In the recent case of Parr v. Breeden before the Missouri Supreme Court, the question was asked whether trucking company supervisors that breach federal regulations create a separate and distinct duty to the drivers aside from the one as employers to provide a safe workplace for all employees. In other words, could the truck driver/ his surviving family members sue the company and/or supervisors individually – despite the exclusive remedy provisions of workers’ compensation law – based on their alleged violation of federal rules.

The court’s response: No.

Now, this does not mean the driver’s family had no avenue for compensation. As the underlying incident was one that occurred in the scope and course of employment, they are entitled to workers’ compensation benefits. However, they will not be successful in a separate case against the supervisors individually. 

According to court records, the truck driver was killed in a single-vehicle accident while driving his commercial vehicle for his employer. He had been employed by the company from June 2006 through April 2008, which was when he died.

During that time, he was involved in three single-vehicle truck accidents, including the third and fatal one. The first accident occurred after he had been on the job just six months. Nearly one year later, a medical examiner determined he was physically fit to operate a commercial motor vehicle and he was issued a two-year certification. However, six months later, he was involved in another single-vehicle truck accident. Then, just two weeks later, he was involved in a third accident, that one being the one that killed him.

Plaintiffs – the man’s two children and his father – filed a wrongful death lawsuit against the president of the company and two supervisors. Plaintiffs alleged defendants owed a duty to provide a safe working environment to the driver, to monitor his physical condition and ensure he was fit to drive that huge rig and also to ascertain whether he was in compliance with FMCSA regulations. Specifically, plaintiffs argued the supervisors breached their duty by putting the driver back on the road in after his second accident in April 2008 without a proper medical evaluation and also failed to inquire about whether decedent had a health condition that would have contributed to his prior single-vehicle accidents. Further, they alleged the supervisors knew or should have known it wasn’t safe for decedent to drive a truck.

Defendants filed a motion for summary judgment, arguing they did not breach their duty to provide a safe working environment, but alternatively, plaintiffs had no cause of action because there was no allegation of an affirmative act outside the employer’s duty to provide a safe working environment.

In support of their position, plaintiffs presented evidence from the November 2007 health report that showed the trucker was an overweight smoker with diabetes, sleep apnea and other health conditions that made it unsafe for him to drive.

Although defendants conceded it was their duty to make sure each of the drivers were safe to operate a commercial vehicle, they nonetheless argued this was not a separate duty from their jobs, which meant any resulting injury in this case would be covered by workers’ compensation.

The trial court agreed, and both the appeals court and the state supreme court affirmed.

It’s worth noting that had this truck driver been in a truck accident that injured or killed someone else, the fact that the company overlooked these serious safety concerns would likely be grounds for victims to pursue punitive damages in addition to compensatory damages.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Parr v. Breeden, June 7, 2016, Missouri Supreme Court

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According to the ruling, an employee need only show that the filing of the claim was a contributory factor in a dismissal or unfavorable job action. Previously, claimants in Missouri needed to prove that a workers’ compensation claim was the sole factor in a negative job action.

The relevant case, Templemire v. W & M Welding, Inc., No. SC93132, was brought by John Templemire, a painter who claimed that his company had fired him in part because of a workers’ compensation claim that he had filed.

The case had been decided in favor of the employer, W & M Welding, both in the lower court and in the Missouri Court of Appeals, on the grounds that Templemire had not shown that his workers’ compensation claim was the exclusive factor in his dismissal.

Templemire appealed to the Missouri Supreme Court, which reversed the decision by finding that the relevant Missouri statutes did not include language requiring that retaliation be the exclusive cause.

For employees who have filed a workers’ compensation claim, here are the basic facts:

• If you have filed a workers’ compensation claim and you believe that your employer terminated you, demoted you or took other unfavorable action against you in part because of the claim you filed, you may have cause for legal action.
• You will not need to prove that your workers’ comp claim was the only reason your employer took action against you, or even that it was the main reason your employer took action against you.
• Your employer may now be held accountable for actions undertaken against you with some discriminatory intent.

News sources report that in the Templemire case, witnesses heard Templemire’s manager say, “All you do is sit on your a– and draw my money” just before firing Templemire. In the new trial of this case, that piece of evidence could help show that a workers’ compensation claim contributed to Templemire’s firing, thereby proving his claim of workers’ compensation retaliation.

Put the experienced Missouri work injury attorneys at James Law Group on your side. Learn more at http://www.jameslawgroup.net/

Yesterday, the Missouri Supreme Court held that the “baseball rule”, which protects teams from being sued for fan injuries caused by events on the field, does not protect sports teams when their mascots cause injuries.

In this case, the Kansas City Royals mascot was throwing hot dogs into the stands.  One of the hot dogs hit John Coomer in the eye, resulting in him having two surgeries to repair his damaged eye.

Originally, the jury was instructed that being hit by the hot dog was an inherent risk of attending a sporting event.  But the Missouri Supreme Court noted that there is nothing inherent about wayward mascots at sporting events.  The Court noted that mascots aren’t a part of baseball; we’ve played baseball a long time without mascots throwing hot dogs, and we can continue baseball in the future without wayward hot dogs.

Legally, I have to think the court is correct.  Mascot shenanigans aren’t an inherent part of the game.  And while the hot dog incident almost prompts a chuckle, I’m sure no one would be laughing if a mascot did something more egregious, such as causing a golf cart to explode.  Those are not inherent risks of our national pastime, and mascots need to be careful, like everyone else at the game.

“I’ve been doing medical negligence work … for 26 or 27 years, and I’ve never seen as many cases filed against one person,” Wren’s lawyer told reporters.

In fact, Albanna has been named as defendant in 50 negligence lawsuits and four wrongful death lawsuits since 1987, according to the St. Louis Post-Dispatch.

So, asked the lawyer of one patient whose spine surgery left him hunched over and in permanent pain, “Why do the hospitals let a guy like this on staff?”

The answer may lie in the $12 million a year gross revenue he generated for Des Peres Hospital. Not surprisingly, several people have sued Des Peres’ parent, Tenet Healthcare Corp., for renewing Albanna’s credentials. Tenet has settled four of those lawsuits.

The Missouri State Board of Registration for the Healing Arts began investigating Albanna in the 1990s and then “sanctioned him for ‘unprofessional conduct’ and ‘repeated negligence’” in 2003, according to the Post-Dispatch. Albanna appealed, but the Missouri Supreme Court upheld the decision and determined that Wren didn’t even need that bone fusion surgery that forced him into early retirement.

Ultimately, Albanna settled with the medical board and agreed to four years’ probation and public reprimand “for performing more extensive than warranted surgeries” on two patients. But, typically, doctors and insurance companies are very secretive about whether a doctor has been sued for medical malpractice. So how can you find out? Watch Chris Mellino’s brief video below.

As for Albanna, the 60-year-old reportedly took a leave of absence from Des Peres Hospital in August 2011, told a court that he is no longer practicing medicine, and filed for Chapter 7 bankruptcy earlier this year.

Still, the lawsuits keep coming – including one for the wrongful death of a 23-year-old who died one day after Albanna operated to remove a tube from the hydrocephalic patient’s brain.

How can I find out if my doctor has been sued before for medical malpractice?

The Implied Consent Law

Missouri has a statute that is referred to as “the implied consent law.” The statute states that if a police officer has “probable” cause to believe that a person who is driving “a motorized vehicle” while under the influence of alcohol or drugs impliedly consents to a chemical test for the purpose of determining the drug or alcohol content of his blood. The chemical tests authorized by law to which one must consent or face consequences are “the person’s breath, blood, saliva or urine.” The officer determines which test he will request the driver to consent to take. The officer will read from a form that basically contains the implied consent law and the language that if the driver refuses to take the test the driver’s driving privileges will be revoked for one year. The driver does not have a choice of which test to take. The officer can request the driver to take any two of the specified tests but no more. (RSMo 577.020).

The breath test is most often performed at a “station” such as at the county sheriff’s department or police station, though at times they are performed in a van set up for that purpose. A van is most often the location for the test when the police are conducting a “deterrence roadblock stop,” and the van is at the location of the stop along with a tow truck to tow the vehicles of DWI suspects. It is the refusal to take the breath test at the station or in the van that triggers the bad consequences for the driver. Of course if the driver refuses any one of the other tests specified by the statute, blood, saliva or urine, the legal consequences are also triggered. Many officers, especially those assigned to a specialized DWI detection unit, carry in their patrol vehicles a preliminary alcohol-content testing device, or commonly referred to as a portable breathalyzer. At the site of the initial traffic stop, the officer may well ask the driver if he will take the portable breath test. This test is considered by law as a part of “field sobriety testing”, and there is no penalty for refusing this test. On the other hand there is absolutely nothing to be gained by the driver in refusing the test. The test results may not be admitted into evidence nor can the fact that the driver refused to consent to this test be used against him as evidence of intoxication in a criminal prosecution. There is one likely downside of refusing to blow into the officer’s portable machine. The officer may adopt a very unpleasant attitude toward this uncooperative driver. The biggest problem we have seen is the officer will ask the driver at the site of the traffic stop if he will submit to this preliminary breath test. If the driver refuses consent, the officer then will ask again at the station if he will take a breath test. The driver is often confused, because he knows that he has already refused a breath test. If the officer does not take the time to patiently explain that this second test at the station is a different test and the fact that the driver refused to be tested by the “portable” machine is of no consequence, the driver will often just say he refuses without really understanding his situation and the consequences.

The Legal Consequences of Refusal

Any “refusal” to comply with Missouri’s implied consent law has serious consequences, but it is not currently a crime in Missouri to refuse to comply with the implied consent law. If you are deemed to have “refused,” the Department of Revenue will revoke your driving privileges in the state of Missouri for one year, whether you were impaired or not, and regardless of the outcome of the prosecution for driving while intoxicated or other alcohol-related driving offense. If the driver’s driving privileges are revoked for a refusal, the driver is not eligible for a “hardship” license (one that would let you drive to work, for example) for ninety (90) days. Furthermore, the “refusal” to comply with the law can be used against the driver in court in any criminal case that results as evidence of the driver being under the influence of alcohol or drugs; this means the State is permitted to tell the judge or jury the driver refused to take the test and to argue to the judge or jury that the driver refused the test because he knew he would not pass the test, because he knew he was intoxicated.

Adding insult to injury, when a driver refuses any of the tests requested, the officer will mark “Refused” thus triggering the year’s revocation of the driver’s driving privileges, and then the officer may very well seek a warrant for the involuntary taking of the driver’s blood for analysis. If a warrant issues, the driver has created a situation where 1. His driving privileges are subject to being revoked for one year, 2. His refusal to consent to the test can be used as evidence against him in a criminal prosecution, and 3. The result of the blood test analysis can also be used against him in a criminal prosecution. As of this writing, because of a Missouri Supreme Court case, if the driver refuses the officer’s request to be tested, in most circumstances, the officer is required to obtain a warrant before having blood drawn from a driver suspected of driving under the influence. The Missouri case requiring a warrant has been appealed by the State to the United States Supreme court, and the case is currently pending before that court.

Presently, the driver may refuse his consent to be tested without incurring any criminal liability; however, there has been recent legislation proposed that would make it a misdemeanor offense for a driver to refuse his consent to a chemical test when requested by an officer who has probable cause to believe the driver is driving on a public roadway while under the influence of drugs or alcohol. It is not unlikely that sometime in the future that proposed law will again be before the legislature for a vote and could very well become the law.

Part 2 of this blog will deal with whether a driver who is asked to consent to the taking chemical tests should give his consent or refuse.

**DISCLAIMER: This article is intended to provide general information and is not and should not be taken as specific legal advice or as creating an attorney/client relationship with any reader. Any specific situation requires specific legal advice. Anyone facing a legal problem should contact an attorney for specific legal advice and should not rely solely on any information contained in this article. An attorney licensed in the state of Missouri writes all articles and all legal information discussed addresses the law as it stands in Missouri at the time of writing. Not only may there be significant differences in how the law would be applied in Missouri versus other states, the law is not static and can change over time. Nothing in this article is intended to have any relevance outside of the state of Missouri and should be taken as general information only, not legal advice.