard                                   $427.00

7.   United Imaging                                                                 $486.99

8.   Humana/Fishman                                                             $1,500.00

9.   Kansas Orthopedic Specialists/Wilkinson               $5,035.05

10.  Miami County Medical Center                                   $8,458.10

11.  SERC                                                                                  $1,205.00

12.  Dr. Newman                                                                    $658.75

13.  Dr. Williams/Anesthesia                                             $384.00

14.  Dr. Sneed                                                                         $ 3,050.95

15.  Dr. Nosti/Implant Removal                                      $17,493.73

16.  Pharmaceuticals                                                             $5,194.51

17.  Mileage/796 MILES @ .485                                       $4,846.00

18.  Lost Work Time                                                              $11,847.36

19.  Vehicle Loss                                                                    $18,102.00

20.  Rental Car/Enterprise                                                  $246.05

1a. Dr. Fessenden                                                                    $3,970.70

2a. Dr. Ruhlman                                                                     $ 9,859.75

3a.  LABCORP                                                                        $373.00

4a.  Dr. Davoren                                                                     $ 9, l55.60

TOTAL                                                                                  $112,219.34

PERSONAL INJURY ATTORNEY SETTLEMENT DEMAND

Our Harrisonville, Missouri personal injury lawyer, in evaluating this case, took into consideration the fact that Mrs. Richards was a physically active working lady.  She had endured the pain and suffering as a result of the trauma to the right side of her body to include her right breast, shoulder, neck, leg, ankle, knee, and back.  Lastly she and her husband had suffered a severe set back in their intimate relationship as a result of the trauma brought on by Mr. Carlson’s car accident negligence and Cass County criminal behavior.

Moreover, our Harrisonville accident lawyers took into consideration the fact that not only was the liability unchallengeable as were her $112,219.34 in specials, it caused our Harrisonville lawyers and Lees Summit injury attorneys to believe that Mrs. Richards would expect a substantial jury award in the event this case is tried in Cass County Circuit Court in Harrisonville, Missouri.  Accordingly, our Harrisonville accident lawyers concluded that Mrs. Richards’s case has a settlement value in the neighborhood of $325,000.00.

We posted our Harrisonville law firm’s calendar for thirty (30) days from the date of our demand letter so as to give the insurance company sufficient time within which to review and consider our Cass County injury lawyers’ demand, during which time no action was brought on behalf of Mrs. Richards.  If our accident lawyers did not hear from the insurance company within that time with a view toward settlement, suit would be filed forthwith.

Our auto accident personal injury lawsuit was filed in the Circuit Court of Cass County, Missouri at Harrisonville.  The Honorable Jacqueline Cook, Cass County’s Presiding Judge oversaw the matter.  The case was referred for Pleasant Hill auto accident attorney Matt Hamilton to handle.  He and his Cass County personal injury lawyers represented the Plaintiff and reached the settlement that was demanded where other attorneys had failed.

Cass County & Johnson County Auto Accidents, Criminal Defense l Leave A Comment

Cass County Missouri Personal Injury Auto Accident Attorney – Body of Petition for Damages – Anderson v. Carlson

PETITION FOR DAMAGES

COUNT I

COMES NOW Plaintiff, Johnny R. Anderson, and for his Cass County, Missouri personal injury cause of action against Defendant, Benjamin Carlson, alleges and states as follows:

  1. Plaintiff Johnny R. Anderson is a resident of and represented by personal injury attorneys in Harrisonville, Cass County, Missouri; Defendant Benjamin Carlson is a resident of and represented by criminal defense attorneys in Belton, Cass County, Missouri; the  Cass County, Missouri auto accident giving rise to this cause of action occurred in Cedar County, Missouri.
  2. That at all times herein mentioned Missouri Highway 54 is a public street and thoroughfare in the State of Missouri, and in Cass County, Missouri, where the automobile accident occurred.
  3. That on or about July 15, 2003, Plaintiff was operating his 1994 Ford Tempo traveling in a westerly direction on Missouri Highway 54. That Defendant Benjamin Carlson was operating his 1995 Buick automobile in an easterly direction; that Defendant Carlson operated his vehicle in a way that caused a Cass County, Missouri car accident with the vehicle being driven by Plaintiff Johnny R. Anderson.
  4. Defendant Benjamin Carlson drove his vehicle in a careless and reckless manner by allowing it to cross the centerline and coming into collision with Plaintiff’s lawfully operated motor vehicle.
  5. Defendant Benjamin Carlson needed a Cass County Missouri criminal defense attorney because he failed to exercise the highest degree of care in the operation of his motor vehicle and was negligent in the following particulars.
  6. Defendant got a Harrisonville Missouri traffic ticket because he operated his motor vehicle at an excessive rate of speed.
  7. Defendant operated his motor vehicle without keeping a good and proper lookout for other cars on the roadway, including Plaintiff thereby receiving a Belton Municipal Court traffic ticket.
  8. Defendant failed to sound a signal of warning and was cited for a Lees Summit Municipal Court traffic ticket.
  9. Defendant failed to swerve or slacken his speed and thereby avoid coming into collision with the vehicle being driven by Plaintiff and needed a Lees Summit criminal defense attorney.
  10. Defendant operated his vehicle in a manner that allowed it to cross the centerline into the lane reserved for traffic going in the direction of Plaintiff Johnny R. Anderson and thereby causing the Raymore personal injury auto accident.
  11. Defendant failed to operate his motor vehicle as far as practical to the right hand side of the roadway thereby deserving a Belton Municipal Court traffic ticket.
  12. That the above and foregoing acts of negligence of Defendant were the proximate cause of the Cass County personal injury car accident between Defendant’s motor vehicle and Plaintiff’s motor vehicle and was the proximate cause of damages and personal injuries suffered by Plaintiff Johnny R. Anderson.
  13. Plaintiff has sustained Lees Summit personal injuries in the following respects: Plaintiff has incurred large expenses for hospitalization, doctors, medicine, and other medical care and plaintiff will in the future during his lifetime continue to receive such treatment for his condition; Plaintiff has received personal injuries that have caused him to miss time from work and has lost wages and earnings because of said conditions, and will in the future continue to lose earnings and wages because of his personal injuries. Plaintiff has suffered Cass County, Missouri personal injuries to his spinal column, body, and head, and in particular, bruises, contusions, sprains, strains, abrasions, tears and injuries to the muscles, bones, ligaments, tendons and tissues connected thereto. Plaintiff has suffered pain, spasms, discomfort, insomnia and mental anguish, and will in the future continue all of the aforementioned conditions. Plaintiff has balance problems due to vertigo and tendinitis, and that said conditions continue and will continue into the future. Plaintiff has sustained property damage to his motor vehicle.
  14. That on September 8, 2004, pursuant to RSMo. 408.040 demand for settlement was made on Defendant’s insurance company by registered mail, a copy of which is attached hereto, marked Exhibit A, and incorporated by reference. That said demand was rejected by Defendant.

WHEREFORE, Plaintiff prays for judgment in his favor in an amount as determined by judge and jury, and for prejudgment interest at the rate of nine percent per annum from November 8, 2004, and thereafter and for his costs herein incurred.

Cass County & Johnson County Auto Accidents, Criminal Defense l Leave A Comment

Belton personal injury auto accident attorney gets maximum compensation for car crash – Veronica Neill v Alyssa Patton

RE: The Insured: Alyssa L. “Patton”

Date of Loss: January 15, 2010

Our Belton Raymore personal injury law firm represented Veronica “Neill” in her claims against an insured. Our Harrisonville personal injury auto accident victim demanded settlement in the amount of $400,000.00 or the total of the insured’s policy coverage, including any umbrella coverage, if any, to satisfy her claims against Ms. Patton and her Insurance Company.  Our best personal injury attorneys in Lees Summit at www.lees-summit-attorney.com reviewed this case and agreed.  In the event that the insured’s limits were less than our demand, we gave her insurance company this opportunity to protect its insured by settling for money that will not take her personal assets.

I attached a copy of the Belton Municipal Court Police Report for your review. This Belton injury auto accident occurred on January 15, 2010 at 7:33 a.m. on Highway 7 southbound in Pleasant Hill, Cass County, Missouri. It is a thirty-five (35) mile per hour speed zone. The insured was driving her 1994 Oldsmobile Cutless south on Highway 7 traveling at least the speed limit. The victim Veronica Neill was ahead of the insured (to the south) and was stopped in traffic waiting for a school bus to load students. There were normal traffic conditions. It was daylight, but cloudy so the sun was not in her eyes. The road was asphalt with no items to obscure her vision. The school bus also had its signal on for traffic to stop on this straight and level highway. It appears the insured simply did not see the situation and crashed her vehicle into the rear of Ms. Neill. Ms. Neill needed a Cass County Circuit Court criminal defense attorney.  She received a traffic ticket in Belton Municipal Court.

The witness at the scene, Michelle Jones, also indicated that the insured crashed her vehicle into the rear of Ms. Neill, who was stopped for the school bus and the school children.

The victim Veronica Neill’s primary injury is “whiplash” type soft tissue Belton auto accident personal injury damage to her back. Specifically, her medical treatment providers indicated personal injury to her posterior scalp, posterior neck and C-spine. They also indicated injuries to the upper portion of her face, her right scapular area, her left scapular area, lower back and the dorsum of her right hand. Specifically regarding her back, she continued to exhibit cervical radiculopathy indicative of a disc impinging upon a nerve. Her medical treatment providers through a CT scan of her cervical spine also indicated cervical kyphosis centered at the C4-C5 vertebra. Ms. Neill was exhibiting the types of disabilities, pain, and limitations one would expect for this type of Belton auto accident personal injury.

Ms. Neill hired our best Cass County Missouri personal injury attorneys to represent her.  She felt she needed a Belton auto accident lawyer and trusted our Pleasant Hill, Missouri law firm.

I enclosed copies of her medical records and bills for their review. Ms. Neill had incurred $112,748.00 in medical expenses which had not been paid for by health insurance.

Veronica Neill had $1,412.50 in employment loss. I enclosed documents signed by her various employers specifying and setting out her losses to date.

Our offer remained open until July 9, 2010. It was withdrawn and not reopened after that date. We filed suit on July 16, 2010.  We eventually received a Cass County jury verdict in our favor.  Our Belton Missouri personal injury auto accident client received the total amount of the driver’s insurance coverage plus court costs.

Cass County & Johnson County Auto Accidents, Criminal Defense l Leave A Comment
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