Alexander v. State, 70286

Decision Date13 September 1988
Docket NumberNo. 70286,70286
Citation756 S.W.2d 539
PartiesBobby M. ALEXANDER, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Supreme Court

Glenn E. Easley, John B. Schwabe, II, Columbia, for appellant.

William E. Webster, Atty. Gen., Gary L. Gardner, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Plaintiff Bobby Alexander appeals from a judgment and order entered in favor of defendant State of Missouri on the state's motion for judgment on the pleadings or in the alternative for summary judgment. The trial court sustained the motion and in effect dismissed plaintiff's claim for failure to state a cause of action. Because no evidence or supporting affidavits were offered, we examine only the pleadings to determine whether as a matter of law a cognizable action is stated. Plaintiff alleges that he fell from a ladder while servicing elevators in the Jefferson State Office Building as a result of a dangerous condition of the state's property within the meaning of § 537.600.1(2), RSMo 1986; the state asserts that the statutory exceptions to sovereign immunity are not applicable under the facts stated in the petition because plaintiff's injuries were not caused by a "dangerous condition" of the state's property. The Court of Appeals, Western District, reversed the trial court's judgment, holding that plaintiff had pled a cause of action within the scope of § 537.600.1(2); however, one judge dissented and ordered the cause transferred pursuant to Mo. Const. Art. V, § 10, to resolve a perceived conflict between the majority opinion and Kanagawa v. State of Missouri, By and Through Freeman, 685 S.W.2d 831 (Mo. banc 1985) and Twente v. Ellis Fischel State Cancer Hospital, 665 S.W.2d 2 (Mo.App.1983). We decide the cause as though on original appeal and reverse and remand.

When reviewing a judgment on the pleadings, we bear in mind that the party moving for judgment admits, for purposes of the motion, the truth of all well-pled facts in the opposing party's pleadings. Madison Block Pharmacy v. U.S. Fidelity, 620 S.W.2d 343, 345 (Mo. banc 1981). Such motions should be sustained if it appears from the face of the pleadings that the moving party is entitled to judgment as a matter of law. Id.

Plaintiff alleged in his first amended petition that on April 17, 1979, he was employed as an elevator repairman and was dispatched to the Jefferson State Office Building to service elevators located there. While descending a fixed metal ladder which accesses the building's elevator equipment room, he stepped off the last rung and onto a folding room partition which had been laid at the foot of the ladder while he was working above in the equipment room. As plaintiff stepped onto the partition it unfolded and his foot slipped from the ladder, causing him to lose his grip, and he fell, striking his back on a concrete wall. The petition describes serious and substantial injuries to plaintiff's back caused by the fall which have prevented plaintiff from returning to gainful employment since the accident. Plaintiff further avers that the Jefferson State Office Building is owned and operated by the State of Missouri and that the state has purchased liability insurance for tort claims such as the one involved here. He also asserts:

[T]he placement of said folding room partition, as aforesaid, constituted a dangerous condition of the defendant's property, which was in a dangerous condition at the time of the plaintiff's injury, that the plaintiff's injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred; that either a negligent or wrongful act or omission of an employee of the defendant acting within the course of his employment created the dangerous condition or the defendant had actual or constructive notice of the dangerous condition in sufficient time prior to the plaintiff's injury to have taken measures to protect against the dangerous condition.

Defendant's motion for judgment on the pleadings was predicated on its contention that plaintiff's claim is barred by the doctrine of sovereign immunity. Sovereign immunity as it existed prior to September 12, 1977, remains in effect except for certain instances in which it is waived, including:

Injuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition [sic] at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

* * *

Section 537.600.1(2), RSMo 1986. In Kanagawa, 685 S.W.2d at 835, this Court held:

[a] plaintiff seeking to state a claim under the exception must allege facts that demonstrate: (1) a dangerous condition of the property; (2) that the plaintiff's injuries directly resulted from the dangerous condition; (3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind the plaintiff incurred; and (4) that a public employee negligently created the condition or that the public entity had actual or constructive notice of the dangerous condition.

The issue presented in this case concerns the first requirement of Kanagawa; that is, whether plaintiff has alleged facts demonstrating a dangerous condition of the public entity's property. Guided in our inquiry by well established rules of statutory construction and interpretation, it is our primary responsibility to ascertain and effectuate the intent of the General Assembly, and in so doing we look first to the language of the statute and the plain and ordinary meaning of the words employed. Provisions of the entire legislative act must be construed together and harmonized, if reasonably possible. Crest Communications v. Kuehle, 754 S.W.2d 563, 566 (Mo. banc 1988). The term "property" in the context of § 537.600.1(2) has been interpreted as including both real and personal property, Delmain v. Meramec Valley R-III School District, 671 S.W.2d 415, 417 (Mo.App.1984), and thus would encompass the ladder and partition involved here. While it has also been held that "dangerous condition" refers only to defects in the physical condition of public property; Kanagawa, 685 S.W.2d at 835; Twente, 665 S.W.2d at 11; we believe, giving the words of the statute their...

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