Claspill v. State Div. of Economic Development

• Decision Date: 26 March 1991
• Docket Number: No. WD,WD
• Citation: Claspill v. State Div. of Economic Development, 809 S.W.2d 87 (Mo. App. 1991)
• Parties: Darrell CLASPILL, Appellant, v. STATE of Missouri, DIVISION OF ECONOMIC DEVELOPMENT, Respondent. 43689.
• Court: Missouri Court of Appeals

Page 87

809 S.W.2d 87

Darrell CLASPILL, Appellant, v.STATE of Missouri, DIVISION OF ECONOMIC DEVELOPMENT, Respondent.

No. WD 43689.

Missouri Court of Appeals Western District.

March 26, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 30, 1991.

Application to Transfer Denied June 11, 1991.

J. Michael Cronan, Kansas City for appellant.

William L. Webster, Atty. Gen., Curtis F. Thompson, Asst. Atty. Gen., Jefferson City, for respondent.

Before BERREY, P.J., and KENNEDY and GAITAN, JJ.

BERREY, Judge.

Darrell Claspill appeals from the dismissal of his personal injury action on the grounds of sovereign immunity.He presents two points in this appeal: (1) that the trial court erred in dismissing appellant's petition because such action is authorized by § 537.600, RSMoSupp.1989; and (2) that the trial court erred in determining that venue was not properly in Bates County, Missouri.

Darrell Claspill was a railroad engineer employed by Missouri Pacific Railroad.On May 13, 1986, appellant was a member of the train crew on a coal train traveling northbound through Adrian, Missouri.This train collided with a motor vehicle crossing eastbound at an intersection.Appellant filed suit in Bates County against the Missouri Highway and Transportation Commission.Respondent, State of Missouri, Division of Transportation within the Department of Economic Development, was added by amended petition.

Appellant alleged in his petition that his injuries were a direct and proximate result of the condition of public property and by dangerous and defective design of the road through the crossing.He claimed the dangerous condition was caused or contributed to be caused by agents and employees of respondent acting within the scope of their employment.Appellant further alleged that crossing collisions on June 1, 1986, and February 28, 1986, resulted in psychological and emotional injuries cumulative with the May 13, 1986, collision.Appellant claims that respondent was responsible for the total of appellant's injury and damages from the three collisions.

The Bates County Circuit Court transferred this case on venue grounds to the Cole County Circuit Court.The Cole County Court dismissed appellant's action on the grounds of sovereign immunity.From this dismissal Claspill appeals.

Appellant first contends that the trial court erred in dismissing appellant's petition because that petition stated a cause of action authorized under § 537.600, RSMoSupp.1989.The trial court dismissed the petition because the land upon which the traffic control devices were located was not owned by the State of Missouri but by other public entities.Appellant contends that it is not necessary that the dangerous condition of land created by a public entity's employees be owned or occupied by the same public entity as that for which the negligent employees are employed.Appellant claims that such land may be occupied by any public entity.The exemption appellant relies upon is found in § 537.600.1(2), RSMoSupp.1989:

Injuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that 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.

Appellant asserts that because the legislature used the indefinite article"a" in the clause "condition of a public entity's property" and the definitive article"the" in the phrase "either a negligent or wrongful act or omission of an employee of the public entity," then the public entity whose employees created the negligent condition need not be the same public entity owning the property at the place the injury occurred.

Appellant's position is not tenable.The first and foremost rule in statutory construction...