Bowman v. State

• Decision Date: 01 November 1988
• Docket Number: No. WD,WD
• Citation: 763 S.W.2d 161
• Parties: Brenda BOWMAN and Paula Brent, Plaintiffs-Appellants, v. STATE of Missouri and Danny Sides, Defendants-Respondents. 39740.
• Court: Missouri Court of Appeals

Page 161

763 S.W.2d 161

Brenda BOWMAN and Paula Brent, Plaintiffs-Appellants, v. STATE of Missouri and Danny Sides, Defendants-Respondents.

No. WD 39740.

Missouri Court of Appeals,

Western District.

Nov. 1, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 27, 1988.

Application to Transfer Denied Feb. 14, 1989.

James F. Koester & Kenneth Koester, St. Louis, James Logan (argued), for plaintiffs-appellants.

Duane Schreimann, Jefferson City, Donald C. Otto, Jr. (argued), for defendants-respondents.

Before NUGENT, P.J., and CLARK and COVINGTON, JJ.

NUGENT, Presiding Judge.

Brenda Bowman and her mother, Paula Brent, appeal from the granting of a motion for summary judgment in favor of defendants State of Missouri and Danny L. Sides.

We reverse in part and affirm in part.

On July 10, 1981, plaintiff Brenda Bowman, a juvenile charge of the state, was assigned to collect trash on the premises of the Division of Youth Services at Babler State Park in Chesterfield, Missouri. She and another young woman, Brenda Savu, were picking up trash, putting it into a trash truck operated by state employee Danny L. Sides and pushing a lever to compact the trash. Without warning, Brenda Savu pushed the lever, and the device crushed the plaintiff's right arm.

By their first amended petition plaintiffs sued the State of Missouri and Danny L. Sides.

In her discovery deposition, Brenda Bowman testified that she and Brenda Savu rode on the back of the truck; Danny Sides drove the truck and another young woman rode in the cab with him. She also testified that they were told to activate the compacting lever before the truck came to a complete stop "to save time." Either girl could activate the compactor; sometimes they gave each other a verbal warning, sometimes not.

After discovery, both defendants filed motions for summary judgment. The court granted the motions, and this appeal followed.

Plaintiffs argue that the trial court erred in granting the state's motion for summary judgment because Brenda Bowman was injured by the operation of the trash truck owned by the state. They also contend that the trial court erred in granting Danny L. Sides' motion for summary judgment because summary judgment is appropriate only where no genuine issue of material fact exists.

The state asserts that entry of summary judgment was correct in that the plaintiffs failed to plead a cause of action that falls within any exception to the doctrine of sovereign immunity as set out in § 537.600 ¹, even taking all the petition's allegations as true and construing the evidence in their favor. The state contends that no "motor vehicle" was involved, a public employee did not cause the injury and that "lack of supervision and training" does not fit under the heading "operation of motor vehicles" within the meaning of § 537.600.1(1).

Section 537.600 provides in part as follows:

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....

In their first point, plaintiffs argue that this case falls under subsection 1(1)'s exception to sovereign immunity.

When the legislature enacted the motor vehicle exception, it did so because it recognized the inherent dangerousness of motor vehicles and motorized vehicles and because it knew the state must operate large numbers of such vehicles every day. The fact that this particular vehicle was equipped with a trash compactor and that the compactor caused the injury in no way removes the vehicle from this exception.

In Johnson v. Carthell, 631 S.W.2d 923, 927 (Mo.App.1982), the court, in examining specific case authority, namely, Teters v. Kansas City Public Service Co., 300 S.W.2d 511 (Mo.1957), and Karnes v. Ace Cab Co., 287 S.W.2d 378 (Mo.App.1956), stated, "These cases demonstrate that the operation of a motor vehicle includes nearly any activity that deals specifically with the motor vehicle, i.e., the actual physical structure and attendant parts of the vehicle."

To determine the meaning of "operation of motor vehicles or motorized vehicles" as used in § 537.600.1(1), the courts have looked to the construction placed upon similar language in § 304.010. In those cases the courts have held that operating a motor vehicle encompasses "all acts necessary to be performed in the movement of a motor vehicle from one place to another or fairly incidental to the ordinary course of its operation...." Oberkramer v. City of Ellisville, 650 S.W.2d 286, 296 (Mo.App.1983); Johnson v. Carthell, supra. Thus, the question in this case becomes whether the act of operating the trash truck's compactor is "fairly incidental to the ordinary course" of the operation of the instant vehicle, the trash truck.

Karnes v. Ace Cab Co., supra, held that the opening of a taxicab door is part of and "fairly incidental" to the operation of the motor vehicle known as a taxicab. Thus, definition of "operation of motor vehicles" permits an inclusion of the different uses of motor vehicles. Otherwise, the Karnes court could not have held that the opening of the taxicab door constituted "operation of a motor vehicle" within the meaning of § 304.010.

The Supreme Court in Teters v. Kansas City Public Service Co., 300 S.W.2d 511, 516-17 (Mo.1957), approved Karnes' holding and applied it to the operation of a delivery truck. The court held that, although in servicing his customers plaintiff Teters had properly parked his truck at the curb, nevertheless, in opening the truck's doors he "operated" his motor vehicle within the meaning of § 304.010. Therefore, he had to exercise the highest degree of care in swinging the truck's doors outwardly to prevent their coming in contact with or obstructing the path of passing vehicles.

The opening of the taxicab door in Karnes served the essential purpose of the taxicab; without opening the door the driver could not have served his passengers. The cargo doors of the delivery truck in Teters allowed the driver to deliver his cargo. Similarly, the trash compactor in the instant case allows the trash truck to serve its purpose--collecting and removing trash. We conclude, therefore, that the operation of the trash compactor constituted "operation" of a motor vehicle within the meaning of § 537.600.1(1).

Assuming arguendo, however, that the operation of the trash compactor was not operation of a "motor vehicle," its operation was still within the scope of the waiver of sovereign immunity found in § 537.600.1(1). The waiver applies not only to "motor vehicles," but also to "motorized vehicles." In our application of this statute, "every word, clause, sentence and section must be given some meaning." Brown Group, Inc. v. Administrative Hearing Commission, 649 S.W.2d 874, 881 (Mo.1983) (en banc). Applying this principle, we must conclude that the legislature, by using the term "motorized vehicles," intended to include a broader class of vehicles than that covered by the term "motor vehicles."

The trash truck in this case is undoubtedly a vehicle. Cf. Penn v. Columbia Asphalt Co., 513 S.W.2d 679, 687 (Mo.App.1974) (discussing various statutory definitions of vehicles, and finding that a road roller and a spreading machine were motor vehicles). The engine of the trash truck in this case served the dual purposes of propelling the truck along the highway and powering the truck's trash compactor. Whether the operator drove the truck or used the trash compactor, he or she used the truck's engine or motor. We conclude, therefore, that operation of the truck's trash compactor constituted operation of a "motorized vehicle" within the meaning of § 537.600.1(1).

The waiver of sovereign immunity under the statute applies to "[i]njuries directly resulting from the negligent acts or omissions by public employees...." The state argues that it did not employ Brenda Savu and, therefore, because she pulled the lever that caused Brenda Bowman's injury, it remains immune. The state advances Johnson v. Carthell, supra, to support this conclusion.

In Johnson the plaintiff sued a school district and its bus driver alleging that the driver held him and let another passenger strike him and then put the plaintiff off the bus and left him injured. The court found that, although the acts had occurred on the bus, they did not constitute part of the "operation" of the bus. Therefore, the driver's acts did not come under the motor vehicle exception.

The state attempts to apply Johnson to support the proposition that the truck's only connection with the plaintiff's injury was that the injury occurred while the plaintiff and Brenda Savu rode the truck. The state's reliance on Johnson falters in two respects. First, as we have discussed above, the injury in this case, unlike the injury in Johnson, came about by the "operation of a motor vehicle or motorized vehicle." Second, the argument erroneously denies Brenda Savu's status as a public employee.

The state argues that we should construe the statute to exclude Ms. Savu's operation of the trash compactor from the scope of "acts or omissions by public employees...." We must strictly construe this statute. Kanagawa v. State, 685 S.W.2d 831 (Mo.1985) (en banc). Nevertheless, we must construe it in light of the legislature's purpose in enacting it. Sermchief v. Gonzales, 660 S.W.2d 683, 688 (Mo.1983) (en banc); Benham v. Cox, 677 S.W.2d 429, 431 (Mo.App.1984). In enacting § 537.600.1(1), the legislature...