Lackey v. Iberia R-V School District, 030216 MOCAS, SD33918

Docket Nº:SD33918
Opinion Judge:DANIEL E. SCOTT, P. J.
Party Name:DAKOTA J. LACKEY, Appellant, v. IBERIA R-V SCHOOL DISTRICT, and JASON MORRIS, Respondents.
Judge Panel:JEFFREY W. BATES, J. – CONCURS MARY W. SHEFFIELD, C.J. – CONCURS
Case Date:March 02, 2016
Court:Court of Appeals of Missouri
 
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DAKOTA J. LACKEY, Appellant,

v.

IBERIA R-V SCHOOL DISTRICT, and JASON MORRIS, Respondents.

No. SD33918

Court of Appeals of Missouri, Southern District, First Division

March 2, 2016

         APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY Honorable Kenneth Michael Hayden, Judge

          DANIEL E. SCOTT, P. J.

         After injuring his wrist in school gym class, Dakota Lackey sued teacher Jason Morris and the school district ("District"). The trial court granted summary judgment to District based on sovereign immunity, and to Morris under the Paul D. Coverdell Teacher Protection Act of 2001, 20 U.S.C. §§ 6731 et seq (2006).

         Lackey appeals. Our review is de novo using the same criteria the trial court should have employed without deference to that court's decision. ITT Comm. Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

         We affirm as to District because Lackey cannot prove a dangerous-condition exception to sovereign immunity. We reverse as to Morris because the summary judgment record fails to establish his Coverdell immunity.

         Injury and Circumstances1

         Lackey suffered his injury as an eighth-grader during an organized "long base" game in Morris's gym class. Long base is similar to kickball. A pitcher in the center circle rolls a ball. A kicker kicks it and runs toward either of two "bases" at opposite ends of the basketball court between the baseline and padded gym wall. No physical bases were placed on the gym floor; painted lines on the floor marked the "base" areas. The only game equipment was the ball.

         Lackey was injured as he ran to a base, then into the padded wall which he struck with his left hand, resulting in a wrist fracture.

         Point I – District's Sovereign Immunity

         To streamline analysis of this point, we first note what is not at issue:

• District, a public entity, enjoys sovereign immunity except as waived. Patterson v. Meramec Valley R-III School Dist., 864 S.W.2d 14, 15 (Mo.App. 1993).

• Lackey's waiver theory is that District's "property was in dangerous condition at the time of the injury [and] that the injury directly resulted from the dangerous condition, " i.e., the "dangerous condition" exception to sovereign immunity under § 537.600.1(2).

• Lackey must plead and prove such waiver as part of his case in chief. Maune v. City of Rolla, 203 S.W.3d 802, 804 (Mo.App. 2006).

• District was entitled to summary judgment if Lackey, having had adequate time for discovery, could not show that he could get to the jury on this element of his claim. ITT, 854 S.W.2d at 381.

         Lackey argues that Morris created a dangerous condition by designating floor areas near walls as "bases, " forcing students to stop abruptly after running the length of the gym, and his "broken arm was foreseeable in that one way … for a student to stop his body before striking the wall is to extend his arm."

         The trial court ruled correctly. Lackey's theory and supporting evidence will not get him to a jury on a "dangerous condition" under developed case law.

         Dangerous public property within § 537.600.1(2)'s narrow exception "must exhibit a defect that is physical in nature." Boever v. Special Sch. Dist. of St. Louis County, 296 S.W.3d 487, 493 (Mo.App. 2009). These include (1) physical defects in public property or its condition, and (2) "physical deficiencies created by the placement of objects on the public property." Id. (citing Alexander v. State, 756 S.W.2d 539, 541-42 (Mo. banc 1988)).

         Lackey's theory is the latter, primarily citing Alexander and Cain v. Missouri Highways & Transp. Comm'n, 239 S.W.3d 590 (Mo. banc 2007). Both cases are distinguishable:

• Plaintiff Cain was hit by a falling tree cut down by public employees. The tree had no physical defect before cutting began, but a jury might "conclude that the manner in which the [worker] cut the tree, prior to it falling, created a dangerous condition within the meaning of the statute." 239 S.W.3d at 594 (our emphasis).

• Plaintiff Alexander was injured because someone laid a folding room partition at the foot of a ladder he was using to fix an elevator. Descending the ladder, he stepped on the partition, which unfolded, causing him to fall. Our supreme court stated that "property" in § 537.600.1(2)'s context included personal property, and that leaning the partition against the ladder created "a physical deficiency" and "dangerous condition.'" 756 S.W.2d at 541-42. The ladder and partition were not intrinsically defective or dangerous; "the dangerous condition [was] created by the positioning of various items of property." Id. at 542 (our emphasis).

         In Alexander, non-defective items not intrinsically dangerous were moved and positioned and only thereby made "dangerous" per § 537.600.1(2). In Cain...

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