Assumption Of Risk At Park

Every year Six Flags park hosts an Halloween themed event called Fright Fest. The event includes park employees dressed as scary characters who try to scare, surprise, and frighten guest at the park. Carly Munoz was a guest that attended the event on October 19, 2019, with a family member. Munoz was at the park for almost three hours and had observed numerous guest interactions with park employee characters that were trying to frighten the guests. Some interactions included guest running and screaming away from the characters attempting to scare the guests. Munoz said the event was consistent with her expectations and she never felt uncomfortable, unsafe, or in danger, and did not want to leave the event prior to her accident.

At around 11 p.m. a clown jumped out at a group of guests and the group ran away from the clown. Munoz and the family member also ran away from the clown and as Munoz ran away Munoz tripped on a curb and injured herself. Neither Munoz or her family member could state that the clown was interacting with them or chasing them. Munoz filed a suit that alleged that Six Flags and its employee failed to conduct activities in a safe manner.

Six Flags filed a motion to dismiss on the basis that it could not be held liable because Munoz’s injury arose from the very and occurrences she knew about, expected, and personally witnessed while at Fright Fest. The trial court granted Six Flag’s motion finding 1) there was no evidence the scare actor actually chased Munoz, 2) the scare actor actual movements were immaterial because Munoz was injured by actions she knew about and expected when she attended Fright Fest.

The Eastern District upheld the trial court’s decision. The Eastern District applied the assumption of risk doctrine in which the the plaintiff is barred from recovery when the plaintiff has knowingly and voluntarily encountered the risk that is inherent in the nature of the defendant’s activity. When the risks of the activity are perfectly obvious or fully comprehended, plaintiff has consented to them and defendant has performed his or her duty. Munoz v. Six Flags, (ED111118, 6/20/2023)

Duty To Protect Parking Lot

Steven Harner was a guest at Mercy hospital visiting his daughter who was at the hospital. Harner’s driver side door did not lock and he left a loaded pistol in the vehicle. When Harner returned to his vehicle he observed an unknown woman in his vehicle and he yelled at the woman to exit the vehicle. The woman shot Harner in the neck, using the gun he left in the vehicle. The injury left Harner with permanent nerve damage.

Prior to Harner being shot, the woman who shot him, had arrived at the hospital with her boyfriend, she was high on methamphetamine, and she got into another unlocked vehicle of a couple that had been in the emergency room. When the couple left the emergency room they observed the woman in their vehicle and they reported her behavior to a Mercy security guard and the police were contacted to investigate the incident. The incident was listed as a “Priority 2” in the Mercy security reporting system. Mercy did not conduct a safety investigation immediately upon notification. In addition to not conducting an investigation related to the initial report Mercy during this time frame did not conduct any routine security checks which was a violation of the hospital policy. Harner sued Mercy hospital for negligence under the standard that the hospital knew or had information from which in the exercise or ordinary care, it could have known the woman was present and posed a danger to Harner. Harner prevailed at trial. On appeal the matter was transferred from the Court of Appeals to the Missouri Supreme Court

The Missouri Supreme Court is considering several issues in this matter. First, the court is considering whether Harner made a submissible case for negligence under the known third-person exception to the general rule businesses cannot be liable for third-party criminal acts. This issue dove tails into whether Mercy knew or had reason to know the woman was violent and dangerous at the time of the shooting, whether it was foreseeable to Mercy that the woman was violent, whether the totality of the circumstances approach applies in this matter, and whether 571.107.1 RSMo (gun laws) triggered a duty for Mercy Hospital because Mercy should have known guests would leave their guns in their car. In addition, the court will consider if the trial court erred when it submitted an instruction to the jury that may have misstated the known third person exception and imposed a greater standard of care on Mercy. Harner v. Mercy Hospital, (SC100030, under consideration)

The United States Supreme Court Orders The 5^th Circuit To Reinstate Ban On Ghost Guns Pending Further Review By The U. S. Supreme Court

Of course, we are all watching cases effecting the right to own and possess guns. Of particular interest, is the battle between the 5^th Circuit and the Supreme Court. The Fifth Circuit kept reinstating its order keeping its order that shutting down the federal government’s ban on so-called “ghost guns.” These are unassembled and unmarked guns that can be bought online and then assembled into fully operative guns.

“In August 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued regulations that required any such disassembled gun parts to carry serial numbers and required anyone buying them to pass a background check, in the same manner as in-person gun buyers. The gun manufacturers challenged the regulations in court, and Federal Judge Reed O’Connor in Texas issued a nationwide injunction barring the rule from going into effect.”

“The Supreme Court, however, blocked those decisions from going into effect, whereupon two of the manufacturers returned to Judge O’Connor’s court and won an order barring the government from enforcing its regulations. The 5th Circuit upheld that order, too.”

“The government asked the high court to void, rather than just pause, the lower court rulings to send a message that lower courts should not “countermand” the high court’s “authoritative determination.”

“Now the Supreme Court has once again repudiated the lower courts, voiding the lower court orders and allowing the ATF regulations to go into effect pending further litigation. There were no noted supreme Court dissents.

See https://www.npr.org/2023/10/16/1206245991/supreme-court-ghost-guns

Comment Howard:  Nowhere, in the country are gun rights advocates stronger then in Missouri. The Courts are seemingly having a hard time with the application of the United States Supreme Court decision  in  its landmark decision New York State Rifle & Pistol Association v. Bruen (2022), which places an extraordinarily high burden on any government lawyer tasked with defending any gun law in court. For a good discussion of the difficulties the courts are having with the Bruen decision  see  discussion in Vox.com.

Worker Assaulted By Co-Employee

Missouri Lawyers Weekly wrote a short blurb regarding a settlement related to an assault case. A worker who alleged he was assaulted by a co-employee obtained a settlement of 6.5 million dollars. The underlying legal foundation of this case was built on the matter being an exception to workers’ compensation system. In 2021 the Missouri Supreme Court held that Missouri law permits suits against co-employees who engage in deliberate and deviant actions who is intentionally increasing the risk of injury. (Missouri Lawyers Weekly, September 2023).

Right To Counsel At Initial Hearing

The Missouri Supreme Court is taking under consideration the right of a defendant to have counsel present at the initial court hearing when bond is set and the defendant is arraigned on the criminal charges. The court is being asked to over turn four convictions where the defendants were convicted but not provided counsel at the initial arraignment and bond hearing phase. Counsel for the defendants is arguing that not providing counsel during this phase places the defendant at a disadvantage and defendants are being held in jail merely because they did not have legal representation at this phase. The Western District and Southern District have already heard appeals and both courts affirmed the convictions and decline to extend the right to a lawyer during the initial phase of a court case. The Western District heard the matter of State v. Woolery which was relied on by the Southern District. Under Woolery the court affirmed that there is right to counsel at any critical stage of a criminal case but the initial stage of the case does not fall into that category. The court noted that there was no showing that having counsel would have an impact on the defendant’s pretrial detention or on the defendant’s defense. State v. Phillips, (SC100247, undecided)

Ragan Comment: The issue should not be whether the defendant is placed at a disadvantage but rather whether the process is fair and the results and outcome are based on the actual merit of the case. Wouldn’t we fundamentally change the standards of our legal system if we prohibit any process that might place the defendant at a mere disadvantage? Being charged with a crime before you have been convicted could be a disadvantage. Perhaps we shouldn’t charge people with crimes until after they are convicted to avoid placing the defendant at a disadvantage. It is possible to engage in an analytical analysis of this issue and determine if there is a statistical difference in the outcome of cases. However, there does not appear to be any statistical evidence to support this change in the law.

The purpose of a bond is to ensure the appearance of the defendant or and in some cases the bond may to some degree be in place to deter the defendant from committing additional crimes during the pendency of the criminal case. Almost every jurisdiction in Missouri has issues with individuals failing to appear in court which significantly hinders our legal system reaching decisions based on merit. The real problem is that too many defendants routinely fail to appear at their court appearances in Missouri and many jurisdictions based on that issue have a legitimate concerns and interest in setting a bond to ensure the defendant appears before the court.

A new rule would clearly extend beyond the confines of felony cases. This would impact municipal court cases or any case where a person could face being held in jail. Given that it is impossible to know when many defendants will appear before the court every court in Missouri would need to have a public defender or defense attorney on the premises at all times to ensure legal counsel is present during that initial stage. We are looking at creating a significant new expense to all levels of the criminal justice system.

Sunshine Request And Citizen Participation Results In Sunshine Violation

Rebecca Varney received a citation for failure to stop at a stop sign in Edgar Springs, Missouri. After receiving a citation Ms. Varney became concerned the city was using traffic stops to generate revenue for the City. Ms. Varney began a vigorous investigation into her concerns about how a town of 200 citizens was being managed. She began reviewing public records, filing Sunshine request, attended City council meetings, publicly raising her concerns, and eventually she made complaints about the City not responding to her records request in a timely fashion, and when her concerns were not addressed she made complaints to the Missouri Attorney General for non-compliance with the Sunshine Law.

On two occasions when Ms. Varney was at City Hall her ability to review records and keep copies of records was limited by individuals acting on behalf of the city. She was denied the opportunity to take photos of records and asked to leave and on another occasion she was only permitted 15 minutes to review the records she requested.

After the City repeatedly interfered with her ability to review records Ms. Varney was advised she was trespassed from City Hall. She was then subsequently denied a request to rescind her ban from the building at a city council meeting during which the police chief declared he was the only person with the authority to rescind the notice of trespass and he would not rescind the previous notice. While the ban was still in effect Ms. Varney observed what appeared to be a meeting of the City Council at City Hall, even though there had not been any posted notice of a public meeting to be held. Ms. Varney went to investigate what was happening at City Hall because she had seen the vehicles of City Council members at City Hall and she knew there had not been any notice for a meeting. Ms. Varney went onto the property and observed a meeting where she was informed that the gathering did not constitute a meeting and was related to a city sewer system maintenance issue. After Ms. Varney left the location the Mayor reported Ms. Varney for trespassing and requested she be arrested by Phelps County Sheriff’s Office. Ms. Varney was not arrested by the Phelps County deputies that were sent to her residence but she was warned not to return to City Hall for any purpose.

Ms. Varney subsequently retained an attorney who repeatedly advised and warned the City that the City was violating Ms. Varney’s constitutional rights and the City was in violation of Missouri Sunshine Laws. When the City failed to take corrective action Ms. Varney filed suit. The trial court found in favor of Ms. Varney. In the court’s finding the judge stated the facts were indisputable that the City’s hostility toward Ms. Varney was a direct result of city officials being angry about the criticisms leveled against the City by Ms. Varney. There existed no evidence that Ms. Varney’s action was disruptive or justified banning her from City hall during business hours. The City was informed by Ms. Varney, by the Attorney General, and by Ms. Varney’s attorney that banning Ms. Varney from the public meeting taking place on November 25, 2019, was a violation of the Sunshine Law. The court record also established that the City had a history of holding closed public meetings and that those meetings did not comply with the Sunshine Law.

The opinion is an excellent tool for examining potential legal quandaries a municipal attorney can face. There are essentially three holdings in the case which relate to Sunshine Law violations, First Amendment Right violations, and Equal Protection violations.

On the Sunshine Law issues the court found that the City had a history of holding closed public meetings and that those meetings did not comply with the Sunshine Law. The found that the City had been warned and was placed on notice that it was violating the Sunshine Law. Additionally, the court found the City had not shown or properly documented that the City was entitled to hold closed door meetings on three occasions.

On the First Amendment the court found that Varney established a First Amendment retaliation claim by showing 1) she engaged in a protected activity, 2) a governmental official took an adverse action that chilled her from continuing her activity, 3) the adverse action was motivated by the exercise of the protected activity. The court noted that the government cannot ban a citizen from public property or a public meeting in response to the citizen’s exercise of First Amendment rights.

Finally the court examined the equal protection claim. The Court applied strict scrutiny to the Defendant’s restrictions, meaning the restriction can only have been justified if the City had demonstrated that banning Varney, an no one else, from City Hall was an action that was narrowly tailored to serve a compelling state interest. The City did not offer any legitimate basis at all for excluding Varney from coming to City Hall at the same times and on the same terms as an other citizen. Varney v. Edgar Springs, (20PH-CV01430, 11/3/23)