Benson v. Kan. City, WD 74283.

• Decision Date: 15 May 2012
• Docket Number: No. WD 74283.,WD 74283.
• Citation: 366 S.W.3d 120
• Parties: Derrick J. BENSON, Appellant, v. KANSAS CITY, Missouri, BOARD OF POLICE COMMISSIONERS, Respondent.
• Court: Missouri Court of Appeals

366 S.W.3d 120

Derrick J. BENSON, Appellant,

v.KANSAS CITY, Missouri, BOARD OF POLICE COMMISSIONERS, Respondent.

No. WD 74283.

Missouri Court of Appeals,

Western District.

May 15, 2012.

James T. Thompson and Melissa L. Steed, Kansas City, MO, for appellant.

Lauren A. Horsman, Jefferson City, MO, for respondent.

Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, CYNTHIA L. MARTIN, Judge and JOEL P. FAHNESTOCK, Special Judge.

CYNTHIA L. MARTIN, Judge.

Derrick Benson (“Benson”) appeals from the trial court's judgment entering summary judgment in favor of the Kansas City Board of Police Commissioners (“the Board”). Benson contends that the trial court erred in concluding that the Board was entitled to sovereign immunity, notwithstanding statutory waiver of sovereign immunity for injuries arising out of the negligent operation of a motor vehicle, because there could not be a finding that its employee who caused Benson's injuries was negligent because the employee was not named as a defendant and because its employee was protected from liability by the public duty doctrine. We reverse and remand.

Factual and Procedural Background

On April 12, 2006, at approximately 3:30 a.m., a collision occurred between Benson and Kansas City, Missouri Police Officer Charles Evans (“Officer Evans”) at the intersection of Armour Boulevard and Gillham Road. Officer Evans was traveling northbound on Gillham Road because he was following another officer who had been dispatched to an alarm call. Benson was traveling eastbound in the westbound lane of Armour Boulevard. Officer Evans's police wagon and Benson's bicycle collided in the intersection. As a result of the impact, Benson was ejected from his bicycle and suffered injuries for which he was transported to Truman Medical Center to receive treatment.

Benson filed a petition against the Board and the City of Kansas City (“the City”). The petition alleged that Benson sustained injuries as a result of Officer Evans's failure to activate his vehicle's flashing lights, sirens, or both and as a result of his failure to keep a careful lookout for other vehicles before entering the intersection. Those failures, the petition alleged, constituted negligence for which the Board and the City were vicariously liable under the doctrine of respondeat superior because, at the time of the accident, Officer Evans was an employee of the Board and the City and acting within the course and scope of his employment.

The Board filed a motion for summary judgment. The sole legal basis raised by the Board for the entry of judgment in its favor was its claim that the Board was entitled to sovereign immunity because, under the public duty doctrine, Officer Evans owed no duty to Benson and thus could not be found negligent. ¹ Thus, the Board argued, the waiver of its sovereign immunity set forth in section 537.600.1(1) ² for injuries arising out of the negligent operation of a motor vehicle did not apply. Benson filed suggestions in opposition contending that, according to Southers v. City of Farmington, 263 S.W.3d 603 (Mo. banc 2008), the public duty doctrine does not shield a governmental entity like the Board from respondeat superior liability where sovereign immunity has been statutorily waived. The Board never advanced an argument to the trial court attempting to distinguish Southers. Notwithstanding, the trial court entered summary judgment in favor of the Board.

Shortly thereafter, the City filed an identical motion for summary judgment. Benson again filed suggestions in opposition, and “urge[d] this Court to read Southers before deciding on the City's motion.” Benson also filed a motion asking the trial court to reconsider its grant of summary judgment in favor of the Board. The Board opposed the motion to reconsider, arguing that because the motion was not filed within thirty days of the trial court's grant of summary judgment, the trial court had lost its power to modify the judgment pursuant to Rule 75.01.

On December 9, 2010, the trial court entered an order (“Order”) that denied the City's motion for summary judgment. The Order stated: “Pursuant to Southers v. City of Farmington, 263 S.W.3d 603 (Mo. banc 2008) and the statutory waiver of immunity provided by RSMo. § 537.600.1 (2010), this Court finds that the public duty doctrine does not shield the City from tort liability where the legislature has expressly abolished such immunity.” The Order also denied Benson's motion for reconsideration of the grant of summary judgment in favor of the Board, explaining that the motion was untimely according to Rule 75.01.³

Benson dismissed the City without prejudice following the trial court's Order. Once the City was no longer a party, the trial court's entry of summary judgment in favor of the Board constituted a final judgment from which Benson appealed.

Standard of Review

“The standard of review when considering an appeal from the grant of summary judgment is essentially de novo.” Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 119 (Mo. banc 2010) (citing ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). “Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Id. at 119–20 (citing Larabee v. Eichler, 271 S.W.3d 542, 545 (Mo. banc 2008); Rule 74.04(c)(6)). “The court accords the non-moving party the benefit of all reasonable inferences in the record.” Id. at 120 (citing ITT, 854 S.W.2d at 376). “[The entry] of summary judgment may be affirmed under any theory that is supported by the record.” Id. (citing Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc 2010)).

Analysis

Benson argues on appeal that the trial court erred in granting summary judgment in favor of the Board. Benson claims that by enacting section 537.600.1(1), the legislature waived sovereign immunity for the Board for injuries resulting from the negligent operation of a vehicle, and according to Southers, that waiver of sovereign immunity remains intact even though the public duty doctrine shields Officer Evans from personal liability.

In response, the Board advances the same argument on appeal as it did in its summary judgment motion. The Board claims that since the public duty doctrine precludes a finding of negligence as to Officer Evans, it follows that the Board cannot have respondeat superior liability, and that the section 537.600.1(1) waiver of sovereign immunity thus does not apply. The Board also argues that “because no claim was ever brought against Officer Evans, there could never be any finding that Officer Evans acted negligently,” and that “[w]ithout a determination that Officer Evans acted negligently, the Board's sovereign immunity was not waived.” The latter argument, which essentially claims that vicarious liability can never be established unless the person whose acts give rise to the liability is named as a defendant, was not raised in the Board's motion for summary judgment and is raised for the first time on appeal.

We first address the Board's argument that the public duty doctrine, which protects Officer Evans from personal liability, necessarily requires the conclusion that the Board cannot have respondeat superior liability, notwithstanding waiver of sovereign immunity in connection with the negligent operation of a motor vehicle. Government entities are protected from tort liability by sovereign immunity. Davis v. Lambert–St. Louis Int'l Airport, 193 S.W.3d 760, 764 (Mo. banc 2006); see also section 537.600.1 (“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....”). Section 537.600.1(1) waives that immunity for government entities as to “[i]njuries 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.” (Emphasis added.) Thus, in order for a government entity to be found liable under this statute, there must be a finding that a public employee of the government entity acted negligently.

The public duty doctrine, on the other hand, protects a public officer from civil liability for his or her negligence. The public duty doctrine recognizes that a public officer owes a duty to the public, and not to a particular individual. “The public duty doctrine states that a public [officer] is not civilly liable for the breach of a duty owed to the general public, rather than a particular individual.” Southers, 263 S.W.3d at 611. In other words, the doctrine negates the duty element of negligence so that an individual plaintiff cannot succeed in establishing a cause of action for negligence against a public officer. Id. at 612.

Thus, the issue that this case presents is whether negligence for the purposes of triggering respondeat superior liability for a government entity under section 537.600.1(1) can be found when the public duty doctrine negates the ability to establish a public officer's negligence. Our Supreme Court resolved this very question in Southers v. City of Farmington.

The relevant facts that gave rise to the Southers decision are as follows: A police officer was pursuing a robbery suspect who was fleeing the scene of the crime. Southers, 263 S.W.3d at 607. While in pursuit, the police officer's vehicle collided with another vehicle that was being driven by a woman. Id. at 608. The woman and one of her passengers died as a result of the injuries sustained in the collision. Id. Two other passengers—the woman's children—sustained injuries but survived. Id. The woman's children and mother brought a suit against the City of Farmington, claiming that the police officer was acting negligently at the time his vehicle...