Christine H. v. Derby Liquor Store, 49880

Decision Date31 December 1985
Docket NumberNo. 49880,49880
Citation703 S.W.2d 87
CourtMissouri Court of Appeals
PartiesCHRISTINE H., Plaintiff-Appellant, v. DERBY LIQUOR STORE, Lonnie Speer & City of Kirkwood, Defendants-Respondents.

Gary R. Sarachan, St. Louis, for plaintiff-appellant.

Robert B. Hoemeke, Richard B. Walsh, Jr., St. Louis, for Speer and City of Kirkwood.

Richard O. Funsch, Robbye Hill Toft, St. Louis, for City of Kirkwood.

SNYDER, Judge.

Plaintiff-appellant filed suit for damages against the City of Kirkwood, Lonnie Speer and Derby Liquor Store for personal injuries resulting from a sexual assault. Lonnie Speer is a police officer employed by the City of Kirkwood. Appellant's petition against the City and Speer was dismissed with prejudice. The trial court designated the judgment as final for purposes of appeal. The judgment of dismissal is affirmed.

Appellant, a young white female, alleged in her petition that she was on the parking lot of the Derby Liquor Store, crying and being harassed by a group of black men and that Speer observed the harassment. She further alleged that Speer had knowledge of the prior criminal records of the black men, their violent and criminal propensities and failed, omitted and refused to take any measures to warn appellant of the danger or further investigate the suspicious behavior of the black men. Speer also failed to summon assistance for appellant. Appellant suffered severe damages including rape trauma syndrome, traumatic reactive depression, contusions, abrasions, lacerations and permanent injuries to the nerves and vertabral discs.

The trial court based its granting of the motions to dismiss on the official and sovereign immunity of Speer and the City.

The appeal was from the judgment dismissing both Speer and the City, but the points relied on in appellant's brief are directed only to trial court error in dismissing the petition against the City. Therefore, it is unnecessary to discuss the question of Speer's liability. Rule 84.04(d). State ex rel. Curtis v. Crow, 580 S.W.2d 753, 756 (Mo. banc 1979).

This court will say, however, that Speer's actions were protected from liability by official immunity, which applies to acts of a police officer which are discretionary. Newsom v. City of Kansas City, 606 S.W.2d 487, 490 (Mo.App.1980); Jackson v. Wilson, 581 S.W.2d 39, 43 (Mo.App.1979).

Speer's actions on the night in question were discretionary as that term is used in determining whether there is immunity. See Parker v. Sherman, 456 S.W.2d 577, 580 (Mo.1970); See also Berger v. City of University City, 676 S.W.2d 39, 41 (Mo.App.1984); State ex rel. Eli Lilly and Co. v. Gaertner, 619 S.W.2d 761, 763[3, 4] (Mo.App.1981).

In appellant's first point relating to the City of Kirkwood she maintains the City's liability insurance constitutes a waiver of sovereign immunity for personal injuries caused while the City is exercising a governmental function. This point is denied.

Appellant relies on §§ 537.600 and 71.185 (all statutory references are to RSMo.1978). Section 537.600 was passed after the Supreme Court handed down Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977) in which the court ruled that the doctrine of sovereign immunity should no longer be followed by the courts of Missouri. Id. at 231.

The legislature then passed § 537.600 which restored the doctrine of sovereign immunity except in certain situations when those situations were covered by insurance. The only occurrences which can give rise to liability of a public entity when covered by insurance under § 537.600 are those arising out of the act or omission by public employees in the operation of motor vehicles and those relating to injuries caused by the condition of a public entity's property. Bartley v. Special School District of St. Louis County, 649 S.W.2d 864, 870 (Mo. banc 1983). Obviously § 537.600 does not apply in the case under review.

Appellant relies also on § 71.185 which reads in part:

1. Any municipality engaged in the exercise of governmental functions may carry liability insurance and pay the premiums therefor to insure such municipality and their employees against claims or causes of action for property damage or personal injuries, including death, caused while in the exercise of the governmental functions, and shall be liable as in other cases of torts for property damage and personal injuries including death suffered by third persons while the...

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14 cases
  • Smith v. Finch
    • United States
    • U.S. District Court — Eastern District of Missouri
    • July 2, 2018
    ...sustained as the result of an alleged breach of public duty to the community as a whole." Id. (citing Christine H. v. Derby Liquor Store , 703 S.W.2d 87, 89 (Mo. Ct. App. 1985) ). The parties dispute whether the alleged breach of duty in this case was a duty owed to the general public or a ......
  • Southers v. City of Farmington
    • United States
    • Missouri Supreme Court
    • June 10, 2008
    ...action for injuries sustained as the result of an alleged breach of public duty to the community as a whole. Christine H. v. Derby Liquor Store, 703 S.W.2d 87, 89 (Mo.App. 1985). In this way, the public duty doctrine's impact is distinguishable from the doctrine of official immunity. Applic......
  • Davis v. Lambert-St. Louis International Airport, No. ED 85007 (MO 9/20/2005)
    • United States
    • Missouri Supreme Court
    • September 20, 2005
    ...official immunity and that his employer was protected by sovereign immunity and the public duty doctrine. Christine H. v. Derby Liquor Store, 703 S.W.2d 87, 88-89 (Mo. App. E.D. 1985). As a result, we find the reasoning in Schutte unpersuasive and contrary to the earlier more persuasive rea......
  • Green v. Denison
    • United States
    • Missouri Supreme Court
    • October 13, 1987
    ...of Topeka, 231 Kan. 358, 644 P.2d 458 (1982).5 Berger v. City of University City, 676 S.W.2d 39 (Mo.App.1984); Christine H. v. Derby Liquor Store, 703 S.W.2d 87 (Mo.App.1985); Cox v. Department of Natural Resources, 699 S.W.2d 443 (Mo.App.1985).6 18 U.S.C. Sec. 3109 is a similar federal sta......
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