Aylward v. Baer, WD

• Decision Date: 15 December 1987
• Docket Number: No. WD,WD
• Citation: 745 S.W.2d 692
• Parties: James P. AYLWARD, Jr., Appellant, v. Randolph Louis BAER, et al., Respondent. 39119.
• Court: Missouri Court of Appeals

Page 692

745 S.W.2d 692

James P. AYLWARD, Jr., Appellant, v. Randolph Louis BAER, et al., Respondent.

No. WD 39119.

Missouri Court of Appeals Western District.

Dec. 15, 1987.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 2, 1988.

Application to Transfer Denied March 15, 1988.

William C. Partin, Matt Partin, Kansas City, for appellant.

Richard N. Ward, Jeffrey L. Hess, Kansas City, for respondent.

Before PRITCHARD, P.J., and GAITAN and COVINGTON, JJ.

GAITAN, Judge.

Plaintiff, James P. Aylward, Jr., on behalf of his ward, Vicki M. Sweeney, seeks damages for injuries to Sweeney resulting from a vehicular accident which occurred on February 7, 1981. Plaintiff has sued four defendants and his theory of recovery is negligence. However, the city of Kansas City, Missouri (City) and, Kansas City Power and Light Company (KCP & L) are the defendants to which this appeal applies. The two other defendants (Baer & Ink) are the motorists who were operating the vehicles which struck Sweeney. Action as to those defendants is stayed pending disposition of this appeal. Defendants Kansas City, Missouri and Kansas City Power and Light Company filed their respective motions for dismissal and/or summary judgment which were granted by the trial court. There is no dispute between these parties that the trial court orders with respect to these two defendants are final and appealable within the meaning of § 512.020 RSMo. We affirm.

On February 7, 1981, the block of Wornall Road between 79th Terrace and 80th Street was bordered on its east side and on its west side by a row of shops, stores and other businesses, each row being fronted by a parking area. At about 1:30 a.m. on the 7th, Vicki Sweeney and DeWayne Stilwell proceeded through the parking area in front of AB's, at 7929 Wornall, and headed west and slightly south in the direction of 7950 Wornall across the street where their car was parked. There was no formal crosswalk at this location. As they moved out of AB's parking area they passed in front of the single street light in the middle of the block which was situated on the east side of the street. The other two lights in the block were situated at its endpoints, 79th Terrace and 80th Street. At a point in the west curb lane of Wornall, just a step or so from that part of the parking area in front of 7950 Wornall, both Vicki Sweeney and Stilwell were hit by Baer's southbound car.

Baer claims he did not see either Sweeney or Stilwell until immediately before hitting them and so did not in any way slow his car or take other evasive action. Baer estimated his speed at 35 m.p.h. However, there allegedly is contrary evidence in the form of an eyewitness statement that his speed was between 50-60 m.p.h. At any rate, Sweeney and Stilwell were knocked into the air, coming to rest near the center of Wornall Road. There Vicki Sweeney was, some 30 seconds later, run over by John Ink's car. The left front and left rear tires of his car ran directly over Vicki Sweeney's head and face causing irreparable injuries. Ink alleges he did not see either Sweeney or Stilwell before the accident occurred.

According to plaintiff, both Baer and Ink each attributed his failure to see Vicki Sweeney, to the poor visibility caused by the inadequate illumination from the street lights. There were no other reasons recited for their failure to see the victims.

KCP & L owns the lights and light poles and leases them to the City at the direction and specification of the City. KCP & L also performs all work on the street lights from installation to maintenance.

The claims against the City and KCP & L were pleaded in Count II of the Petition (Count I contained the claims against Baer and Ink). Plaintiff alleges the City and KCP & L share responsibility for the street lights, and therefore, they are joint tortfeasors. More specifically plaintiff alleges that in placing the street lights as they did, KCP & L acted as a contractor with and as a servant of the City. Plaintiff further alleges that they jointly violated the common law duty to keep the streets reasonably safe for travel in numerous respects relative to the street lights, ranging from selection of the lighting equipment to maintenance thereof.

The issue before this Court concerns the propriety of the trial court's ruling on the motion to dismiss or, in the alternative, motion for summary judgment filed by the defendants, Kansas City, Missouri and KCP & L. The disposition of this action is governed by Supreme Court Rule 74.04 which deals with summary judgments. Specifically, Rule 74.04(c) states, in part, as follows:

The Motion shall be served at least ten days before the time fixed for a hearing. The adverse party prior to the day of hearing may serve opposing affidavits. Judgment sought shall be rendered forthwith if the pleadings, depositions, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law With that rule in mind we review the position of the two defendants herein.

First, we examine the facts as they relate to the City. Plaintiff correctly argues that the City has a duty to keep its streets in a reasonably safe condition, free of obstructions. To buttress his argument, plaintiff further argues that the allegedly substantial pedestrian travel at this location (between 79th Terrace and 80th Street on Wornall) combined with the allegedly poor light illumination created an unsafe condition for travel. He cites a number of cases including German v. Kansas City, 512 S.W.2d 135, 142 (Mo. banc 1974) for the proposition that such a duty is proprietary and not subject to sovereign immunity. We find this argument to be flawed. German states that there is a difference between the physical condition of a street and its use by the public. The former is proprietary and the latter is governmental. Id. at 142-144.

We are further directed by the general principal of law which states: "A governmental duty is one which is performed for the common good of all. A duty will be deemed proprietary if it is performed for the special benefit or profit of the municipality as a corporate entity". Davis v. City of St. Louis, 612 S.W.2d 812, 814 (Mo.App.1981). Here, we find no special benefit to the City resulting from the installation and maintenance of street lights. This has been done for the good of all citizens as an exercise of the City's police powers. We believe that the providing of street lights is a governmental function akin to traffic regulation. Consequently, the City should be immune from suit.

This immunity from suit is reinforced when we examine § 537.600 (RSMo 1985) which outlines the boundaries under which sovereign immunity may be asserted. It states:

537.600. Sovereign immunity in effect--exceptions--waiver of

1. Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:

(1) Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment;

(2) Injuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous...