BSCR Firm News/Blogs Feed May 2021 00:00:00 -0800firmwise Sterchi Obtains Dismissal for Retail and Auction Companies May 2021Results<p>Baker Sterchi Cowden &amp; Rice recently obtained dismissal of all claims against its clients, a retail company and an auction company, in a negligence and products liability action. The action arose out of a farming equipment incident that plaintiff alleged caused him permanent disfigurement.&nbsp; &nbsp;The Circuit Court of Howard County, Missouri, held oral arguments on the parties&rsquo; respective motion to dismiss and response, and ruled on the motion following oral arguments before the defendants&rsquo; reply was filed.&nbsp; The court agreed that the plaintiff&rsquo;s petition failed to meet the Missouri fact-pleading standard and therefore failed to state a claim upon which relief could be granted.&nbsp; The court rejected the plaintiff&rsquo;s argument that the petition linked one or both of the defendants to the sale, repair, or maintenance of the product at issue.</p> and Stone to Lead BAMSL WILP Conference Litigation Breakout Room May 2021Speaking Engagements<p>On Friday, May 21, Baker Sterchi attorneys Jessica Cozart and Shatrasha Stone will lead a litigation breakout room for The Bar Association of Metropolitan St. Louis (BAMSL) Women in the Legal Profession (WILP) Half Day Virtual Women&rsquo;s Conference.</p> <p>A graduate of the Mississippi College School of Law, Cozart worked in New Orleans, Louisiana following Hurricane Katrina and handled many first and third-party insurance claims including those with complex coverage issues. After returning to Missouri, she continued her insurance defense practice and has successfully authored several briefs and argued before the Missouri Court of Appeals, Eastern District. Her practice currently focuses on property and casualty litigation, insurance coverage and insurance defense involving claims of personal injury, premise and products liability, construction defects, food &amp; beverage liability and entertainment &amp; leisure liability.</p> <p>Stone began her legal career as an Assistant City Counselor for the City of St. Louis, serving as legal counsel for St. Louis City disciplinary and administrative matters, as well as personal injury litigation in both State and Federal court. A graduate of the Saint Louis University School of Law, her current practice focuses on litigation with an emphasis on medical malpractice, insurance litigation, personal injury defense, and general liability claims. Stone is on the 2020-2021 Executive Board for the Young Lawyers Division of BAMSL and served as the 2019-2020 Chairperson.&nbsp; She is a past recipient of the BAMSL Gavel Award and the John C. Shepherd Professionalism Award.</p> <p>With more than 6,800 members, including attorneys, judges, paralegals, and law firm administrators, BAMSL is the oldest voluntary bar association in the St. Louis region.</p> <p>For more information or to register, click <a href=";evAction=showDetail&amp;eid=97753&amp;evSubAction=listAll"><span style="color: rgb(204, 0, 0);">here</span></a>.</p> Sterchi Welcomes Branden Brooks in St. Louis May 2021Firm News<p>Branden Brooks joins Baker Sterchi&rsquo;s St. Louis office as an associate. He has experience defending manufacturers in toxic tort and product liability actions.&nbsp;As a former prosecutor, Brooks represented the State of Missouri in prosecuting individuals charged with felony offenses within the City of St. Louis, gained valuable experience in both jury and bench trials, and argued hundreds of primary hearings to assist the Court in making probable cause determinations regarding felonious matters and presented cases to the Grand Jury.&nbsp;</p> <p>Brooks earned his law degree from Boston College, his undergraduate degree from Ursinus College, and M.Div from Harvard Divinity School.&nbsp; He is admitted to practice in Missouri and Illinois.</p> Sterchi Welcomes Nicholas Ruble in Kansas City May 2021Firm News<p>Nicholas Ruble joins Baker Sterchi&rsquo;s Kansas City office as an associate. He represents companies of all sizes and industries in employment and labor, personal injury, creditor&rsquo;s rights, and commercial disputes.</p> <p>Ruble earned his law degree from the University of Missouri Kansas City School of Law in 2011 and his undergraduate degree from William Jewell College in 2005, where he current serves as a Career Mentorship Committee Member and Career Mentor.&nbsp;He is admitted to practice in Missouri and Kansas.</p> and Missouri Federal Courts Raise the Stakes on Employers' Tip Pooling Practices May 2021Employment & Labor Law Blog<p>In separate cases, the U.S. District Courts for the Districts of Kansas and the Western District of Missouri recently certified classes under the Fair Labor Standards Act (&ldquo;FLSA&rdquo;) to pursue claims against Boyd Gaming and Pinnacle Entertainment, Inc. regarding tip-pooling arrangements and notice issues at local casinos, and other casino locations.</p> <p>In <a href=";hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr"><i>James v. Boyd Gaming Corp</i></a><i>. </i>the District of Kansas certified classes relating to the tip pooling policies of Boyd Gaming at the Kansas Star Casino.&nbsp;And in <a href=";hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr"><i>Lockett v. Pinnacle Entm&rsquo;t</i></a>&nbsp;the Western District of Missouri certified similar classes related to tip pooling policies at Ameristar Council Bluffs, Ameristar Casino, Cactus Pete&rsquo;s, Boomtown New Orleans, L&rsquo;Auberge Baton Rouge, Boomtown Bossier City, L&rsquo;Auberge Lake Charles, River City, Ameristar Vicksburg, and The Meadows casinos.&nbsp;In both cases the Court certified classes challenging both the tip splitting policies and the employers&rsquo; notice to employees.</p> <p>The FLSA requires that employees receive a minimum wage of $7.25 an hour.&nbsp;Section 203(m) of the FLSA allows employers to pay tipped employees below the Federal minimum wage so long as the employees retain all tips, subject to permitted tip pooling arrangements, and the employer provides proper notice of the provisions of &sect;203(m).&nbsp;</p> <p>If you walk into one of these casinos, you would likely find yourself, unwittingly, at the epicenter of the issue in both cases.&nbsp;Table games, such as blackjack and roulette, have dealers who play the games with customers and pit-bosses who supervise the casino floor. Table dealers receive pooled tips, where the casino collects the tips and equally redistributes them to all dealer, and wages below the Federal Minimum Wage.&nbsp;The pay for pit-bosses exceeds the minimum wage, but the supervisory positions do not get tips. Many casinos, including those above, have employees who work in dual roles covering both the pit-boss position and table dealer position on different day.&nbsp;All employees accrued Paid Time Off (PTO) based on their seniority and hours worked.&nbsp;When a tipped employee took PTO they received tips from the pool as if they had actually worked that shift.</p> <p>Plaintiffs sought class certification of FLSA violation claims relating to the tip pooling practices applied to dual-role dealers.&nbsp;Plaintiffs allege that the casinos violated two FLSA provisions: first, a requirement to redistribute tips to employees &ldquo;who customarily and regularly receive tips,&rdquo; and second, a provision precluding the employers from keeping any portion of the tips collected.&nbsp;More specifically, Plaintiffs allege that when a dual-role employee took PTO, that pay necessarily occurred at the dealer&rsquo;s rate, including tip shares, regardless of whether the employee earned the PTO working as a dealer or supervisor.</p> <p>The FLSA allows an employee to bring wage/hour claims on behalf of himself and others, in a so-called &ldquo;collective action&rdquo;. Unlike class action suits, FLSA collective actions require claimants to opt-in rather than opt-out to participate in pursuing claims against the employer.&nbsp;Federal courts generally utilize a two-step approach to determining whether claims can be pursued on a class-wide basis. Under the two-stage approach, the court must first determine if the plaintiff has sufficiently alleged that all potential claimants are victims of a single policy.&nbsp;At the initial stage, the court can look to the allegations of the Complaint, supporting affidavits or declarations, but the court does not weigh evidence, resolve factual disputes, or rule on the merits until the second stage.&nbsp;If the court determines that a single policy has affected multiple &ldquo;similarly situated&rdquo; employees, it may issue a conditional class certification, which then enables plaintiffs to send out notice to all potential class members.</p> <p>Both the <i>Lockett </i>and <i>James</i> courts conditionally certified the plaintiffs&rsquo; tip pooling class, as well as classes regarding the employers&rsquo; compliance with the FLSA&rsquo;s notice requirements regarding tip withholdings.&nbsp;</p> <p>So what happens next?</p> <p>Plaintiffs and defendants in both cases will get together to work out issues related to language and timing for the notice and opportunity to opt-in to the cases.&nbsp;After discovery, the courts will be called upon to make a final determination regarding whether the employees&rsquo; have similarly situated claims.&nbsp;&nbsp;</p> <p>We will keep our eyes on these cases to anticipate any impacts the decisions may have for all employers in tipping industries.&nbsp;</p> an Arbitration Clause Have to Provide for Equivalent Rights and Remedies to Both Sides, in Order to Be Enforceable? Apr 2021Missouri Law Blog<p>The Missouri Court of Appeals for the Southern District recently reversed a Circuit Court decision that denied a corporate defendant&rsquo;s motion to compel arbitration, in <a href=";ci=SD36713&amp;di=169027&amp;so=D"><i>Keeling v. Preferred Poultry Supply, LLC</i></a><i>. </i> Plaintiff Brandon Keeling sued Preferred Poultry Supply, alleging breach of contract, fraudulent misrepresentation, and negligent misrepresentation. Preferred Poultry and Keeling entered into a written contract in May of 2016. Preferred Poultry agreed to construct six broiler chicken buildings on Keeling&rsquo;s poultry farm in Newton, Missouri in exchange for a payment of $2,048,321.00.</p> <p>Following construction of the buildings, Keeling sued Preferred Poultry. Keeling alleged that he discovered defects related to the construction and repairs would cost in excess of $745,516.00. Keeling also alleged Preferred Poultry made false and misleading representations to Keeling. In response, Preferred Poultry filed a combined dispositive motion: a motion to dismiss, or in the alternative, motion to order arbitration. Preferred Poultry attached the contract between Keeling and Preferred Poultry to its motion and highlighted the arbitration clause of the contract, titled &ldquo;<b><u>BINDING ARBITRATION</u></b>&rdquo;:</p> <p style="margin-left: 40px;">All claims, disputes and matters in question arising out of or relating to this Contract or any claimed breach of this Contract shall be decided by binding arbitration in accordance with the Uniform Arbitration Act in force in Arkansas . . . . This agreement to arbitrate shall be specifically enforceable under the Federal Arbitration Act since this Contract involves interstate commerce. . . . The location of the arbitration proceedings shall be in Fayetteville, Arkansas. . . . Any award of arbitration may be entered in the Circuit Court for Washington County, Arkansas and will have the force of a judgment from that court.</p> <p>The contract provided that Arkansas law would govern disputes between Keeling and Preferred Poultry. The trial court denied Preferred Poultry&rsquo;s motion to compel arbitration. Preferred Poultry appealed that denial. Missouri law allows the right to an immediate appeal of an order denying a stay of proceedings relating to a matter that may be arbitrable. &nbsp;If Preferred Poultry had not appealed, the case would have continued in Newton County Circuit Court through the completion of a trial.</p> <p>On appeal, Keeling first challenged Preferred Poultry&rsquo;s appeal as premature. Typically, a party may only appeal a final judgment which disposes of all issues in a case. But Missouri law (&sect; 435.440.1(1), RSMo.), federal law (9 U.S.C.A. &sect; 16(a)(1)(C)), and Arkansas law (Ark. Code Ann. &sect; 16-108-228(a)(1)) all specifically allow an appeal from an order denying an application to compel arbitration. The appellate Court applied Missouri law and deemed the appeal timely.</p> <p>Keeling also argued that his tort claims for negligent misrepresentation and fraudulent misrepresentation should not be arbitrated because under Arkansas law, tort claims are not subject to arbitration. The appellate Court disagreed. The Court cited <i>Riley v. Lucas Lofts Investors, LLC</i>, 412 S.W. 3d 285, 290 (Mo. App. E.D. 2013), as well as Arkansas case law, and concluded that Keeling&rsquo;s claims all related to the contract with Preferred Poultry.</p> <p>Even though Keeling characterized his some of his claims as tort claims, the Court determined that he could not avoid the arbitration provision. The Court noted that Keeling&rsquo;s tort claims both sought damages, as opposed to rescission of the contract. Under Missouri law, when damages are sought for claims of poor workmanship, those claims are typically subject to arbitration.</p> <p>Finally, the Court reviewed the arbitration clause in the contract to determine whether it was enforceable. Keeling argued that the arbitration agreement was invalid because the arbitration clause allowed Preferred Poultry to pursue all available rights under any state law, including filing a lien upon Keeling&rsquo;s property. Keeling, however, was limited to arbitration as a remedy. Keeling argued this clause created a non-mutual obligation.</p> <p>The appellate Court rejected this argument. The appellate Court noted that the Federal Arbitration Act does not require mutual obligations to arbitrate. Furthermore, the Court reviewed both Arkansas law and Missouri law, and noted that both states allow non-identical obligations in contracts as a whole, as long as the contract contains sufficient consideration. The appellate Court cited <i>Eaton v. CMH Homes, Inc.</i>, 461 S.W.3d 426, 431 (Mo. banc 2015), where the Missouri Supreme Court found that the trial court erred in denying the defendant&rsquo;s motion to compel arbitration. The appellate Court noted that the arbitration clause in <i>Eaton</i> similarly allowed only the contractor the option to pursue other remedies beyond arbitration, including foreclosure. In <i>Eaton</i>, as here, there was sufficient consideration on both sides: the contractor in <i>Eaton</i> (and Preferred Poultry) agreed to provide a building, and the buyer (and Keeling) agreed to pay a set amount for the building.</p> <p>Accordingly, the appellate Court reversed and remanded the case to the trial court, with directions to refer the case to arbitration, because the parties&rsquo; arbitration agreement was valid and enforceable.</p> <p>The key takeaway from the Court&rsquo;s decision is that arbitration clauses are enforceable under Missouri law, even where they are more favorable to one party, provided there is consideration on both sides. Arbitration is often less expensive than a trial because the rules of evidence are more informal and there is no jury panel. A party in arbitration can spend less time preparing for trial and navigating written discovery. The appellate Court&rsquo;s decision here emphasizes that when both parties agree to arbitration as the forum for resolving their disputes, that contractual agreement will ordinarily be enforced. Keeling and Preferred Poultry agreed to arbitration, and Preferred Poultry was able to successfully enforce arbitration.</p>, Boomer…Does Your Employee Have an Age Discrimination Claim? Apr 2021Employment & Labor Law Blog<p>We&rsquo;ve all heard it (and in my case, I am publishing it &ndash; sorry, HR!): OK, Boomer.&nbsp;This phrase has risen in popularity over the years as a way of suggesting that Baby Boomers (<i>i.e.</i>, those born between 1946 and 1964) have mindsets or attitudes that may be at-odds with those of younger generations.&nbsp;The &ldquo;OK Boomer&rdquo; phrase has shown up in viral Internet memes and GIFs, as a way of portraying Boomers as out-of-touch.&nbsp;The Supreme Court has even discussed the meme, when Chief Justice Roberts asked an attorney during oral argument if saying to an applicant &ldquo;OK, boomer&rdquo; is enough to qualify as age discrimination.</p> <p>As discussed in <a href=";an=115217&amp;format=xml&amp;stylesheet=blog&amp;p=5258">my last post</a>, the Age Discrimination in Employment Act (ADEA), Illinois Human Rights Act (IHRA), and Missouri Human Rights Act (MHRA) prohibit discrimination against employees who are 40 years old or older in any aspect of employment.&nbsp;Similarly, it is unlawful for an employer to harass an employee because of the worker&rsquo;s age, if 40 or older.&nbsp;Such harassment can include derogatory or offensive remarks regarding an individual&rsquo;s age, to the point where such comments are so frequent and severe that they create a hostile work environment.&nbsp;These laws clearly protect Boomers from age discrimination in the workforce.</p> <p>As things stand, using the word &ldquo;Boomer&rdquo; in a derogatory fashion is likely not in and of itself enough to establish age discrimination.&nbsp;According to the Seventh Circuit, &ldquo;isolated comments that are no more than &lsquo;stray remarks&rsquo; in the workplace are insufficient to establish that a particular decision was motivated by discriminatory animus.&rdquo;&nbsp;<i>Merillat v. Metal Spinners, Inc.</i>, 470 F. 3d 685, 694 (7th Cir. 2006) (citing <i>Cullen v. Olin Corp.</i>, 195 F. 3d 317, 323 (7th Cir. 1999)).&nbsp;With that being said, &ldquo;this general rule may give way where particular remarks in fact support an inference that unlawful bias motivated the decision-maker, such as when those remarks are made by the decision-maker or one having input in a decision, and are made &lsquo;(1) around the time of, and (2) in reference to, the adverse employment action complained of.&rsquo;&rdquo; <i>Id.</i> (quoting <i>Hunt v. City of Markham</i>, 219 F. 3d. 649, 652-53 (7th Cir. 2000)).</p> <p>Let me sock it to you with what this means.&nbsp;If a 30 year-old employee refers to a 60 year old employee as a Boomer in a derogatory manner, without more, the 60 year old can hardly be said to have suffered age discrimination or a hostile work environment on account of the errant remark.&nbsp;However, if the 30 year-old employee is the 60 year-old&rsquo;s supervisor and routinely refers to the 60 year-old as a Boomer and the employee suffers some adverse employment action at the hands of the supervisor, the Boomer may have a case under the ADEA or other state anti-discrimination law.&nbsp;Similarly, if the supervisor terminates the 60-year old employer, and near or at the time of the termination refers to the employee as a Boomer, the Boomer may also have a discrimination case.&nbsp;With all that being said, employers should caution their employees at all levels of employment on language that can be perceived as discriminatory.&nbsp;By allowing such language to infiltrate the workplace, employers are simply setting themselves up for a discrimination claim &ndash; regardless if the claim has merit.</p> <p>And finally, Millennials and Gen Z:&nbsp;let&rsquo;s remember that Boomers deserve respect, and even praise, for your culture today.&nbsp;Millennials &ndash; known for their usage of acronyms &ndash; should thank Boomers, as acronyms gained popularity in the 1960s during the Cold War and space race between the U.S. and Soviet Union, laying the groundwork for Millennial acronyms, such as OMG, LOL, BTW, FBF, and IMO.&nbsp;&nbsp;&nbsp; While Millennials use many (some would say ridic) slang terms and phrases., such as &ldquo;on fleek,&rdquo; &ldquo;slay,&rdquo; and &ldquo;turnt,&rdquo;&nbsp;let&rsquo;s also not forget that Boomers are responsible for such slang words and phrases as &ldquo;groovy,&rdquo; &ldquo;gimme some skin (my FAVE!),&rdquo; and &ldquo;outta sight.&rdquo;&nbsp;So maybe there is more in common between Millennials and Boomers than we think?&nbsp;So don&rsquo;t flip your wig, you dig?</p> Merchants May Soon Impose Surcharges on Credit Card Transactions Apr 2021Financial Services Law Blog<p>For the past 35 years, merchants in Kansas have been prohibited from charging a surcharge to customers on purchases made by credit card. With a recent court decision and pending legislation, that ban is almost surely to be lifted in the near future.</p> <p>Passed in 1986, the Kansas &ldquo;no-surcharge&rdquo; <a href="">statute</a> provided that &ldquo;no seller or lessor in any sales or lease transaction or any credit or debit card issuer may impose a surcharge on a card holder who elects to use a credit or debit card in lieu of payment by cash, check or similar means.&rdquo; K.S.A. 16-a-2-403.</p> <p>In February 2021, the United States District Court for the District of Kansas granted summary judgment in favor of CardX, LLC against the State of Kansas, declaring the state&rsquo;s ban on credit card surcharges to be unconstitutional. In <a href=""><i>CardX, LLC v. Schmidt</i></a><i>, </i>the Court held that the no-surcharge statute was a violation of the plaintiff&rsquo;s First Amendment right to commercial speech. In so doing, the Court applied United States Supreme Court precedent from <i>Central Hudson Gas &amp; Elec. Corp. v. Pub. Serv. Comm&rsquo;n of New York, </i>447 U.S. 557, 561 (1980). In <i>Hudson, </i>the Supreme Court set forth a three-factor test to determine the constitutionality of a statute that restricts commercial speech: (1) Does the State have a substantial interest in restricting commercial speech? (2) Does the challenged statute advance those interests in a direct and material way, and (3) Is the restriction of reasonable proportion to the interests served? Applying the <i>Hudson </i>test, the Court for the District of Kansas found the Kansas no-surcharge statute failed on all three bases.</p> <p>The Court also cited to the need for surcharges to protect businesses with small profit margins from bearing the cost and burden of transaction fees imposed by credit card providers. The Court further reasoned that the restriction on surcharges placed an undue burden on merchants in light of the heightened demand for credit card transactions in the era of COVID, where consumers have insisted on contact-free transactions.</p> <p>The <i>CardX </i>decision was limited to the plaintiff and transactions at issue in that case. However, during the time the <i>CardX </i>opinion was written, <a href="">HB 2316</a> was introduced, which would statutorily lift the surcharge ban. The bill swiftly passed in the Kansas House of Representatives and has been referred to committee in the Senate. In the unlikely event that the bill does not pass, additional challenges to the existing no-surcharge statute can be expected.</p> Courts Begin Weighing in on COVID-19 Exposure Claims Apr 2021Illinois Law Blog<p><a href=";an=114849&amp;format=xml&amp;stylesheet=blog&amp;p=5258">As discussed in a prior blog post</a>, one consequence of the COVID-19 pandemic may be a wave of lawsuits arising from exposure to the virus. Now that we have passed the one-year anniversary of the pandemic outbreak, perhaps not surprisingly, court opinions in COVID-related litigation are increasingly being issued.&nbsp;Below, we discuss several opinions recently issued in this litigation, including in some cases discussed in the firm&rsquo;s prior blog post on this issue.</p> <p><u>Direct Exposure Claims</u></p> <p>Since the pandemic outbreak, multiple lawsuits against nursing homes have been filed in Illinois related to residents contracting COVID-19.&nbsp;As previously discussed, one such case was filed against a Bloomington, Illinois nursing home.&nbsp;In that case, the plaintiff alleged that the defendant failed to properly monitor residents&rsquo; medical conditions and, consequently, her mother contracted and died from COVID-19.&nbsp;On December 29, 2020, the defendant removed the case to the District Court for the Central District of Illinois.&nbsp;The defendant also moved to dismiss the complaint, arguing that it is immune from liability under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 (&ldquo;the PREP Act&rdquo;).&nbsp;Recall, the PREP Act makes &ldquo;covered persons&rdquo; immune from suits under federal and state law for all claims, except for willful misconduct claims, caused by, arising out of, relating to, or resulting from the administration or use of a &ldquo;covered countermeasure&rdquo; to diseases, threats, and conditions, including COVID-19.&nbsp;In response, the <a href="">plaintiff argues</a> that she is not alleging liability based upon the administration or use of a countermeasure, but rather, based upon the nursing home&rsquo;s alleged failure to act to prevent the spread of COVID-19.&nbsp;At this point, <a href="">the court has yet to rule on the motion to remand or motion to dismiss</a>.&nbsp;Any ruling on the motion to dismiss could be consequential because there is currently limited guidance on how courts will interpret the scope of the PREP Act&rsquo;s immunity provision.&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;</p> <p>In addition to the PREP Act, courts also face questions over the extent to which Governor Pritzker&rsquo;s Executive Order No. 17 shields nursing homes from liability against COVID-19 litigation.&nbsp;According to Section 3 of that Order, during the pendency of Governor Pritzker&rsquo;s disaster proclamation related to COVID-19, health care facilities shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission by the health care facility, if the injury or death occurred at a time when the health care facility was engaged in the course of rendering assistance to the State by providing health care services in responsive to the COVID-19 outbreak, unless the injury or death was caused by gross negligence or willful misconduct.&nbsp;On April 1, 2021, the District Court for the Northern District of Illinois declined to dismiss a lawsuit based upon Executive Order No. 17 immunity.&nbsp;In <i>Claybon v. SSC Westchester Operating Co.</i>, 20-cv-04507, 2021 U.S. Dist. LEXIS 64067 (N.D. Ill. Apr. 1, 2021), the plaintiff alleged that while the decedent resided at the defendant&rsquo;s nursing home, members of the home&rsquo;s nursing staff began to show symptoms of COVID-19, one member tested positive, and one member was hospitalized for the virus.&nbsp;According to the plaintiff, despite these developments, the defendant instructed its employees to report to work.&nbsp;Eventually, the decedent passed away after developing a dry cough, fever, and shortness of breath.&nbsp;In the lawsuit, the plaintiff alleged that the defendant was responsible for the decedent&rsquo;s death, claiming that the defendant required symptomatic employees to report to work, failing to provide PPE, and failing to implement pandemic-related guidelines issued by the Center for Medicare &amp; Medicaid Services.&nbsp;</p> <p>The defendant argued it was immune from liability pursuant to Section 3 of Executive Order No. 17.&nbsp;The court explained that the &ldquo;problem&rdquo; with the defendant&rsquo;s argument was that whether it was assisting the State in response to the pandemic when it committed the allegedly tortious conduct was a question of fact that could not be resolved at the pleadings stage.&nbsp;Moreover, the plaintiff died on March 30, 2020, but the Executive Order was not filed until April 1, 2020.&nbsp;The court noted that it was unclear whether the Order applied retroactively and declined to make that determination at the pleadings stage.</p> <p>In a related case, the District Court for the Northern District of Illinois again declined to dismiss a complaint against Westchester based upon immunity under Executive Order No. 17.&nbsp;In <i>Brady v. SSC Westchester Operating Co.</i>, 20CV4505, 2021 U.S. Dist. LEXIS 68920 (N.D. Ill. Apr. 9, 2021), the court explained that Section 3 immunity applies when a healthcare facility is engaged in the course of rendering assistance to the State; thus, immunity applies where a facility spreads COVID-19 while affirmatively treating or trying to prevent its spread, but does not apply where a facility allows the virus to spread through inaction.&nbsp;The court determined that it was unclear from the face of the plaintiffs&rsquo; complaint, which alleged that Westchester failed to protect its residents from infected nursing staff spreading the virus, whether plaintiffs&rsquo; claim triggered the immunity provision.</p> <p>The court also found that the plaintiffs&rsquo; claim survived because they sufficiently alleged a willful and wanton misconduct claim.&nbsp;The Executive Order expressly notes that its immunity provision does not apply to claims arising from death or injuries caused by a facility&rsquo;s willful misconduct.&nbsp;The court found the plaintiffs sufficiently alleged willful misconduct through their claims that the defendant knew about the risks of exposing its residents to infected nursing staff by mid-March 2020 and, despite that knowledge, required employees who had tested positive for, or were displaying symptoms of, COVID-19 to report to work.&nbsp;The plaintiffs further alleged that Westchester failed to provide PPE to its staff in March 2020.&nbsp;Finally, the court rejected Westchester&rsquo;s argument that it could not have known the symptoms of COVID-19 so early in the pandemic.&nbsp;According to the court, by March 2020, at least two of the defendant&rsquo;s employees had tested positive for the virus, so it had objective knowledge that members of its staff were carrying the virus.&nbsp;The court also relied on the plaintiffs&rsquo; allegations that official guidance issued by mid-March 2020 listed symptoms of a respiratory infection (<i>e.g.</i>, fever, cough, shortness of breath, or sore throat) as signs of the virus, that members of Westchester&rsquo;s staff reported those symptoms to management, and Westchester still required its staff to report to work.</p> <p>Recently, the District Court for the Southern District of Illinois allowed a COVID-related lawsuit to proceed beyond an initial review.&nbsp;In <i>Brown v. Watson</i>, 21-cv-00138-JPG, 2021 U.S. Dist. LEXIS 65560 (S.D. Ill. Apr. 5, 2021), the plaintiff alleged he had been subjected to unconstitutional conditions while confined in the St. Clair County Jail.&nbsp;Among other things, the plaintiff claimed he developed COVID-19 due to conditions at the jail, including being forced to sleep in proximity to COVID-positive inmates.&nbsp;According to the complaint, jail staff were provided with masks and gloves to prevent infection, but inmates were not.&nbsp;Additionally, incoming inmates were not tested for COVID-19, separated from one another, or allowed to use protective gear.&nbsp;The plaintiff alleged that a COVID-19 outbreak occurred due to conditions at the jail, resulting in 300 inmates testing positive for the virus.&nbsp;Finally, the plaintiff claimed that he was denied adequate testing and medical care for COVID-19.&nbsp;The plaintiff asserted claims against the St. Clair County Sheriff and the jail&rsquo;s doctor.</p> <p>Under federal law, the court was required to conduct what is known as a preliminary review to filter out non-meritorious claims.&nbsp;<i>See</i>, 28 U.S.C.&sect; 1915A.&nbsp;The court determined that the plaintiff satisfied the conditions necessary to survive a preliminary review by setting forth allegations suggesting that each defendant acted objectively unreasonable or deliberately indifferent to the conditions of his confinement and/or medical condition.&nbsp;</p> <p>Outside of the healthcare realm, as discussed in our prior post, several McDonald&rsquo;s employees and their relatives filed suit against McDonald&rsquo;s, alleging negligence and public nuisance arising from its decision to remain open during the pandemic without taking implementing certain health and safety standards.&nbsp;The plaintiffs sought injunctive relief in the lawsuit, including that McDonald&rsquo;s provide its employees with certain protective equipment and implement various workplace safety measures.&nbsp;McDonald&rsquo;s subsequently filed suit against its insurer Austin Mutual, arguing that it owed a duty to defend McDonald&rsquo;s in the underlying lawsuit.&nbsp;On February 22, 2021, the District Court for the Northern District of Illinois denied Austin Mutual&rsquo;s motion to dismiss, finding that the complaint in the underlying lawsuit potentially gave rise to coverage.&nbsp;<i>McDonald&rsquo;s Corp. v. Austin Mut. Ins. Co.</i>, No. 20C5057 (N.D. Ill. Feb. 22, 2021).&nbsp;The primary issue in that case was whether the underlying lawsuit sought &ldquo;damages because of bodily injury.&rdquo;&nbsp;Austin Mutual argued that the underlying case did not trigger coverage because the plaintiffs sought injunctive, not monetary relief.&nbsp;In response, McDonald&rsquo;s argued that if it was forced to expend money to comply with injunctive relief granted in the underlying case, such damages would constitute &ldquo;damages&rdquo; that would only arise because the plaintiffs in the underlying case contracted COVID-19, a &ldquo;bodily injury.&rdquo;&nbsp;Noting that the case was a &ldquo;very close call,&rdquo; the District Court concluded that if the plaintiffs in the underlying lawsuit succeeded in obtaining injunctive relief, it would be only because they contracted a bodily injury.&nbsp;The court found that an alternative avenue for coverage existed; namely, that exposure to COVID-19 is itself a bodily injury that McDonald&rsquo;s would be forced to expend &ldquo;damages&rdquo; to remedy.</p> <p><u>Secondary Exposure Claims</u></p> <p>Following our prior blog post, there have been significant developments in two cases discussed in that post.&nbsp;Specifically, in the two secondary exposure cases, the courts have ruled on the defendants&rsquo; motions to dismiss.&nbsp;In <i>Erika Iniguez v. Aurora Packing Co.</i>, 20-L-372, the Circuit Court of Kane County dismissed the plaintiff&rsquo;s complaint with prejudice.&nbsp;In that case, the plaintiff alleged that the decedent&rsquo;s husband worked for the defendant, contracted COVID-19 at work, and passed the disease on to the decedent, resulting in her death.&nbsp;The court found that the defendant did not owe a duty of care to the decedent.&nbsp;In reaching that conclusion, the court explained that the decedent and the defendant did not stand in a &ldquo;special relationship&rdquo; that would give rise to a duty of care.&nbsp;According to the court, the decedent&rsquo;s relationship to the defendant was no different from the relationship of any other citizen of the world who might encounter an employee of the defendant who had contracted COVID-19 while at work.&nbsp;</p> <p>The court also found it important that the Illinois legislature and Illinois Appellate Court have refused to extend the duty owed by employers and physicians to third parties that are not part of the employer-employee and physician-patient relationships.&nbsp;As to employers, the court explained that in its most basic sense, the plaintiff&rsquo;s claim was based on the defendant&rsquo;s alleged failure to protect its employees from contracting COVID-19 at work.&nbsp;According to the court, Illinois policy regarding employee exposure to dangerous workplace conditions is reflected by the Illinois Workers&rsquo; Compensation Act, which provides that the statutory remedies afforded by the Act serve as an employee&rsquo;s exclusive remedy for compensable injuries.&nbsp;Thus, the court questioned whether Illinois policy would be served by imposing upon employers a common law duty owed to an unlimited pool of potential claimants, &ldquo;mediated only by the travels and uncontrolled contacts of employees outside the workplace[.]&rdquo;&nbsp;As to physicians, the court relied upon prior court opinions in which plaintiffs filed suit against physicians, alleging that they developed communicable diseases due to the physicians&rsquo; failure to diagnose third-party patients.&nbsp;In those cases, the Illinois appellate court refused to extend the physicians&rsquo; duty beyond their patients.&nbsp;<i>See</i>, <i>Britton v. Soltes</i>, 205 Ill. App. 3d 943 (1st Dist. 1990); <i>Heigert v. Riedel</i>, 206 Ill. App. 3d 556 (5th Dist. 1990).</p> <p>Finally, the court distinguished the plaintiff&rsquo;s claim from &ldquo;take home asbestos&rdquo; cases (<i>i.e.</i>, where plaintiffs allege that they developed cancer due to asbestos exposure they experienced through the work clothes of a spouse or relative).&nbsp;The court reasoned that in those cases, the alleged injuries resulted from contact with a byproduct of the defendant&rsquo;s very business, the use or manufacturing of asbestos or asbestos-containing products, whereas the plaintiff in this case based her claim on the relationship between the defendant and its employee.&nbsp;</p> <p>By contrast, the Circuit Court of Will County recently allowed a plaintiff&rsquo;s secondary exposure case to proceed beyond the pleadings stage.&nbsp;In <i>Miriam Reynoso v. Byrne Schaefer Electrical</i>, No. 20-L-620, the plaintiff alleged that she developed COVID-19 from her husband after he contracted the virus through his employment with the defendant.&nbsp;In ruling on the defendant&rsquo;s motion to dismiss, the court denied the motion as to Count I of the plaintiff&rsquo;s complaint, while granting the motion as to Count II.&nbsp;The court, however, granted the plaintiff leave to amend Count II of her complaint.</p> <p>Baker Sterchi will continue tracking developments in this litigation.&nbsp;Please monitor our blog for updates on this and many other legal issues.&nbsp;</p> is Open and Obvious? Time to Ask the Jury. Apr 2021Missouri Law Blog<p><i>Open and obvious:</i> &quot;both the condition and the risk are apparent to and would be recognized by a reasonable man . . . exercising ordinary perception, intelligence, and judgment.&quot;</p> <p>The Missouri Court of Appeals for the Western District reversed and remanded <a href=""><i>Michael Lee v. Missouri Department of Transportation</i></a>, a wrongful death lawsuit, back to the Circuit Court of Boone County, Missouri. Michael Lee appealed a dismissal by the trial court of his Third Amended Petition, alleging wrongful death claims for the death of his daughter against the Missouri Highway and Transportation Commission (MHTC).&nbsp;</p> <p>The claims arose from a tragic accident involving Mr. Lee&rsquo;s daughter and his grandchild who were ultimately unable to escape a flooded area on a road where they were driving one early morning. Mr. Lee&rsquo;s granddaughter was following another vehicle just before the tragic incident, she stopped, just as the other vehicle did, to examine the flooded portion of the road, before unsuccessfully attempting to drive through the flooded area.</p> <p>Mr. Lee alleged that the portion of the roadway at issue was known to MHTC as a flood hazard, that MHTC failed to provide adequate barriers or guardrails to keep vehicles from being swept off the roadway, and failed to provide adequate warnings that the road would flood.&nbsp;</p> <p>The Court dismissed Plaintiff&rsquo;s Petition, after MHTC filed a combined dispositive motion, seeking alternative forms of relief (Motion for Judgment on the Pleadings; Motion to Dismiss; Motion to Strike), arguing that that the flooded roadway was an open and obvious condition and that Mr. Lee&rsquo;s daughter had a duty to exercise reasonable care for her own safety. The trial court ruled that dismissal was proper due to Plaintiff&rsquo;s own pleadings and the reasonable inferences therefrom indicating that Mr. Lee&rsquo;s daughter &ldquo;saw the danger, examined the danger and decided to proceed anyway.&rdquo;</p> <p>On appeal, Mr. Lee first asserted the trial court failed to consider the facts pleaded and the reasonable inferences from the Petition in the light most favorable to Mr. Lee, as the non-moving party. &nbsp;&nbsp;The appellate Court focused on whether the Petition adequately set forth the elements to support a claim of imposing liability on a possessor of land (MHTC) for injuries sustained by an invitee (Mr. Lee&rsquo;s daughter) due to conditions on that land, i.e.:</p> <p>(a) MHTC knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and</p> <p>(b) MHTC should expect that they will not discover or realize the danger or will fail to protect themselves against it, and</p> <p>(c) Invitee (Mr. Lee&rsquo;s daughter) fails to exercise reasonable care to protect them against the danger.&nbsp;</p> <p>The ultimate question for the Court thus became whether Mr. Lee&rsquo;s daughter should have realized the danger posed by the flooded condition of the roadway. The trial court ultimately concluded the cause of action fell under a case called <a href=";hl=en&amp;as_sdt=6,26"><i>Harris v. Niehaus</i>, 857 S.W.2d at 224</a>, which involved another tragic accident in which a mother lost her three children to drowning after her vehicle, parked on a sloped roadway, rolled down the street and into a lake that was plainly visible (aka open and obvious) to the mother.</p> <p>The appellate Court in <i>Lee</i>, however, found the case to be distinguishable from <i>Harris</i>, concluding that evidence that needed to be considered could be presented at trial and a juror could infer whether it was reasonable or safe to cross the roadway. In other words, the Court ruled in favor of Mr. Lee on Point 1, finding that what is reasonable is for a jury to decide.</p> <p>Mr. Lee&rsquo;s second point on appeal focused on the trial court failing to properly construe and apply the meaning of section 343A of the Second Restatement of Torts.&nbsp;Specifically, he argued the Petition properly alleged that MHTC should have anticipated the harm despite any knowledge or obviousness that may have existed on the part of his daughter.</p> <p>As explained by the Court, even if the flooded roadway was open and obvious, if the jury determined that MHTC should have anticipated the harm, then it would still be liable. The Court found that the Petition adequately alleged that MHTC was aware of certain issues of flooding with the roadway, as well as ingress and egress of local residents on that roadway.&nbsp;Agreeing with the Plaintiff, the Court found reasonable minds could differ on the facts surrounding roadway flooding, and it was up to the jury to determine whether the possessor of land should have anticipated harm to an invitee despite the open and obvious hazard.</p> <p>So what does this all mean?</p> <p>As defense lawyers, we are generally pleased to see successful trial court outcomes in cases of this type.&nbsp;Frankly, however, the Court of Appeals ruling in this case did not come as much of a surprise.</p> <p>When considering a motion to dismiss in Missouri, the trial court reviews the Petition and the facts stated within its four corners in a light most favorable to the non-moving party (typically the Plaintiff), also giving all reasonable inferences in favor of the non-moving party.&nbsp;However, in this case, the trial court appeared to give the inferences to the defendant, ultimately finding that the open and obvious doctrine supported dismissal at the pleading stage.&nbsp;While we are aware of cases that were ultimately resolved in favor of the defendant based on the open and obvious doctrine, including the appellate case the trial court relied on to support dismissal, such cases typically have a greater developed factual record that has been before the Court and/or the jury.</p> <p>The procedural posture of this case was somewhat unusual.&nbsp;The Plaintiff, Michael Lee, appears to have had two separate cases &ndash; one for his grandchild and the present case for his daughter.&nbsp;The case brought for the death of Michael Lee&rsquo;s grandchild was dismissed (affirmed on appeal) for various reasons. Curiously, however, in this case, MHTC did not raise the open and obvious issue as an affirmative defense to prior amended Petitions, which made the same allegations.&nbsp;It was only when Mr. Lee amended to fix another problem with his prior Petitions that MHTC raised this argument along with other defenses.&nbsp;In addition, there appears to have been discovery, depositions, and more motions, but none of that was part of this appellate record, because the defendant sought to have the case disposed of via a Motion to Dismiss, rather than a Motion for Summary Judgment (which focuses on undisputed facts elicited in discovery, rather than the legal sufficiency of Plaintiff&rsquo;s Petition).</p> <p>In any event, <i>Michael Lee v. Mo. Dept. of Transp.</i> is back before the trial court, and it remains to be seen what will happen next.&nbsp;Unless the case is settled, a jury may well get to decide what is &ldquo;open and obvious&rdquo; and reasonable.&nbsp;</p>