The Law Office of Kurt H King

January 5, 2011

Slip & Fall case out of Clay County, Missouri

Here in Clay County, Missouri, a tenant slip and fall case against the landlord went up to the appeals court which outlined Missouri law on point. The appellate opinion is at 935 S.W.2d 649 out of the Western District of the Missouri Court of Appeals, and titled Uptergrove v. Housing Authority of the City of Lawson, Mo.

This case makes a good statement of Missouri law existing on this area of personal injury law. The general rule in Missouri is that the landlord has no duty to tenant to remove snow and ice from the common areas of the apartment complex, unless he takes on that duty: (1) by agreement with the tenant, or (2) assumed the duty by making it a practice to remove the snow and ice.

Some tenants who are injured by slip and fall on a common walkway or parking lot look to their lease (usually provided by the landlord for the landlord’s benefit) and see that it puts no duty to remove on the landlord, or states that the tenant waives/releases his/her claims against the landlord for non-removal of snow and ice. Don’t make the mistake of thinking that is the end of your claim. There is more to it than that and the tenant may still have a case to recover for personal injury, loss of wages, property damage, etc. Have it checked out.

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

Waivers/releases of liability in Missouri

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

July 20, 2010

Missouri Workers’ Compensation–the Second Injury Fund (via Kurt’s Take on Law)

Many folks do not know that there is a Second Injury Fund in the State of Missouri that can lead to your receiving more in workers compensation benefits than would otherwise be the case. Missouri set up the Second Injury Fund (SIF) years ago to pay injured workers an extra amount of workers compensation when they have significant or substantial "old"  or prior injuries.  When the/those prior injuries (which do NOT have to be on the job injuries– … Read More

via Kurt's Take on Law

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

No Trespassing Warning in Missoouri

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

Missouri Homeowner Fires at Intruder

Filed under: Litigation,Uncategorized — kurthking @ 5:30 pm
Tags: , , , , ,

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 personDeadly 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

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

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