Bryan v. Missouri State Highway Patrol, No. WD

CourtCourt of Appeal of Missouri (US)
Writing for the CourtHOWARD
Citation963 S.W.2d 403
PartiesWendell Patrick BRYAN, Guardian of the Estate of Denise Bryan, and Wendell Patrick Bryan, Appellants, v. The MISSOURI STATE HIGHWAY PATROL and J.P. Lysaught, Respondents. 53841.
Docket NumberNo. WD
Decision Date20 January 1998

Page 403

963 S.W.2d 403
Wendell Patrick BRYAN, Guardian of the Estate of Denise
Bryan, and Wendell Patrick Bryan, Appellants,
v.
The MISSOURI STATE HIGHWAY PATROL and J.P. Lysaught, Respondents.
No. WD 53841.
Missouri Court of Appeals,
Western District.
Jan. 20, 1998.
Motion for Rehearing and/or Transfer to
Supreme Court Denied March 3, 1998.
Application to Transfer Denied
April 21, 1998.

Page 405

Steven G. Schumaier, St. Louis, for appellants.

Jeremiah W. (Jay) Nixon, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondents.

Before ELLIS, P.J., and HOWARD and RIEDERER, JJ.

HOWARD, Judge.

This is an appeal from the trial court's order granting summary judgment to Respondents J.P. Lysaught and the Missouri State Highway Patrol. Appellant Wendell Patrick Bryan contends the trial court erred in granting summary judgment to Respondents because 1) Mr. Lysaught failed to meet his burden to prove that no material facts are in dispute; 2) the doctrine of official immunity does not apply in this case because Mr. Lysaught's acts were ministerial, rather than discretionary; 3) the grant of summary judgment to the Highway Patrol was not pursuant to a motion and Appellant did not have an opportunity to brief the issue.

Facts

On December 4, 1990, Denise Bryan was driving from Columbia, Missouri, to her home in Marshall. Ms. Bryan was employed as a travel agent at Summit Travel in Columbia at the time. At approximately 7:13 p.m., Ms. Bryan collided with a cow in the northbound lane of Highway 65, approximately two miles south of Marshall. She was then hit in the rear by a vehicle operated by James Chitwood. Ms. Bryan suffered severe and permanent injuries as a result of this accident.

Wendell Patrick Bryan, Ms. Bryan's husband, was named guardian of Ms. Bryan's estate and initiated a lawsuit against Franklin Pogue, James Chitwood, the Saline County Sheriff's Department, Highway Trooper J.P. Lysaught, and others in relation to this accident. Mr. Bryan also filed a loss of consortium claim. The Missouri Highway Patrol and Trooper Lysaught are the only remaining defendants in this action.

On December 4, 1990, at approximately 6:40 p.m., 33 minutes prior to Ms. Bryan's accident, Mr. Lysaught was advised by Troop A radio dispatch that an accident had occurred on Highway 65, involving Garret and Phoebe Jones and a cow. Mr. Lysaught arrived at the scene of the initial accident by 6:45 p.m. Based on his interview with the Joneses and inspection of the automobile, Mr. Lysaught determined that the initial accident was caused by a "short horned red" cow belonging to Franklin Pogue. Mr. Lysaught alleges that he searched for the cow in the vicinity of the accident, but he could not find the cow. He alleges that he remained on and "worked" the accident for 30 minutes and did not see the cow. He testified that he drove up and down Highway 65 in search of the cow, and then left the scene and transported the Joneses to a Concordia High School basketball game.

Upon arriving in Concordia, Mr. Lysaught was advised by Troop A radio dispatch that another accident had occurred on Highway 65. This accident occurred a few hundred feet away from the location of the Joneses' accident. According to the police report, the second accident occurred at 7:13 p.m. and involved Denise Bryan, a "red short horned" cow, and another automobile. The police report indicates that Mr. Lysaught arrived at the scene of Ms. Bryan's accident at 7:34 p.m. According to the police report, nine cows were wandering loose in the immediate vicinity of Ms. Bryan's accident. Eight of the cows were owned by Franklin Pogue.

On September 9, 1996, Mr. Lysaught filed a motion for summary judgment. On December 18, 1996, Wendell Bryan filed a memorandum in opposition to Mr. Lysaught's motion for summary judgment. On January 16, 1997, the trial court entered summary judgment in favor of Mr. Lysaught. The court stated that "Lysaught complied with the provisions of § 270.010, RSMo, and did not violate his duty under that statute because he looked for any cattle running at large and tried to determine if any cattle were at large." The court then determined that Mr. Lysaught was entitled to official immunity because the duty imposed by § 270.010 was "discretionary." The court also found that

Page 406

the Missouri Highway Patrol is an agency of the State and protected by sovereign immunity. The court granted summary judgment to Mr. Lysaught and the...

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8 practice notes
  • James v. Paul, Respondent, State Farm Fire, WD55546
    • United States
    • Court of Appeal of Missouri (US)
    • 20 Junio 2000
    ...was entered, and accord that party the benefit of all reasonable inferences from the record. Bryan v. Missouri State Highway Patrol, 963 S.W.2d 403, 406 (Mo. App. W.D. 1998). We will affirm the trial court's ruling if we find that no genuine issues of material fact exist and the movant was ......
  • Reasonover v. St. Louis County, Mo., No. 04-3830.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 8 Mayo 2006
    ...or omissions, but not from liability in claims arising from their performance of ministerial acts. Bryan v. Mo. State Highway Patrol, 963 S.W.2d 403, 406 (Mo.Ct.App. 1998). "However, official immunity is a qualified immunity and does not apply to those discretionary acts done in bad fa......
  • Shade v. Missouri Highway and Transp. Com'n, No. WD 58652.
    • United States
    • Court of Appeal of Missouri (US)
    • 30 Octubre 2001
    ...no genuine issues of material fact exist and the movant has a right to judgment as a matter of law. Bryan v. Mo. State Highway Patrol, 963 S.W.2d 403, 406 (Mo.App. W.D.1998). "Appellate review of the propriety of summary judgment is de novo." Id. We view the record in the light mo......
  • Altidor v. Broadfield, No. ED 107087
    • United States
    • Court of Appeal of Missouri (US)
    • 21 Mayo 2019
    ..."different minds might reasonably draw different conclusions" from them. See Bryan v. Missouri State Highway Patrol , 963 S.W.2d 403, 406 (Mo. App. W.D. 1998). Therefore, Defendants have failed to show that these facts, as a matter of law, establish the reasonableness of their beh......
  • Request a trial to view additional results
8 cases
  • James v. Paul, Respondent, State Farm Fire, WD55546
    • United States
    • Court of Appeal of Missouri (US)
    • 20 Junio 2000
    ...was entered, and accord that party the benefit of all reasonable inferences from the record. Bryan v. Missouri State Highway Patrol, 963 S.W.2d 403, 406 (Mo. App. W.D. 1998). We will affirm the trial court's ruling if we find that no genuine issues of material fact exist and the movant was ......
  • Reasonover v. St. Louis County, Mo., No. 04-3830.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 8 Mayo 2006
    ...or omissions, but not from liability in claims arising from their performance of ministerial acts. Bryan v. Mo. State Highway Patrol, 963 S.W.2d 403, 406 (Mo.Ct.App. 1998). "However, official immunity is a qualified immunity and does not apply to those discretionary acts done in bad fa......
  • Shade v. Missouri Highway and Transp. Com'n, No. WD 58652.
    • United States
    • Court of Appeal of Missouri (US)
    • 30 Octubre 2001
    ...no genuine issues of material fact exist and the movant has a right to judgment as a matter of law. Bryan v. Mo. State Highway Patrol, 963 S.W.2d 403, 406 (Mo.App. W.D.1998). "Appellate review of the propriety of summary judgment is de novo." Id. We view the record in the light mo......
  • Altidor v. Broadfield, No. ED 107087
    • United States
    • Court of Appeal of Missouri (US)
    • 21 Mayo 2019
    ..."different minds might reasonably draw different conclusions" from them. See Bryan v. Missouri State Highway Patrol , 963 S.W.2d 403, 406 (Mo. App. W.D. 1998). Therefore, Defendants have failed to show that these facts, as a matter of law, establish the reasonableness of their beh......
  • Request a trial to view additional results

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