Bryan v. Missouri State Highway Patrol, WD

• Decision Date: 20 January 1998
• Docket Number: No. WD,WD
• Parties: 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. 53841.
• Court: Missouri Court of Appeals

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.

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 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 Highway Patrol, although the Highway Patrol did not file a motion for summary judgment. This appeal followed.

Standard of Review

Appellate review of the propriety of summary judgment is de novo. Williams v. City of Independence, 931 S.W.2d 894, 895 (Mo.App. W.D.1996). The record is viewed in the light most favorable to the party against whom summary judgment was entered, and that party is afforded all reasonable inferences that may be drawn from the evidence. Id. Summary judgment will be affirmed on appeal if the reviewing court determines that no genuine issues of material fact exist and the movant has a right to judgment as a matter of law. Id.

Point I

Appellant's first point on appeal is that the trial court erred in granting Mr. Lysaught's motion for summary judgment because Mr. Lysaught failed to meet his burden to prove that no material facts are in dispute. Appellant contends that the trial court's order invades the province of the jury because 1) whether Mr. Lysaught properly discharged his duties as mandated by § 270.010 RSMo 1994 is a question of fact; 2) Mr. Lysaught's credibility and veracity of his version of the events are issues to be determined by a jury because the fact that his affidavit in support of his summary judgment motion differs from his deposition testimony brings his credibility and veracity into question.

Negligence is ordinarily a question for the jury and always is when the evidence on the issue is conflicting or where, the facts being undisputed, different minds might reasonably draw different conclusions from them. Rickman v. Sauerwein, 470 S.W.2d 487, 489 (Mo.1971); Wilkerson v. Mid-America Cardiology, 908 S.W.2d 691, 695 (Mo.App. W.D.1995). Unique among the elements of negligence is duty because the existence of a duty is a question of law. Strickland v. Taco Bell Corp., 849 S.W.2d 127, 131 (Mo.App. E.D.1993). The existence of a statutory duty on Mr. Lysaught's part is not in dispute in this case. The issue in dispute is whether he breached his duty. This is a question of fact. We find that there is a genuine issue in dispute concerning the adequacy of Mr. Lysaught's efforts to locate and restrain the cow in compliance with his statutory duty. Appellant has questioned the veracity of Mr. Lysaught's testimony about his efforts to search for the cow, specifically questioning the possibility that Mr. Lysaught could have made the efforts to search for the cow that he claims to have made in the time frame he claims to have made them. Different minds might reasonably draw different conclusions on the adequacy of Mr. Lysaught's search. Because the question of whether Mr. Lysaught failed or refused to discharge his duty under § 270.010 is a question of fact for the jury, summary judgment was not appropriate in this case.

Point II

Appellant's second point on appeal is that the trial court erred in finding that Mr. Lysaught was entitled to protection based on the official immunity doctrine...