Opinion

Bennett v. Mallinckrodt, Inc.

  • 698 S.W.2d 854
  • 73 A.L.R. 4th 553
  • 16 Envtl. L. Rep. (Envtl. Law Inst.) 20480
  • 1985 Mo. App. LEXIS 3639
Court
Missouri Court of Appeals
Filed
Jul 16, 1985
Status
Published
On the bench
Snyder, Pudlowski
Cited by
41 cases

concluding that strict liability, as it is defined by the Restatement, should be adopted by Missouri courts and explaining that “[o]ur Courts have not been deterred in the past from adopting Restatement principles of tort deemed sensible and necessary ... [w]e should not be deterred here”

How later courts described this case

  • concluding that strict liability, as it is defined by the Restatement, should be adopted by Missouri courts and explaining that “[o]ur Courts have not been deterred in the past from adopting Restatement principles of tort deemed sensible and necessary ... [w]e should not be deterred here”
  • stating that strict liability should apply to claims based on radiation damage because use of nuclear material is uncommon and poses great danger
  • noting how Missouri courts have historically rejected claims based upon strict liability and required plaintiffs to bring negligence, nuisance or trespass actions instead
  • in a case involving a denial of recovery for “cancer-phobia,” the court emphasized that such fear must have been foreseeable reasonably by the defendant

Written by the judges who cited it.

The opinion

ON MOTIONS FOR REHEARING OR, IN THE ALTERNATIVE, FOR TRANSFER TO THE SUPREME COURT

PER CURIAM.

In its motion for rehearing, Mallinckrodt points out that we did not address one of *870 its contentions raised on appeal. This contention centers on statements made by plaintiffs’ counsel during oral argument on Mallinckrodt’s motion to dismiss. Mallinck-rodt asserts these statements clarify and control the meaning of plaintiffs’ petition. We were aware of this contention. We read those cases cited by Mallinckrodt in support of its contention and found them to be inapposite. In addition, we note counsel’s “clarifying” statements are not part of the designated record but are merely part of an apparent excerpt from the motion hearing appended to Mallinckrodt’s brief. On the present facts, we know of no principle of law or logic which requires us to define the explicit meaning of plaintiffs’ allegations by the fractional extemporaneous remarks of plaintiffs’ counsel. As we noted in our opinion, Mallinckrodt’s concern can be alleviated by a motion to make plaintiffs’ allegations more definite and certain.

Also, Mallinckrodt once again attempts to support some of its arguments by information which is not part of the record. Once again we note this case is before us only on the trial court’s grant of Mallinck-rodt’s motion to dismiss plaintiffs’ petition. If Mallinckrodt wishes to support its arguments by a “Brandéis Brief,” it has the proper procedural devices to do so.

Finally, to allay Mallinckrodt’s new concern generated by its reading of our opinion, we note that we were and are aware of the difference in potential danger between a reactor meltdown and a radioactive isotope. The present record, however, does not intimate, much less disclose, the potential danger of Mallinckrodt’s operation. Our opinion remains unchanged. Strict liability is an appropriate principle for activities generating radioactive emissions. It is for Mallinckrodt to demonstrate to the trial court that its particular activities do not fall within the purview of strict liability as defined by Restatement (Second) of Torts § 520 (1977).

Motions for rehearing and for Transfer to the Supreme Court denied.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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