The fundamental protections endowed by our Creator and enshrined in both the United States and Missouri constitutions remain under attack by special interest industry associations. Our founding fathers not only included the right to jury trial in the Bill of Rights but included the right to trial as an enumerated grievance in the Declaration of Independence directly following “For imposing Taxes on us without our Consent.” In Missouri, our state founders included the right to jury trial in our own Bill of Rights, which provides “[t]hat the right of trial by jury as heretofore enjoyed shall remain inviolate.”
And yet David Overfelt of the Missouri Retailers Association suggested in the November 11, 2019 issue of this publication that the constitutional right of all Missourians to hold wrongdoers accountable must be sacrificed so that a special interest association might increase the profits of its members.
Why should millions of Missouri citizens have their constitutional rights subverted? Overfelt offered two reasons: First, he claimed retail sellers of defective products should be free from accountability when the defective product from which the seller has profited injures or kills an innocent person; and second, he suggested retail property owners should be free from liability when a trespasser is injured or killed by a dangerous condition on the retailer’s property.
I have news for Mr. Overfelt: Both issues have already been addressed by Missouri lawmakers.
Missouri’s Innocent Seller Statute, R.S. Mo. § 537.762 became effective on July 1, 1987. For more than 32 years, Missouri retailers have had the very protections that Mr. Overfelt called for in his editorial. Moreover, section 537.762 was amended in the 2019 legislative session as part of the Joinder bill to make it easier for manufacturers to force Missouri citizens out of state court and into federal court after a retailer is dismissed under Innocent Seller Statute.
Since 1992, Missouri retailers have also been immune from liability to trespassers injured on their property if the trespasser was under the influence of alcohol or illegal drugs. In 2018, Senator Denny Hoskins filed SB 608, which strengthened retailer immunities for trespass injuries and went into effect in August 2018. That bill created several affirmative defenses to protect retailers, including affirmative defenses of trespass and that the harmful act occurred while the business was closed to the public.
The right of Missourians to hold wrongdoers accountable does not deter business in Missouri. Business is booming in Missouri. Governor Mike Parson tweeted on November 6, 2019, that Missouri’s unemployment rate had dropped to 3.1%, compared to a 4% national average. Yet, special interests continue to call for restrictions on constitutional rights in the name of increasing corporate profits.
Imagine the Missouri Retailers Association had called for restrictions to gun rights under the Second Amendment. Imagine it had called for restrictions on religious liberty or speech under the First Amendment. Imagine it had called for restrictions on due process under the Fifth Amendment. The outcry from lawmakers and the public would have been deafening and unceasing regardless of political ideology.
The right for all Americans to go to court and hold accountable the perpetrators of harm is one of the great achievements of American democracy. In our system, the poorest and most vulnerable can challenge the largest corporation or government agency and hold them accountable for causing harm. Yet, there is largely silence when this fundamental right is attacked.
Restrictions on any fundamental right must be considered carefully. An attack on any individual right is an attack on them all. If the Seventh Amendment can be undermined by the Missouri Retailers Association, then other constitutional rights can be undermined by other special interests. Regardless of political affiliation, we are bound together as Americans and Missourians by our respective constitutions. Our lawmakers swear an oath to support the Constitution of the United States and of this State. We should be supporting and strengthening the Seventh Amendment rather than undermining the rights of ordinary Missourians to benefit a special interest.
Brett Emison is the president of the Missouri Association of Trial Attorneys (MATA).