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

• Citation: 663 S.W.2d 357
• Decision Date: 16 December 1983
• Docket Number: No. 13189,INC,MORRISON-KNUDSE,13189
• Court: Court of Appeal of Missouri (US)
• Parties: James 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.

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.

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 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 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, 1977, except as affected by statutes then in effect and with two additional exceptions. The latter exceptions deal, generally, with injuries arising out of the operation of motor vehicles and injuries caused by the condition of "a public entity's property." Bartley, supra, holds that neither of those exceptions comes into play unless the public entity acquires insurance pursuant to § 537.610. ² For the reason that the instant petition fails to allege that the city purchased liability insurance, the waiver of sovereign immunity, found in § 537.600(2), (injuries caused by the condition of a public entity's property), is not applicable here, even if, which need not be decided, the instant petition could be construed to constitute the pleading of "the condition of [the city's] property."

The sufficiency of the petition to state a claim against the city must be gauged by pre-Jones law. Section 71.185 authorizes a city to carry liability insurance for payment of tort claims arising out of the exercise of governmental functions and, in essence, eliminates sovereign immunity to the extent of the insurance so carried. The instant petition makes no claim that the city carried such insurance and thus § 71.185 is of no help to the plaintiffs. Oberkramer v. City of Ellisville, 650 S.W.2d 286, 297 (Mo.App.1983). Oberkramer also states the principles set forth in the following paragraph.

A city functions as a body politic, as an organ of government, and also as a body corporate, an artificial personality or corporation. It has "dual obligations." Since a city, by its nature, can perform both proprietary and governmental functions, in deciding if a city can be sued in a particular instance, a court must look to the nature of the activity performed to determine in which capacity the city has acted. A governmental duty is one which is performed for the common good of all. A proprietary duty is one which is performed for the special benefit or profit of the city as a corporate entity. A city may be held liable for torts arising out of the performance of proprietary functions but no recovery is allowed for torts arising out of the performance of governmental functions.

Whether a city, under a given set of facts, is performing a proprietary or governmental function is not always easy to determine and indeed several cases have commented upon the "maze of inconsistency" ³ in the reported decisions. The instant petition seeks to charge the city with liability for injuries sustained during the course of the construction of an electric power plant which was being built by the city's agents, the five co-defendants, pursuant to a contract with the city....