Dangerous Condition

Calumet Inn (Inn) was located in the City of Pipestone, Minnesota (City).  The Inn had history of being unsafe.  One incident included a window falling off and there was a separate incident where a 15 pound stone fell off the building.  Douglas Fortune (Fortune) was the building administrator for the City of Pipestone.  Based on the issues Fortune believed that the condition of the Inn required action, and he ordered the sidewalk below the Inn barricaded off and placed the Inn on the city’s “blighted list”.  Five months after the stone fell Fortune advised that the Inn would need to be closed because the necessary repairs to the walls and windows had not been made.  The repairs had still not been made after an additional three months had been provided.  After the final warning the Inn was able to make the repairs with the assistance of a financial loan from the City.  

However, the issues with the Inn were not resolved.  Almost a year after repairs had been made to the Inn the fire marshal conducted an inspection and observed nine fire code violations.  The fire marshal set a deadline for compliance and a subsequent inspection. Two months after the fire marshal’s inspection a fire broke out in a guest’s room at the Inn.  The sprinkler system did not activate.  Even after a fire placed guest in danger the Inn had failed to correct the fire code violations a month after the fire.  The Inn was provided additional time to come into compliance and one of the owners was notified that a failure to comply would result in the emergency closure.  

Upon the next inspection the fire marshal determined that five violations had not been corrected, and the fire marshal documented eight new violations. As a result of the ongoing violations Fortune issued an order to close the Inn due to his belief that the Inn posed a danger to the public and the occupants in the building.

The Inn’s owners then requested that the City Council reverse the closure order or hold a hearing.  City Council did not reverse the order or take action.  Fortune continued to try to work with the Inn’s owners and subsequently agreed to lift the order if the four most imminent and compelling safety hazards were corrected.  The Inn’s owner did correct the four repairs that had been requested by Fortune, but the fire marshal did not permit the Inn to open until all of the repairs had been completed.  The final repairs were completed seven months after the Inn was closed.  The Inn reopened and it remained open for additional 18 months after the repairs had been completed and then it closed. 

The Inn’s owners sued arguing that the closure order (1) violated their FourteenthAmendment procedural due process rights: (2) qualified immunity should not shield Fortune in his individual capacity; and (3) the closure order was uncompensated regulatory taking in violation of the Fifth Amendment.

The 8^th Circuit reviewed examined if there existed a procedural due process violation.  A “procedural due process claims require a two-step analysis. Initially, a plaintiff must demonstrate that the state deprived him of some ‘life, liberty, or property’ interest. Then the plaintiff must then establish that the state deprived him of that interest without sufficient ‘process.’” Krentz v. Robertson, 228 F.3d 897, 902 (8th Cir. 2000). In determining sufficient process, this court will review (1) the private interest affected; (2) the risk of erroneous deprivation of such interest, including the probative value of substitute or additional safeguards; and (3) the government’s interests, including the function involved and the burdens that any additional or substitute procedural requirements would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The inquiry “focuses not on the merits of a deprivation, but on whether the State circumscribed the deprivation with constitutionally adequate procedures.” Parrish v. Mallinger, 133 F.3d 612, 615 (8th Cir. 1998). 

Fortune’s temporary closure of the Inn did not amount to a regulatory taking proscribed by the Fifth Amendment. A lawful exercise of a state’s police power to regulate in the interest of public health and safety is generally not a taking. Outdoor Graphics, Inc. v. City of Burlington, Iowa, 103 F.3d 690, 695 (8th Cir. 1996). “For example, the government owes a landowner no compensation for requiring him to abate a nuisance on his property, because he never had a right to engage in the nuisance in the first place.” Cedar Point Nursery v. Hassid, 594 U.S. 139, 160 (2021).

Fortune was acting pursuant to the Minnesota State Building Codes and closed the Inn to protect the public and ensure the health and safety of the community.  The owner was not entitled to operate the business under circumstances that posed a danger to the community which were well documented. ReVamped LLC v. City Pipestone, Minnesota, (8^th Circuit 25-1076, 12/23/25)

Public Sidewalk Dangerous Condition 

Tina Hursman was visiting a lawyer’s office in downtown Sedalia.  After parking her car, she walked to the law office and then she returned to her car.  While Hursman was returning to her car she slipped on a step located within the sidewalk and she fell to the ground and sustained physical injuries.  The sidewalk at this location had been altered to improve accessibility for people in wheelchairs and with mobility disabilities that are crossing the street and would be unable to step over a street curb.  The alteration was a cut out v slope from the street into the sidewalk. The design cut into the elevated sidewalk created a distinct step-down dip in the sidewalk which was marked with paint but not protected by a guard rail.  Hursman filed suit against the City alleging that the change in elevation was a dangerous condition which created a reasonably foreseeable risk of harm to pedestrians, and that Hursman’s injury directly resulted from the dangerous condition.

The City filed a motion for summary judgment arguing that (1) Hursman could not establish that her injury directly resulted from the step-down on the sidewalk; (2) Hursman could not establish that the City had notice of the dangerous condition on its sidewalk; and (3) any dangerous condition of the sidewalk was open and obvious.

Husman offered a safety expert that offered testimony that that the change in elevation where Hursman fell was dangerous and not reasonably safe, because pedestrians do not expect to encounter a change in elevation on a sidewalk, and when they encounter one, they can lose their balance and fall. 

The trial court granted the City’s motion for summary judgment on the basis that the sidewalk was not in disrepair; that no foreign substance or object had been placed on the sidewalk; that the drop-off “was only five inches”; and that the edge of the step had been marked with yellow paint. The court dismissed Safety Expert’s opinion that painting the step was not a reasonable safeguard. Hursman appealed the decision to the Western District.

The Western District reversed and remanded finding that the expert testimony provided a genuine question of fact that would need to be resolved by the jury. Hursman v. City of Sedalia, (WD87919, 11/25/26)

Change In Charter Amendment Did Not Violate Missouri Constitution

The City of St Louis enacted an ordinance that would create a “Charter Commission” that would establish a process where the Commission would submit proposals that would amend or revise the City Charter which would then be approved or rejected by voters in an election.  The proposal to create a Charter Commission was approved by the voters.  

After the proposal passed the City was sued by Charles Lane, who sought a declaratory judgment, that the Charter Amendment was invalid and violated Article VI, Section 32(a) of the Missouri Constitution, which provides for the amendment of the charter of the City of St. Louis.  Lane argued that the process bypassed the lawmaking body in St. Louis which is the Board of Aldermans.

Upon a motion for summary judgment the City argued the Charter Amendment is valid because the Charter Commission’s role is to “frame” the proposed amendments or revisions, leaving their “submission” as an undertaking of the Board of Alderman. The City also argued that the amendment process shall be “in accordance with the provisions of the Missouri Constitution.”

The circuit court concluded the City as a constitutional charter city with a home rule charter, has the authority not only to amend its charter, but to amend the methods and process by which amendments may be pursued. Lane appealed the decision of the circuit court.

The Eastern District affirmed the circuit court’s decision.  It determined that by looking at the Charter Amendment in its entirety, the new charter provision provided that proposals framed by the Charter Commission would be submitted to the voters by the Board of Alderman, the lawmaking body of the city. Lane v. City of St. Louis, (ED113533, 11/25/25)

Motion to Suppress Was An Untimely Appeal

Amanda Mire (Mire) was charged with Driving While Intoxicated. Mire filed a motion to suppress statements and physical evidence on the basis that statements and evidence had been collected after medical personnel had involuntarily administered a drug to calm her down.  The defense specifically sought to suppress the evidence from the blood draw and statements made after the drug was administered, because Mire could not have knowingly consented to the blood draw after the drug was administered. The trial court sustained the motion to suppress, and the state appealed the decision.

What became the primary issue in the appeal was whether the appeal had been filed in time. The Missouri Supreme Court provided that “A party’s right to an appeal in this state is derived solely from statute.” P.D.E. v. Juv. Officer, 669 S.W.3d 129, 131 (Mo. banc 2023). Section 547.200 enumerates circumstances in which the state may appeal in criminal cases. An interlocutory appeal may be brought by the state “from any order or judgment the substantive effect of which results in suppressing evidence.” Section 547.200.1(3), .3. That appeal “shall be filed in the appropriate court within five days of the entry of the order of the trial court.” Section 547.200.4.3 “The timely filing of a notice of appeal is a jurisdictional requirement” and “an appellate court must dismiss an appeal if the notice of appeal is untimely.” P.D.E., 669 S.W.3d at 132. 

At issue was that after conducting the suppression hearing the judge issued a ruling that the evidence would be suppressed and documented that order with a written docket entry.  The court did not issue a written findings of fact until 12 days after the court issued its original order. The docket entry unequivocally expressed the circuit court’s ruling suppressing the evidence. 

According to the court neither Section 547.200 nor the Court’s rules mandate a more specific rationale for the circuit court’s determination, and a lack of more specific findings does not impede appellate review. See State v. Kampschroeder, 985 S.W.2d 396, 398 (Mo. App. 1999) (“When the parties have not requested findings of fact or conclusions of law and none are entered, the trial court is presumed to have made findings in accordance with the decree entered. The judgment will be affirmed under any reasonable theory supported by the evidence.” 

The decision after the suppression hearing was the definitive ruling and the order started the clock for the time limitation.  Since the appeal was untimely the appeal is dismissed. Missouri v. Mire, (SC100967, 11/04/25)

Comment: I strongly disagree with the majority that issued this opinion. I strongly agree with the dissent in this matter.  If you have an issue where the court has made a docket entry you should be aware that docket entry by the court will start the clock on your right to appeal.  In my experience the court as part of a judgment or order advises a party of their right to an appeal that order or judgment.  It seems reasonable that the right to appeal should run from when the court advises a party there is an order which would entitle the party to an appeal.    

Writ Of Mandamus Bail Bond

Richard Holden is a truck driver with a CDL from Louisiana. Holden had no history of traffic violations. Holden was driving northbound on I-55 when he allegedly caused an eight-vehicle crash which resulted in three fatalities. Holden was charged with three class E felonies of involuntary manslaughter in the second degree. The State’s probable cause statement, submitted by the Missouri Highway Patrol, made no allegations Holden was intoxicated, under the influence of any substance, or that he was distracted while driving by any device such as a cell phone or radio. 

In its request for an arrest warrant and conditions of release, the State requested bond be denied pursuant to Rule 33. The basis of their request was Holden is “both a danger to the community and a flight risk” because Holden has “no ascertainable ties to Missouri and is a resident of another state” and was “a holder of a commercial driving privilege and had the ability to drive further semi-trucks.”  The court denied bond to Holden. Holden filed a petition for writ of mandamus with this Court. 

The Eastern District issued a preliminary order in mandamus. The court provided that a “Mandamus is an extraordinary remedy effective to compel performance of a particular act by one who has an unequivocal duty to perform the act.” State ex rel. Rosen v. Smith, 241 S.W.3d 431, 433 (Mo. App. E.D. 2007). A petitioner seeking mandamus relief “must allege and prove that it had an unequivocal, clear, specific right to the thing claimed.” 

The court then examines the clear specific right at issue.  Looking at the Missouri Constitution, the court finds that in Article I, Section 20, of the Missouri Constitution “all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.” This right to “bail” is the right of an accused to be released prior to trial in all but capital cases. Bail is intended to require that a defendant appear at trial.  Bail may also be imposed as means of protecting victims of a crime or protecting the community if the defendant poses a danger to the community.

The Eastern District concluded that nothing in record supported the court denying the defendant a bond.  The record failed to show that Holden would not appear for trial, that he was a danger to the community, or that he was a danger to any victims.  The court erred in denying bond. Holden v Honorable Timothy Miller, (ED114079, 12/23/25)