Beaver v. Gosney, WD
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | BRECKENRIDGE |
| Citation | 825 S.W.2d 870 |
| Parties | Betty J. BEAVER, et al., Appellants, v. Irene GOSNEY, et al., Respondents. 44043. |
| Docket Number | No. WD,WD |
| Decision Date | 07 January 1992 |
Page 870
v.
Irene GOSNEY, et al., Respondents.
Western District.
Motion for Rehearing and/or Transfer
to Supreme Court Denied
March 3, 1992.
Application to Transfer Denied April 21, 1992.
Page 871
G. Spencer Miller & Philip R. Holloway, Miller, Dougherty & Modin, Kansas City, for appellants.
E. David Swartzbaugh & Dale H. Close, Kansas City Police Dept., Legal Advisor's Office, Kansas City, for respondents.
Before BERREY, P.J., and ULRICH and BRECKENRIDGE, JJ.
BRECKENRIDGE, Judge.
Betty and James Beaver appeal from the dismissal of their action against Steven Hebauf, an officer of the Kansas City, Missouri Police Department, for failure to state a cause of action for which relief may be granted. The Beavers raise three points in this appeal claiming that the trial court erred in sustaining Hebauf's motion to dismiss because: (1) sovereign immunity was abrogated by the legislature under § 537.600, RSMo 1986, 1 in two specific situations and such action by implication abrogated the public duty doctrine; (2) the public duty doctrine should be modified in Missouri to recognize a "special duty" exception applicable to the case at bar; and (3) Hebauf's actions were ministerial in nature so official immunity is not a bar to the action. The judgment is affirmed.
On November 12, 1988, at approximately 10:30 a.m., Irene Gosney was driving along N.W. Barry Road near its intersection with North Marston. Ms. Gosney lost control of her vehicle when another automobile allegedly pulled out from North Marston. As a result of her evasive action, Ms. Gosney's vehicle was disabled, and she left it in the westbound lane of traffic. Shortly after this occurrence, Officer Steve Hebauf of the Kansas City, Missouri Police Department was dispatched to the scene. While Hebauf was investigating the accident, Betty Beaver, who was driving in the westbound lane, came upon the site of the occurrence and swerved to avoid hitting the Gosney vehicle. She struck a vehicle being operated in the eastbound lane by Peter C. Stacy. As a result of the collision, Betty Beaver sustained serious injuries.
Betty and James Beaver filed suit in the circuit court of Clay County on April 25, 1990. Through the original petition and in subsequent amended petitions, the Beavers sued Irene Gosney, Peter C. Stacy, Steven Hebauf, American Standard Insurance Company of Wisconsin and the City of Kansas City, Missouri. In regard to Steven Hebauf, the second amended petition stated:
Page 872
6. Shortly after Defendant Gosney's vehicle became disabled, Officer Hebauf was dispatched to the scene. Upon arrival and until after plaintiff's collision, Officer Hebauf placed his patrol car off of N.W. Barry Road in the safety of an intersecting street as he investigated Defendant Gosney's accident. At all times pertinent herein, there were certain rules and regulations promulgated by the Kansas City, Missouri Police Department which governed the activities of Defendant Hebauf while on duty. Copies of the applicable sections are attached hereto as Exhibit "B" and are incorporated herein. Said rules and regulations establish special duties of Officer Hebauf to those individuals who might be injured as the result of a previous accident. Plaintiff Betty J. Beaver was in the special class of individuals to whom Officer Hebauf owed special duties as set forth in the attached regulations.
* * * * * *
13. Defendant Steven Hebauf was negligent in the following particulars:
(a) Failure to place flares or other warning devices to caution westbound traffic of the presence of the disabled vehicle which created an obstruction and dangerous condition on a public street owned and maintained by defendant City of Kansas City, Missouri;
(b) Failure to place his patrol car, with flashers and lights operating, in such a location as to advise westbound traffic of the presence of the disabled vehicle;
(c) Failure to direct traffic safely around the disabled vehicle;
(d) Failure to quickly remove or have removed the disabled vehicle;
(e) Knew or should have known that the Gosney vehicle was left in a position that caused extreme peril to westbound traffic and thereby failed to take any steps to remedy the peril; and
(f) Failed to follow police procedure in investigating the Gosney accident so as to avoid a subsequent accident and specifically failed to follow the regulations set forth in Exhibit "B" attached hereto.
Following a motion to dismiss filed by Hebauf, the court dismissed the Beavers' claims against Hebauf for failure to state a claim for which relief may be granted and designated the dismissal as final for the purposes of appeal.
In their first point, the Beavers allege that the trial court erred in sustaining Hebauf's motion to dismiss because sovereign immunity was abrogated by the legislature in § 537.600 in two specific situations. This abrogation...
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