Boyle v. City of Liberty, Mo., No. 92-0807-CV-W-6.

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Citation: 833 F. Supp. 1436
• Docket Number: No. 92-0807-CV-W-6.
• Parties: James M. BOYLE, et al., Plaintiffs, v. CITY OF LIBERTY, MO, et al., Defendants.
• Decision Date: 06 October 1993

833 F. Supp. 1436

James M. BOYLE, et al., Plaintiffs,
v.
CITY OF LIBERTY, MO, et al., Defendants.

No. 92-0807-CV-W-6.

United States District Court, W.D. Missouri, W.D.

October 6, 1993.

833 F. Supp. 1437

COPYRIGHT MATERIAL OMITTED

833 F. Supp. 1438

COPYRIGHT MATERIAL OMITTED

833 F. Supp. 1439

William H. Pickett, Kansas City, MO, for James R. Boyle, Eula May Boyle, Cecil Gordon, Juanita Faye Gordon

Gardiner B. Davis, Spencer, Fane, Britt & Browne, Michael E. Waldeck, Niewald, Waldeck & Brown, P.C., Robert O. Jester, Ensz & Jester, Kansas City, MO, James M. Yeretsky, Niewald, Waldeck & Brown, Overland Park, KS, for City of Liberty, Mo.

Steven F. Coronado, David S. Baker, Sherman, Taff & Bangert, P.C., Kansas City, MO, for Lewis J. Henderson.

Steven F. Coronado, David S. Baker, Sherman, Taff & Bangert, P.C., Gardiner B. Davis, Spencer, Fane, Britt & Browne, Kansas City, MO, for Curtis W. Mansell.

Don A. Witt, Witt & Hicklin, P.C., Platte City, MO, for James A. Houston, Jr.

Michael G. Norris, Payne & Jones, Chartered, Dirk L. Hubbard, Overland Park, KS, for City of Cameron, MO, D.R. Fritz.

Theodore A. Bruce, Missouri Atty. Gen., Jefferson City, MO, for Missouri State Highway Patrol, E.A. Tilfore.

Gardiner B. Davis, Spencer, Fane, Britt & Browne, Kansas City, MO, Theodore A. Bruce, Missouri Atty. Gen., Jefferson City, for G.D. Mason.

Michael J. Jerde, Morrison & Hecker, Kansas City, MO, Christopher D. Schneider, Morrison & Hecker, Kansas City, MO, for Clay County, MO, Michael L. Reilly.

Michael J. Jerde, Morrison & Hecker, Kansas City, MO, for Richard Roe, John Doe.

MEMORANDUM AND ORDER

SACHS, Senior District Judge.

Before the court are the defendants' motions to dismiss.¹ This case arose from a high-speed car chase on the morning of September 13, 1990, when a minor child and an adult companion stole a car and drove past defendant Fritz (a Cameron police officer) on Interstate 35. The facts according to the plaintiffs' allegations are as follows: Fritz pursued the car and was joined at various times by defendants Mason and Tilford, Missouri Highway Patrol Officers, and defendants Doe² and Roe, Clay County Deputy Sheriffs (this opinion will collectively refer to these defendants as the "chase defendants"). The chase defendants at times drove at speeds exceeding 100 miles per hour and averaged 90 miles per hour. They unsuccessfully attempted to create a rolling roadblock, and at one point the car collided with and damaged a civilian vehicle. Around 6:15

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a.m. defendants Henderson and Mansell, Liberty police officers (the court will refer to defendants Henderson and Mansell as "roadblock defendants"), learned of the chase and parked their vehicles on the east and west shoulders of Interstate 35. The plaintiffs allege that defendant Houston, a Liberty police officer, was the shift supervisor for the roadblock defendants. At the time, traffic was heavy and all defendants were aware that 7:00 a.m. was the time for a shift change at many businesses in Jackson and Clay Counties. The roadblock defendants turned on their emergency lights to slow the southbound traffic, then drove their cars onto Interstate 35, eventually blocking all southbound traffic. The roadblock caused a milelong line of traffic in both lanes. As the chase defendants approached the line of traffic, they moved off to the shoulder. The stolen car drove between the two lines of traffic on Interstate 35 and collided with various cars, killing one civilian, causing substantial property damage and personal injury to others

Plaintiffs James Boyle, Cecil Gordon, and the class of plaintiffs who were owners and/or passengers in non-law enforcement vehicles used by the defendants for the purpose of establishing and operating a roadblock on September 13, 1990, brought suit in the Circuit Court of Clay County, Missouri, for damages under 42 U.S.C. § 1983, for various state law tort claims, and for declaratory and injunctive relief. Two other plaintiffs, Eula May Boyle and Juanita Faye Gordon, brought claims for loss of consortium. The plaintiffs named as defendants the above mentioned police officers, (collectively the "individual defendants"), as well as the City of Liberty, City of Cameron, the Missouri State Highway Patrol, and Clay County (the "governmental defendants").

In considering a motion to dismiss the court liberally construes the complaint in the light most favorable to the plaintiff. Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). The court will draw all inferences which may be drawn from the facts alleged in favor of the plaintiff. Park View Heights Corp. v. Black Jack, 467 F.2d 1208 (8th Cir. 1972). The court will not dismiss the complaint unless it appears that the plaintiff can prove no set of facts which would entitle him or her to relief. Price v. Moody, 677 F.2d 676, 677 (8th Cir.1982). The defendants challenge each of the plaintiffs' claims. The court will address each challenge in turn.

I. INJUNCTIVE AND DECLARATORY RELIEF

The defendants argue that the court must dismiss the plaintiffs' claims for injunctive relief, because the court does not have jurisdiction to issue the injunctive relief. In Count XVIII of the petition, the plaintiffs seek injunctive relief in the form of an order that "permanently enjoins all Defendants from using civilian operators, civilian vehicle passengers and/or civilian vehicles as part of a roadblock established by one or more law enforcement agencies, without the prior consent of every operator, passenger or owner." (Complaint p. 49). Count I of the petition similarly requests a "permanent injunction enjoining these Defendants from using civilian vehicles as part of a roadblock without the prior consent of the owners, operators and passengers of such vehicles." (Complaint p. 16). The defendants argue that the plaintiffs have not established the Constitutional jurisdictional requirement of a "case or controversy" because the plaintiffs lack standing to seek this injunctive relief. The defendants cite Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 1664, 75 L.Ed.2d 675 (1983),³ to support their contention that unless the plaintiffs show that they have sustained or are in immediate danger of sustaining some direct injury as a result of the challenged conduct, and that the injury is both real and immediate, not conjectural or hypothetical, the plaintiffs do not have standing to seek injunctive relief, and therefore no case or controversy exists.

The plaintiffs' response appears to concede that if Lyons applies to this case, the plaintiffs do not have standing to request

833 F. Supp. 1441

injunctive relief. However, the plaintiffs argue that the court should not apply Lyons; rather, because the injunction is based on Missouri law, the court should apply Missouri's requirements for injunctive relief, not federal requirements. Even if the court were to apply Missouri requirements the plaintiffs do not have standing to assert a claim for an injunction barring the use of "civilian vehicles as part of a roadblock without the prior consent of the owners, operators and passengers." Under Missouri law, injunctive relief does not lie unless the action threatened will result in irreparable injury absent the remedy, and there is an inadequate remedy at law. Eberle v. State, 779 S.W.2d 302 (Mo.App.1989). A plaintiff must base a claim for injunctive relief on real apprehension that future acts are not just threatened but in all probability will be committed. A.B. Chance Co. v. Schmidt, 719 S.W.2d 854 (Mo.App.1986). In this case the plaintiffs have not alleged that a threat exists, let alone a probability, that the plaintiffs will be subject to the complained of act in the future. In addition, it appears that an adequate remedy exists at law. The underlying suit for damages can determine the issue of the legality of the complained of acts. Accordingly, the plaintiffs lack standing to assert injunctive and declaratory relief and the court will dismiss the plaintiffs' claim for injunctive and declaratory relief in Counts I and XVIII

II. STATE LAW TORT CLAIMS

A. Public Duty Doctrine

Under the public duty doctrine, public officers are not liable in tort for injuries or damages a particular individual sustains that results from a breach of the duty the officers owe to the general public. Parker v. Sherman, 456 S.W.2d 577 (Mo.1970); Beaver v. Gosney, 825 S.W.2d 870, 872 (Mo.App.1992). The focus of the public duty doctrine is the nature of the duty created, whether it is a duty to the general public or to the particular individuals. Davies v. Karmeier, No. 82-0042-CV-W-9, slip op. (W.D.Mo. Sept. 16, 1985).

The defendants argue that Missouri courts have held that "enforcement of the law and keeping of the peace are duties which a municipality and its employees owe to the general public but a breach of which is not actionable by a citizen." Beaver, 825 S.W.2d at 873; Schutte v. Sitton, 729 S.W.2d 208 (Mo.App.1987); Berger v. University City, 676 S.W.2d 39 (Mo.App.1984). The defendants note that the plaintiffs' complaint concedes that at all times during the incident at issue on September 13, 1990, the individual defendants were "engaged in the performance of a government function," while pursuing a stolen vehicle, and that the individual defendants created the roadblock "as a method of recovering the stolen vehicle." (Petition, Count I ¶¶ 17, 23-25, 41).

The plaintiffs argue that the individual defendants breached duties owed to them as individuals. The plaintiffs contend that the individual defendants breached specific duties created by Missouri statutes and law enforcement agency standards, policies and procedures. The plaintiffs specifically cite RSMo § 537.600, § 304.010 and RSMo § 304.022. The court will review each of these sources.

Section 537.600 waives sovereign immunity for negligent acts or omissions of public employees in the operation of motor vehicles within...