Robinson v. Missouri State Highway and Transportation

• Decision Date: 04 April 2000
• Citation: 24 S.W.3d 67
• Parties: (Mo.App. W.D. 2000) Thelma Robinson, et al., Appellants, v. Missouri State Highway and Transportation Commission, et al., Respondents. WD56469 0
• Court: Missouri Court of Appeals

24 S.W.3d 67 (Mo.App. W.D. 2000)

Thelma Robinson, et al., Appellants, v. Missouri State Highway and Transportation Commission, et al., Respondents.

WD56469

Missouri Court of Appeals Western District

04/04/2000

Appeal From: Circuit Court of Buchanan County, Hon. Randall R. Jackson

Counsel for Appellant: Joseph K. Lewis, Jr. and Ron L. Findley

Counsel for Respondent: Zachary T. Cartwright, Wendell E. Koerner, Jr., Keith J. Schieber, James P. Barton, Jr., G. Edwin Proctor, Jr., and Scott R. Gum

Opinion Summary: Thelma Robinson, the widow of Richard Robinson, and Tina Robinson and Susan Robinson Little, Mr. Robinson's daughters, appeal the summary judgment of the circuit court for the respondents, Phyllis Hawkins and Charles and Frances Walton, on their claims for damages for wrongful death, pled on the alternate theories of negligence and public nuisance. Mr. Robinson drowned on September 22, 1993, in floodwater from the 102 River covering B Highway in Andrew County, Missouri. At that time, the Waltons owned two tracts of land contiguous to and east of the 102 River, one to the north and one to the south of B Highway, upon which they had constructed earthen levees to protect their crops from floodwater from the river. Hawkins owned a tract of land north of and adjacent to the Waltons' property, which was also contiguous to the 102 River and upon which she had also constructed earthen levees to protect her crops from floodwater from the river. The appellants alleged in their petition that the manner in which the respondents had constructed their levees caused the 102 River to flood B Highway on September 22, 1993, directly resulting in Mr. Robinson's death.

Division III holds: Because the appellants' wrongful death claims were pled on the alternate theories of negligence and public nuisance, if this Court finds that summary judgment for the respondents was improper as to either theory of recovery pled by the appellants, this Court must reverse and would not be required to determine if the court also erred in awarding summary judgment on the alternate theory pled. Because this Court finds that the trial court's award of summary judgment was improper as to the appellants' wrongful death claims based on a theory of negligence, this Court addresses the appellants' claims on appeal in that context only.

In their motions for summary judgment, the respondents alleged facts which they asserted were undisputed and negated the second and third required proof elements of the appellants' wrongful death claim based on negligence, the breach of duty and causation elements. Even assuming that the respondents made a prima facie case for summary judgment based on their allegations with respect to a lack of breach of duty, their motions were improvidently granted on this basis in that the appellants rebutted the same. The appellants demonstrated that there was a genuine dispute of material facts as to whether the respondents' diversion of surface water from their land and onto B Highway was reasonable such that they did not breach their duty of care owed to Mr. Robinson.

As to the causation element, in order to prove a causal connection to establish negligence, the appellants were required to show both causation in fact and proximate cause. As to cause in fact, even assuming that the respondents made a prima facie case for summary judgment on this basis, their motions were improvidently granted in that the appellants rebutted the same by showing that there was a genuine dispute of material fact as to whether Mr. Robinson's death would not have occurred but for the respondents' construction and maintenance of their levees and subsequent diversion of floodwater from their land onto the highway. As to proximate cause, the respondents claimed that any negligence on their part was not the proximate cause of Mr. Robinson's death because there were numerous intervening resulting causes of his death. The intervening resulting causes of Mr. Robinson's death put forth by the respondents were no more than acts of concurrent negligence and, as such, would not relieve the respondents of liability for their own negligent acts. Furthermore, Mr. Robinson's death was reasonably foreseeable under the circumstances. As such, the respondents failed to allege undisputed facts in their motions establishing that Mr. Robinson's death was not a reasonable and probable consequence of their conduct such that they could not be liable for his death and, thus, failed to make a prima facie case for summary judgment on this basis.

As to the appellants' Point III, the trial court, after ruling in favor of the respondents on the issue of liability as to the appellants' claims for wrongful death, rendering moot the issue of whether they were entitled to damages thereon, either compensatory or punitive, nonetheless proceeded to address and rule for the respondents on their motions for summary judgment with respect to the partial issue of punitive damages. The judgment with respect to punitive damages, standing alone, would not constitute a final judgment from which an appeal would lie. Also, from a practical standpoint, given the fact that this case must be remanded for trial, facts as to the issue of punitive damages may yet be developed by the appellants which would cause the trial court to change its ruling with respect to this issue, rendering premature any present appeal of the same. As such, the Court dismisses the appellants' claim in Point III.

PER CURIAM

Thelma Robinson, the widow of Richard Robinson, and Tina Robinson and Susan Robinson Little, Mr. Robinson's daughters, appeal the summary judgment of the circuit court for the respondents, Phyllis Hawkins (Hawkins) and Charles and Frances Walton (the Waltons), on their claims for damages for wrongful death, pled on the alternate theories of negligence and public nuisance. Mr. Robinson drowned on September 22, 1993, in floodwater from the 102 River covering B Highway in Andrew County, Missouri. At that time, the Waltons owned two tracts of land contiguous to and east of the 102 River, one to the north and one to the south of B Highway, upon which they had constructed earthen levees to protect their crops from floodwater from the river. Hawkins owned a tract of land north of and adjacent to the Waltons' property, which was also contiguous to the 102 River and upon which she had also constructed earthen levees to protect her crops from floodwater from the river. The appellants alleged in their petition that the manner in which the respondents had constructed their levees caused the 102 River to flood B Highway on September 22, 1993, directly resulting in Mr. Robinson's death.

The appellants raise three points on appeal. In Point I, they claim that the trial court erred in entering summary judgment for the respondents on the basis that they had not breached a duty of care owed to Mr. Robinson because there was a genuine dispute of material fact as to this issue. In Point II, they claim that the trial court erred in entering summary judgment for the respondents on the basis that any breach by them of a duty of care owed to Mr. Robinson on their part was not the direct and proximate cause of his death because there was a genuine dispute of material fact as to this issue and the respondents were not entitled to judgment as a matter of law on this basis. In Point III, the appellants claim that the trial court erred in entering summary judgment for the respondents on the issue of whether they were entitled to damages for aggravating circumstances because there was a genuine dispute of material fact as to this issue.

We reverse and remand.

Facts

The 102 River in Andrew County, Missouri, is a non-navigable stream that is capable of being stepped over most of the time. In Andrew County, B Highway runs east from U.S. Highway 71, through the city of Bolckow and to the city of Caywood, for a total distance of approximately eight miles. Approximately one mile west of Bolckow, the highway intersects the 102 River, with a bridge built at that location. On September 22, 1993, the Waltons owned two tracts of land contiguous to and east of the 102 River, one to the north of B Highway, consisting of approximately 200 acres, and one to the south of the highway, consisting of approximately 150 acres. Sometime in the 1980's, the Waltons constructed earthen levees on both tracts of their land. Hawkins owned approximately 80 acres of land north and adjacent to the Waltons' property, also contiguous to the 102 River. At some point, she constructed earthen levees on the north, south, and west sides of her property. The northwest corner of the levee on the Waltons' property north of the highway tied into the southwest corner of Hawkins's levee. North of Hawkins's property, Lawrence and Lorraine Bennett (the Bennetts) and the Lawrence Bennett Trust owned approximately 102 acres of land, also contiguous to the 102 River. Levees similar to those on the Waltons' and Hawkins's properties were constructed on the Bennett property. P.M. Land Company owned a tract of land west of the 102 River and the Walton property south of B Highway, abutting the highway, where levees also had been built.

The levees on these tracts of land were built to protect crops by channeling floodwater from the 102 River away from the land. The levees on the respondents' land north of B Highway were constructed at approximately twelve feet in height, which was higher than the grade of B Highway. During the spring of 1993, these levees were partially breached by flooding which eroded their height by about two feet, after which they provided an average storage depth of ten feet of water. In September 1993, the height of the respondents' levees both north and south of B Highway were at higher elevations than the grade of the highway. These levees were not part of a county levee district.

At approximately 4:00 to 4:10 a.m. on September 22, 1993, Mr....