Cain v. Missouri Highways and Transp. Com'n

• Decision Date: 04 December 2007
• Docket Number: No. SC 88271.,SC 88271.
• Citation: 239 S.W.3d 590
• Parties: Hortense CAIN, Respondent, v. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Appellant.
• Court: Missouri Supreme Court

239 S.W.3d 590

Hortense CAIN, Respondent, v. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Appellant.

No. SC 88271.

Supreme Court of Missouri, En Banc.

December 4, 2007.

Zachary T. Cartwright, Jr., Gary J. Holtmeyer, Jr., Richard L. Tiemeyer, Jefferson City, MO, for Appellant.

Peter P. Fiore, Jr., Murray Stone, St. Louis, MO, for Respondent.

MICHAEL A. WOLFF, Judge.

Introduction

Hortense Cain, an inmate at a state prison, was injured while working on a crew assigned to maintain highway right-of-ways. Following a jury trial of her claim, the circuit court entered judgment awarding her damages for her injuries against the Missouri Highways and Transportation Commission. The commission appeals, contending that as a matter of law Cain is not entitled to judgment and, alternatively, that the verdict directing instruction was incorrect and a portion of Cain's closing argument was improper.

This Court granted transfer after opinion by the Court of Appeals, Eastern District, and has jurisdiction. Mo. Const. art. V, sec. 10. Concluding that the jury instruction was incorrect and prejudicial, the Court reverses and remands for a new trial.

Factual and Procedural History

In February 2000, Cain — an inmate at the Women's Correctional Center in Vandalia — was a member of a three-person crew assigned to maintain the right-of-way under the supervision and control of the Missouri Department of Transportation.¹ Participation in the MoDOT work-release program was voluntary, and each participant was paid a wage of $7.50 per day. Cain's MoDOT supervisor, John Perkins, assigned Cain and two other inmates, Dana Fitzpatrick and Kristin Korte, to fell a particular tree. He then left the three-person crew unsupervised as he monitored other inmate crews.

While Fitzpatrick and Korte had some experience working with chainsaws, neither had ever felled a tree of this height or diameter. Cain had no experience working with chainsaws. Fitzpatrick was assigned to fell the tree. While she did so, Korte and Cain were told to stay at the base of the tree. The inmates were not permitted to leave their assigned position except to walk to the MoDOT trailer, which contained a portable toilet and drinking water. If an inmate ventured away from her assigned area, she could be charged with escape.

When felled, trees of the size involved here should be "notched" on the side of the tree in which direction the tree is intended to fall. The notch cuts are followed by back cuts intended to weaken the tree at base to facilitate the controlled fall in the desired direction. As Fitzpatrick made her initial "notch" cuts into the tree, the chain slipped off, requiring Fitzpatrick to reposition the chain. When Fitzpatrick was making the back cut, the chain again slipped off. While she was repositioning the chain the second time, Cain walked from the base of the tree toward the MoDOT trailer to use the portable toilet. The tree unexpectedly fell toward the trailer and struck Cain. Cain's major injury was to her knee, which eventually required a total joint replacement.

Fitzpatrick said she had not intended for the tree to fall toward the trailer. Rather, she made the cuts to fell the tree in the direction opposite the trailer. Expert testimony at trial opined that both the notch cuts and the back cut made before the chain fell off the second time may have been too deep. The expert also testified that a tree this size would typically require two minutes to fell by a trained individual. In this case, however, the tree stood for approximately 40 minutes from the time Fitzpatrick made her first cut until the tree fell. Before the tree fell Fitzpatrick had stopped cutting for at least several minutes and was trying to fix the chainsaw.

The commission argued Cain's claim was barred by sovereign immunity. At trial, it moved for directed verdict at the close of Cain's evidence and again at the close of all evidence. Both motions were overruled. The commission also objected to Cain's verdict director, contending that it did not describe a dangerous condition of the commission's property. The jury returned a verdict in favor of Cain, assessed damages at $550,000, and held the commission 75 percent at fault. Accordingly, judgment was entered in favor of Cain for $412,500. On the commission's motion, the court reduced the damages pursuant to section 537.610.2² to $305,021. The commission's motions for judgment notwithstanding the verdict or a new trial were overruled.

I. Does Sovereign Immunity Entitle the Commission to Judgment as a Matter of Law?

The commission argues that the trial court erred in overruling its motions for directed verdict and motion for judgment notwithstanding the verdict because the commission was protected by sovereign immunity.

The State of Missouri and its entities, including the commission, are protected from lawsuits by sovereign immunity. Section 537.600.1 contains two exceptions. The second of these exceptions is involved in this case.³ Subdivision (2) states that immunity shall be waived for injuries caused by the condition of a public entity's property if the plaintiff establishes the following elements:

(1) the property was in dangerous condition at the time of the injury,

(2) the injury directly resulted from the dangerous condition,

(3) the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury that was incurred, and

(4) either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition. Section 537.600.1(2).

The question is whether there was evidence to meet all of these statutory elements. The facts show that Cain met her burden as to elements (2) and (3). The elements at issue are (1) whether there was a dangerous condition and (4) whether the dangerous condition was created by an employee of a public entity.

A. Was the State's Property, the Tree, in a Dangerous Condition?

The commission argues that Cain failed to demonstrate "a dangerous condition of the property." This Court has explored the meaning of "dangerous condition" in two prior cases. Kanagawa v. State ex rel. Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985), held that low fences at a prison, which allowed a rapist to escape and attack the plaintiff, were not defects in the physical condition of the fence. "Dangerous condition," this Court said, "refers to defects in the physical condition of the public entity's property." Id. (emphasis added).⁴

This Court expanded on the definition of "dangerous condition" in a second case, Alexander v. State, 756 S.W.2d 539 (Mo. banc 1988). There, this Court held that the placement of a partition at the bottom of a ladder created a dangerous condition even though there was no physical defect in any of the property. Id. at 541-542. The Court explained that the "danger was created not by any intrinsic defect in the property involved, but by the dangerous condition created by the positioning of various items of property."⁵ Id. at 542. The condition was "dangerous because its existence, without intervention by third parties, posed a physical threat to plaintiff." Id.

The commission argues that there was no physical defect in the tree before the crew arrived to fell it. That is true, but under Alexander, it has no legal bearing on the issue. In Alexander, when the plaintiff climbed the ladder, there was no dangerous condition. Before he descended, someone placed the partition at the bottom of the ladder creating the dangerous condition.

The present case is analogous. When Cain and her crew arrived, the tree was not dangerous. Cain's co-worker stopped cutting twice to fix the chain saw. When the tree fell, the co-worker was not cutting it but was trying to fix the saw with the help of another inmate. The tree was standing for several minutes, after the sawing, before it fell. During this time, a dangerous condition existed: the tree could fall at any moment. This evidence was sufficient for a jury to conclude that the manner in which the inmate worker cut the tree, prior to it falling, created a dangerous condition within the meaning of the statute.⁶

B. Was the Dangerous Condition Created by an Employee of a Public Entity?

The commission argues that Cain fails to meet the statutory exception to sovereign immunity because Fitzpatrick is not an employee of a public entity for purposes of section 537.600.1(2). The statute does not define "employee of a public entity" but the phrase has a commonly understood meaning. An employee is "one employed by another . . . usually for wages." Websters Third New International Dictionary 743 (1976). A public entity encompasses any state agency. Stacy v. Truman Medical Center, 836 S.W.2d 911, 917-921 (Mo. banc 1992).

Fitzpatrick, Cain, and Korte were employees of a public entity because they performed services for the state for which they were paid. Bowman v. State, 763 S.W.2d 161, 164 (Mo.App.1988). Specifically, Fitzpatrick cut the tree at the direction of Perkins, the MoDOT supervisor. The other inmates were told to stay at the base of the tree. Perkins, and therefore the commission, controlled the details of how the work was done. Though Fitzpatrick was an inmate of a state correctional institution, she was in this setting performing services for the state and, thus, was an employee of a public entity for purposes of section 537.600.

Since both Cain and Fitzpatrick are employees of a public entity for purposes of section 537.600, it may be questioned why Cain may recover in tort rather than under workers' compensation. Inmate workers are specifically exempt from workers' compensation. Section 287.090.1(3). Since Cain is not covered by the workers' compensation statute, she is not...