Cox v. Callaway Cnty. Sheriff's Dep't

• Decision Date: 07 February 2023
• Docket Number: WD85350
• Parties: CASSANDRA COX, Appellant, v. CALLAWAY COUNTY SHERIFF'S DEPARTMENT, ET AL., Respondents.
• Court: Missouri Court of Appeals

CASSANDRA COX, Appellant,
v.
CALLAWAY COUNTY SHERIFF'S DEPARTMENT, ET AL., Respondents.

No. WD85350

Court of Appeals of Missouri, Western District, Special Division

February 7, 2023

Appeal from the Circuit Court of Callaway County, Missouri The Honorable J. HasBrouck Jacobs, Judge

Before: Gary D. Witt, Chief Judge, Presiding, Cynthia L. Martin, Judge, and Timothy J. Flook, Special Judge

CYNTHIA L. MARTIN, JUDGE

Cassandra Cox ("Cox") appeals from the trial court's entry of summary judgment in favor of Callaway County, Missouri ("Callaway County") and fourteen correctional officers employed by Callaway County at the Callaway County Jail ("Individual Defendants") (collectively "Defendants"). Cox argues that genuine issues of material fact precluded the trial court's entry of summary judgment to: (1) Individual Defendants on the

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basis of official immunity; (2) Defendants on the grounds that they were not the proximate cause of Cox's injuries; and (3) Callaway County on the basis of sovereign immunity. Finding no error, we affirm.

Factual and Procedural History^[1]

Cox's lawsuit arises out of a "cardiac event" Cox experienced while detained at the Callaway County Jail on the morning of February 28, 2016. On or prior to February 26, 2016, Cox used methamphetamine. At 4:37 a.m. on February 26, 2016, Officer Sean Wisswell ("Officer Wisswell"), a non-defendant police officer with the Fulton Police Department, responded to a private property accident report in Fulton, Missouri, where a vehicle ran over a curb and struck a pole. Cox was asleep in the driver's seat and the vehicle was still in "drive." Cox performed several field sobriety tests for Wisswell, which indicated she was impaired, and Wisswell placed Cox under arrest. A search of Cox's car revealed marijuana, suspected methamphetamine, and drug paraphernalia. A drug recognition expert determined that Cox was under the influence of central nervous system stimulants, as well as cannabis. Between 5:45 a.m. and 6:07 a.m., Cox's pulse was taken three times and it measured between 82 and 84 beats per minute each time. At approximately 7:30 a.m., Wisswell transported Cox to the Callaway County Jail.

At some point after booking at the Callaway County Jail, Cox indicated that she "wanted to die," and she was placed in an observation cell, in isolation, wearing a suicide

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prevention suit. Meal refusal forms indicate that Cox refused her lunch and dinner on February 26 and her breakfast on February 28. Callaway County Jail records reflect that during Cox's approximate forty-eight-hour-stay in the Callaway County Jail, correctional officers recorded that they checked on Cox on seventy-one separate instances.

A 7:24 a.m. on February 28, an Individual Defendant observed that Cox was having a medical emergency. Two of the Individual Defendants called for an ambulance and administered aid to Cox. When emergency responders arrived, Cox had a weak and slow pulse. The emergency responders resuscitated Cox and transported her to the hospital. Cox survived.

On June 19, 2020, Cox filed a lawsuit in the Circuit Court of Callaway County against Defendants, asserting fourteen claims of negligence against Individual Defendants in their official and individual capacities and a claim of respondent superior against Callaway County. On October 6, 2021, Defendants filed a motion for summary judgment which argued that the undisputed facts failed to support Cox's claims because: (1) official immunity shields Individual Defendants from liability in their individual capacities in that the duties outlined in the Callaway County Sheriff's Office Jail Policy and Procedural Manual ("Policy Manual") which they allegedly violated are discretionary rather than ministerial in nature; (2) sovereign immunity protects Callaway County and Individual Defendants from liability in their official capacities because Callaway County's purchase of liability coverage did not constitute a waiver of sovereign immunity; and (3) even if Cox could overcome Defendants' immunity, Cox failed to establish that any conduct by Defendants caused her injury. Cox filed a response to Defendants' motion for summary

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judgment, as well as a "Statement of Additional Material Facts in Opposition to Defendants' Motion for Summary Judgment" which set forth seventy-one additional facts.

On April 4, 2022, the trial court entered summary judgment in favor of Defendants ("Judgment"), finding that no material factual dispute exists and Defendants are entitled to judgment as a matter of law. The Judgment found that Callaway County's purchase of liability coverage did not constitute a waiver of sovereign immunity by Callaway County or Individual Defendants in their official capacities, and that "[n]one of the policies [Cox] alleges [Individual Defendants] violated [in their individual capacities] impose a ministerial duty.... As such, [Cox] has not identified any ministerial duties that any of the Individual Defendants violated with respect to their care of [Cox]." The Judgment also found that the uncontroverted material facts do not support a finding that Defendants were the proximate cause of Cox's cardiac event in that Cox's expert opined that the cardiac event was "precipitated by tachycardia" Cox experienced at the Callaway County Jail; however, Cox "admits that the objective evidence reveals that she was not tachycardic at any time while she was at [the] Callaway County Jail."

Cox appeals.

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Standard of Review

We review the grant of summary judgment de novo. Show-Me Inst. v. Off. of Admin., 645 S.W.3d 602, 607 (Mo. App. W.D. 2022). Summary judgment is appropriate where "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." Rule 74.04(c)(6).^[2] "In determining whether the entry of summary judgment was appropriate, we 'review[] the record in the light most favorable to the party against whom judgment was entered, and give[] the non-movant the benefit of all reasonable inferences from the record.'" Show-Me Inst., 645 S.W.3d at 607 (quoting Estes as Next Friend for Doe v. Bd. of Trs. of Mo. Pub. Entity Risk Mgmt. Fund, 623 S.W.3d 678, 686 (Mo. App. W.D. 2021)).

Defending parties, such as Defendants, are entitled to summary judgment if they demonstrate one of the following:

(1) facts negating any one of the claimant's elements necessary for judgment;

(2) that the claimant, after an adequate period of discovery, has not been able to-and will not be able to-produce evidence sufficient to allow the trier of fact to find the existence of one of the claimant's elements; or (3) facts necessary to support [their] properly pleaded affirmative defense.

Sansone v. Governor of Mo., 648 S.W.3d 13, 20 (Mo. App. WD. 2022) (quoting Roberts v. BJC Health Sys., 391 S.W.3d 433, 437 (Mo. banc 2013)). "Where summary judgment has been granted based on the affirmative defense of official immunity, the appellate court must consider whether there is a genuine dispute as to the existence of facts necessary to

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support the affirmative defense." J.M. v. Lee's Summit Sch. Dist., 545 S.W.3d 363, 36869 (Mo. App. W.D. 2018) (quoting Elias v. Davis, 535 S.W.3d 737, 741 (Mo. App. W.D. 2017)).

Analysis

Cox raises three points on appeal, challenging each of the grounds relied upon by the trial court in its entry of summary judgment. In her first point, Cox argues that the trial court erred in finding that Individual Defendants in their individual capacities are entitled to official immunity. In her second point on appeal, Cox asserts that the trial court erred in granting summary judgment for Defendants on the basis that they are not the proximate cause of her injuries. In her third point on appeal, Cox contends that a genuine issue of material fact precluded the trial court's conclusion that Callaway County is shielded by sovereign immunity.^[3] We address these points separately and out of order.

Point One: The trial court did not err in granting summary judgment for Individual Defendants in their individual capacities on the basis that they are entitled to official immunity.

Cox's first point relied on states: "The trial court erred in granting summary judgment for the Individual Defendants on the grounds that they were shielded by official immunity because [Cox] presented substantial evidence that the Individual Defendants violated ministerial duties and thus official immunity does not apply." Although Cox's point relied on refers to the presentation of "substantial evidence," in the argument portion

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of her brief, Cox argues: (i) that genuine issues of material fact remain in dispute regarding whether Individual Defendants violated six sections of the Policy Manual, and (ii) that uncontroverted facts establish that those sections of the Policy Manual impose mandatory duties that are not subject to official immunity. Cox's point relied on does not fairly contemplate the arguments advanced in her brief, preserving nothing for our review. KDW Staffing, LLC v. Grove Constr., LLC, 584 S.W.3d 833, 837-38 (Mo. App. W.D. 2019) (citing Rule 84.04(d)(1)).

Even if this material briefing deficiency could be overlooked, we would not find that Cox has demonstrated that genuine issues of material fact remain in dispute preventing the entry of summary judgment in favor of Individual Defendants on the basis of official immunity as a matter of law, or that uncontroverted facts establish that Individual Defendants are not entitled to official immunity as a matter of law. That is because the argument portion of Cox's brief is not supported by any reference to Rule 74.04(c) paragraphs or responses, fatally impeding appellate review.

Rule 74.04 governs summary judgment practice in Missouri and compliance with the rule is mandatory. Great S. Bank v. Blue Chalk Constr., 497 S.W.3d 825, 828 (Mo. App. S.D. 2016)...