Beyerbach v. Girardeau Contractors, Inc., 63593

• Decision Date: 04 January 1994
• Docket Number: No. 63593,63593
• Citation: 868 S.W.2d 163
• Parties: Cynthia BEYERBACH, Plaintiff/Appellant, v. GIRARDEAU CONTRACTORS, INC., Penzel Construction Company, and The Missouri Highway and Transportation Commission, Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 163

868 S.W.2d 163

Cynthia BEYERBACH, Plaintiff/Appellant, v. GIRARDEAU CONTRACTORS, INC., Penzel Construction Company, and The Missouri Highway and Transportation

Commission, Defendants/Respondents.

No. 63593.

Missouri Court of Appeals,

Eastern District,

Southern Division.

Jan. 4, 1994.

Lance R. Mallon, Alton, IL, John W. Grimm, Cape Girardeau, for plaintiff, appellant.

John P. Bradshaw, Cape Girardeau, Pamela M. Triplett, St. Louis, John W. Koenig, Jr., Sikeston, for defendants, respondents.

GARY M. GAERTNER, Chief Judge.

Appellant, Cynthia Beyerbach, appeals from orders of summary judgment entered in favor of respondents, Girardeau Contractors, Inc., Penzel Construction Company, and The Missouri Highway and Transportation Commission in the Circuit Court of Cape Girardeau County. We affirm in part; reverse in part.

During the Spring and Summer of 1988, the Missouri Highway and Transportation Commission ("MHTC") was conducting highway and bridge repair work on Missouri Highway 105, near East Prairie, Missouri. Respondent Girardeau Contractors, Inc. was the general contractor, with respondent Penzel Construction Company acting as the subcontractor on the job. During the construction, one lane of a bridge was closed on Highway 105, approximately 9 miles south of the junction with Missouri Highway 102, for replacement of a guard rail on the bridge.

On May 14, 1988, at approximately 10:00 p.m., appellant approached the bridge under construction. She stopped to allow oncoming traffic to cross on the single lane. While stopped, appellant was hit from behind by an automobile driven by Steven Haney.

Appellant alleged in her original petition that Mr. Haney had been driving under the influence of alcohol. She later testified in a deposition that although she might have smelled liquor on his breath, she didn't think he acted drunk. She noticed no stumbling, no slurring, and no stuttering. Haney denied that he had been drinking; however, he did admit to inattentiveness. Mr. Haney stated in deposition he could recall seeing the first two of five signs warning of road construction. ¹ Haney went on to admit that after passing these signs, he proceeded to take his eyes off the road at least three times before arriving at the bridge to search for a cassette tape in his glove box. In addition, Mr. Haney acknowledged he had lit a cigarette shortly before the impact.

Appellant filed suit against Haney and the three respondents in this action. Prior to the filing of the third amended petition, Mr. Haney was dismissed from the lawsuit. All three remaining defendants filed motions for summary judgment. On December 8, 1992, Girardeau Contractors' and Penzel's motions were sustained. MHTC's motion was granted on February 26, 1993. This appeal followed.

When considering a grant of summary judgment, we "will review the record in the light most favorable to the party against whom judgment was entered." ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). We may only affirm summary judgment where a review of the pleadings, depositions, affidavits, answers to interrogatories, exhibits and admissions establishes that no genuine issue of material fact exists and thus, the moving party is entitled to judgment as a matter of law. Rogers v. Illinois Cent. R. Co., 833 S.W.2d 426, 427 (Mo.App., E.D.1992). A genuine dispute involves one which is not merely conjecture, theory, or a possibility, but one which is real and substantial. Mid-Am. Marine, 854 S.W.2d at 378. Summary judgment is proper where the issues raised by the non-movant are simply argumentative, imaginary, or frivolous. Id. at 382.

Appellant raises two points in her appeal. She claims error in the grant of summary judgment for Girardeau Contractors and Penzel. She also argues the court erroneously granted MHTC's motion for summary judgment. In response to said motions, appellant submitted a page from MHTC's contract with the contractors stating that all traffic lanes would be open during non-working hours. Additionally, appellant filed the affidavit of her expert, Norman Roden, offering his opinion that the warning signs used at the bridge site were inadequate and unsafe. Because of these two elements, appellant asserts a genuine issue of material fact exists as to whether or not the respondents were negligent. We will review appellant's claim regarding MHTC first.

Both appellant and MHTC agree that in order to circumvent MHTC's protection under sovereign immunity, ² appellant must allege facts which establish four things: 1) a dangerous condition of the property; 2) appellant's injuries were a direct result of the dangerous condition; 3) a reasonably foreseeable risk of harm of the type appellant suffered was created by the dangerous condition; and 4) a public employee negligently created the condition or the public entity had actual or constructive notice of the condition. Alexander v. State, 756 S.W.2d 539, 541 (Mo. banc 1988).

We find the affidavit of Norman Roden, filed by appellant in response to MHTC's motion for summary judgment, sufficient to establish a jury question on the issue of whether or not a dangerous condition existed. Roden opined that the warning signs used on the construction site were inadequate in that a vehicle, such as appellant's, would "screen the warning signs and barricades ... from a following vehicle," and that the unsafe situation could have been remedied by the use of lighting or an electric traffic signal in the area of the bridge. ³ We fail to find anything in the record offered by MHTC to sufficiently remove this issue from doubt. As a matter of fact, we find additional support for appellant's contention in the deposition of Mr. Haney. Haney testified there were barrels on the bridge, but they were in front of appellant's car. He only noticed them as he pulled out to leave the scene after the accident. Also, when questioned about the types of warnings available for highway construction sites, Mr. Haney acknowledged that if there had been flashing or caution lights, he probably would have seen them and been able to stop. Appellant has overcome the first hurdle.

A more difficult question is posed by the necessity that appellant show her injuries were a direct result of the dangerous condition. MHTC argues that Steven Haney was the direct cause of the accident. Although we recognize Haney was not the most attentive driver, we cannot agree with MHTC's argument.

In Cole v. Mo. Highway & Transp. Com'n, 770 S.W.2d 296 (Mo.App., W.D.1989), plaintiff sued MHTC for injuries she incurred as a passenger in an automobile. The driver of the vehicle failed to stop at a highway intersection, and the car was struck by cross traffic. Plaintiff claimed MHTC was negligent in failing to use proper signing and road marking to warn highway traffic of the upcoming stop. The trial court granted MHTC's motion for summary judgment. On appeal, however, the Western District reversed summary judgment and held that proof of the driver's negligence in concurrence with that of MHTC would not defeat plaintiff's claim against MHTC. Id. at 299. Instead, fault should be apportioned between the negligent parties. Id.

Relying on Cole, the Eastern District reached a similar conclusion in Fox v. City of St. Louis, 823 S.W.2d 22 (Mo.App., E.D.1991). There, plaintiff was injured when her northbound vehicle collided with a westbound vehicle in the center of an intersection. Plaintiff sued the City of St. Louis alleging the city knew a stop sign should have been in place for westbound drivers, but failed to repair, remedy, or warn of the condition. The City argued plaintiff knew the stop sign was not in place, so the City could not be liable for plaintiff's injuries. This court reversed a grant of summary judgment for the City, holding that concurrent negligence would simply require apportionment of fault and would not defeat plaintiff's claim against the City. Id. at 24.

We recognize the holdings in Kanagawa v. State by and Through Freeman, 685 S.W.2d 831 (Mo. banc 1985), Johnson v. City of Springfield, 817 S.W.2d 611 (Mo.App., S.D.1991), Koerber v. Alendo Bldg. Co., 846 S.W.2d 729 (Mo.App., E.D.1992), and Hedayati v. Helton, 860 S.W.2d 795 (Mo.App., W.D.1993), appear to conflict with the above rulings, but we find these cases inapplicable or distinguishable. Kanagawa involved the kidnapping, assault and rape of the plaintiff by a prison escapee. Kanagawa, 685 S.W.2d at 833. The Missouri Supreme Court found plaintiff's allegations that the correctional facility from which the inmate escaped was faultily constructed and maintained were insufficient to circumvent respondent's protection under sovereign immunity. Id. at 835. However, since the holding in Kanagawa, our Supreme Court has considered the case of Donahue v. City of St. Louis, 758 S.W.2d 50, 52 (Mo. banc 1988), wherein the Court found inadequate maintenance of traffic controls could be found to be a dangerous condition so that sovereign immunity would not bar suit against the City. See also Nagy v. Highway and Transp. Com'n, 829 S.W.2d 648, 651-2 (Mo.App., E.D.1992). Thus, we find Kanagawa inapplicable.

MHTC's reliance on Koerber is also misplaced. There, the ten-year old plaintiff was injured when his playmate broke out some glass from an apartment building on defendant's property, then threw the glass injuring plaintiff's eye. Koerber, 846 S.W.2d at 729. Plaintiff sued alleging defendant was negligent in permitting his property to be maintained in a dangerous manner. Id. This court upheld the grant of summary judgment finding the cause of plaintiff's injuries to be the actions of the playmate and, thus, independent of any condition on the land. Id. at 731. We note that Koerber was a standard negligence case, in no way related to the issue of sovereign immunity or warning signs or traffic controls. As such, we find Koerber inapplicable to the facts before us.

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