Counts v. Morrison-Knudsen, Inc., MORRISON-KNUDSE

CourtCourt of Appeal of Missouri (US)
Writing for the CourtFLANIGAN; GREENE; CROW
Citation663 S.W.2d 357
PartiesJames COUNTS and Ernestine Counts, Plaintiffs-Appellants, v., a corporation, Egizii-Rite Electrical Contractors, a joint venture, Allen-Sherman-Hoff, a division of Ecolaire, a corporation, United Conveyors Corporation, a corporation, and Burns and McDonnell Engineering Company, Inc., a corporation, Defendants, and CITY OF SIKESTON, a municipal corporation, Defendant-Respondent and Third Party Plaintiff, v. The BABCOCK & WILCOX COMPANY, Third Party Defendant and Intervenor, and The Travelers Indemnity Company, Intervenor.
Decision Date16 December 1983
Docket NumberNo. 13189,INC,MORRISON-KNUDSE

Page 357

663 S.W.2d 357
James COUNTS and Ernestine Counts, Plaintiffs-Appellants,
v.
MORRISON-KNUDSEN, INC., a corporation, Egizii-Rite
Electrical Contractors, a joint venture, Allen-Sherman-Hoff,
a division of Ecolaire, a corporation, United Conveyors
Corporation, a corporation, and Burns and McDonnell
Engineering Company, Inc., a corporation, Defendants,
and
CITY OF SIKESTON, a municipal corporation,
Defendant-Respondent and Third Party Plaintiff,
v.
The BABCOCK & WILCOX COMPANY, Third Party Defendant and Intervenor,
and
The Travelers Indemnity Company, Intervenor.
No. 13189.
Missouri Court of Appeals,
Southern District,
Division Three.
Dec. 16, 1983.
Motion for Rehearing or to Transfer Denied
Jan. 4, 1984.
Application to Transfer Denied
Feb. 15, 1984.

Page 359

Lloyd G. Briggs, Sr., Briggs & Briggs, Sikeston, for plaintiffs-appellants.

Manuel Drumm, Sikeston, Albert C. Lowes, Buerkle, Lowes, Beeson & Ludwig, Jackson, for City of Sikeston.

FLANIGAN, Judge.

Plaintiffs James Counts and Ernestine Counts, husband and wife, brought this action against six defendants, including the City of Sikeston, a municipal corporation. Five business corporations are the other defendants. The city filed a motion to dismiss on the ground that the [second amended] petition failed to state a claim upon which relief can be granted against the city. The trial court sustained the motion, dismissed the action with respect to the city, and designated its order of dismissal to be a final judgment for purposes of appeal as

Page 360

permitted by Rule 81.06. 1 The order is appealable. Spires v. Edgar, 513 S.W.2d 372, 377 (Mo. banc 1974); Allen v. Salina Broadcasting, Inc., 630 S.W.2d 225, 226 (Mo.App.1982). Plaintiffs appeal.

Plaintiffs assert that the petition did state a claim upon which relief can be granted against the city and that the trial court erred in ruling otherwise. In Count I of the two-count petition plaintiff James Counts sought damages for personal injuries and financial losses sustained by him on February 20, 1981, as a result of his falling into a trench. In Count II, which incorporated the material allegations of Count I, his wife Ernestine Counts sought damages on her derivative claim. The inquiry is whether Count I states a claim against the city. If it does, as this court holds, Count II does likewise.

When a petition is attacked by motion to dismiss for failure to state a claim, the mere conclusions of the pleader are not admitted. The facts alleged, however, are taken to be true and the pleader is entitled to all inferences fairly deducible therefrom. If such facts and such inferences, viewed most favorably from plaintiff's standpoint, show any ground for relief, the petition should not be dismissed. The petition is not to be dismissed when the allegations of the petition invoke principles of substantive law which may entitle the plaintiff to relief or when it appears that the plaintiff may be able to prove a set of facts which would entitle him to relief on his claim. The ruling on a motion to dismiss is ordinarily confined to the face of the petition which is construed in a light favorable to plaintiff. American Drilling v. City of Springfield, 614 S.W.2d 266, 271[2-4] (Mo.App.1981) (citing authorities). The petition must be accorded a liberal construction. Matthews v. Pratt, 367 S.W.2d 632, 634 (Mo.1963); Maples v. Porath, 638 S.W.2d 337 (Mo.App.1982). So viewed, Count I of the petition, in addition to alleging the legal status of the respective defendants and a description of plaintiff's injuries, alleged the matters set forth in the next two paragraphs.

The city "is duly authorized" to construct, operate and fund, to the extent of $150,000,000, an electrical generating plant for the purpose of generating electricity for sale to the citizens of the city and other cities "and associations." On February 20, 1981, the other five defendants, pursuant to a contract with the city and as its agents, were engaged in erecting the power plant. On the south side of and immediately adjacent to the power plant, "there was constructed a certain waterway" in which pipes were situated and over which a metal grating was placed to provide "a common walkway." Prior to February 20, 1981, "one or more of the defendants" negligently removed a section of the metal grating from the walkway and negligently failed to warn plaintiff of that removal. For a long time prior to February 20, 1981, the city negligently allowed the section of metal grating to remain removed and negligently failed to warn of the removal. The condition of the walkway was dangerous and the city knew or should have known of that condition in time to have warned plaintiff of it but failed to do so and thereby caused plaintiff's fall and injuries.

On February 20, 1981, plaintiff was an employee of B & W Construction Company [a non-party] and was engaged in work on the power plant as directed by his employer. As part of his employment plaintiff was required to traverse the walkway in going from his assigned place of work at the power plant to the "clothing change house." While so traversing the walkway plaintiff fell into the trench beneath it and was injured.

The city in its motion claimed, and the trial court in its order held, that the petition was defective for the following reasons:

1. The petition failed to allege facts showing that acts and omissions ascribed to

Page 361

it occurred while the city was acting in a proprietary capacity rather than in a governmental capacity, and thus the city was entitled to a dismissal on the ground of sovereign immunity.

2. The allegation that the co-defendants were agents of the city is a mere conclusion and the petition fails to allege facts supporting that conclusion.

In connection with reason 2, the city's motion stated: "In fact the city has contracted with several independent contractors to do work on its power plant and as such would not be responsible for any acts or omissions by its independent contractors, absent some very unusual factual circumstances, which are not alleged in the petition."

Also in connection with reason 2, the trial court stated: "From a complete review of the pleadings in this case with attachments and notes, there are portions of contracts that make it appear that the city contracted with several entities to do certain work including [a non-party] and ultimately with [a co-defendant] to act as a type of supervisor on this particular job, which in the opinion of the court would make both of those entities independent contractors."

It is necessary to review recent developments in the law of sovereign immunity and to determine how those developments affect the instant petition.

In Bartley v. Sp. Sch. Dist. of St. Louis Cty., 649 S.W.2d 864, 865 (Mo. banc 1983), the court said:

"In Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), this Court abrogated the doctrine of sovereign immunity prospectively as to all claims arising on or after August 15, 1978. The legislature then disenacted the effect of Jones by the passage of §§ 537.600 and 537.610, reestablishing with some modification the doctrine of sovereign immunity."

Section 537.600, in general, restores "sovereign or governmental tort immunity" as it existed at common law in Missouri prior to September 12,...

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20 practice notes
  • JBK, Inc. v. City of Kansas City, Mo., No. 83-1326-CV-W-0.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • January 14, 1986
    ...powers," see generally Central Nat'l Ins. Co. v. City of Kansas City, 546 F.Supp. 1237, 1241 (W.D.Mo.1982); Counts v. Morrison-Knudsen, 663 S.W.2d 357, 362 (Mo.Ct.App. 1983); that there is no suggestion, much less any pleading, that the City has waived that immunity under Mo.Rev.Stat. § 71.......
  • State ex inf. Riederer ex rel. Pershing Square Redevelopment Corp. v. Collins, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • November 27, 1990
    ...570 (Mo.App.1983). This court is not required, however, to accept petitioner's conclusions as true. Counts v. Morrison-Knudsen, Inc., 663 S.W.2d 357, 360 (Mo.App.1983). If the trial court does not specify reasons for dismissal, the reviewing court may assume the trial court acted for one or......
  • State ex rel. Trimble v. Ryan, No. 69376
    • United States
    • Missouri Supreme Court
    • February 17, 1988
    ...has been generated by casual use of the terms "political subdivision" and "public entity." See Counts v. Morrison-Knudsen, Inc., 663 S.W.2d 357, 361 n. 2 (Mo.App.1983). Section 537.600 refers to "public entities," while sec. 537.610.2 uses the phrase "the state and its public entities," and......
  • State ex rel. Myers Memorial Airport Committee, Inc. v. City of Carthage, No. 21433
    • United States
    • Missouri Court of Appeals
    • September 10, 1997
    ...had the trial court meant its judgment to be a summary judgment, it would have erred. As explained in Counts v. Morrison-Knudsen, Inc., 663 S.W.2d 357, 363[17, 18] (Mo.App. "Before a trial court may treat a motion to dismiss as one for summary judgment, Page 351 when matters outside the ple......
  • Request a trial to view additional results
20 cases
  • JBK, Inc. v. City of Kansas City, Mo., No. 83-1326-CV-W-0.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • January 14, 1986
    ...powers," see generally Central Nat'l Ins. Co. v. City of Kansas City, 546 F.Supp. 1237, 1241 (W.D.Mo.1982); Counts v. Morrison-Knudsen, 663 S.W.2d 357, 362 (Mo.Ct.App. 1983); that there is no suggestion, much less any pleading, that the City has waived that immunity under Mo.Rev.Stat. § 71.......
  • State ex inf. Riederer ex rel. Pershing Square Redevelopment Corp. v. Collins, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • November 27, 1990
    ...570 (Mo.App.1983). This court is not required, however, to accept petitioner's conclusions as true. Counts v. Morrison-Knudsen, Inc., 663 S.W.2d 357, 360 (Mo.App.1983). If the trial court does not specify reasons for dismissal, the reviewing court may assume the trial court acted for one or......
  • State ex rel. Trimble v. Ryan, No. 69376
    • United States
    • Missouri Supreme Court
    • February 17, 1988
    ...has been generated by casual use of the terms "political subdivision" and "public entity." See Counts v. Morrison-Knudsen, Inc., 663 S.W.2d 357, 361 n. 2 (Mo.App.1983). Section 537.600 refers to "public entities," while sec. 537.610.2 uses the phrase "the state and its public entities," and......
  • State ex rel. Myers Memorial Airport Committee, Inc. v. City of Carthage, No. 21433
    • United States
    • Missouri Court of Appeals
    • September 10, 1997
    ...had the trial court meant its judgment to be a summary judgment, it would have erred. As explained in Counts v. Morrison-Knudsen, Inc., 663 S.W.2d 357, 363[17, 18] (Mo.App. "Before a trial court may treat a motion to dismiss as one for summary judgment, Page 351 when matters outside the ple......
  • Request a trial to view additional results

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