The Law Office of Kurt H King

January 5, 2011

Waivers/releases of liability in Missouri

Filed under: Litigation,Missouri Personal Injury Law — kurthking @ 4:54 pm
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Are waivers/releases of liability in leases, gym contracts, etc., binding under Missouri law? Answer: sometimes not.

These provisions are everywhere now days as landlords, gym owners, and many others want the other party to sign standard contracts with provisions that the “little guy” releases or waives all claims he/she may have against the landlord (for example), even if the negligence or fault of the “big” party to the contract is the cause of injury or damage to the “little” party. For example, these provisions are used to bar claims by gym users who are injured by faulty gym equipment, tenants who slip and fall on ice and snow which the landlord failed to remove despite a duty to do so, and on and on.

In the case of Alack v. Vic Tanny International of Missouri, 923 S.W.2d 330 (1996), the Missouri Supreme Court set some limits on these waivers/releases and they should NOT be valid/binding on the injured party unless the written language satisfies these rules.

One requirement is that the waiver/release language must be clear and conspicuous–meaning it should be in bold/large/standout type, preferably referred to in the title, and noted by a subheading or title that stands out and makes it known that the provision deals with waiver/release of liablility. This is particularly true of residential or consumer contracts where the party that is waiving claims of liability of the other party is not as sophiscated or experienced as a commercial business would be. A good idea is to have the waiver/release in a separate document, so titled, and executed by the parties to the agreement

Another requirement is that the waiver/release language be clear, unambiguous, and free of duplicity. For example, take a lease contained 2 separate and different provisions calling for the tenant to waive and relase the landlord from any liability for not timely removing/treating snow and ice at the apartment complex. And, one of the provisions called for the the landlord not to be liable to the tenant for such under any circumstances, while the other provision called for the landlord not to be liable unless it was grossly negligent or intentionally injured the tenant. These provisions obviously differ and are unclear to lawyers–and surely the tenant is confused. Such ambiguous, unclear, and conflicting provisions could and should be struck down by a Missouri court so that the tenant or other “little guy” is free to sue the “big” party for the wrongdoing of the “big” guy.

The Alack court decision above, also states point blank, that “there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.” More reasons why a waiver/release may be void.

Bottomline: Just because the contract says so, does not mean the waiver/release will hold up in court. Have it checked out by your lawyer to be sure.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

May 21, 2010

Contempt and Perjury in A Missouri Case

Filed under: Divorce,Family Law,Litigation — kurthking @ 6:02 pm
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It seems that one or both parties perjures his or herself in nearly every divorce case.

In one recent one out of Clinton County, those lies came back to haunt the wife in that case. She testified at trial that her husband had certain valuable items of construction equipment and vehicles. After the trial, and the denial of coverage on the homeowners insurance policy, the husband dug until he found his property hidden across the street from where his former wife lived with her new husband, who happened to also own a similar construction business.

After more deception and trial of the ex-wife for contempt, the Clinton County Circuit Court judge jailed her until she pays $90,000 or returns the property items. The Judge declared her perjury, lies, and intentional deception to be the most serious he had seen.

So good to see this lady jailed instead of slapped on the wrist.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

Criminal Contempt of Court in Missouri

Filed under: Divorce,Family Law,Litigation,Uncategorized — kurthking @ 5:52 pm
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Recently, a Missouri jury found a lawyer guilty of criminal contempt of court, for which he was sentenced to 120 days in jail. The lawyer then filed a petition for writ of habeas corpus before the Missouri Supreme Court. That court ultimately agreed with the attorney and discharged him from his imprisonment.

That case styled “In re: Carl Smith v. Sheriff Raymond Pace and the Honorable Gary Witt, case SC90425, was decided in opinion issued May 11, 2010.

After reviewing the ancient and confusing history of criminal contempt charges in the State of Missouri, and relevant United States Supreme Court cases, the Missouri Supreme Court held that the jury instructions failed to include necessary fundamental findings as to whether attorney Smith intentionally or recklessly made false statements in a petition filed in a case against the attorney’s client before a Judge Carter.

In criminal contempt trial of attorney Smith before Platte County’s Judge Gary Witt, said to be the first criminal contempt jury trial on record in the State of Missouri, Judge Carter testified but no evidence was presented and no finding made by the jury as whether the strong words by attorney Smith were false or made with reckless disregard for whether the statements were true or false. As the Missouri Supreme Court holds that such a finding is a essential element of criminal contempt, the Supreme Court found in favor of attorney Smith and discharged him from his imprisonment in the Ozark County jail of respondent Sheriff Raymond Pace.

(Respondent Gary Witt conducted the trial in which the jury found attorney Smith guilty based upon the faulty jury instructions submitted by the prosecuting attorney.)

Aside from listing the necessary elements of a criminal contempt case, this opinion by the Missouri Supreme Court’s opinion in this case is important because it emphasizes that in order to constitute criminal contempt the lawyer’s indirect words or actions (i.e., words or acts that take place outside the presence of the judge/court criticized) must have a substantial likelihood of prejudicing the judicial proceeding at stake. In attorney Smith’s case, the Supreme Court found that the strong words criticizing Judge Craig Carter of Douglas County, Missouri, did NOT interfere with or pose an IMMINENT threat of interfering with the administration of justice. In fact, the State stipulated at the criminal contempt trial of attorney Smith before Judge Witt that the strong words did not interfere with or cause Judge Carter to act any differently that he otherwise would have.

What remains to be seen is whether this victory in the end will enhance attorney Smith’s stature in the eyes of the public, or make any difference at all. Surely, it may not endear him to judges before whom he practices.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

No Trespassing Warning in Missoouri

Filed under: Litigation,Missouri Personal Injury Law — kurthking @ 4:27 pm
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Was driving down a back road and saw this sign on a pole along the ditch–

This property protected by Biting Dogs and Automatic Shotguns.

The “property”  looks to be a declining large older home on acreage with a non-gated driveway.

If the sign is real and not just a bluff, then it asks for trouble, particularly if a person pulled up the driveway to ask directions or for some other legitimate reason.  Such  an uninvited person–i.e., a trespasser–who is no threat to the property or anyone who lives on the property should not risk attack by dog or gun.  The property owner who actually protects his property in this way should beware of being sued by an unsuspecting harmless trespasser in many situations.

 

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

April 30, 2010

Purchasing Land at Missouri Tax Sale

Filed under: Litigation,Uncategorized — kurthking @ 6:09 pm
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Get a lawyer early on if you are buying land at a Missouri Tax Sale.  The buyer in Drake Development & Construction, LLC v. Jacob Holdings, Inc. (a March 12, 2010, decision of the Southern District of the Missouri Court of Appeals) failed to do so and paid the price so to speak.

Missouri statute 140.405 requires the buyer at the tax sale to give notice to the owner at the time of the tax sale of that owner’s right to redeem (buy back) the property.  That law spells out what notice must be given, and basically calls for notice by certified mail to each such owner at least 90 days prior to the date when the buyer at the tax sale is authorized to acquire the deed from the county which sold the land for unpaid back taxes.  Apparently the buyer was unaware of Missouri cases which require that this notice must inform persons of the deadline by which they must act to redeem.  Since the buyer failed to include the deadline date to redeem in the notice letter to owners at the time of tax sale, the buyer lost all interest in the property.  In other words, the buyer at the tax sale lost the land it purchased because the buyer left the deadline date out of its notice of right to redeem.  The tough thing about this situation is that section 140.405 does not come out and specifically state that the deadline date has to be in the notice.  A little better law making may have prevented the whole problem for the buyer.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

Missouri Homeowner Fires at Intruder

Filed under: Litigation,Uncategorized — kurthking @ 5:30 pm
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A Missouri homeowner home at night with his wife,  points a gun through the door glass at the perceived intruder’s head, who then sped away while chased by a few warning shots by the homeowner.  No criminal charges were reportedly filed against the homeowner.

Is it legal or criminal to shoot a person trying to break into your home?  How do we know the person is not injured, afoot after a car problem or wreck,  or involved in some emergency situation?  What if the intruder is breaking in to use a phone to save a life or call 911 for an ambulance?  May we shoot because we think we are in danger?  How sure do we have to be first?  Each case turns on its own facts which is tough because the homeowner rarely has to time to call a lawyer or get a court decision to be sure before using force in defense.

Missouri law treats defense of property differently from defense of public or person.  Deadly force may be legally used in self defense of one’s person or the public under certain circumstances.  But, Missouri law does not excuse the use of  deadly force to defend one’s property.    So, we face prosecution for serious crimes if we use deadly force to protect mere property.  Only reasonable physical force is permitted to protect property from theft, damage or tampering.  See Missouri Statutes Chapter 563 for detail–particularly 563.026 and 563.041 regarding deadly versus physical force.

Remember too that even if criminal charges are not filed against you, the person injured or killed by your deadly or physical force (self defense of person or property) may sue for major money damages in a civil (not criminal) court case.  In other words, you may not go to jail, but you may be broke financially.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

Missouri Slip & Fall Law

Filed under: Litigation,Missouri Personal Injury Law,Uncategorized — kurthking @ 4:38 pm
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The Missouri Supreme Court case of Roman v. King, 289 Mo 641, 654, 233 S.W. 161, 165 (1921), is old but good law in favor of tenants who slip and fall on common sidewalks/grounds due to landlord’s failure to remove snow and ice, make repairs, etc.   When the landlord fails to timely remove accumulated ice on a common sidewalk that makes the only way to the apartment/office dangerous (just one example), what is the tenant to do?  Find another place to stay?  Or, try to walk on the ice? 

The Missouri Supreme Court recognized the tenant’s dilemma and found that the tenant who fell on dangerous access route to her apartment was NOT at fault in continuing to use that only access to her apartment.  The Roman case is one to turn to when the landlord or its insurer try to blame the tenant for falling on ice left overly long on the only common sidewalk to the tenant’s apartment or other rented space.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Pesonal Injury, Workers’ Compensation

Foreclosure-Chase Bank Error

Filed under: Litigation,Uncategorized — kurthking @ 4:18 pm
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Per recent news, Chase bank apparently told homeowner to stop payments and then foreclosed on the home.   Chase and other banks may be so large that the left hand does not know what the right hand is doing.  Be careful, get everything in writing, and keep all in your files.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

February 9, 2010

Recovering Attorney Fees in Missouri Courts

Filed under: Litigation — kurthking @ 5:11 pm
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How to get your opponent to pay your attorney fees under Missouri law in some instances–something that rarely happens as Missouri generally follows the American rule that each side pay their own attorney fees?

But it can happen if a statute or contract provision gives the prevailing party the right to recover attorney fees from the “losing party.”

A recent Missouri court of appeals case discusses the Private Prompt Payment Act (PPPA), section 431.180, RSMo 2010.  That law gives a court or abitrator the DISCRETION to award attorney fees when a person/entity fails to make all the scheduled payments under a contract for private design or construction work after August 28, 1995.  In other words, the court or arbitrator MAY award attorney fees and interest to the winning/prevailing party in such a payment dispute.

Note that 431.180 reads that it does NOT apply to “contracts for private construction work for the building, improvement, repair or remodeling of OWNER-OCCUPIED RESIDENTIAL PROPERTY OF FOUR UNITS OR LESS.”

IMPORTANT:  Remember to plead a count in your petition for payment on the contract setting out your claim for recovery of attorney fees and interest under Missouri’s PPPA.  The recent Missouri case of Lucas Stucco & EIFS Design v. Landau (Eastern District, 2/2/2010), teaches us that if you don’t so set out your claim for attorney fees and interest under the PPPA, then you are unlikely to be awarded any under that law.

www.kurthking.com

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

February 8, 2010

Proof of Sexual Abuse by Expert In Missouri

Filed under: Custody,Family Law,Litigation — kurthking @ 5:04 pm
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Say you are in a child custody or criminal court case in Missouri, perhaps Clay County, involving allegations of sexual abuse of a child.   For example, what if the mother accuses the father or step-father of abusing a young girl, and moves the court for an order that the father have no visitation or contact with the child–or only supervised visitaiton?

How to prove innocence?–or guilt?   What if the alleged perpetrator undergoes an psychological evaluation by an expert to determine if he or she did abuse the child?  Will an examination really prove anything about whether he did so?

I recently spoke with a national expert on this issue and learned that the evaluation generally canNOT support a finding that a particular person sexually abused the child.  (I say “generally” because of exceptions where the accused admits guilt, a witness saw it happen, or there is other concrete evidence that a person did abuse, and so on.)

The reason given: there is no “official” profile of a sex abuser.   So it is bunk when the expert says that a person “fits the profile” of a sex abuser” and therefore did abuse. 

Nor does such testing enable the expert to come to court and testify that the mental evaluation established that the accused “shows characteristics of a child abuser.”  (One question for any such expert would be how does he/she know what the public norm is for any test to reveal such “characteristics”–i.e., what percentage of the public would look at younger persons of a sex for longer than older persons and for what reasons.)

More importantly, even if testing could show such characteristics, it is no proof that the father/defendant abused the particular child in question.  

If a person is on the defense side of this issue, and the other side finds an expert to say the person is child sex abuser, or fits the profile of one, or has such characteristics, then be proactive.  Get a credible expert to come to report or testify on your behalf to explain why a mental examination generally does not establish that a person did sexually abuse a child.  File a Daubert motion or some other motion to disqualify the expert that claims that his mental evaluation proves a person is the child’s sexual abuser.

But realize that even if you discredit the expert, some stain may still remain from the child abuse allegations.  Rarely will the accused come completely clear of the allegations barring the child or accusing parent admitting it was all false.  Winning primary or residential child custody will be difficult for the person accused of sexual abuse of a child.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64024
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

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