Crouch v. City of Kan. City
| Decision Date | 05 August 2014 |
| Docket Number | No. WD 76824.,WD 76824. |
| Parties | Diana CROUCH, et al., Appellants, v. CITY OF KANSAS CITY, Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Richard Fisk and Mark Beam–Ward, Kansas City, MO, for appellants.
Tara M. Kelly and Kelly L. Mills, Assistant City Attorneys, Kansas City, MO, for respondent.
Before Division One: JOSEPH M. ELLIS, Presiding Judge, and KAREN KING MITCHELL and ANTHONY REX GABBERT, Judges.
Appellants, Diana and Dennis Crouch, appeal from the circuit court's grant of summary judgment in favor of Respondent, the City of Kansas City (City), on their claim for wrongful death of their mother, Dorothea Crouch. Appellants allege that Dorothea died as the result of a head injury
suffered from a fall that occurred when employees of the Kansas City Fire Department were attempting to carry her up the stairs in her home. The circuit court found that the City was entitled to sovereign immunity, and it granted summary judgment in the City's favor. We affirm.
On April 16, 2012, Diana Crouch called the Kansas City Fire Department (KCFD), seeking help for her mother, Dorothea Crouch, in getting up the stairs to Dorothea's living quarters in the home they shared.2 The situation was a non-emergency situation, and apart from an inability to climb the stairs that particular day, Dorothea was otherwise fine.3
The KCFD responds to approximately 25,000 non-emergency calls per year. In 2012, the KCFD responded to 2,671 “lift assist” calls like the one made by Diana. The “lift assist” service was authorized by the fire chief and made available to anyone in the community.
In response to Diana's call, the KCFD sent four firemen (a standard number for call response) to the Crouch residence. When they arrived, Diana greeted them at the door and led them to the stairwell where Dorothea was seated in a wheelchair at the bottom of the stairs. The firemen discussed how best to move Dorothea and ultimately decided to put her in a wooden dining room chair and have two firemen carry her up the stairs, with one holding the back of the chair and the other holding the front two legs of the chair.
On the way up the stairs, the chair broke and Dorothea fell, hitting her head on the broken chair and the floor. Diana contacted Dorothea's doctor, who advised Diana to ice the injury, monitor Dorothea for signs of a concussion, and wake Dorothea every hour during the night to check her for signs of concussion. Dorothea appeared fine that evening and overnight, but complained of a severe headache when she awoke the next morning. Diana called 911, and an ambulance took Dorothea to the hospital, where she was diagnosed with intracranial hemorrhaging, which led to her death two days later.
Diana and Dennis, Dorothea's two children, sued the City for wrongful death, alleging that the KCFD firemen acted negligently in the manner in which they chose to move Dorothea up the stairs. In their petition, the Crouch children alleged that the firemen were acting as agents, servants, or employees of the City and that they were not performing a governmental function, but a proprietary one, in that their act of assisting Dorothea to the second floor was for the convenience of but one of the City's citizens and not for the common good of all.
After a period of discovery, the City moved for summary judgment, asserting that it was entitled to sovereign immunity insofar as the firemen were engaged in a governmental function during the actions leading to Dorothea's death. Alternatively, the City argued that it was protected by the public duty doctrine to the extent that its employees (the firemen) were protected. The City supported its argument by referring to the duties and powers of the KCFD and its fire chief as laid out in the City's charter and ordinances and arguing that the activities of the fire department generally, and lift assists specifically, are for the benefit of the general public.
In response, the Crouches argued that the City, as a municipal corporation, performed dual functions and that, even though the establishment and operation of a fire department are typically governmental functions, the non-emergency, lift-assist response was not. The Crouches argued that the KCFD's response to non-emergency lift-assist calls was merely for the benefit and convenience of the City's own citizens and, therefore, was a proprietary function not entitled to sovereign immunity. The Crouches further argued that the public duty doctrine was inapplicable because they had not sued the individual firemen, and the public duty doctrine could not protect the City in its performance of proprietary functions.
The circuit court granted the City's motion for summary judgment, finding that “[t]he ‘lift assist’ calls performed by Defendant serve to safeguard and preserve the health of those citizens that are unable to mobilize themselves,” and that the service was “performed for the common good of all.” The court further determined that the City did not receive any benefit from providing “lift assist” services and, therefore, the service constituted a governmental function, entitling the City to sovereign immunity. The Crouches appeal.
Because “[t]he propriety of summary judgment is purely an issue of law,” we review the grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered.” Id. “Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion.” Id. “We accord the non-movant the benefit of all reasonable inferences from the record.” Id.
“The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially.” Id. “As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.” Id.
The Crouches raise two points on appeal: first, they claim that the circuit court erred in finding that the non-emergency lift-assist function was governmental and, thus, that sovereign immunity applied; and second, they claim that the public duty doctrine does not apply because the Crouches did not sue the firemen individually as employees of the City. Because the circuit court's entry of summary judgment based on sovereign immunity was correct, we affirm.
The court below granted summary judgment in favor of the City on the ground that the City was protected from liability by sovereign immunity. “ ‘Under the doctrine of sovereign immunity, public entities are immune from suit for their negligent acts unless the General Assembly has expressly waived such immunity.’ ” Phelps v. City of Kansas City, 371 S.W.3d 909, 912 (Mo.App.W.D.2012) (quoting Kraus v. Hy–Vee, Inc., 147 S.W.3d 907, 914 (Mo.App.W.D.2004) ). The General Assembly has expressly waived sovereign immunity where a person sustains injuries either: (1) “directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment” or (2) “caused by [a dangerous] condition of a public entity's property.” § 537.600.1(1)–(2).4 The General Assembly has further waived sovereign immunity where a public entity has purchased liability insurance, but the waiver applies only up to “the maximum amount of and only for the purposes covered by such policy of insurance.” § 537.610.1. Apart from these express waivers,5 “sovereign or governmental tort immunity as [it] existed at common law in this state prior to September 12, 1977, ... remain[s] in full force and effect.” § 537.600.1.
Under the common law, a municipality is not entitled to full sovereign immunity. Kunzie v. City of Olivette, 184 S.W.3d 570, 574 (Mo. banc 2006). Because municipalities operate as both political subdivisions of the state and independent corporations, they perform both governmental and non-governmental functions. St. Joseph Light & Power Co. v. Kaw Valley Tunneling, Inc., 589 S.W.2d 260, 267 (Mo. banc 1979). And because sovereign immunity protects the state, as a sovereign, municipalities are cloaked with immunity only when acting as an arm of the state. Thus, “unlike state entities which receive full sovereign immunity, municipalities are entitled to sovereign immunity only when engaged in ‘governmental’ functions, but not ‘proprietary’ functions.” Richardson v. City of St. Louis, 293 S.W.3d 133, 136–37 (Mo.App.E.D.2009). “The distinction between the governmental and proprietary functions of municipalities was drawn by the courts in order to impose common law liability on municipal corporations for the negligence of their agents, servants or officers in the execution of corporate powers and duties.” State ex rel. Askew v. Kopp, 330 S.W.2d 882, 890 (Mo.1960) (emphasis added).6
As the moving party seeking summary judgment, the City bore the burden of demonstrating that it was entitled to judgment as a matter of law on the Crouches' petition. Rule 74.04(c). “Whether sovereign immunity applies to a defendant is ... a question of law.” Kreutz v. Curators of Univ. of Mo., 363 S.W.3d 61, 63–64 (Mo.App.W.D.2011). And “Missouri courts have routinely held that sovereign immunity is not an affirmative defense and that the plaintiff bears the burden of pleading with specificity facts giving rise to an exception to sovereign immunity when suing a public entity.” Richardson, 293 S.W.3d...
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