MUNICIPAL ATTORNEYS NEWSLETTER

Missouri Municipal Attorneys Association

1727 Southridge Drive, Jefferson City, MO  65109          Editor Howard C. Wright  

573-635-9134, Fax: 573-635-9009                                 Asst. Editor Ragan  Wright    

August 08, Issue #8-08

CASE OUTLINES (MISSOURI)

Enforcement of regulatory requirements can be properly considered in determining if the annexation is reasonable and necessary.  The city of Peculiar (City) annexed land that contained a large quarry that was owned and operated by Martin Marietta Materials, Inc., (MMM) using involuntary annexation procedures under the Sawyers Act (Act).  The City was concerned that when the quarry operation was finished (estimated to be about three years) that the quarry might be used as a landfill.  After voters approved the annexation, the City filed a petition for declaratory judgment.  Under the Act, the City was required to show that the land was contiguous; it was reasonable and necessary to the development of the City and that it could provide services within a reasonable time.  The annexation could not proceed unless the City was able to prove each of the above elements were at least “fairly debatable.”  The circuit court found for the City and MMM appealed to the Western District.  The Western District reviewed the evidence in light of 12 different factors and determined that the annexation was reasonable and necessary.  The City’s interest in ensuring enforcement of regulatory requirements with respect to the quarry could be properly considered when determining if the annexation was reasonable and necessary.  City of Peculiar v. Martin Marietta Materials, Inc., (WD67943, 07/29/08).

     Comment Howard: This case has an excellent discussion of annexing land in order to plan for future development.  The 12 factors used in evaluating whether or not the annexation was “reasonable and necessary” are discussed and applied to the facts in this case.

Local Government Is Liable Under Overhead Power Line Safety Act. The Metropolitan Sewer District, (MSD) a political subdivision, was building a sewer line and a storm water drainage facility on an easement where there were overhead power lines.  MSD hired Mulligan, a contractor (contractor), to perform the work.  During the construction, a crane used for the movement and placement of pipe was electrified when it came into contact with an overhead power line owned by Ameren UE.  An employee of the contractor touched the crane and received a severe shock resulting in burns that necessitated the amputation of both hands and his left leg.  Employee and his wife (plaintiffs) sued the manufacturer of the crane, Ameren UE, and MSD.  Ameren UE cross-claimed against the contractor and MSD, alleging that the contractor and MSD violated the Overhead Power Line Safety Act of Missouri (OPLSA), asserting a claim for contribution due to the violation of the OPLSA. The OPLSA prohibits the operation or use of anything that conducts electricity within 10 feet of an overhead power line and requires that the power line company be notified so they can protect the power lines in order to prevent accidents.  The plaintiffs settled with the manufacturer for $3 million; Ameren UE settled for $6 million; and MSD for $6 million.  Ameren UE settled its cross claim for contribution against the contractor for $1.5 million,  which Ameren UE paid to the plaintiffs.  After these settlements, the only claim remaining was the cross claim for contribution by Ameren UE against MSD that was tried to a jury.  During the trial, MSD requested that the jury be informed of the $12 million that the plaintiffs received from all parties.  The request by MSD was denied by the court.  Instead, the court allowed the jury to be informed only of the $6 million that Ameren UE paid to the plaintiffs.  The jury returned a verdict apportioning the fault between MSD and Ameren UE in the amount of 75 percent to MSD ($4.5 million) and 25 percent to Ameren UE.  Judgment was entered on the cross contribution claim by Ameren UE against MSD in the amount of $4.5 million that was appealed by MSD to the Missouri Supreme Court.  Under the OPLSA, sections 319.075 to 319.090, if safety standards are not followed there is a right of contribution by the power company against any person covered by the OPLSA.  The Missouri Supreme Court held that MSD, a political subdivision, was performing a function under the OPLSA and was subject to the OPLSA; that there was no defense of sovereign immunity; and that the OPLSA was an exception to the statutory provisions limiting the liability of political subdivisions.  The circuit court erred in limiting proof offered by MSD to the amount paid by Ameren UE to $6 million because contribution should be based on the $12 million paid to the plaintiffs for damages.  As a consequence, MSD was liable to Ameren UE in the amount of $3 million under the statutory provisions allowing contribution.  Union Electric d/b/a AmerenUE v. Metropolitan Sewer District, (SC88637, 07/15/08).

     Comment Howard: With no defense of sovereign immunity, no statutory caps, and contribution under the OPLSA for failure to comply with safety requirements you can drive several Russian tanks right through the treasury of local government.  This is a stunning case of great importance because it opens up local government to unlimited liability with no defenses except apportionment of fault.  For sure you need to look at your contracts and write specific provisions that require your contractors to comply with the OPLSA and to indemnify you from any liability caused by their failure to comply with the OPLSA.  When working on easements where there are utility lines, it is critical to identify power lines located on the easement prior to work.  The court uses this case to elucidate us on the common law right of contribution as part of the overall framework for contribution under the OPLSA.  Payment of $6 million to the plaintiff for damages plus a $3 million contribution claim for the failure of the contractor to comply with the OPLSA is as bad as it gets.  The Act prohibits a person, their agents, or employees who operate or move machinery, equipment or materials within 10 feet of any high-voltage overhead line without complying with the safety requirements of the Act.  MSD argued it was not a person. The Court determined that MSD was performing a “function” under the Act and was therefore a person even though a “political subdivision” is not included within the definition of a person.  The application of a functionality test to determine if you are within the coverage of a law runs counter to a number of cases that have historically required the legislature to specifically mention within the definition descriptive language indicating political subdivisions are covered.  We can be thankful that the decision in the MML case involving Proposition B and minimum wages occurred prior to this decision.

Driver’s Negligence Imputed to Passenger Under Agency Law.  An elderly lady (passenger) did not have a driver’s license and had her 16-year-old nephew (driver) drive her to a widows’ meeting in a car she owned.  A Fire Protection District (District) truck was partially parked in the street with lights on and the nephew rear-ended the fire truck.  Passenger sued driver and the district.  Driver settled with the passenger for $25,000 and the case against the District was tried resulting in a verdict in the amount of $100,000.  Fault was apportioned to the passenger in the amount of 85 percent and 15 percent to the District.  The circuit court allowed the driver’s negligence to be imputed to the passenger applying agency principles.  The passenger appealed and the District cross appealed to the Missouri Supreme Court.  The Supreme Court held that the agency principles allowed the driver’s negligence to be imputed to the passenger under the facts in this case.  There is a presumption of agency when the owner of the vehicle is a passenger and acquiesces in the operation.  The principal must have the right to control.  The District also appealed the denial of its motion to amend its answer to allow a contribution claim against the driver. The District’s motion to amend was properly denied because it was not timely.  This decision was a 4 to 3 decision with a sharp dissent based on the concept that the passenger did not really control the driving but only the final destination.  Bach v. Winfield-Foley Fire Protection District, (SC89001, 07/15/08).

Requirement that Notice of Claim be Given Within 90 days of Accident Applies Only to the Condition of the Street.  On December 21, 2005, Jons ran a red light controlling her course of travel in Kansas City (City) and hit another vehicle causing her vehicle to become airborne landing on Mr. Sasnett’s vehicle, who was killed as a result of the accident.  On June 23, 2006, Mrs. Sasnett filed notice of a claim with the City under 82.210 RSMo that was more than 90 days after the accident.  Section 82.210 requires notice to be given within 90 days of the accident.  A wrongful death lawsuit was filed against Jons and the City.  Kansas City filed a motion to dismiss for failure to give notice within the time limit as required by the 82.210 which was sustained.  Plaintiff filed a writ of mandamus and prohibition with the Western District requesting an order that the circuit court proceed with the case.  The Western District held that a writ of mandamus could be utilized as a remedy in this case to review the motion to dismiss; that notice under 82.210 was not required because the alleged defect (the condition of the traffic light) was not a defect in the condition of the street and that prior case law has held that 82.210 did not apply to wrongful death claims.  Sasnett v. Honorable Kelly Moorhouse, (WD69323, 8/05/08).

     Comment Howard: If you are looking for case law on when a claim does not pertain to the condition of the street, this opinion has a good discussion on this question.

Plaintiff Must Prove Causation in Sewer Backup Case.  Plaintiffs owned property within the city limits of Cuba (City) on which they constructed a house.  The plaintiffs attached the lateral sewer line that connected the house to the public sewer line.  Shortly after connecting to the public sewer line, the plaintiffs discovered they had sewage in their basement.  The City checked the standpipe from the lateral line and the manhole to the sewer line and found no evidence that a back-up had occurred.  The City ran a hydraulic cutter through the city line and inspected the sewer line with a camera finding no evidence of any obstructions, damage or malfunction of the main, or any other cause for the back-up.  There were no reports of any past back-ups in the vicinity of plaintiff’s property.  Plaintiffs sued the City based on nuisance and inverse condemnation.  After a trial on the merits, the trial court entered judgment for the City. Plaintiffs appealed to the Southern District.  The Southern District held that the plaintiffs did not establish causation because they did not show that the injury to plaintiff’s property was caused by the City. The City is not the insurer of the plaintiff’s property and the “existence and operation of the sewer line does not per se constitute a nuisance.”  There was no showing that the sewers were inadequate to perform the function for which they were designed and that after due notice of these shortcomings the City failed to correct the condition and that the nuisance continued.  The City was not liable for “errors in judgment” as to the proper size of the sewer line until after it became aware that the sewer line was inadequate to perform the function for which it was designed.  Basham v. City of Cuba, (28146, 07/16/08).

     Comment Howard: Finally, we catch a break.  This is a very good case with excellent language as to what needs to be shown in order to recover for sewerage back-up on private property.  Of course, most cases will not have facts as favorable to the City as in this case.  Still the language in the opinion is very helpful.  This is a must read if you are defending a sewer back-up case or any other claim based on a taking under nuisance law.

Burden of Production Shifts Burden of Persuasion to the Plaintiff.  Miller received notice from the Director of Revenue (Director) denying his application for a driver’s license.  The Director relied on records from Iowa.  Miller appealed the Director’s decision to circuit court which held that the records from Iowa were not legally sufficient.  Director appealed to the Western District which reversed holding that the certification by Iowa satisfied the Director’s burden of production which then placed on Miller the burden of persuasion to show that the records were not legally sufficient or not true.  Miller v. Director of Revenue, (WD68745, 08/05/08).

Failure to File Signatures Within Six Months Before Election Date Moots Appeal of Challenge to Title in the Ballot.  Secretary of State appealed from a judgment of Cole County Circuit Court that held the official ballot title for an initiative petition was insufficient and unfair.  During the pendency of the appeal, the deadline for submitting signatures passed without the proponents submitting any signatures.  The Secretary of State filed a motion with the court of appeals asking the appeal be dismissed and judgment vacated as moot.  Court of appeals dismissed the appeal as moot since there was no possibility that the initiative would be on the ballot for November because signatures were required to be submitted six months prior to the election.  Asher v. Carnahan, (WD69256, 08/05/08).

Revocation of drivers License for Driver Under 21 Does Not Require an Arrest.  Director of Revenue does not need to show an arrest of a driver to revoke the license of the driver, if the driver is less than 21 years of age because the statute only requires that the driver was stopped.  Swan v. Vincent, (WD68454, 08/05/08).

City has no Duty of Care for State Highway.  Along I-44 near Six Flags there have been many accidents due to traffic conditions on the state highway within the city of Eureka (City).  A family was driving west on I-44 en route to Six Flags when approximately one mile from the exit they encountered traffic at which time they rear-ended a car and careened left into a truck killing the parents and three children.  Plaintiffs sued Six Flags and the City for damages caused by the accident that occurred within the City under theory that the City owed a duty of care and was not shielded by sovereign immunity.  Six Flags and the City filed motions to dismiss which were sustained and the plaintiffs appealed.  The Eastern District noted that the Missouri Constitution vests exclusive control of highways in the state of Missouri; therefore, the City has no duty of care with respect to traffic conditions on the state highway leading to Six Flags even though the state highway was within the city limits.  By law, the City cannot exercise control over a state highway.  The City’s action in rezoning Six Flags property is protected by sovereign immunity.  Haar v. Six Flags Theme Parks, Inc., and City of Eureka, (ED90105, 07/22/08).

BOOKS, SEMINARS, AND OTHER INFORMATION

Ethical Standards in the Public Sector. Ethical Standards in the Public Sector, Second Edition covers a host of important topics ranging from whistle blowing, pro bono work, gift giving, conflicts of interest, and other key topics of interest to local government.  For those who deal with these topics this may be a good reference book which is some 400 pages.  For ABA members of the State and Local Government Section the cost is $49.  You can learn more and order online at www.ababooks.org.

Model Code for Public Infrastructure Procurement.  The ABA Section of Public Contract Law offers this book. You can learn more and order online at www.ababooks.org.

Election Law.  The Section of State and Local Government of the ABA has a book, America Votes! A Guide to Modern Election Law and Voting Rights.  You can learn more and order online at www.ababooks.org.

Foreclosures.  The American Housing Rescue and Foreclosure Prevention Act which was recently signed into law provides for some $4 billion to support Community Development Block Grant (CDBG) activities to buy foreclosed properties in an effort to stabilize communities dealing with housing crisis.

HOW TO OBTAIN OPINIONS

The material contained in this Newsletter is summarized as a service to MMAA members.  Almost everything cited in the Newsletter can be found on the Internet.  There are a variety of places to search for cases on the internet.  Below are several sites that I use for searches.  If you have questions or comments please feel free to e-mail me at howardcwright@mchsi.com or call us at 417-569-0386.

Missouri: http://www.courts.mo.gov/courts/pubopinions.nsf.,

Federal: http://www.ca8.uscourts.gov/onestop.html.

Supreme Court: http://www.supremecourtus.gov/

Other sources: www.findlaw.com and http://www.molawyersweekly.com/.

The opinions cited in this Newsletter may be subject to revision or withdrawal prior to publication.