The Missouri Court of Appeals has ruled that although abandoned by Massachusetts in 2010, the “Massachusetts Rule” is still the general rule in Missouri. So what is the Massachusetts Rule? First applied in Missouri in 1954, the Massachusetts Rule is actually an exception to the general premises liability principles that apply to owners or occupiers of property. Until 1954, the rule had only applied to municipalities. Under the Massachusetts Rule, an owner or possessor of property has “no duty to remove snow or ice that accumulates naturally and is a condition general to the community.” Richey v. DP Props., LP, 252 S.W.3d 249, 251-52 (Mo. App. E.D. 2008). This is especially true when snow or ice is actively falling. That is not to say the Massachusetts Rule is absolute. As with any rule, there are exceptions and even exceptions to the exceptions. Missouri courts have recognized two exceptions to the Massachusetts Rule: 1) where the property owner or operator assumed a duty through its course of conduct or 2) assumed a duty by agreement.
The plaintiff in Colleen O’Donnell v. PNK (River City), LLC, et al. slipped and fell on a patch of ice on the sidewalk of the River City Casino during a winter ice storm. The plaintiff had arrived at the Casino before the ice storm began and fell as she was leaving. The ice on the sidewalk had not been shoveled, scraped, salted, or altered in any way by the Casino. Shortly before plaintiff fell, the Casino had been monitoring the freezing rain and had requested Total Lot Maintenance, who the Casino had a contract with for snow removal, to treat and remove the ice. The Casino even warned some customers of the ice, helped some customers to their vehicles and tried to protect others from falling before plaintiff’s fall.
The Casino filed a motion for summary judgment asserting they had no duty to remove the ice that had accumulated on its property under the Massachusetts Rule, which the trial court granted. In affirming the trial court’s ruling, the Missouri Court of Appeals revisited the Massachusetts Rule and the recognized exceptions to it. Plaintiff argued that both exceptions to the Massachusetts Rule applied to the Casino.
Plaintiff first argued that the Casino assumed a duty based on its conduct leading up to her fall, pointing to the fact that the Casino was aware of the accumulating ice and was monitoring the conditions, that they specifically warned other customers of the ice, even assisted some patrons to their vehicles, and also requested Total Lot Maintenance treat the ice. However, the Casino’s knowledge of the condition and warning and assisting its customers was not enough to trigger the exception. For the exception to apply in Missouri, the condition must be altered in some way by the landowner (or occupier), such as by shoveling, spreading salt or by some other means.
As a practical matter, although Missouri courts require willful action to alter the condition of the snow or ice to trigger the exception, Missouri courts have found that active removal of snow or ice in a different area of the premises from where an incident occurred is at least enough to preclude summary judgment and may be enough to trigger the exception. Otterman v. Harold’s Supermarkets, Inc., 65 S.W.3d 553, 555 (Mo. App. W.D. 2001). The take away is, if the snow or ice has changed in some way since it first accumulated naturally, the exception is likely triggered and the landowner (or occupier) must then exercise ordinary care to remove the snow or ice and make the area reasonably safe. Willis v. Springfield General Osteopathic Hosp., 804 S.W.2d 416, 419 (Mo. App. S.D. 1991).
The Court of Appeals also rejected plaintiff O’Donnell’s argument that the Casino assumed the duty to remove the ice by virtue of its agreement with Total Lot Maintenance because plaintiff did not put forth evidence of the contract or its terms. Of note, the Court of Appeals did confirm that the mere existence of a snow removal policy is not enough to trigger the exception.
The trial court granted a similar motion for summary judgment filed by Total Lot Maintenance. However, the Court of Appeals reversed, noting an issue of fact existed as to whether the assumed by agreement exception was triggered. The agreement required Total Lot Maintenance to clear snow and ice at the Casino after a certain amount of accumulation and the Court of Appeals found that this, coupled with the fact that the Casino had contacted them twice to remove the ice called into question whether their duty had been triggered.
Importantly, the Missouri Court of Appeals rejected plaintiff’s argument that the Massachusetts Rule should be abrogated entirely or, at a minimum, should not apply to hotel owners and operators. In Missouri, while hotel owners and operators may owe a heightened duty of care to its guests to warn of dangerous conditions in certain circumstances, this does not allow for circumvention of the Massachusetts Rule. The Rule is applied broadly and encompasses hotel owners and operators. Richey, 252 S.W.3d at 251.
The Court of Appeals did acknowledge that the Massachusetts Rule in certain circumstances could incentivize owners and occupiers of property to not address dangerous conditions of snow or ice. However, they declined to void the rule, stating that is for the Missouri Supreme Court to decide.
U.S. Supreme Court Asked to Review Issue of Jurisdiction for Non-Resident Plaintiffs in Products CasesMarch 12, 2021 | Noemi Donovan
Johnson and Johnson (“J&J”) has asked the United States Supreme Court to overturn the $2.1 billion verdict entered against it in Ingham, et al. v. Johnson & Johnson, et al., a talcum powder class action filed in Missouri that included numerous non-resident plaintiffs. If review is granted, the Supreme Court will rule on just how far the “arise out of or relate to” prong of the test for specific jurisdiction extends with respect to the claims of a nonresident plaintiff.
The inconsistent way differing jurisdictions determine the existence of specific jurisdiction for non-resident plaintiffs is readily apparent. And the litigation involving the talcum powder products at issue in this case is a perfect example of this type of inconsistency. Two courts, one in Missouri and the other in New Jersey, reached two very different conclusions regarding the exercise of personal jurisdiction over the same claims involving non-resident plaintiffs. Missouri found that its exercise of jurisdiction was proper, while New Jersey did not. This did not come as a shock to Missouri practitioners, because Missouri courts have long welcomed and been a favorite for out-of-state plaintiffs.
Following the United States Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court,137 S.Ct. 1773 (2017), this practice of forum shopping was curtailed. However, the Missouri Court of Appeals for the Eastern District re-opened the door for a non-resident plaintiff to bring a cause of action in Missouri for alleged damages based upon the use of a product that he did not purchase or use in Missouri, nor suffer damages in Missouri. See Ingham, et al. v. Johnson & Johnson, et al., 608 S.W.3d 663 (Mo.App. E.D. 2020), trans. denied, 2020 Mo. LEXIS (Nov. 3, 2020). However, the holding in Ingham regarding the exercise of specific jurisdiction is the diametric opposite of the decision of the United States District Court for the District of New Jersey deciding the same jurisdictional issue on the very same facts in the same week. See Hannah v. Johnson & Johnson Inc., 2020 U.S. Dist. LEXIS 113284 (D.N.J. June 29, 2020).
In Ingham, plaintiffs sought recovery against two defendants: Johnson & Johnson Consumer Companies Inc. (“JJCI”) and its parent company, J&J. Twenty-two plaintiffs alleged they developed ovarian cancer after continued use of two of the defendants’ products: Johnson’s Baby Powder and Shower to Shower Shimmer Effects (“Shimmer”). The parties agreed that defendants were not subject to general jurisdiction in Missouri because they are incorporated and headquartered in New Jersey. Five plaintiffs lived, purchased and used Johnson’s Baby Powder and/or Shimmer, and developed ovarian cancer in Missouri (“Missouri Plaintiffs”). Jurisdiction over JJCI with respect to the Missouri Plaintiffs was not disputed.
Jurisdiction was disputed with respect to the other seventeen plaintiffs who lived, purchased and used Johnson’s Baby Powder and/or Shimmer and developed ovarian cancer outside Missouri (the “Non-Resident Plaintiffs”). Two of these Non-Resident Plaintiffs only used Baby Powder, while the remaining Non-Resident Plaintiffs used Shimmer or used both Shimmer and Baby Powder.
The Non-Resident Plaintiffs alleged that defendants were subject to specific jurisdiction in Missouri because JJCI had two long-term contractual relationships with Pharma Tech Industries, a Missouri corporation for the manufacturing, packaging and supply of Shimmer and Johnson’s Baby Powder. Fifteen of the Non-Resident Plaintiffs asserted that jurisdiction was proper in Missouri because they used Shimmer, which was manufactured, labeled and packaged by Pharma Tech Industries’ sister company, Pharma Tech Union, located in Union, Missouri, under defendants’ direction and control. The other two Non-Resident Plaintiffs claimed the defendants were subject to specific jurisdiction in Missouri because they used Johnson’s Baby Powder that was manufactured, labeled and packaged by Pharma Tech Industries’ sister company, Pharma Tech Royston, located in Royston, Georgia, under Pharma Tech Industries’ direction and control.
Trial Court’s Findings on Jurisdiction
The trial court held that it could exercise specific jurisdiction over defendants on the Non-Resident Plaintiffs’ claims because their alleged conduct satisfied the Missouri long-arm statute. Specifically, the court opined that defendants transacted business in Missouri, allegedly committed a tortious act in Missouri, owned real estate in Missouri, and contracted with Pharma Tech Industries in Missouri to manufacture packaging materials and to manufacture, label and package both products. The trial court further found that these activities constituted sufficient minimum contacts to subject defendants to specific jurisdiction in Missouri.
On appeal, the defendants did not challenge the trial court’s finding that the long-arm statute extended to them. Instead, with respect to jurisdiction, the defendants only appealed whether they established sufficient minimum contacts with Missouri that enabled the trial court to exercise specific jurisdiction over them.
The Missouri Court of Appeals recognized that it can only assert specific personal jurisdiction over the defendants if the defendants had certain minimum contacts with Missouri and if plaintiffs’ cause of action arose from those alleged minimum contacts. Because of this requirement, the question of whether specific jurisdiction exists must be determined separately for each individual plaintiff’s claims.
The Missouri Court of Appeals’ Holding Regarding Jurisdiction over the Non-Residents’ Claims Related to the Use of Shimmer
Citing the United States Supreme Court decision in Bristol-Myers Squibb Co. (“BMS”), the Missouri Court of Appeals held that the trial court properly exercised specific jurisdiction over JJCI for the claims of the Non-Resident Plaintiffs associated with Shimmer because JJCI “engaged in a host of significant activities in Missouri related to the Non-Resident Plaintiffs’ use of Shimmer.” Specifically, JJCI contracted with Missouri-based Pharma Tech to manufacture, package and label Shimmer pursuant to JJCI’s specification at Pharma Tech’s facility in Missouri.
Defendants argued that its contract with a Missouri corporation alone was insufficient to subject defendants to personal jurisdiction in Missouri. For as the United States Supreme Court’s held in BMS, “[a] defendant’s relationship with a third party, standing alone, is an insufficient basis for jurisdiction… The bare fact that BSM contracted with a California distributor is not enough to establish personal jurisdiction in this State.” 137 S.Ct. at 1783. (citations omitted.)
However, the Missouri Court of Appeals, apparently realizing that JJCI’s contract with Pharma Tech was insufficient to confer jurisdiction over JJCI, stretched further to justify its exercise of personal jurisdiction over JJCI in Missouri. To do this, the appellate court held that JJCI’s contacts constituted more than a “mere contractual relationship with a third party.” Because JJCI engaged in activities related to the manufacture, packaging and labeling of Shimmer in Missouri, the Court of Appeals found that it was reasonable to require JJCI “to submit to the burdens of litigation” in Missouri. Instrumental in this finding is that the Non-Resident Plaintiffs’ claims alleged negligent manufacture, production, packaging and labeling of Shimmer. Therefore, according to the Court of Appeals, JJCI’s activities with Pharma Tech in Missouri were a “direct link in the production chain of Shimmer’s eventual sale to the public … [and] … firmly connect JJCI’s activities in Missouri to the specific claims of the Non-Resident Plaintiffs” related to Shimmer.
This decision is in stark contrast to holding in Hannah. In Hannah, the United States District Court for the District of New Jersey held that it could not exercise jurisdiction over the J&J defendants for the claims of the non-Missouri residents because J&J’s contracts with Pharma Tech “to produce some of its products does not confer jurisdiction.” 2020 U.S. Dist. LEXIS 113284, at * 103 (D.N.J. June 29, 2020). As the District Court explained:
While those contacts might well constitute purposeful availment of the benefits and protections of the State of Missouri in a contract action, these contacts are irrelevant in this products liability action. Indeed, Plaintiffs have not demonstrated that their injuries in any way arise out of those specific agreements. In other words they neglect to allege a connection between their injuries and those specific distribution agreements.
Id. (citations omitted).
The Missouri Court of Appeals’ Holding Regarding Jurisdiction over the Non-Residents’ Claims Related to the Use of Johnson’s Baby Powder
The Court of Appeals, however, found that the trial court erred in exercising specific jurisdiction over JJCI on the claims of the two Non-Resident Plaintiffs who only used Johnson’s Baby Powder because the Petition “did not sufficiently allege JJCI engaged in significant activities in Missouri related to their use [of] Johnson’s Baby Powder.” Non-Resident Plaintiffs argued that because Pharma Tech in Missouri controlled and directed the manufacturing, processing, bottling, labeling and distribution of Johnson’s Baby Powder in Georgia from its headquarters in Union, Missouri, JJCI was subject to jurisdiction in Missouri for the claims involving Johnson’s Baby Powder.
The court rejected the Non-Resident Plaintiffs’ claims. Specifically, the Court of Appeals explained that the “record is devoid of evidence that JJCI engaged in any activities related to Johnson’s Baby Powder, beyond the executing of … [the contracts] with a Missouri-based corporation, in Missouri.” Therefore, the contract JJCI executed with Pharma Tech in Missouri regarding Johnson’s Baby Powder was not sufficient to confer jurisdiction over JJCI in Missouri for the claims solely related to Johnson’s Baby Powder. This part of the decision by the Missouri Court of Appeals is in line with the Supreme Court’s holding in BMS because “contracting with an out-of-state party alone cannot automatically establish sufficient minimum contacts in the out-of-state party’s forum.”
To the surprise of many observers, the Missouri Supreme Court declined to review the Court of Appeals ruling, which upheld an historically large verdict, in a case that seemed to collide rather sharply with the U.S. Supreme Court decision in Bristol-Myers Squibb. The Missouri Court of Appeals holding in Ingham allows a court to exercise jurisdiction over a company that contracts with a third party to make a product according to the company’s specifications. According to the Ingham court, jurisdiction in this situation is based on more than a mere contractual relationship. However, this reasoning was squarely rejected by the United States District Court for the District on New Jersey in Hannah. Should the United States Supreme Court grant review, it should follow the sound reasoning of BMS and Hannah and hold that Missouri courts cannot exercise jurisdiction over the claims of non-resident plaintiffs when they did not purchase, use or suffer injury in the State of Missouri.
A statute of repose is a law that cuts off a right of action after a specified time period has elapsed, regardless of when the cause of action accrues. Most states have such statutes, but they vary widely as to limitation periods, what is covered, and whom the statute protects. A statute of repose differs from a statute of limitation in that a time period specified in a statute of limitations usually does not begin to run until the injury or damage actually occurs, irrespective of when the product was sold.
Missouri took an important first step in creating a statute of repose for product liability claims by debating Senate Bill #7 in committee at the end of January. If it passes the Legislature and is signed by the governor, Senate Bill # 7 would place Missouri among the many states with some type of statute of repose for product liability claims.
The proposed bill sets a statute of repose of fifteen years and would bar claims for personal injury, property damage, wrongful death, or economic loss. The time period would begin to run when the product is first sold or leased to any person or otherwise placed in the stream of commerce. The catchall of “otherwise placed into the stream of commerce” will be an important for component parts manufacturers and suppliers along with those who sell their products to distributors as it could cut off claims at an earlier date than when the plaintiff first purchased the product.
There are some significant exceptions built into the proposed bill. First, it would not apply to any product that is real property or an improvement to real property. However, Section 516.097, which has a shorter statute of repose, may bar some of those claims. The proposed statute would also not bar any claims for negligent servicing or negligent maintenance of a product.
Second, if the defective or unsafe condition was knowingly concealed or negligence in the construction, manufacture, sale or distribution was knowingly concealed, those claims are not barred. However, the concealed defective or unsafe condition or the concealed negligence must directly result in the claims asserted. Similarly, if the product was subject to a government mandated product recall related to consumer safety, the statute of repose would not bar those claims if the reason for the recall and the subject of the claims are the same.
The bill would also exempt any product that has an expected useful life exceeding fifteen years. This exception would only apply if the useful life is stated by the manufacturer, seller or lessor in a written warranty or in an advertisement to the public. However, the bill would cut off claims two years after the stated useful life. If a claim arose during the potential useful life of a product, a jury may, in determining whether the product’s useful safe life has expired, consider the amount of wear and tear, deterioration from natural causes including storing conditions, normal practices regarding the product’s use, repairs, renewals and replacements, any stated useful safe life by the manufacturer or modifications made to the product.
Finally, the statute would impact toxic tort claims. The statute would not apply to any claims where a defective or unsafe condition allegedly caused a respiratory or malignant disease with a latency of more than fifteen years. However, it does bar claims against the sellers of any such products unless the seller is also the manufacturer.
The proposed bill would have a significant impact on product liability claims in Missouri. The bill would apply to all civil actions commenced on or after August 28, 2021, or to any new causes of action asserted in civil actions pending on or after that date. The proposal also provides a safe harbor provision that any claims that would be barred by the statute that accrued on or before August 28, 2021, must be brought no later than August 21, 2022.
The bill recently passed the Government Accountability and Fiscal Oversight Committee. If the bill passes the full Senate, it will then be sent to the Missouri House of Representatives for potential amendment. If the bill passes both chambers, it will be sent to the governor for signature. We will continue monitoring the bill’s progress through the legislative process and provide updates.
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