August Newsletter (Issue 08-2022)

Mandamus Does Not Lie Against Missouri Commission On Human Rights To Issue Right To Sue Letter

Facts and Procedure: Swoboda filed a charge of discrimination against his employer, the Board of Police Commissioners of Kansas City (the “Board”), and the Law Firm, which represented the Board.  The charge alleged that in 2014, while Swoboda was a sergeant with the Kansas City Police Department, he opposed the purported discrimination against another officer and supported that individual in a formal legal claim against the Board.  When Swoboda was deposed in the case, an attorney from the Law Firm, allegedly informed him he should think about his career as he testified.  Again, before Swoboda testified at trial, an attorney from the Law Firm again, allegedly advised him to consider how his testimony could hurt the Board.  After a mistrial, the other officer’s claim was settled.

The charge named the Board as well as the Law Firm and listed retaliation, disability, and “[o]ther: [a]iding and [a]betting” as the types of discrimination.  In March 2019, the Commission issued a letter regarding Swoboda’s claims against the Law Firm:

“The investigation of the [] complaint has determined that the [Commission] lacks jurisdiction over this matter because there is no employer-employee relationship between [Swoboda] and [the Law Firm]. Therefore, [the Commission] is administratively closing this case and terminating all [] proceedings relating to your complaint.”

Swoboda then filed a petition for a writ of mandamus in the circuit court, seeking to require the Commission to vacate its dismissal and accept and investigate his claim.  The circuit court directed the Commission to respond to the petition.  The Law Firm filed a motion to intervene, which the court later sustained without objection. The Commission and the Law Firm also filed motions to dismiss, alleging Swoboda failed to state a claim upon which relief could be granted.  The circuit court entered an order, judgment, and permanent writ of mandamus, finding the Commission erroneously dismissed Swoboda’s charge without issuing a right-to-sue letter and directing the Commission to rescind its dismissal, accept the charge, and conduct an investigation.  The Commission and the Law Firm appeal to the Missouri Supreme Court.

Analysis: The Commission and the Law Firm contend that the circuit court erred by issuing a permanent writ of mandamus because such relief was inappropriate for different reasons.  The Commission argued that the decision to administratively close a complaint for lack of jurisdiction is a discretionary action that cannot be controlled by mandamus.  The Law Firm argued that mandamus was improper because Swoboda was attempting to establish a new right rather than enforce an existing right, noting there was no employment relationship between Swoboda and the Firm.

The Court begins its analysis by examining, Article V, Section 18 of the Missouri Constitution, relating to administrative decisions, which provides, that reviewing courts are required to ascertain whether the decision of an administrative agency is authorized by law.  Since the proceeding was a noncontested case, review falls under Section 536.150.1, which provides that review may be obtained by a suit for injunction, certiorari, mandamus, prohibition or other appropriate action to determine rights, duties or privileges.

The Court states this case presents the following issue: “When an individual seeks judicial review of a nonconstested case by filing a petition for a writ of mandamus, they must establish a clear, unequivocal, specific right to relief.”

In response to this question the Court explains:

“Article V, Section 18 provides review must be conducted “as provided by law” and does not state what must be established to obtain specific forms of relief. Instead, it explains how reviewing courts analyze the propriety of agency decisions. Of course, the standard remains relevant when individuals seek relief via a writ of mandamus because reviewing courts must apply both the requirement that an individual seeking recourse prove a clear, unequivocal, specific right and ascertain whether the agency’s decision was authorized by law.”

The Court holds that absent an employer-employee relationship no right exists, based on the relevant statutory provisions.

“Mandamus proceedings may be used to enforce a clear, specific, unequivocal right that is presently existing.  They cannot be utilized to adjudicate whether an individual is afforded a right but, rather, can compel performance of a right only that has already been established.  Here, the ability to pursue a claim under Section 213.070.1, absent an employer-employee relationship, does not plainly follow from relevant statutory provisions.”

State ex rel. Swoboda v. Missouri Commission on Hyman Rights, (SC99000, 08/09/22)

Comment Howard: This was a 4 to 3 opinion, with a very vigorous 24-page dissent. The majority opinion was 22 pages long, spending a large part of its opinion rebutting the dissent.

So, what can we garner from this?

The majority opinion states that the law has not changed, while the dissent argues that this is a momentous change. The majority states that in order for common law mandamus to lie the right has to be clearly established.  This has always been true, because mandamus is a very limited remedy. Mandamus is an order directing an official to perform his or her ministerial duty. The dissent answers that how you characterize the form of relief (whether injunction, mandamus, writ of certiorari, prohibition or other appropriate relief), is not important.  Surely, some plaintiffs will get kicked out of court because they guessed wrong, as the dissent argues.

The majority holds that there has to be an employment relationship between or with an employee, which in this case, clearly did not exist.  But what about agency, conspiracy, and aiding and abetting.  Surely, this connection would suffice, even though here would be no employment relationship.  Of course, there is no reference to this very analysis followed by the Western District in its now withdrawn opinion.  If you investigate, you can rule out whether or not someone was aiding or abetting, or engaged in a conspiracy. Of course, the overworked MHRC, will kick out cases getting rid of what looks like chaff.  Expect the MHRC to continue its efforts to eliminate claims if they can.

The Court did not rule on the MCHR argument that the decision to administratively close a complaint for lack of jurisdiction is a discretionary action that cannot be controlled by mandamus, leaving that an open question.

Tax Exemption For Solar Energy Systems Not Held For Resale Violated Constitution That Prohibited All Exemptions Except Those Specifically Enumerated

Facts and Procedure: Springfield Solar’s Equipment is located on property owned by City Utilities of Springfield.  Springfield Solar and City Utilities entered into an agreement, which gave City Utilities the option to purchase the Equipment 1) at the end of the seventh contract year, or 2) at the end of any subsequent contract year, or 3) at the end of the term of the agreement.  The agreement also required City Utilities to purchase all energy the Equipment generated during the term of the contract.

Beginning in 2017, the Assessor for Greene County (Assessor) began assessing the Equipment for property taxes.  Springfield Solar appealed the assessment to the Missouri State Tax Commission, arguing the Equipment was tax-exempt under Section 137.100(10), which states: “[s]olar energy systems not held for resale” are exempt from taxation “for state, county or local purposes.”  The State Tax Commission ruled in favor of Springfield Solar.  The Assessor appealed to Circuit court, which also ruled against the Assessor.  The Assessor then appealed to the Missouri Supreme Court.

Analysis: The Southern District frames the issue thus: Whether or not Section 137.100(10), which establishes an exemption for a “solar energy system not held for resale” is constitutionally valid.

The Court notes the constitutional framework.  “The constitution sets out the universe of property exempt from taxation.”  Article X, Section 6 of the Missouri Constitution expressly exempts certain categories of property from taxation while permitting the General Assembly to establish tax exemptions for other specific categories of property, which does not include “solar energy systems not held for resale.”

Article X, Section 6 of the constitution “clearly expresses the people’s intent that only a limited number of properties may be exempted from taxation” by providing that “All laws exempting from taxation property other than the property enumerated in this article, shall be void.”

Article X, Section 4(a) states, in relevant part:

“All taxable property shall be classified for tax purposes as follows: class 1, real property; class 2, tangible personal property; class 3, intangible personal property. The general assembly, by general law, may provide for further classification within classes 2 and 3, based solely on the nature and characteristics of the property, and not on the nature, residence or business of the owner, or the amount owned.”

Article X, Section 4(b) further provides: “Property in classes 1 and 2 and subclasses of those classes, shall be assessed for tax purposes at its value or such percentage of its value as may be fixed by law for each class and for each subclass.”

Springfield Solar admits that its solar energy system does not come within Article X, Section 6 but instead argues Sections 4(a) and 4(b) of the Constitution grants the legislature implied authority to create tax exemptions for any type of real or personal property. It argued that, by providing the legislature with the authority to create subclasses of tangible personal property and fix the tax rates for those subclasses, those two provisions implicitly permit the legislature to set a zero-percent tax rate—i.e., a tax exemption—for any subclass of tangible personal property it so chooses.

The Court notes that other provisions like section 4(c) and section 7 provide express authority for the legislature to create tax exemptions for specific types of property but not this kind of property.

The Court concluded that this would require the Court to ignore the explicit language in Article X, Section 6 indicating all property tax exemptions not enumerated in Article X shall be void. ‘Further, such an interpretation would completely undermine the purpose of Article X, Section 6.”  Johnson v. Springfield Solar, (SC99441, 08/09/22)

Comment Howard: There may be other instances where the legislature has adopted legislation that violates Article X, Section 6.  Consider the highly popular personal property tax exemption for homeowner, in Section 137.100(6), which reads: (6) Household goods, furniture, wearing apparel and articles of personal use and adornment, as defined by the state tax commission, owned and used by a person in his home or dwelling place;

Southern District Holds That DNR Has Authority To Establish Scenic Easement

Introduction: Having started out my career as a junkyard lawyer eons ago, young and very green with the Missouri Highway Commission, enforcing the Lady Bird Highway Beautification Law, I have been looking for a case that extolls the authority to protect Missouri’s scenic beauty.  Now, I finally have it.  McGibney, et al. vs. Missouri Department of Natural Resources is a classic masterpiece, which now stands out as the leading case in Missouri on scenic easements and beautification.

Facts and Procedure: The facts are extensive, but the basics are pretty simple.  In 1968, Congress designated a 44-mile portion of the Eleven Point River in southeast Missouri a “Scenic River” under the Wild and Scenic Rivers Act, (Act).  This stretch of the river was comprised of nineteen (19) parcels of riverfront land, including the Pigman Ranch property and the properties now owned by Respondents, that subsequently were encumbered by scenic easements.  These easements are held and administered by the United States Forest Service (“USFS”).

In 1979, Reed Pigman, Jr., entered into an agreement granting the United States of America a scenic easement (the “Scenic Easement”) over a portion of the Pigman Ranch. The Scenic Easement encumbers approximately 625 acres along the west side of a five (5) mile stretch of the Eleven Point River.  The Scenic Easement was authorized by the Wild and Scenic Rivers Act of 1968.

The Scenic Easement was authorized by the Wild and Scenic Rivers Act of 1968 (the “Act”)


It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. The Congress declares that the established national policy of dam and other construction at appropriate sections of the rivers of the United States needs to be complemented by a policy that would preserve other selected rivers or sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes. (Court Emphasis)

The first page of the Scenic Easement states:

“WHEREAS, the Grantee, through the Forest Service, in accordance with P.L. 90-542 (82 Stat. 906), as amended by P.L. 93-279 (88 Stat. 122), desires to administer such land, to provide for and protect the scenic, recreational, geologic, fish and wildlife, historic, cultural, and other similar natural values of the free-flowing Eleven Point River and its immediate environment, and other lands or interests therein of Grantee located within the River Zone, and to prevent any developments that will tend to mar or detract from their scenic, recreational, geologic, fish and wildlife, historical, cultural, or other similar values and natural qualities, and to that end exercise such reasonable controls over the land within the areas described in Exhibit “A” attached hereto as may be necessary to accomplish such objectives . . . . (Court Emphasis)

The Scenic Easement prohibits public access and the construction of buildings or other facilities within its boundaries.  Under the Scenic Easement, DNR, as the landowner, may in consultation with USFS: plant and/or selectively cut or prune trees and shrubs to restore or to maintain the natural river quality and scenic views, and for the purposes of disease prevention measures; perform scenic, aesthetic, historical, fish and wildlife, and sanitation restoration as may be deemed necessary or desirable to promote and to protect the natural river qualities; and perform state wildlife management activities.  DNR may also mow, hay, limb diseased trees, or choose to do nothing with the land covered by the Scenic Easement.

The Eleven Point State Park land has historical and cultural significance due, in part, to abundant and distinctive natural features, including the Eleven Point River, forests, birds, and flora that are in nearly pristine condition.  Additionally, the land has springs and ground water conduits that are important for water quality.  The views from the high ground on the west side of the Park outside the Scenic Easement allow visitors to behold the vast expanse of the Eleven Point river valley.

In 2017, McGibney and others, (Respondent’s) brought a declaratory judgment action asking the Oregon County Circuit Court to declare that DNR’s 2016 acquisition of properties along the Eleven Point Scenic River for the creation of a state park was invalid because DNR could not lawfully operate a state park and simultaneously comply with the terms of the Scenic Easement.  Respondent’s further requested that the trial court declare that DNR had no authority to promulgate rules or regulations to acquire and possess such encumbered land or otherwise expend any tax money for the maintenance, improvement, acquisition or preservation of those encumbered properties.

The circuit court found that §253.040 defined “the authority of DNR to acquire real property for ‘park or parkway purposes . . . where such action would promote the park program and the general welfare;’ “that the purpose of the park, which bears the name Eleven Point River Park, was for access, use and enjoyment of the Eleven Point River, presumably by the public whose funds are or were expended in the acquisition and maintenance of the property:”  that “the [Act] prohibits public use and the state park enabling statute provides the lands may be acquired by the State for ‘use by the public;’” It held that “[t]he two uses seem to be in direct opposition,” and stated that it “is unable to find any use by the public allowed under the provisions of the Act;” It pronounced that it did not believe any such use is intended to be allowed under the Act; It cited to the deeds from the respective grantors to DNR and determined that it could not find any public use for real property upon which there exists such a restrictive easement excluding use by the public.  It went on to point out examples of uses prohibited by the Scenic Easement, including campsite usage, road or building construction, launching of watercraft, utility right of way, easement access to the river, public entry, and public vehicle access.  It found that DNR had acquired state park lands which cannot under any reasonable interpretation be used by the public as a park and therefore such actions were arbitrary and capricious.

The circuit court issued judgment in favor of Respondents and ordered DNR “to divest itself of ownership of those lands located within the bounds of the Wild and Scenic Easement.” DNR appealed to the Southern District.

Analysis: The Southern District, states this case is essentially, about:

“…whether DNR, through its Division of State Parks, has the authority to acquire, hold, and maintain land as a state park when a portion of the land is encumbered by a federal easement restricting the public’s access.”

Statutory Authority – Sections 253.040 and 253.010 establish DNR’s clear and unambiguous authority to acquire any land to hold, preserve, improve, and maintain as a park.  Missouri law grants DNR expansive authority and discretion under § 253.040.1, to acquire and maintain any land it sees fit for park purposes

DNR may acquire any lands for park or parkway purposes and no other restriction or limitation is placed on DNR under § 253.040.1.

Cultural and Scenic Value of Eleven Point State Park – It was undisputed that both properties have recreational and cultural value due to their scenic nature, distinctive characteristics, and wild and natural features.  Park visitors will be able to behold the expansive vista of the Eleven Point River and the lands encumbered by the Scenic Easement from many portions of the park not subject to the easement. These properties fall within the statutory definition of a “park” that DNR is authorized to acquire and maintain.

A large part of the balance of the Opinion rebuts the erroneous conclusions reached by the circuit court. McGibney v. Missouri Department of Natural Resources, (SD36846, 08/26/22)

Comment Howard: It is hard to find a circuit court opinion that was so far off base and so thoroughly debunked.  On the other hand, the Oregon County circuit judge may have reassured himself of reelection for life.  I know, having been to Oregon County as an out of town visiting attorney and having been on several float trips on the Eleven Point this is a beautiful area.  So, if you not had a chance, you need to float the Eleven Point.  Put this on your bucket list.  Enjoy the unparalleled beauty of the free flowing Eleven Point.

Road In RV Park Was Not Public Road

Facts and Procedure: While this case involved the question of whether or not the uninsured driver provision of an insurance policy provides coverage, our interest in the matter, is due to the discussion of what constitutes a public road.

Castle View Estates (the “RV Park”) is a membership-owned RV park.  The RV Park is private property. Castle View Drive, a road that runs through the RV Park, is owned and maintained not by the state or a political subdivision, but by the RV Park.  Because Castle View Drive is a private road, the property owners determine usage rules, such as a speed limit and road signage.  Signs are not posted by the state.  No state-issued driver’s license is required to operate a vehicle on Castle View Drive.

M.P. was visiting people he knew at the RV Park. They decided to go to the tennis and basketball courts. Some rode in golf carts; M.P. rode a bicycle.  On the way to the courts, M.P. was struck by a golf cart and injured. The accident occurred “in the general area of the parking spaces adjacent to Castle View Drive,” inside the RV Park.

At the time of the accident, M.P. was an insured under an automobile insurance policy issued by Alfa Specialty Insurance Corporation, which later became Trexis One Insurance Corporation (“Trexis”). The policy provided that Trexis would pay compensatory damages an insured is legally entitled to recover for an insured’s bodily injury, caused by an accident, for which liability arose out of an owner or operator’s ownership, maintenance, or use of an uninsured motor vehicle. The policy excludes from the definition of “uninsured motor vehicle” any vehicle or equipment “[d]esigned mainly for use off public roads while not on public roads.”

  1. M.P. filed a claim under the uninsured motorist (“UM”) provisions of the Trexis policy. Trexis denied the claim because the golf cart was designed mainly for use off public roads and the accident occurred in a parking lot, which was not a public road.  MP then filed suit.

At the bench trial, the material dispute was whether liability arose out of use of the golf cart on a public road.  After taking evidence, the trial court ruled in favor of Trexis, finding: (1) Castle View Drive was not open for free and common use by the public and was not used by the public freely and commonly; (2) the golf cart was not on a public road at the time M.P. was injured and the accident did not arise out of the golf cart’s ownership, maintenance, or use on a public road; and therefore (3) Appellant did not show liability of the operator of the golf cart arose out of use of an uninsured motor vehicle as defined in the policy. M. P. appealed to the Southern District.

Analysis: The Southern District starts its analysis with an examination of whether coverage exists under the policy definitions.  Under Missouri law an automobile liability insurance policy is not required to extend to off-road vehicles involved in off-road accidents. The golf cart was a motor vehicle designed mainly for use off public roads.  However, its design alone does not remove it from consideration as a motor vehicle for UM purposes.

A “public road” was not defined in the policy.  Both sides claim the meaning of “public road” is unambiguous, they disagree on the definition and the proof required to meet that definition.

Trexis contended.  that the definition of a “public road” must be given its plain, ordinary meaning, which would be “an open way for vehicles, accessible to or shared by all members of the community.” MP argued that a “public road” has been judicially defined in Missouri as: (1) any road to which the public has actual access and the use of which is free and common to all citizens. The Southern District concluded that under this standard, the meaning of the term “road” contemplates a course or path, ordinarily used for vehicular traffic, with some sort of boundaries. The Court explained, that Roads are dedicated (by plat or easement) are clearly public roads. Public use can also make a road public if the general public (1) has actual access to the road, AND (2) the general public uses the road freely and commonly.

There was evidence that the road and parking lot were private property; that one end of the road was barred for a portion of the year; that the public does not drive through the RV Park as a shortcut to access a public road; that guests who enter the RV Park by Castle View Drive are to check in with the office; that no state-issued driver’s license is required to operate a vehicle on Castle View Drive; that postal, delivery, and emergency vehicles did not freely drive on Castle View drive; and other evidence consistent with the trial court’s findings.  Based on the evidence it was clear that the general public did not have access to the road nor did they use it freely and commonly.  Circuit court judgment for Trexis One Ins is affirmed.  Zipfel v. Trexis One Ins., (SD37105, 07/29/22)

Missouri Commission on Human Rights May Rely On Investigation Report By The Equal Opportunity Commission To Dismiss Complaint

Missouri Commission on Human Rights may rely on investigation report by the Equal Opportunity Commission conducted pursuant to cooperation agreement to dismiss claim for lack of probable cause without any further investigation.  Footnote #2 explains why no right to sue letter was issued.

“Unlike 42 U.S.C. § 2000e-5(f)(1), 8 CSR 60-2.025(7)(A) does not provide for the MCHR to issue a right-to-sue letter after the MCHR dismisses a complaint for lack of probable cause. Instead, 8 CSR 60-2.025(7)(B)(6) and Section 213.111.1, RSMo Cum. Supp. 2021, state that the MCHR can issue notice of the right to sue only if it has not completed its administrative processing within 180 days from the filing of the complaint and the complainant makes a written request for a right-to-sue letter. The 180-day period had not yet expired when the MCHR dismissed Moore’s claim.  Section 213.111.1 further provides that the MCHR “may not at any other time or for any other reason issue” a right-to-sue letter.”

State EX Rel; Moore v. Missouri Commission on Human Rights (WD85120, 08/23/22)

“Ten Things Lawyers Should Know (but don’t) About Parliamentary Procedure”

The August 22, 2022 edition of Missouri Lawyers Weekly has a good discussion of “Ten things lawyers should know (but don’t) about parliamentary procedure” by Jim Slaughter. Well worth the read. If you do not get Missouri Lawyers Weekly you can get this article online in the North Carolina Lawyers Weekly, page 4 by clicking here.

EMTALA Overrides State Law In Pregnancy Emergencies

There is a very good article in the August 15, 2022 Edition of Missouri Lawyers Weekly titled: CMS says that EMTALA overrides state law in pregnancy emergencies by Dowling, Foarde, and Scheck from Stinson. You may read the CMA memorandum issued to remind hospitals of their existing obligation to comply with EMTALA by clicking here.

Failure To Include The Required Statutory Language For Notice Of Arbitration Was Fatal To Right To Arbitrate

In Wind v. McClure, the Eastern District held that failure to include the required statutory language for notice of arbitration was fatal to the right to arbitrate, even though agreement had a provision mandating arbitration.

435.460.  Notice of arbitration provisions required. — Each contract subject to the provisions of Sections 435.350 to 435.470 shall include adjacent to, or above, the space provided for signatures a statement, in ten point capital letters, which reads substantially as follows:


Wind v. McClure, (ED 109818, 04/26/22)

8th Circuit Discusses Exceptions To Massachusetts Rule In Slip And Fall Case

Facts and Procedure: Cleek v. Ameristar Casino involves application of the Massachusetts Rule (Rule) to a slip and fall, which Rule applies to local government.  In this case, the 8th Circuit considers the Rule and reviews the exceptions to determine if the accident fell within any of the three exceptions to the Rule.

Ameristar owns and operates a casino in Clay County, Missouri.  James Cleek had visited the casino on several occasions over many years and patronized it again on February 26, 2019.  He arrived at the casino in the evening, ate dinner, and then briefly left the premises.  He returned a short time later, parked his car, and reentered the casino.

Earlier that evening, a winter weather advisory had been issued for the Kansas City area, including Clay County, lasting overnight and into the next morning.  When Mr. Cleek returned to the casino, the storm had not yet begun, but he noticed salt in the parking lot and on uncovered driveways.  After he reentered the building, freezing rain began to fall, causing icy conditions throughout the greater Kansas City area, including the Ameristar’s property.  Mr. Cleek left the casino shortly before midnight.  On an exterior walkway near the casino entrance, Mr. Cleek slipped on a patch of ice, fell, and was injured.  Ameristar had neither treated the walkway where Mr. Cleek fell with salt or ice melt, nor otherwise removed the ice.

The Cleeks filed suit against Ameristar in state court, alleging that its negligence caused Mr. Cleek’s injuries.  Ameristar removed the case to federal court.  Ameristar filed a motion for summary judgment alleging that there was a general weather condition in the Kansas City area and that Ameristar had no duty to do anything while the general condition was ongoing under the Massachusetts Rule. The Cleeks argued that the actions of Ameristar fell within the exceptions to the Rule.  Ameristar filed a motion for summary judgment, which was sustained and the Cleek’s appealed to the 8th Circuit.

Analysis: After determining that the Massachusetts Rule applied, the 8th Circuit examines whether or not the exceptions to the Rule applied.

Course-of-Conduct – First, the Cleeks’ contended that the course-of-conduct exception applied because Mr. Cleek saw salt in the parking lot and driveway areas when he returned to the casino not long before the storm began.  According to the Cleeks, by altering a portion of the premises, Ameristar assumed a duty to reasonably protect its patrons from the icy conditions anywhere on the property.  The 8th Circuit rejected this argument because Cleek did not fall in a driveway or parking lot.  He fell on the exitway from the casino.  Missouri courts limit application of the course-of-conduct exception to situations where the owner has altered the condition of snow or ice in the same area where the plaintiff’s accident occurs.

Previous Conduct- Next Cleek’s contended that Ameristar had removed snow and ice over a period of time.  The Cleeks argued that the district court misapplied Missouri law by focusing narrowly on the time between the accumulation of ice and the injury, rather than on Ameristar’s past conduct. The 8th Circuit rejected this argument because Missouri courts have applied this exception only when the landowner takes some action to alter the condition of the snow or ice between the time it falls and the plaintiff’s injury.

Implied Agreement – Finally, the Cleeks’ argued that Ameristar assumed a duty to remove or treat the ice on the walkway by agreement because Mr. Cleek had patronized the casino regularly over sixteen years and Ameristar had timely and thoroughly treated ice accumulations when they occurred.  The Cleeks argued that he relied on that practice in his continued decisions to visit the property.  In effect, an implied promise.  The 8th Circuit finds that this argument is flawed because there was no evidence that Ameristar and Mr. Cleek reached a “meeting of the minds,” whereby Ameristar agreed to continue its alleged practice of prompt snow and ice removal in exchange for his agreement to continue visiting the casino.  Cleek v. Ameristar Casino, (8th Cir., 21-3067, 08/24/22)

Comment Howard: In the March 2021, MMAA Newsletter, the origins of the Massachusetts Rule are discussed.  Slip and falls on government property are a of part of what local government lawyers do; therefore, a good understanding of the Rule is important.

To me, parts of the Rule are insane.  If you take action in the midst of a snow storm you lose your defenses even though this is the right thing to do and could prevent injuries.  Why punish property owners for taking action to protect their customers?  Seems like a legislative fix is needed, so that there is no liability for actions taken in the midst of the general condition snow storm.  Property owners who do not take action during a general condition would still be protected from liability.

Also, I thought removal of the state court action to federal court was a very good strategic move because you could be assured that the federal court would simply apply Missouri law.