MISSOURI SUPREME COURT HOLDS TRIAL COURT’S RULING TO EXCLUDE AN EXPERT’S TESTIMONY AT TRIAL ON A MOTION IN LIMINE SERVED NOTHING FOR APPEAL WHEN THE PARTY FAILED TO OFFER THE EXPERT’S TESTIMONY DURING THE TRIAL.
Schultz, et al. v. Great Plains Trucking, Inc., et al., No. SC100582 (Mo. banc Feb. 11, 2025).
In this opinion, the Missouri Supreme Court made clear that raising an issue in a motion in limine preserves nothing for appeal unless the issue is renewed and raised during the actual trial.
A Great Plains tractor-trailer truck driven by Lennis Beck, an over-the-road truck driver, was involved in an accident near Wentzville, Mo., in August 2019. A vehicle driven by a mother, with her son as a passenger, on their way to a 6 a.m. shift at work fishtailed from the right lane to the left lane, hitting the center median wall. A pickup truck then hit the mother’s vehicle, which came to rest on the highway. The Great Plains truck driven by Beck then collided with the mother’s vehicle. The mother’s son died from injuries sustained in the collision.
Plaintiffs, the umarried father and mother of the deceased son, filed a wrongful death action against defendants in St. Charles County Circuit Court for their son’s death. The jury returned verdicts awarding plaintiffs $10,000 in compensatory damages against the defendants (Great Plains Trucking and Beck, the driver), $10 million in aggravating circumstances damages against Great Plains and $25,000 in aggravating circumstances damages against Beck.
Defendants filed post-trial motions requesting a new trial or judgment notwithstanding the verdict, which the trial court overruled. Defendants raised a number of issues on appeal. They first appealed unsuccessfully to the Missouri Court of Appeals, Eastern District, and then obtained transfer to the Missouri Supreme Court.
Defendants asserted that the trial court erred in excluding expert testimony from a doctor who opined that the mother was impaired by delta-9-tetrahydrocannabilo (THC) at the time of the collision. Defendants argued that exclusion of this evidence prejudiced them because the doctor’s opinion was critical to their defense that the mother’s impairment was the sole cause of the collision.
Prior to trial, plaintiffs filed a motion to exclude the doctor’s testimony, which the circuit court sustained. Defendants then deposed the doctor again and filed a motion to reconsider, attaching the new deposition transcript as an exhibit. On the morning of trial, before the venire panel was sworn, the court held a hearing and overruled defendants’ motion to reconsider the doctor’s testimony.
At the same pretrial hearing, defense counsel indicated they intended to file a written offer of proof attaching the doctor’s most recent deposition transcript. Defense counsel also made a verbal offer of proof, which the circuit court allowed over plaintiffs’ counsel’s objection. For the verbal offer of proof, defense counsel stated they anticipated the doctor would testify consistent with the doctor’s depositions and defense counsel’s witness disclosure about the doctor. Defense counsel did not seek to introduce the doctor’s deposition during the trial or raise any objection concerning exclusion of the doctor’s testimony during the trial. On the last day of trial, defense counsel filed an offer of proof indicating the doctor “would testify at trial consistent with [the doctor’s] witness disclosure,” and “[a]s support for this offer of proof related to [the doctor’s] anticipated trial testimony,” and attached the doctor’s most recent deposition transcript. While defense counsel filed the pleading, the defense did not otherwise bring the pleading to the court’s attention or otherwise attempt to introduce the doctor’s deposition testimony at trial.
The Supreme Court held that defendants preserved nothing for appellate review concerning the doctor’s excluded testimony when they did not attempt to call the doctor to testify at trial, did not make a specific offer of proof at trial and did not renew at trial their objection to the excluded testimony. Filing a written offer of proof on the last day of trial likewise preserved nothing for appellate review because defendants did not reference this filing on the record at trial to give the circuit court an opportunity to reconsider the earlier ruling.
The Court explained that because an in limine ruling is a preliminary expression of the court’s opinion as to the admissibility of evidence and is subject to change during the course of trial, nothing was preserved for appellate review. The Court further explained that where an objection has been sustained in a hearing on a motion in limine, requiring an offer of proof at trial serves the important dual purpose of allowing the circuit court to reconsider the pretrial preliminary admissibility ruling in light of the evidence actually presented at trial, and preserving the claim of error for trial by making a clear record of the questions that would be asked at trial and the proposed answers, so an appellate court may consider those in determining whether the circuit court’s ruling was proper.
The Court cited to its previous decision in Lozano v. BNSF Ry. Co., 421 S.W.3d 448, 452 n.4 (Mo. banc 2014), in which the Court held:
A motion in limine, by itself, preserves nothing for appeal. To pursue a claim of evidentiary error on appeal, a party must do four things, two at the trial court and two on appeal. First, the party must raise the claimed error in a timely fashion, which means (when the claim is that the trial court improperly excluded evidence) that the proponent must offer the evidence at trial and make a detailed offer of proof concerning that evidence when the trial court orders that it be excluded. Second, the party must preserve that claim by including it in its motion for a new trial. Third, the party must present this claim in a proper point relied on in the appellate brief. Finally, the party must provide a sufficient argument on that point in the party’s brief.
The Court also rejected the defendants’ claim that the circuit court erred in giving a failure-to-keep-a-careful-look-out instruction because the Court found that there was substantial evidence to support submission of the instruction and the jury reasonably could have found Beck failed to keep a careful look out. The Court further rejected defendants’ argument that there was insufficient evidence to support the jury’s award of aggravating circumstances damages.
SUPREME COURT OVERRULES TRIAL COURT’S DENIAL OF MOTION TO COMPEL ARBITRATION IN PERSONAL INJURY CASE.
Presley Karlin v. UATP Springfield LLC, No. SC100512 (Mo. banc March 4, 2025).
Urban Air is an interactive trampoline and adventure park located in Springfield, Mo. In March 2021, 17-year-old Presley Karlin was injured during a visit to Urban Air. He claimed his injuries were caused by Urban Air’s negligence, in that the cushions placed to protect him in the event of a fall were inadequate for that purpose, and Urban Air knew or should have known of this dangerous situation. After turning 18, Karlin brought suit in Greene County Circuit Court against Urban Air, which moved to compel arbitration or, in the alternative, to dismiss based on an arbitration agreement contained in the release and indemnification agreement signed by adults on Karlin’s behalf.
Before a participant is allowed to go into Urban Air, a release must be signed by or on behalf of that participant. Karlin had made several trips to Urban Air prior to and on the date of the injury. At each visit, one or more releases were signed on his behalf and were identical in substance. Two of the releases, including two signed on the date of the injury, were signed by an adult who was not related to Karlin and who had no actual or parental authority to contract on his behalf. A fourth release, however, was signed by Karlin’s mother on November 14, 2020, four months before Karlin’s injury. On appeal, Urban Air limited its arguments to the release signed by Karlin’s mother. The releases contained an arbitration clause which provided that “any dispute or claim” involving the parties, including claims for personal injury or death, would be settled by binding arbitration. The circuit court denied Urban Air’s motion to compel arbitration, and Urban Air appealed, first to the Missouri Court of Appeals, Southern District and, following that court’s opinion affirming the trial court’s ruling, obtained transfer to the Missouri Supreme Court.
On appeal, Karlin claimed (a) the person who signed the arbitration agreement (i.e. his mother) had no authority to do so, and (b) even if she had such authority, the agreement applied only to claims arising on the day it was signed and did not bind Karlin with respect to injuries he suffered four months later.
The Supreme Court held that neither the circuit court nor the Supreme Court was authorized to resolve these claims because the arbitration agreement – which, on its face, purports to bind him with respect to his personal injury claim – contains a delegation clause in which he agrees to arbitrate threshold matters relating to the “scope, arbitrability, or validity” of the arbitration agreement. The Court also pointed out that Karlin asserted no specific challenge to the enforcement of this delegation clause. Instead, however, Karlin merely challenged the validity and scope of the arbitration agreement as a whole.
The Court held that the delegation clause is presumed to be valid and enforceable, and Karlin must present his claims concerning the scope and validity of the arbitration agreement to the arbitrator. The Court vacated the circuit court’s order and remanded the matter to the circuit court to sustain Urban Air’s motion to compel arbitration.
The Court explained that the standard governing a motion to compel arbitration depends on whether there is a factual dispute regarding the existence of an arbitration agreement purporting to bind the nonmoving party with respect to claims being asserted. If there is such a dispute, the circuit court must conduct an evidentiary hearing to determine whether such an agreement exists. A party seeking to compel arbitration has the burden of proving that existence by competent evidence. When the circuit court finds the fact of existence of an arbitration agreement is uncontested, the question of whether to compel arbitration is a question of law. If there are disputes as to the scope of validity of the arbitration agreement, the circuit court must resolve these disputes before ruling on the motion, unless the arbitration agreement purports to commit such disputes to the arbitrator by way of a delegation clause.
Here, there is no question in this case that Karlin’s mother signed the release on his behalf and the release purports to bind Karlin to arbitrate “any dispute or claim arising out of or relating to – the premises [or] activities,” including claims for personal injury. Karlin claims that his mother lacked authority to enter such an agreement on his behalf, notwithstanding her warranty and representation that she had such authority. The Court held, however, that this is a challenge to the validity of the release, not its existence. Delegation clauses are agreements to arbitrate threshold issues concerning the enforceability of an arbitration agreement. When an arbitration agreement contains a delegation clause, it will be enforced according to its terms unless the party opposing the arbitration raises a challenge specific to the delegation clause itself.
Here, Karlin raised no challenge that was unique or specific to the delegation clause and the release. Instead, he argued his claims concerning his mother’s lack of authority to sign the release on his behalf and the restricted effective date or term of the release were questions of “formation” such that, if he prevailed on either of them, there is no arbitration agreement to enforce. The Court explained, however, that the question is who is to decide whether his mother had authority, and who is to decide what the terms of the release were. The answer to that question is found in the delegation clause. Unless there is some defect unique to the delegation clause itself, courts have no choice but to enforce them. Here, Karlin raised no such specific challenge to the delegation clause and the release.
SUPREME COURT HOLDS THAT INTERVENING ACT OF A HIT-AND-RUN DRIVER PRECLUDES SCHOOL BUS COMPANY FROM LIABILITY FOR A STUDENT’S INJURIES.
D.J. v. First Student Inc., No. SC100702 (Mo. banc February 28, 2025).
KIPP Victory Academy in St. Louis contracted with First Student to transport children to and from school during 2017. In that role, First Student planned all bus routes, stops and schedules, and it provided each driver with an updated route sheet and student list before any run. Plaintiff D.J. attended KIPP Victory Academy.
On October 24, 2019, substitute bus driver Tomika Richardson dropped D.J. off at the southeast corner of the intersection, although First Student’s route sheet directed its bus drivers to drop D.J. off at the northwest corner of the intersection of Goodfellow Boulevard and Lalite Avenue. Richardson checked her mirrors for traffic, extended the stop arm, and activated the flashing lights. D.J. exited the bus and began crossing Goodfellow in front of the bus. As D.J. crossed the street, a vehicle that had stopped directly behind the bus maneuvered around the left-side of the bus toward D.J. Richardson laid on her horn and yelled at the driver, but the driver accelerated toward D.J. and struck D.J. while he was crossing Goodfellow. After striking D.J., the driver ran a stop sign and sped away. The collision fractured D.J.’s left ankle and sprained his right ankle. The hit-and-run driver was never identified.
D.J., through his mother, sued First Student and Richardson in St. Louis Circuit Court. In Count I, D.J. alleged that First Student, acting through its agent Richardson, negligently dropped D.J. off at an unreasonably safe location. In Count II, D.J. asserted that First Student negligently failed to provide Richardson with a route sheet, negligently failed to advise Richardson of what the route sheet said, and negligently failed to tell Richardson that D.J.’s grandmother was located on Lalite west of Goodfellow. If D.J. had been dropped off in the northwest corner of that intersection (i.e., before crossing Lalite), D.J. would only have had to cross Lalite to walk home, would not need to walk in front or behind the school bus, and would not have had to cross Goodfellow at all.
The jury returned a verdict in favor of First Student and Richardson on Count I but in favor of D.J. and against First Student on Count II and assessed D.J.’s damages at $1.3 million.
First Student moved for a directed verdict at the end of its own evidence claiming that D.J. had failed to make a submissible case and also filed a timely motion for JNOV after the circuit court had entered judgment. First Student specifically claimed that the criminal acts of the hit-and-run driver were an intervening and superseding cause that became the new proximate cause of D.J.’s injuries. First Student then appealed to the Eastern District, which affirmed the judgment and the denial of the post-trial motions, and then was granted transfer by the Missouri Supreme Court.
The Supreme Court, in its majority opinion, explained that actual causation is a factual question for the jury “if sufficient evidence is presented from which the jury could reasonably find that plaintiff’s injury was a direct result of the defendant’s negligence.” On the other hand, proximate cause is a legal determination that presents a question of law for the circuit court. The Court explained that Missouri jurors are never instructed to consider whether a third party’s act was a superseding cause and, accordingly, it is the trial court’s role – not the jury’s function – to determine if a defendant’s conduct is the proximate cause of the plaintiff’s injuries. The Court went on to explain that to determine the legal issue of proximate cause, a court must determine whether the plaintiff presented evidence that his injuries were a “reasonable and probable consequence of the act or omission of the defendant.” The Court pointed out that “this analysis ‘relies upon hindsight to determine whether the precise manner of a particular injury was a natural and probable consequence of a negligent act.’” The Court further explained that when the acts of two or more persons combine to injure a person, “there is a question as to whether the initial act of negligence was a proximate cause of the injury or whether there was an efficient, intervening cause.” The Court cited to Gathright v. Pendegraft, 433 S.W.2d 299, 308 (Mo. banc 1968), which held:
If a prior and remote cause does nothing more than give rise to an occasion by which an injury is made possible, and there intervenes between that cause and the injury a distinct and unrelated cause of injury, a negligence action does not lie, even though the ‘but for’ test is satisfied.
Thus, when the intervening cause becomes the proximate cause of a plaintiff’s injury, the defendant is relieved from liability as a matter of law. Here, the sudden, unexpected decision of the hit-and-run driver to violate state law by manuevering pass a stopped school bus with its arm out and lights flashing to strike a child crossing the street is a type of “surprising, unexpected or freakish,” third-party action exceeding “the natural and possible consequence of the defendant’s actions.” The Court vacated the judgment of the trial court and remanded the case to the circuit court to enter judgment in First Student’s favor.
Judge Wilson filed a dissenting opinion, joined by Judge Powell. The dissent noted that after the adoption of MAI 19.01, the Supreme Court rarely needed to draw a distinction between proximate cause and actual cause in terms of what questions go to the jury because this MAI incorporates both concepts, and that the Court has continued to note that questions of proximate cause should always be left to the jury using the “directly caused or directly contributed to cause” formulation.
MISSOURI COURT OF APPEALS HOLDS THAT LYFT RIDE APP QUALIFIES AS A PRODUCT SUBJECT TO STRICT LIABILITY AND NEGLIGENT DESIGN CLAIMS.
Rochelle Ameer v. Lyft, Inc. et al., No. ED112455 (Mo.App. E.D, March 4, 2025).
Plaintiff alleged that on the evening of September 28, 2020, Defendants Christopher D. Morgan and Ajane Barnes, who at the time were minors and supposed to be ineligible to order rides through the Lyft app, met and conspired together to use the app to carjack a Lyft driver. In order to hide their identity, Morgan and Barnes purportedly set up an account in the Lyft app utilizing a false name, a false email address and an anonymous form of payment. Morgan and Barnes then used their account in the app to fraudulently and anonymously request a ride from a St. Louis City neighborhood to a destination miles away.
The Lyft app directed the ride request to Plaintiff’s son, who accepted the request and arrived at the pick-up location at approximately 11 p.m. Moments later, Morgan and another minor, V.W., announced a robbery and pulled guns on the driver, attempting to force him to get out of his car. Morgan then shot and killed the driver.
Plaintiff, mother of Son, filed her petition in St. Louis Circuit Court alleging five counts. The first three counts were product liability claims and the other two counts were negligence claims against Lyft. Count I alleged strict liability defective design, Count II alleged negligent design of the product, and Count III alleged negligent failure to warn regarding the product. Count IV alleged that Lyft was liable for negligent training and Count V for general negligence, based on (1) Lyft’s alleged failure to exercise reasonable care to train plaintiff’s son to adequately perform his job as a Lyft driver with reasonable safety, and (2) Lyft’s alleged failure to exercise reasonable care to prevent him from being assaulted, killed, or otherwise harmed by Lyft app users.
Defendant filed a motion to dismiss all five counts, asserting that Plaintiff’s product liability claims in Counts I-III, which are based on alleged defects in the Lyft app, should be dismissed because the factual allegations in Plaintiff’s petition fail to establish that the Lyft app is a product, which is a prerequisite for any product liability claims. Lyft’s motion also claimed that the negligence claims in Counts IV-V should be dismissed because the factual allegations in Plaintiff’s petition failed to establish the element of duty.
The trial court entered a judgment granting Lyft’s motion dismissing Counts I-V.
On appeal, the Missouri Court of Appeals, Eastern District, reversed, finding that the allegations sufficiently alleged that Lyft’s app was a product and sufficiently alleged negligence in connection with the app. With respect to the product liability claim, the Court noted that Plaintiff sufficiently pleaded defective manufacture, defective design, or failure to warn. With respect to a negligence claim, Plaintiff sufficiently pleaded negligence manufacture, negligent design or negligent failure to warn. The Court explained that the difference between the two legal theories is that while a defendant may be found liable under a theory of strict liability without regard to his knowledge and conduct, a defendant’s knowledge, conduct, fault and the standard of care are relevant considerations in determining a defendant’s liability under a negligence theory. Moreover, strict liability and negligence theories may rely on the same operative facts in support of recovery.
The Court noted that for a strict defective design claim, a plaintiff must allege the defendant sold a product in the course of its business, the product was then in a defective condition and was unreasonably dangerous when put to a reasonably anticipated use, the product was used in a manner reasonably anticipated, and plaintiff was damaged as a direct result of such defective condition that existed when the product was sold.
The Court noted that whether a mobile ride-sharing application such as the Lyft app may be considered a product for purposes of a recognizable product-liability claim is an issue of first impression for Missouri courts. The Court explained that prior to the instant case, Missouri courts have applied product liability law to harm caused by tangible items including a chain-and-ratchet system, cigarettes, a driver’s seat in a car and plane parts. Further, Missouri courts have held that product liability law does not apply to harm caused by a scouting program, the supply of electricity, medical services, and services in general, finding those items are not considered a product for purposes of a product liability claim. The Court explained, however, that none of these previously mentioned cases are on point here. The Court found that it is not appropriate to force the Lyft app into one of the preexisting legal categories such as a tangible item, a scouting program, the supply of electricity a medical service or a service in general, because plaintiff’s petition avers the Lyft app is multi-faceted and involves readily-available new technology. The Court noted that the petition alleges the Lyft app has characteristics of both a service and a tangible product. On the one hand, the app provides themselves a transportation service which connects purported riders and Lyft drivers. On the other hand, Lyft’s role is different from a mere service provider because Lyft designed and placed the Lyft app in a stream of commerce for the general public, putting Lyft in the best position to control the riskful harm associated with the app caused by the design choices similar to designers of defective tangible products.
The Court cited to a Kansas federal district court decision, Doe v. Lyft, Inc., No. 23-2548-JWB-TJJ (D.Kan. November 1, 2024), that denied a motion to dismiss, finding the Lyft app was a product subject to Kansas product liability law because the facts alleged establish “that the Lyft app was a software or algorithmic product with sufficient similarities to a tangible product.” The Court of Appeals stated it agreed with the reasoning in Doe v. Lyft and similarly held: (1) a mobile ride sharing application such as the Lyft app is a product subject to product liability law if the facts alleged establish that the application has sufficient similarities to a tangible product, and (2) in order to survive a motion to dismiss a product liability claim in a wrongful death case like the one here, the plaintiff must allege the decedent’s death resulted from a defect in the application itself, whether in the design or in the functionality of the app, rather than from problems with the application developer’s services or some other aspect of its business model.
The Court went on to find that the Plaintiff’s petition sufficiently met both parts of the test for determining whether a mobile ridesharing application is a product for purposes of surviving a motion to dismiss. First, the facts alleged in Plaintiff’s petition establish that Lyft designed and placed the app into the stream of commerce for the general public, which put Lyft in the best position to control the risk of harm associated with the app caused by the design choices, similar to designers of defective tangible products. Additionally, Plaintiff’s petition alleged: (1) the Lyft app was developed and placed into the stream of commerce so Lyft could operate a transportation service to the public for profit; (2) to receive and accept rides from purported passengers, Lyft drivers must download the app to a smartphone and then use the app; and (3) to request a ride from a Lyft driver, purported passengers must download the app to a smartphone and then use the app to create a Lyft account and submit a form of payment. The Court then found that the facts alleged in Plaintiff’s petition established that the Lyft app has sufficient similarities to a tangible product.
Additionally, Plaintiff’s petition sufficiently alleged that hersSon’s death resulted from a defect in the design of the Lyft app itself, rather than problems with Lyft services or some other aspect of its business model.
The Court pointed out that Counts I-III alleged that the September 2020 incident during which Plaintiff’s son was killed took place after the riders took advantage of the above alleged defects in the app’s design to fraudulently and anonymously request a ride. The Court also pointed out that Plaintiff alleged that Lyft implemented measures in states other than Missouri requiring purported passengers using the Lyft app with an anonymous form of payment to provide a driver’s license, state ID, or another type of document that shows their name or mailing address, allowing Lyft to discover that a fictitious person who set up the Lyft account does not exist and that the form of payment is unverified. To allow Lyft to be foreclosed from liability in Missouri for omissions in the design of the Lyft app which were allegedly implemented in other states would incentivize Lyft and other mobile application developers not to put protections in place for Lyft drivers and customers in Missouri and eliminate protection for its users in other states.
The Court also found that Plaintiff sufficiently stated claims for negligent training and general negligence based on a theory of wrongful death. In any negligence action based on such a theory, plaintiff must adequately plead and establish that: (1) the defendant owed the decedent a duty of care; (2) the defendant breached that duty; (3) the breach was the cause in fact and proximate cause of decedent’s death; and (4) as a result of the breach, plaintiff suffered damages. The Court explained that a duty to protect against criminal acts of third parties is generally not recognized because such activities are rarely foreseeable. The Court noted, however, that Missouri courts recognize limited exceptions to this general rule and find that a duty to protect against the criminal acts of a third party may exist “when special facts and circumstances render injury foreseeable in a given case.” The Court found that the allegations in the case sufficiently ran within the exceptions and found that the petition sufficiently stated claims for negligence.
The Court explained in a footnote that it assumed that all the allegations in the petition are true at this stage in the proceedings, and that nothing in the opinion should be construed as findings of fact that would govern any further proceedings relating to the case pointing out that there may be facts developed and considered on a motion for summary judgment or at a trial that foreclosed plaintiff’s relief on some or all of the accounts.
Judge Torbitzky dissented in part and concurred in part. He explained that he believed that the principal opinion set out an appropriate and useful test for addressing this issue. Judge Tobitzky, however, disagreed with the majority’s application of this newly described test relating to plaintiff’s claims against the Lyft app. He argued that the alleged defect in that “must arise from something that the app actually did defectively, not something that Plaintiff alleges it should have done, but did not.” Judge Torbitzky said he would affirm the trial court’s judgment as to the product liability counts but joined with the majority opinion in its finding that Plaintiff had alleged sufficient facts to proceed with her negligence claims against Lyft.
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