April Newsletter (Issue 04-2020)

Discharge Permit Is Required When There Is The “Functional Equivalent Of A Direct Discharge” Into Navigable Waters
Facts and Procedure: The County of Maui’s wastewater reclamation facility collects sewage from the surrounding area, partially treats it, and each day pumps around 4 million gallons of treated water into the ground through four wells.  This effluent then travels about a half mile, through groundwater, to the Pacific Ocean. Respondent, environmental groups, brought a citizens’ Clean Water Act suit, alleging that Maui was “discharg[ing]” a “pollutant” to “navigable waters” without a  required permit.

The District Court found that the discharge from Maui’s wells into the nearby groundwater was “functionally one into navigable water”, and granted summary judgment to the environmental groups.  The Ninth Circuit affirmed, stating that a permit is required when “pollutants are fairly traceable from the point source to a navigable water.”  There was a split in the Circuits with respect to the standards  as to what constituted from any point source.  The United States Supreme Court granted certiorari.

Analysis: The United States Supreme Court  started its analysis with the basics of the Clean  Water Act.  The Act forbids “any addition” of any pollutant from “any point source” to “navigable waters” without an appropriate permit from the Environmental Protection Agency (EPA).  The Act defines “pollutant” broadly, and defines a “point source” as “ ‘any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged,’ ” including, e.g., any “ ‘container,’ ” “ ‘pipe, ditch, channel, tunnel, conduit,’ ” or “ ‘well.’ ”  The term “discharge of a pollutant” is defined as “ ‘any addition of any pollutant to navigable waters [including navigable streams, rivers, the ocean, or coastal waters] from any point source,’ ”).  It then uses those terms in making “unlawful” “‘the discharge of any pollutant by any person’ ” without an appropriate permit.

Maui and the United States Solicitor General  argued that a point source or series of point sources must be “the means of delivering pollutants to navigable waters.”  They add that, if “at least one nonpoint source (e.g., unconfined rainwater runoff or groundwater)” lies “between the point source and the navigable water,” then the permit requirement “does not apply.”  A pollutant is “from” a point source only if a point source is the last “conveyance” that conducted the pollutant to navigable waters.

The environmental groups basically adopted the Ninth Circuit’s view that the permitting requirement applies so long as the pollutant is “fairly traceable” to a point source even if it traveled long and far (through groundwater) before it reached navigable waters.  They add that the release from the point source must be “a proximate cause of the addition of pollutants to navigable waters.”

Justice  Brennan, writing for a 6 to 3 majority,  explained that statutory context limits the reach of the statutory phrase “from any point source” to a range of circumstances narrower than that which the Ninth Circuit’s interpretation “fairly traceable” standard to a point source even if it traveled long and far (through groundwater) before it reached navigable waters.

At the same time, this standard is significantly broader than the total exclusion of all discharges through groundwater described by Maui and the Solicitor General, which was under their interpretation from a point source or series of point sources that are “the means of delivering pollutants to navigable waters.”  The Opinion noted that the adoption of the EPA/Trump  interpretation would have created a huge hole in the Act because all that would be needed to avoid the obligation to obtain a discharge permit would be to simply move the point of discharge to a location where it was going directly into the groundwater before it went to navigable waters.

The United States Supreme Court held that the Act required a permit when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.

In determining what is the “functional equivalent”  the Court notes that:

Many factors may be relevant to determining whether a particular discharge is the functional equivalent of one directly into navigable waters.  Time and distance will be the most important factors in most cases, but other relevant factors may include, e.g., the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Courts will provide additional guidance through decisions in individual cases. County of Maui v. Hawaii Wildlife  Fund, (U. S. 18-260, 04/23/20)

Comment Howard:  This case is extremely important because it established a  new rule for determining what constitutes a discharge to navigable waters under the Clean Water Act.  The new rule adopted by the Court will lead to litigation but it is better for the environment than the proposed Trump administration Regulation.  Considering the karst topography in the Ozarks there are lots of potential issues such as discharges to sinkholes and dry portions of losing/sinking streams.  In addition, the Court overruled the recent interpretation of the EPA/Trump Administration Rule reinterpreting what constitutes a discharge.  Under the Trump Administration interpretation of the Clean Water Act, the Act would have been eviscerated leaving a huge hole allowing just about anybody to short-circuit requirements that a discharge permit be required.  The opinion was 6 to 3 with the dissenters arguing that the  statutory language should be literally interpreted as written,  requiring a permit only if there is a direct discharge.  I know that many times our clients put us in a very awkward position but personally I found it troubling that IMLA filed an amicus brief supporting the County of Maui because the proposed interpretation would have been a disaster for protecting the clean waters of the United States.  For additional comments concerning this opinion you may want to look at:  Lisa Heinzerling, Opinion analysis: The justices’ purpose-full reading of the Clean Water Act, SCOTUSBLOG (Apr. 23, 2020, 7:09 PM).

School  Board Regulation  Prohibiting Sex Harassment Of Students Creates Public Duty That Runs To The Public Not Students
Facts and Procedure: E.M. was a 15-year-old high-school student in the St. Louis Public School District (“the school district”).  Defendant Michael Holloman was a physical education instructor employed by Gateway Region Young Men’s Christian Association (“the YMCA”) and hired by the school district to teach physical education.  Holloman was E.M.’s physical education teacher.

Holloman, her instructor,  pursued an inappropriate sexual relationship with E.M., engaged in inappropriate physical contact with her, and took video recordings of E.M. and other female students during exercise class.  E.M. asserts that she disclosed to Defendant Wiggins, one E.M.’s teachers at her high school that Holloman was trying to start a relationship with her, E.M.  Despite E.M.’s disclosure, Wiggins did not report E.M.’s complaint about Holloman either to State authorities or school authorities.  E.M. maintains that Holloman later sexually assaulted her.

On or about October 11, 2016, E.M. attended the Soldan High School prom, which was being held at the Hilton Hotel in the City of St. Louis where Holloman contacted E.M. while she was at the prom, and asked to meet her outside of the hall where the prom was taking place.  E.M. met Defendant Holloman, who asked her to accompany him to his hotel room in the Hyatt Regency Hotel in the City of St. Louis, ostensibly for the purpose of providing her with information regarding a modeling career.  When E.M. accompanied Defendant Holloman to his room, he began to fondle E.M., and forced E.M. to engage in acts of sodomy and intercourse. E.M., who was fifteen (15) years old at the time, was statutorily raped by Defendant Holloman.

E.M. filed negligence claims against the YMCA, the school district,
and an unnamed school district employee responsible for screening and hiring employees, as well as a claim for assault and battery against Holloman.  E.M.’s alleged that the “YMCA and [the school district] and their employees had a duty to intervene in the contact between Defendant Holloman and E.M., and to protect E.M. from any inappropriate relationship, contact, touching or advances from Defendant Holloman.” E.M. alleged that she sustained damage, including treatment through counseling, mental distress and medical expenses.

Wiggins filed a motion to dismiss based, in the alternative, on sovereign immunity, official immunity, and the public-duty doctrine.  The trial court rejected Wiggins’s motion on the bases of sovereign and official immunity.  The court ruled that Wiggins was not entitled to sovereign immunity protection because E.M. sued Wiggins in her individual capacity.  The trial court further ruled that Wiggins was not entitled to official immunity because her duty under St. Louis Board of Education regulation P4843 (“School Board regulation P4843”) to report E.M.’s complaint of sexual harassment was mandated, involved no exercise of discretion, and thus was a ministerial duty.  The trial court did not address whether the reporting mandate under School Board regulation P4843 created a general duty to the public or a duty to E.M. in particular.

The trial court, however, granted Wiggins’s motion to dismiss based on the public-duty doctrine under Section 210.115, the child-abuse reporting statute.  The court ruled that the duty to report suspected child abuse under Section 210.115 is owed to the general public, and so E.M.’s negligence claim against Wiggins is barred by the public-duty doctrine.

The trial court certified its judgment for immediate appeal under Rule 74.01(b), finding that Wiggins’s dismissal from the suit disposed of a distinct judicial unit and there was no just reason for delay.  E.M. appealed the dismissal of her claim against Wiggins, and Wiggins cross- appealed the trial court’s denial of her motion to dismiss based on sovereign immunity and official immunity to the Eastern District.

Analysis – Dismissal Based on the Public-Duty  Doctrine/ Section 210.115 Duty to Report Child Abuse: The Court began its analysis by stating that the public-duty doctrine provides that a public employee is not civilly liable for the breach of a duty she owes to the general public rather than to a particular individual.

This public-duty rule rests on the absence of a duty to the particular individual in contrast to the duty owed to the general public.  The doctrine is meant to provide protection to modestly compensated public servants, and to permit public servants to do their work without the distracting concerns about liability.

Nevertheless there are limits.

The public-duty doctrine does not insulate a public employee from all liability because the employee could still be found liable for a breach of ministerial duties in which an injured party had a “special, direct, and distinctive interest.”  This exception comes into play when injury to a particular, identifiable individual is reasonably foreseeable as a result of the public employee’s breach of duty.  Whether an individual has such a special, direct, and distinctive interest depends on the facts of each case rather than on broad pronouncements about the usual status of relevant functions.

In addition, the protections of the public-duty doctrine do not apply when the public employee acts with bad faith or with malice.

E.M. argued that once she disclosed Holloman’s inappropriate conduct directly to Wiggins, E.M. had a specific, direct, and distinctive interest in Wiggins’s duty to report Holloman’s inappropriate conduct because injury to E.M., a particular, identifiable individual, was reasonably foreseeable.  The Eastern District noted that this is a case of first impression although the Eastern District considered several federal district court cases that held that section 210.115, requiring reporting of suspected child abuse, is a duty owed to the general public, not a particular individual and therefore cannot support a cause of action against an individual for failure to report the incident; therefore, the public duty-doctrine did not apply.

St. Louis Board of Education Regulation P4843

School Board regulation P4843 provides in relevant part:

The Board of Education is committed to maintaining a work environment for employees and students that is free from all forms of discrimination, including sexual harassment. In addition, it is the published policy of the Board of Education that no employee and/or student in the St. Louis City Public School District shall, on the basis of sex or as a result of sexual harassment, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity.  (Emphasis Added)

Students [sic] Complaints of Sexual Harassment

  1. Any employee who permits or engages in the sexual harassment of a student shall be subject to disciplinary action, up to and including termination from employment.
  2. Any employee who receives a complaint of sexual harassment involving a student who does not immediately forward the complaint to the principal and the District’s Title IX Coordinator, shall be subject to disciplinary action, up to and including termination from employment. (Emphasis Added)

The Board of Education Regulation, pertaining to sexual harassment specifically states that the Board is committed to maintaining a work environment for employees and students free from all forms of discrimination, including sexual harassment and imposes a duty on any employee who receives a complaint involving sex harassment of a student to immediately report the complaint to the principal and the Districts Title IX Coordinator.

Nevertheless, the Eastern District held that the duty to report sexual harassment created by regulation P4843, like the duty to report child abuse created by Section 210.115, is a duty owed to the general public, not a duty owed to particular individuals.  E.M. by and through her mother) and next friend, MELANEE MCINNIS, vs.  GATEWAY REGION YOUNG  MEN’S CHRISTIAN ASSOCIATION,  ST. LOUIS PUBLIC SCHOOLS, MICHAEL HOLLOMAN, and  JOHN DOE and/or JANE DOE, and TAMEKA WIGGINS, (ED108227, 04/21/20)

Comment Howard:  This case raises a lot of questions.  First, the trial court did not address whether the reporting mandate under the School Board regulation created a general duty to the public or a duty to E. M. in particular.  The Eastern District, however ruled that the School Board rule, imposing a duty on a duty a teacher who receives a complaint of sexual harassment of a student to immediately report sexual harassment involving a student to the School Board, does not run to the individual student but to the general public; thereby, making the public duty defense available to Wiggins.  It is hard for me, after looking at the plain language of the regulations, adopted by the School  Board,  to understand why there is not an individualized duty to students.  After all, most of the students  are under age, presumably in the care and custody of the school, while they are at school or in school activities.

The  rules adopted by School  Board clearly state that they are intended to maintain a work environment for students that is free from sex discrimination.  Furthermore,  it is clearly foreseeable that a teacher who is hitting on  an under-age student will continue to pursue this course of action unless there is intervention by the school.  The public duty defense was created by the courts and in Missouri its origins are relatively recent making it a candidate for change.  The public duty doctrine has been roundly criticized.  See John C. McMillan Jr., Government Liability and the Public Duty Doctrine, 32 Vill. L. Rev. 505 (1987).

Heads up to the potential for this case to be reversed or result in reconsideration of the public duty doctrine.

Did Conditional Use Permit Terminate Due To Lack Of Oil And Gas Production?
Facts and Procedure: JTC v. City of Grandview, is an unusual case involving traditional planning and zoning concepts, related to the expiration of an existing use, that expired due to lack of oil and gas production terminating the pre-existing condition.  This case started as a typical request for a conditional use permit, before the City of Grandview (City), that turned into an inverse condemnation case.

The oil and gas lease (“the Lease”) was entered into in 1986 between Sunrise Dairy Farms (“Sunrise Dairy”) and Kanzou Exploration, Inc. (“Kanzou”).  Sunrise Dairy “granted, demised, leased, and let” to Kanzou the right to mine and produce oil and gas on Sunrise Dairy’s property, which was located within the City’s boundaries.  The duration of the Lease was described in the habendum clause as follows: “[T]his lease shall remain in force for a term of one years [sic] from this date, and as long thereafter as oil or gas, or either of them, is produced from the land by the lessee.”  Three oil wells were drilled and a tank battery was installed on the 120-acre tract.  Oil was produced intermittently but at times there were lapses in production for over a year, raising the question concerning whether or not the lease had lapsed.

Subsequent to the creation of the Lease, the 120-acre tract was divided into nine parcels of land with eight owners.  Jerry Kerr and Deanna Daniels purchased 80 acres from Sunrise Dairy on January 20, 1988, subject to the Lease.  By virtue of the purchase, they  was entitled to receive 40% of 3/16 royalty of oil produced on the land covered by the Lease.  Kerr and Deanna (referred to collectively as Kerr) sold their property in November 2001, but reserved the oil and mineral rights underlying the surface estate and right to royalties under the Lease.

In 2003, the City passed an ordinance requiring that oil producers obtain a conditional use permit in various zoning districts prior to drilling for oil.

JTC purchased the Lease for approximately $65,000.  JTC made plans to drill 36 additional oil wells on the property.  When JTC began drilling, it was halted by the City, which informed JTC that a conditional use permit from the City’s was required before JTC could drill additional wells on the property.  JTC filed an application for a conditional use permit, which was denied by the P&Z and the City, which denial was appealed to circuit court.

Kerr now the owner of the royalties from mineral rights requested and was granted leave to intervene asserting a claim of inverse condemnation against the City.  Kerr alleged that the City’s denial of JTC’s conditional use permit and conceptual development plan denied Kerr “all rights to use of his royalty property,” and the “[a]ctions of the City unreasonably and unlawfully restricted and destroyed the property right of [Kerr] to obtain the benefits of his lease.”

The City filed a motion for summary judgment, asserting that JTC and Kerr had no compensable interest in the property at the time of the City’s denial of JTC’s application, thus their claims for inverse condemnation failed as a matter of law.  The City pointed to the Lease’s habendum clause, which provided that the Lease would continue “as long thereafter as oil . . . is produced from said land by the lessee.” The City argued there were several periods when the lessee failed to produce oil for over one year.  The trial court found that “between the origination date of the lease in question, and the date that [JTC] purportedly acquired it, there were multiple periods of time, exceeding a term of one year, in which the land was not producing oil or gas” and that the Lease “was terminated at the first lapse in time of oil or gas production greater than a year, which . . . was the initial lapse between February 1988 through August 1989.”  As a result, the trial court determined that JTC and Kerr had “no property interest in which to assert rights against City of Grandview.” JTC and Kerr appealed to the Western District.

Analysis: Did the City have  standing to challenge the validity of the lease?  The Court started its analysis by stating that the normal rule is that only a party to the lease  has the standing to challenge its validity.  However, in this case, the rule does not apply because JTC and Kerr brought claims of inverse condemnation against the City.  “To prevail on a claim for inverse condemnation, a landowner must plead and prove an invasion or appropriation of some valuable property right that directly and specially affects the landowner to his injury.”  Consequently, the Court concluded that in order to prevail on their claim of inverse condemnation, JTC and Kerr must prove that they had a valuable property right, which was taken by the City,  placing on them the burden of proof prove their property interest; consequently, the City had standing to challenge the validity of the lease.

Summary Judgment  Precluded Due  to Disputed Facts
The question as to whether or not production of gas or oil had ceased depended on us what “cessation of production meant” under oil and gas law.  Oil and gas leases for production wells have a primary term which is one year and a secondary term which is that the lease continues unless the extinguishment is intentional and there is an actual relinquishment of the premises, such as abandonment.

The City argued that the oil was stored in 100+ gallon  stock tanks, which accumulated over a period of time.  When the stock tank was nearly full the oil was picked up by the purchaser who then measures the amount and that amount is reported to the state.  JTC and  Kerr argued that even though the state records showed a  gap of over a year when there were no records showing sales that the wells continued to produce.  In addition, the measure under oil and gas law was whether or not the well was profitable.  JTC and Kerr produced affidavits showing that there was continuous oil production since January 1988 and that the royalty payments were made during this time; making it a question of fact as to whether or not the wells were producing oil and gas during this time.  Therefore,  because facts were disputed summary judgment was inappropriate.  JTC Oil Company, v.  City of  Grandview(WD 82859, 04/21/20)

Judicial Estoppel Does Not Prohibit  Employee From Claiming She Was Able To Work After Obtaining A Social Security  Disability Benefit
Facts and Procedure:  Employee began her employment with Employer as a housekeeper in 1999.  She received numerous positive performance reviews followed by merit raises and by most accounts satisfactorily performed the tasks of her employment.  Over the years of her employment, Employee took a number of leaves of absence in order to address her health issues, some of which were related to arthritis and degenerative lumbar disease.

Employee requested a leave of absence to obtain a cortisone shot for back pain.  Afterwards, Employee returned to work and worked for several days.  Then Employee was then called to the functional job screen department, where she was required to take a functional screen test.  Employee was required to touch the floor by squatting with her knees 15 times.  While Employee was able to reach the floor by bending at her waist, she was unable to squat as demanded.  Employee was informed she had failed the functional screen test and was told to leave work.

Employee was told her she could return to work if she received approval from her physician.  Employee went to see her physician, a board-certified internal medicine specialist, who provided her a note stating that although Employee was unable to squat at her knees or bend her back, she was able to safely bend at the waist with a straight back and was medically able to return to work.  However when Employer was given this note, Employer told Employee it was insufficient.  Employer placed Employee on leave for 45 days, at the end of which Employee would be required to retake and pass the functional job screen test to continue her employment.

Employee then participated in physical therapy sessions provided by her Employer and obtained another note from her doctor approving her return to work on June 6 with no restrictions.  On June 6, 2014, Employee retook the functional job screen test under the supervision of Crain.  Employee was again unable to squat at her knees as required by Crain, causing her to fail the test.

Employer informed Employee she was unable to return to work as a housekeeper because she failed the test.  Employer sent Employee a letter stating that pursuant to their displaced worker policy that Employee was not being terminated at that time. Rather, Employee would have 45 days to work with Employer’s  recruiter to determine whether another position might be available to her.  During this 45 day period  there was a dispute concerning the good faith of the parties trying to find another position. After 45 days passed and Employee did not obtain a new position, Employer officially terminated Employee.

Social Security Benefits ApplicationDuring the period leading up to the functional job screen test and Respondent’s eventual termination, Employee had been receiving periodic cortisone injections.  These injections alleviated the symptoms of her arthritis, improving her ability to perform everyday physical tasks, including tasks associated with her employment as a housekeeper.  When Employee stopped receiving a paycheck from Employer and subsequently lost her health insurance contributions, she became unable to afford the cortisone injections.  As a result, her arthritis symptoms worsened and interfered with her ability to perform day-to-day tasks.  Employee applied to the Social Security Administration (SSA) for Social Security Disability (SSD) benefits, which she obtained.

MHRA Claim: After obtaining he Social Security disability benefit the Employee filed a disability discrimination claim against Employer under the MHRA.  Employee alleged she was “disabled” within the meaning of the MHRA because she had a qualifying condition, chronic arthritis throughout her body, but was able to perform the essential functions of her job with or without reasonable accommodation.  Employee brought a claim under the MHRA for disability discrimination alleging that her termination and other treatment by Employer entitled her to damages under the MHRA.

At trial Employee offered her own testimony and the testimony of doctor as well as testimonial evidence regarding Respondent’s satisfactory work performance.  After a jury trial, the jury returned a verdict in favor of Employee, awarding her $17,000 in compensatory damages.  The trial court also awarded $347,550 and $12,174 in attorney’s fees and costs, respectively.  Employer appealed to the Eastern District.

Analysis – Proof of  Employment Discrimination Claim: Employer argued on appeal  that the Employee failed to present evidence that her “impairment did not, with or without reasonable accommodation, interfere with the performance of her job as a housekeeper.”  In order to make a submissible case she must prove that she was legally disabled; that she was discharged; and her disability was a factor in her discharge.  Since the case was tried before a jury, the arbiter of disputed facts was within the province of the  jury.  For example, the fact that the Employee could clean the Employer’s facilities another way without squatting allowed the jury to reject the Employer’s contention that squatting was an essential function.

In addition, the Employee also called into question the validity of the functional job screening test by showing that the person who designed the test was not a physician, was not intimately acquainted  with the requirements of the Employee’s job and did not have any training on what constituted reasonable accommodations, allowing the jury to conclude that the test was pretextual.  The Court concluded that singling out the Employee to take the functional job screening test was not a legitimate safety concerns, but was a pretext to terminate the Employee.  The Eastern District concluded that the evidence at trial was sufficient for a jury to have found that the Employee was capable of performing her job despite her inability to pass the functional job screening test.

The Eastern District, noted that the Employer ignored the standard for review of a jury verdict, which is to review the evidence in light most favorable to the result reached by the jury, giving the plaintiff the benefit of all reasonable inferences and disregarding evidence and inferences that conflict with the verdict.  In this case, there was evidence that the Employee was legally disabled even though with reasonable accommodation she could perform the job; that she was discharged; and that her  disability was a factor in the discharge.

Proof of  Adverse Employment Action: Employer argued that Employee failed to show she was discriminated against because of her disability since the action was not taken because of her disability but because she did not participate in the process for another position.  The evidence submitted at the trial showed there was conflicting testimony concerning which party was responsible for failure to maintain contact during the 45 day period and act in good faith while the parties looked for another position to accommodate the Employee.   The Court concluded that because conflicting evidence was presented at trial, the jury could choose one version over the other.  The jury could reasonably infer that the  Employer did not reassign the Employee because its ultimate goal was to permanently discharge the Employee because of her disability.

Judicial Estoppel: Even though the Employer failed to properly preserve the question of judicial estoppel, the  Court decided to review the question of whether or not the Employee was estopped from taking a position in this case seemingly contrary to a position she took in obtaining Social Security disability.  The Court explained that judicial estoppel is available in order to prevent litigants for playing fast and loose with the judicial system by making inconsistent claims in separate proceedings in order to gain an unfair advantage based on the exigencies of the circumstances.  The doctrine of judicial estoppel is not composed of any fixed set of principles except for one, which is that the party against which the doctrine is applied must have taken truly inconsistent positions in different legal proceedings.  In order to consider judicial estoppel in this case the Court relied upon evidence already in the record that was well developed during the jury trial.

Employers’ judicial estoppel argument was based on the proposition that in order for the Employee to obtain Social Security benefits she had to show she was disabled, which was obviously a position that seemed to be inconsistent with the position that she could work with an accommodation in the disability discrimination claim.  The Court makes much of Employee’s position that when she ran out of leave she was no longer being paid by the Employer  and did not have medical benefits enabling her to  procure medical treatment, such as the cortisone shot for her disability.  The lack of her ability to get medical treatment resulted in a worsening of her arthritis furthering her inability to work.

The  Court noted that “… there are numerous situations where an SSD disability  and an MHRA claim can exist comfortably side-by-side.  For example, the Court noted that the application of judicial estoppel would not necessarily defeat Respondent’s claim because judicial estoppel does not automatically bar the entire claim; rather, it only estops the plaintiff from making the particular factual assertion which is inconsistent with her earlier claim.

Here, this would mean Respondent was estopped from claiming her disability did not interfere with her ability to do her job, because her SSD application said she was unable to work because of her disability.  However, as discussed above, the SSD application does not consider whether a reasonable accommodation would have enabled Respondent to continue working. Thus, Respondent would still have been free to argue her MHRA claim on the basis of Appellant’s failure to offer her reasonable accommodation.  McKinney vs  Mercy Hospital,  (ED107400, 03/17/20)

Comment Howard: The most interesting  aspect of this case was the question of judicial immunity.  On its face the position taken by the Employee with respect to her Social Security disability seemingly is a direct contradiction of the position taken in the employment discrimination disability lawsuit.  Nevertheless, the argument that the Employer’s failure to make a reasonable accommodation knocks this out. In my mind, the so-called “functional job screen” test should have been designed and validated by experts, not a PT specialist who did not seem to have the expertise for this level of work.  The  legal analysis of judicial estoppel is excellent providing  future guidance on the issue of judicial estoppel.  The trial court awarded the attorneys for the Employee almost $350,000 in attorney’s fees with $187,000 pending before the trial court for the appellate work.  Obviously, this was  a pretty expensive case for Mercy considering that the Employee was awarded only $17,000 in compensatory damages.

Public Nuisance  Existed Entirely On Private Property
Facts and Procedure: The Hensons own property in Madison County, Missouri at which Gary/Offsets Recreation manages the Offsets commercial swimming and diving operation; that property contains a quarry (previously a lead mine) that is now flooded, resulting in an approximately five-acre lake that is surrounded by bluffs of varying heights, the highest of which are at least 40 feet above the water of the lake.  The Hensons purchased the property from Gary’s father in the mid 1980’s, but, since the early 1980’s, Gary has managed the Offsets as a commercial enterprise that charges members of the public for admission to the property so that they may swim and dive in the quarry and hike, and camp overnight.  Gary/Offsets Recreation invites members of the public to the Offsets using roadside and social media advertisements, which results in upwards of hundreds of people visiting the Offsets on a given day

Since 1989, nine people have died at the Offsets.   Four people died while swimming in the quarry, while the other five died from injuries sustained from jumping or falling into the quarry from the bluffs above.  Upon entering the Offsets, guests must sign a waiver notifying them of general dangers on the property and that they swim and dive at their own risk.  Additionally, an employee of Gary/Offsets Recreation verbally warns guests not to jump off the high bluffs into the quarry, and there are signs at some locations on the Hensons’ property warning guests not to “flip” off the high points of the bluffs, that there is no lifeguard on duty, and that guests swim at their own risk.  Appellants do not station lifeguard-trained or CPR-trained staff that monitor the water at the Offsets, allow guests to bring and consume substantial amounts of alcohol on the property, do not have rescue or medical equipment readily available in case of injury (other than a flotation ring), minimally supervise guests who are swimming or diving, do not require guests to wear life vests when jumping from the bluffs or during any other activity at the Offsets, allow guests to jump from any points on the bluffs/do not instruct from where guests should or should not jump, and have warning signs posted only at certain points on the property, none of which warn of the dangers of swimming, falling, jumping, flipping, or diving in the quarry.

The State filed a petition against Gary Henson (“Gary”), Rebecca Henson (“Rebecca”)(collectively, “the Hensons”), and Offsets Recreation, LLC (“Offsets Recreation”) requesting a permanent injunction and its motion for preliminary injunction against Appellants on the grounds that Appellants’ operation of the Offsets was a public nuisance, and after a bench trial, the trial court concluded that Appellants’ operation of the Offsets constituted a public nuisance because it interfered with the “common community right of public safety.”

After a bench trial the trial court entered its judgment concluding that the Offsets was a public nuisance and permanently enjoining Appellants from operating the Offsets as a commercial swimming and diving facility and/or charging admission to the Offsets until certain conditions were met.  In its judgment, the trial court made detailed findings of fact regarding Appellants’ ownership and operation of the Offsets, the deaths that have occurred at the Offsets since 1989, the dangerous conditions present at the Offsets, and the measures that Appellants did or did not take to prevent and prepare for injuries caused by those dangerous conditions.  An appeal was taken to the Eastern District.

 Analysis: The Hensons argued that the trial court erred in concluding that Appellants’ commercial operation of the Offsets was a public nuisance because “Missouri does not recognize a cause of action for a public nuisance where the alleged activities are solely on private property and where the public has no right to enter and which enterprise does not interfer[e] with a right common to the general public.”

To this, the Court responded by noting that there is abundant Missouri precedent making it clear that a public nuisance may be found where a nuisance is located at “a place where the public is likely to congregate, a place where the public has a right to go, or a place where the public is likely to come into contact with the nuisance.”  A public nuisance may be found “where the public have the legal right to go or congregate, or where they are likely to come within the sphere of its influence

Even though no Missouri case has addressed a factual situation, where a property owner actually invited people to the alleged nuisance entirely on private property there are numerous Missouri cases finding the existence of a public nuisance where the nuisance was present on private property in conjunction with a commercial enterprise thereby interfering with the public’s common right to health, welfare, and/or safety.

The Supreme Court of Missouri made clear in that case (which has not been overruled or distinguished) that use of private property to conduct and maintain activity that draws members of the public to the property, yet simultaneously interferes with the common right to safety of the members of the public who partake in that activity, may constitute a public nuisance.

In this case, the Court concluded that the entire operation is centered on inviting members of the general public to the Hensons’ property using roadside signs and social media.  They invite the public onto their  property to engage in outdoor activities (relevant to this case, swimming and diving) in exchange for an admission charge.  As a direct result of Appellants’ invitation, members of the public congregate at the Offsets and are likely to come into contact with the nuisance at the Offsets, where they are likely to come within the sphere of its influence.  Over a period of 30 years some nine people died due to the inherently dangerous conditions on the property, which the Court refused “to turn a blind eye.”  State of the  Missouri, vs. Henson, (ED107970, 04/14/20)

Comment Howard:  This 19 page case is the best collection of authority  on  what constitutes a public nuisance that I have seen and should be earmarked for future use.   Typically when the local government attorney is confronted with the  kind of situation described  in the opinion you are the last resort and it will require you to dig deep into legal authority to find a solution when one is desperately needed.  As local government  lawyers we struggle with the kind of situations described in the opinion.  Interestingly, the basic claim made by the Henson’s was that Missouri does not recognize a cause of action for a public nuisance where the alleged activities occur on private property and where the public has no right to enter and which enterprise does not interfere with a right common to the general public.  The Court demolishes in its opinion the claim that the public nuisance doctrine does not extend to private property in this situation.  In an interesting twist the public nuisance concept of the May 4, 2020, addition of Missouri Lawyers Weekly discusses the public nuisance lawsuit filed against a plant alleging that the company is not doing enough to protect workers from Covid–19.   An attorney for the plaintiffs in the case noted that the public nuisance theory is important because it shows a connection between workplace safety and public safety, which extends into the community.

Other Cases Of Interest
Due Process With Dogs:
There is no right to procedural  due process when a pet escapes from the owner.  Dog owners “…forfeit many of th[eir] possessory interests when they allow their dogs to run at large, unleashed, uncontrolled, and unsupervised, for at that point the dog ceases to become simply a personal effect and takes on the nature of a public nuisance.” Therefore, the spaying and  adoption by local officials did not violate any due process rights.   Lunon v. Botsford, (8th Cir., 18-3314, 12/27/19)

Due Process Administrative Hearing:
Because a de novo trial is an original proceeding challenging due process violations of the original administrative proceeding is outside the trial court’s authority.  Waters v.  Director of Revenue, (WD82376,10/08/19)

Police Power:
City ordinance that use of structures for the enclosure or shelter for poultry within 150 feet from lot lines is valid exercise of police power.  City of Bellefontaine  Neighbors vs  Carroll, (ED 107710, 01/14/20)