Bailey v. City of St. Louis, 40516

• Citation: 578 S.W.2d 279
• Decision Date: 30 January 1979
• Docket Number: No. 40516,40516
• Parties: Ann Marie BAILEY, Appellant, v. The CITY OF ST. LOUIS, a Municipal Corporation, Respondent.
• Court: Missouri Court of Appeals

Page 279

578 S.W.2d 279

Ann Marie BAILEY, Appellant, v. The CITY OF ST. LOUIS, a Municipal Corporation, Respondent.

No. 40516.

Missouri Court of Appeals, Eastern District, Division Three.

Jan. 30, 1979.

Motion for Rehearing and/or Transfer Denied March 16, 1979.

London, Greenberg & Fleming, Burtom M. Greenberg, Thomas F. Flynn, St. Louis, for appellant.

Jack L. Koehr, City Counselor, John J. Fitzgibbon, Assoc. City Counselor, St. Louis, for respondent.

GUNN, Judge.

This appeal arises out of a wrongful death action brought by Ann Marie Bailey, mother of the decedent, against the City of St. Louis in its capacity as operator of an ambulance service. The trial court sustained the City's motion for summary judgment based upon the doctrine of sovereign immunity. On appeal, plaintiff contends that the City was not entitled to summary judgment as a matter of law because a genuine issue of material fact existed as to whether the operation of an ambulance service was a governmental or proprietary function. Further, plaintiff claims that the City is liable in tort to the extent that it is required by statute to carry liability insurance. We affirm.

On October 15, 1977, plaintiff gave birth prematurely to a baby boy. The child was unable to breathe normally, and mouth-to-mouth resuscitation was administered by the police officers who responded to the call for aid. The police also summoned a St. Louis City ambulance and informed the dispatcher that an emergency child-birth respiratory case was involved. The arrival of the ambulance took twenty minutes. The ambulance driver and attendants, City employees, were instructed by the police to continue mouth-to-mouth resuscitation or institute other artificial life support methods to maintain the child's life as he and his mother were conveyed to the hospital. Plaintiff alleged that during the trip, the ambulance attendants failed to take any action to sustain the baby's life and failed to radio the hospital that they were bringing in a respiratory failure victim. Upon arrival at the hospital, the child was diagnosed as not breathing and having no pulse. Efforts to revive him proved futile, and he was pronounced dead with the cause listed as respiratory failure. Plaintiff grounded her suit against the City of St. Louis in seven counts of negligence, including the tardy ambulance response time to her emergency call, the lack of artificial resuscitation equipment, the untrained ambulance personnel and the failure to notify the hospital of the nature of the baby's problem so that emergency assistance could be prepared in advance of his arrival. The City's motion for summary judgment claimed that the operation of the ambulance service was an exercise of its governmental function and, hence, that it had no tort liability. In support of the motion, the City relied on Schroeder v. City of St. Louis, 360 Mo. 293, 228 S.W.2d 677 (1950), a case which holds that the City of St. Louis' operation of a hospital is a governmental function, immune from suit in tort. The accompanying affidavit of Dr. Wochner, Director of Hospitals for the City of St. Louis, stated that the ambulance service was ". . . connected with and incident to . . ." the City hospital system. The first matter before us, then, is to determine whether the ambulance service's status as either a governmental or proprietary operation presents a genuine issue of material fact. Rule 74.04(c).

On appeal, we review the record in the light most favorable to the party against whom the judgment was rendered. Edwards v. Heidelbaugh, 574 S.W.2d 25 (Mo.App.E.Dist., 1978); Seliga Shoe Stores v. City of Maplewood, 558 S.W.2d 328 (Mo.App.1977). We recognize that summary judgment is a harsh remedy; consequently, the moving party has the burden to show by unassailable proof that there is no genuine issue of fact. Edwards v. Heidelbaugh, supra. Yet, the party confronted by a proper motion for summary judgment may not sit idly by. Rule 74.04(e) states that the party adverse to summary judgment may not rest upon mere allegations or denials in his pleadings but must set forth, by affidavits or otherwise, Specific facts which show that there is a genuine issue for trial. (emphasis added) See, Seliga Shoe Store v. City of Maplewood, supra. Plaintiff has failed to meet her burden of rebuttal and presented neither case law nor affidavits to refute those of the City. Instead, she professes that summary judgment was granted before she had the opportunity to make any meaningful discovery to establish the proprietary nature of the City's ambulance service. However, Rule 74.04(f) provides a means by which the court may order a continuance to permit affidavits to be obtained, or depositions to be taken, or discovery to be had. We have no indication that this remedy was sought. Therefore, on what it had before it, the trial court properly determined that no question of material fact existed concerning the ambulance service's status as a governmental functionary.

Plaintiff also argues that the trial court erred in granting summary judgment on the basis of sovereign immunity because the City was liable in tort to the extent that it was required by statute to carry liability insurance. To reach this conclusion, plaintiff adverts to §§ 190.052-190.195, RSMo Supp.1975, which regulate ambulances, ambulance personnel and emergency services. ¹ Section 190.100 defines "person" to include ". . . any...