Introduction

When I began Burger Law a little over two years ago, it was quite a challenge. I had a prior law firm for 15 years and had to rapidly start a new firm and market it and me anew. This was stressful; but many other business owners and lawyers have experienced this as well, so it is certainly not unique to me.

One of the things I committed to do was doing a newsletter by email to lawyers, clients and friends. My friend (and amazing immigration lawyer) Jim Hacking inspired me. I decided to do this every two weeks rather than intermittently as I had in the past. Since then, every two weeks I sent an email newsletter out. I try to mix legal issues, my clients’ successes, my life, and unique views I sometimes have about law intersecting society.

The response to these emails has been fantastic. I have developed new friends and new relationships, interact better with my clients, lawyers, family and friends, maintain those relationships, and share. I have reestablished old relationships and forged new friendships in the last two years. The adage, “the more you give the more you get” is true.

Doing the emails has given me a forced discipline to do them every two weeks. I get to organize my thoughts and present interesting and unique stories to the readers. People ask me how I do it (I just make myself) and how I keep up putting out the content (I have gotten used to it). My efforts in doing so is greatly eclipsed by the friendships and connections that I have gotten because of it. I also keep me and my law firm in front of them in case my legal services can assist them.

As I did an email every two weeks for two years, I decided to collect them in this book. So here they are without a table of contents or any added commentary. They reflect the rise of my law firm and my family over the last two years sent to thousands of family, friends, clients and lawyers.

Special thanks to four women who help me with these: my amazing paralegal Casey Fluegel; Taylor Morthland, the best law clerk ever; Jessie Massey who helped put this book together and who has been a friend of my family for around a third of her life; and my beautiful, kind, loving and great editor wife Kristen Burger. I am grateful to have such amazing, smart and strong women around me.

Announcing Burger Law

December 18, 2015

Announcing Burger Law

Gary Burger is proud and excited to announce his new firm Burger Law. Gary has a 24 year track record of helping personal injury victims and their families and headed the Civil Litigation Group at his prior firm for 16 years. This tradition continues at Burger Law. Our focus is auto crashes, truck wrecks, medical malpractice, slip and falls, and workers' compensation. But we also pursue claims in general civil litigation. We are AV Rated, Board Certified, Superlawyer rated by peers, Multi-Million Dollar Advocates Forum, Top 100 Trial Lawyers, and AVVO Client's Choice Award.

Slip and Fall Claims and Law

Mary and Dora don’t know each other but have the same story. Both were going shopping at a grocery store, walked through the parking lot and slipped and fell on ‘black ice’ they did not see. We have navigated their claims well through the labyrinth of Missouri slip and fall law.

The both were significantly injured – Mary had knee surgery and Dora will likely need surgery too. The manager at Mary’s store had arrived that morning and almost sipped on a different ice patch behind the store. He salted that patch but then did not salt anywhere else, did not inspect the lot or ask anyone else to (and no one did). After Mary fell, her son and a store manager helped her up and both of them slipped on the ice patch too.

Dora similarly was with her son when she fell, and he slipped helping her too. They contacted the store owner immediately and the store managers saw the ice. There was no general snow or ice around.

As is increasingly common, neither store owned or maintain the parking lots exclusively reserved for their use. And the company that owned the lot hired someone else to plow and salt.

We learned there was a complete dearth of programs or practices to walk or inspect the property for ice or other conditions unsafe for guests. These stores were national chains that had published “trip slip and fall” prevention programs for in the stores but nothing for outside.

Of course these settled easy, right? No – Mary’s case went to the eve of trial, after all experts were deposed, and we just defeated summary judgment in Doras case and that should go to trial soon. Defenses raised – the injured person should have seen it or watched more carefully, store did not own the property and lot owner only had to plow, and it was a general accumulation of ice/snow and thus no liability under Missouri law. Let’s look at the law: A landowner has to keep its property free from dangerous conditions. MAI 22.03 (7th Ed.). MAI 22.03 states the owner only could have known of that condition, so the lot owner is on the hook. Further, Missouri courts have long held that, in parking lot cases, the store using the lot owes a non-delegable duty to its invitees to provide a reasonably safe parking lot. Cannon v. S. Kresge,233 Mo.App. 173, 116 S.W.2d 559 (1938); Demko v. H & H Inv. Co., 527 S.W.2d 382 (Mo. App., 1975); Groce v. Kansas City Spirit, Inc., 925 S.W.2d 880, 885 (Mo. App. W.D., 1996); Turcol v. Shoney’s Enterprises, Inc., 640 S.W.2d 503 (Mo. App. E.D. 1982); O’Connell v. Roper Elec. Co., Inc. 498 S.W.2d 847 (Mo. App. 1973).

This duty is based on the “merchant’s duty to invitees to provide a reasonably safe means of ingress and egress.” Demko, 527 S.W.2d at 384. This duty extends beyond the boundaries of the premises under the invitor’s control or occupancy to include the approaches which are expressly or impliedly invited for use. See Cannon, 116 S.W.2d at 569. Mary and Dora were customers of the stores that lease space around the lot and were invitees of both the store and lot owner defendants.

In Demko, the Court said an operator who controlled a parking lot had superior knowledge about ice formation and therefore has a duty to keep a parking lot adjacent to their premises safe because of that superior knowledge. Demko, 527 S.W.2d at 384-385. “The basis for liability in this type of case is knowledge of the storekeeper of an unsafe condition or of a danger to a shopper, superior to that of an invitee.” Demko, 527 S.W.2d at 384, quoting Gilpin v. Gerbes Supermarket, Inc., 446 S.W.2d 615, 618 (Mo. 1969). Although a landowner is not required to remedy a dangerous condition that generally affects all property in an area, they are required to address a property hazard that was known or reasonably discoverable. Harris v. Niehaus, 857 S.W. 2d 222 (Mo. App. 1993); see also Gorman v. Wal-Mart Stores, Inc., 19 S.W.3d 725, 732 (Mo. App. 2000)(A defendant may voluntarily assume a duty to protect the safety of an invitee by plowing ice, and once such a duty is assumed, the defendant must exercise reasonable care).

Whether a weather condition of ice or snow was a general condition in the community or was an isolated condition in a particular area and whether a duty exists are questions of fact for a jury. Otterman v. Harold’s Supermkts., Inc., 65 S.W. 3d at 555-56 (Mo. App. W.D.2001); Willis, 804 S.W.2d at 421; Turcol, 640 S.W.2d at 508.

Open and obvious can be a problem. Here Dora and Mary did not see it and neither did their sons. They did not know what they slipped on until lying on the ground and ‘black’ ice is so named because the ice blends in with asphalt and is difficult to see.

Auto Crash Settlement

We recently settled Brian’s auto crash case for $59,000. He was rear ended in St. Louis County driving home from work. The other driver was distracted from another wreck. His injuries were typical for this type of impact. The forces of a rear end crash go straight to the spine and the discs between our neck vertebrae are not designed to handle that type of acute force.

Brian sustained a soft tissue injury to his neck and received medical treatment right after the crash. He continued to have pain and went to a good area chiropractor. He consulted with an orthopedic surgeon and received a few injections to help him with his case. We became involved, collected Brian’s medical records, and made a demand on the insurance company to settle.

They offered $24,000 to settle the case, which we rejected. We then filed suit and aggressively pursued the claim. We did depositions, set the case for trial and were ready to try the case. We also reiterated our demand numerous times because most clients do not want to add to the stress of an injury with a trial. Shortly before trial defense lawyers offered enough money to fairly compensate Brian for his injury, so we settled the case.

Rarely Buy an Extended Warranty

It’s the end of the holiday shopping season and hopefully so too is over-consumerism. When we do purchase expensive things, the cashier often asks us to buy an extended warranty. If a company makes and sells something, shouldn’t it last longer than a year? Does this really decrease and limit the warranty you already have? YES to both.

Missouri (and Illinois and most states) law already provides a 4 year warranty for goods sold in stores. All goods have to be merchantable, which is implied in any contract for their sale (R.S.Mo. §400-002.314). This means that products must be of fair, average or better quality, must be fit for how they are typically used, and must conform to the promises made on their container or label. If the seller violates this you can have up to four years to sue the seller for breaching this implied warranty of merchantability.

So, if someone tries to sell you an extended warranty of less than 4 years, don’t buy it cause it doesn’t extend anything. Your rights are already protected under your state’s laws and the Uniform Commercial Code for up to four years. If you are considering it to make things easier, make sure you read what the warranty covers. Here are some dos and don’ts:

Do:

• Buy a 5 year or more warranty.
• Return something when it breaks. Especially quickly.
• Keep receipts.
• Stand up for your consumer rights. Send emails and complain. File a small claims court case if you get ripped off. Complain on social media or BBB.
• Call the attorney general or other consumer fraud places to complain.
• Be nice but firm.

Don’t:

• Buy a 1 or 2 year warranty. Missouri law already protects you.
• Let stores or manufactures influence you or not stand up for their product.
• Let stores tell you they don’t take stuff back unless they told you at the beginning.
• Buy any warranty if you won’t keep the paperwork.
• Take no for an answer – these days everyone has to protect themselves if companies don’t care.
• Be mean or snotty – kill them with kindness.

Responses:

“Best wishes to you in your new firm.”

--Kristin