Negligence – Smith Mueller, LLC

Contracts: Can your protect yourself from your own negligence?

Under Missouri law, the answer is yes. How you do it depends on your level of sophistication.

In general, when entering into a contract, to effectively release yourself from or limit your liability for your own negligence, you must include language in the contract that is “clear, unequivocal, conspicuous and include the word ‘negligence’ or its equivalent,” according to a recent opinion from the Eastern District Missouri Court of Appeals. The court notes, however, that less precise language may still be effective if the contract is between equally sophisticated commercial entities. A contract between sophisticated business entities may limit liability for negligence without specifically mentioning the term “negligence.”

For instance, the Missouri Supreme Court has held that the phrase “any and all claims” in an indemnity provision was sufficient to require one party to a contract to indemnify the other party for all claims, including negligence. See Utility Service and Maintenance, Inc. V. Noranda Aluminum, Inc., 163 S.W.3d 910 (Mo. band 2005). Presumably, if the contract was between unsophisticated parties, the phrase “any and all claims” would not include a party’s own negligence.

In addition, when determining whether a party to a contract is sophisticated, the court will look at whether the party is sophisticated in the type of transaction at issue. Whether a party is sophisticated in the transaction at issue will be a factually driven decision on a case-by-case basis. Under this analysis, even a large, multi-national corporation presumably could be found to be unsophisticated if it is new to or inexperienced in the transaction at issue in the case.

In conclusion, Missouri law will allow a party to contractually protect itself from its own negligence. The more sophisticated the parties to the contract are in the type of transaction at issue, the less precise the contractual language needs to be in order to effectuate the protection from negligence. However, it would seem prudent to specifically mention the release of or indemnification for a party’s negligence in the contract rather than leave it to a court’s interpretation.

Slip and Fall: The Failure to Keep a Careful Lookout Defense

In a recent decision, the Missouri Court of Appeals for the Western District of Missouri examined a defendant’s assertion of comparative fault for the plaintiff’s failure to keep a careful lookout in case involving injuries from a slip and fall due to water on the floor. In Isaiah Rider v. The Young Men’s Christian Association of Greater Kansas City, Isaiah Rider, a six year old boy attending after-school day care at the YMCA, slipped on water on the floor of a YMCA and fell. The staff of the YMCA had directed the children to play outside, where there was melting ice and snow. After the children were done playing, the staff brought them back inside though a door that led directly to the cafeteria, which had a smooth tile floor. There was no door mat near the door where the children could dry their feet. The staff then told the children to wash their hands at a communal sink in the cafeteria. No floor mat was placed near the sink to absorb water splashing from the sink. After the children washed their hands, they proceeded across the cafeteria to line up. While crossing the cafeteria, Isaiah slipped and fell, breaking his tibia. Unfortunately, due to complications and a pre-existing medical condition, Isaiah’s leg was eventually amputated below the knee. He subsequently brought suit for his injuries.

In defending the suit, the YMCA asserted Isaiah was comparatively at fault his injuries for failing to keep a careful lookout. At trial, the evidence was that Isaiah did not see water on the floor before he fell, but that his clothes were wet after the fall. In fact, all of the staff testified that they did not observe any plainly visible dangerous conditions on the floor and did not believe any existed at the time of the fall. At the end of the trial, the jury awarded nearly six million dollars in damages, but found Isaiah 90% at fault and he appealed.

One of the issues addressed on appeal was whether it was proper to allow the jury to consider whether Isaiah was at all at fault for his injuries. The jury found Isaiah at fault through the YMCA’s defense that he failed to keep a careful lookout. The essence of this defense is the failure to see a danger and a failure to react to that danger. However, it is only negligent (or comparatively at fault) to fail to see what is plainly visible. In addition, the Court stated a person is not required to look for danger where there is reason to anticipate danger.

In Isaiah’s case, there was no evidence to support he was at fault for his injuries. No one saw any water on the floor before the fall – in other words, the water must not have been plainly visible. Without any evidence of a plainly visible condition, the jury should not have been allowed to assess fault to Isaiah and the trial court’s judgment was reversed.

This case offers lessons for injured parties, plaintiff’s attorneys, and defense attorneys. First, if you have been injured due to a dangerous condition on a piece of property, do not assume you do not have a law suit simply because the condition causing the injury seems obvious after the fact. Consult an attorney to determine whether your case is one that can be prosecuted successfully.

When considering whether to pursue cases of premises liability, plaintiff’s attorneys should keep in mind that a plaintiff should be assessed comparative fault for failure to keep a careful lookout only if the condition causing the injury was “plainly visible.” Further, conditions everyone ordinarily may consider plainly visible may not turn out to be based upon the testimony of the witnesses – like water on the floor.

For defense attorneys, it will be important when asserting or investigating this defense to develop evidence of the existence of a plainly visible condition. This may be done through a defendant’s employees or third-party witnesses. This evidence, however, may be a double-edged sword. If the defendant’s employees testify a condition was “plainly visible,” shouldn’t those same employees have taken steps to warn, barricade, or repair the condition?

Illinois Bans Cell Phone Use While Driving

The Illinois legislature recently passed Public Act 098-0506. This act will make it a violation of Illinois law to use a cell phone while driving. The law will take effect January 1, 2014. This Act effectively modified current Illinois law that made it unlawful to use a cell phone to text while driving. In essence, the Act expands the law to make it illegal to use an “electronic communication device” (among other things, a cell phone) in any manner while driving. This could include phone calls, texting, or using an app on the phone. While the law does not make it illegal to use a global positioning system (“GPS”) or a navigation system, what is not clear is whether using a smart phone equipped with a GPS app or function would be illegal under the law as it is now written. Certain Illinois municipalities, including Chicago, already have laws on the books making cell phone use while driving illegal.

It will be interesting to see how this law affects claims of negligent operation of a car or truck due to the driver’s use of a cell phone. Certainly this is the Illinois legislature’s acknowledgment that the use of a cell phone while driving is a dangerous activity that can cause serious injury or death to other drivers, passengers, and pedestrians.