Davies v. City of Kansas City, Mo.

Citation557 F. Supp. 1321
Decision Date02 March 1983
Docket NumberNo. 82-0042-CV-W-9.,82-0042-CV-W-9.
PartiesBarbara B. DAVIES, Plaintiff, v. CITY OF KANSAS CITY, MISSOURI, a Municipal Corporation, Defendant.
CourtU.S. District Court — Western District of Missouri

Stephen B. Millin, Jr., Heavner, Wilkins, Jarrett & Kimball, Kansas City, Mo., Victor A. Bergman, Schnider, Shamberg & May, Chartered, Shawnee Mission, Kan., for plaintiff.

Michael W. Bradley, Asst. City Atty., Kansas City, Mo., for defendant.

ORDER

BARTLETT, District Judge.

This case pends on the defendant's motion for summary judgment and the plaintiff's motion to amend complaint by adding parties defendant. On December 30, 1982, the Court heard oral arguments on the motions. For the reasons stated herein, the plaintiff is granted leave to amend her complaint by adding parties defendant and the motion of the defendant City of Kansas City, Missouri, for summary judgment is granted.

Plaintiff's Motion for Leave to Amend

Plaintiff seeks to amend her complaint by adding as parties defendant, Delbert Karmeier, Director of Transportation for the City of Kansas City, Missouri; James Lee, Transportation Engineer for the City of Kansas City, Missouri; and Gordon White, an employee of the Department of Transportation for the City of Kansas City, Missouri. Rule 15(a) of the Federal Rules of Civil Procedure provides certain time limitations during which a party may amend his pleadings as a matter of right. Thereafter, a "party may amend his pleadings only by leave of court ... and leave shall be freely given when justice so requires."

In Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) the Supreme Court emphasized that leave to amend should be granted unless the party opposing the request demonstrates a significant reason not to do so.

In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given."

Defendant argues in opposition to the requested amendment that (1) the alleged acts or omissions of these three individuals involved the exercise of judgment and are therefore a discretionary function; the doctrine of official immunity bars recovery in such an instance; (2) the proposed defendants cannot be held vicariously liable for the acts of their subordinates because the doctrine of respondeat superior does not apply to public officials; and (3) official immunity has not been waived by reason of the purchase of insurance.

None of these arguments demonstrate that the requested amendment is so clearly futile that it should not be allowed. For instance, the record at this stage of the case is insufficient to determine whether the alleged acts or omissions by the three proposed individual defendants were discretionary or ministerial. Missouri law permits suit against a public officer for violation or neglect of a ministerial duty. Jackson v. Wilson, 581 S.W.2d 39, 42-43 (Mo. App.1979). Also, public officials may be liable for negligent hiring of subordinates, for directing and encouraging negligent acts of subordinates, or for personally cooperating in negligent acts. See, Fidelity & Casualty Co. of New York v. Brightman, 53 F.2d 161, 166 (8th Cir.1931). In Newson v. City of Kansas City, 606 S.W.2d 487, 491 (Mo.App.1980) the Missouri Court of Appeals remanded the case to the lower court so plaintiff would have the opportunity to amend the petition "to assert the provisions of § 71.185 purchase of insurance by a municipality as a waiver of immunity by defendant employee ... of suit in tort for liability from the exercise of a governmental function."

Also, the claims against the proposed defendants arise out of "the same transaction, occurrence, or series of occurrences" as are involved in the original suit against the city. Rule 20, Fed.R.Civ.P. Certain questions of law and fact common to the issues involved in the case filed against the city, upon which discovery has already been done, will be involved in a suit against the individual defendants. Therefore, it would be economical to completely resolve this dispute in this case.

Because defendant has failed to establish a reason why the liberal amendment policy of Rule 15(a), Fed.R.Civ.P., should not be followed, plaintiff's motion for leave to file an amended complaint is granted.

Defendant City of Kansas City's Motion for Summary Judgment

This action arose out of a traffic collision occurring at the intersection of 57th and Main Streets on July 25, 1980, in which the plaintiff was driving her vehicle southbound on Main and another driver was eastbound on 57th Street. Plaintiff has alleged that at the time of the collision, the traffic control signals were flashing amber for traffic on Main and flashing red for 57th Street traffic.

The defendant's motion for summary judgment states that "the gravaman of plaintiff's allegations against this defendant is that the traffic signal system at 57th and Main Streets in Kansas City, Missouri was dangerous, defective and unreasonably unsafe." Defendant Kansas City contends plaintiff cannot recover damages from it for negligent placement, operation, or maintenance of a traffic signal because traffic control is a governmental function. Auslander v. City of St. Louis, 332 Mo. 145, 56 S.W.2d 778 (Mo.1932); Watson v. Kansas City, 499 S.W.2d 515 (Mo.1973). The defendant denies that it waived sovereign immunity by the purchase of liability insurance. At oral argument, plaintiff's counsel stated that plaintiff no longer contends that the city has waived sovereign immunity by the purchase of liability insurance.

Plaintiff bases her claims against the City of Kansas City on the common law duty of a city to keep its streets reasonably safe for travel. Paragraph 10 of plaintiff's complaint states:

10. At the time of the collision, and for an unreasonably long period of time before that, the roadway upon which plaintiff was traveling was dangerous, defective and unreasonably unsafe due to a combination of factors, including but not limited to the following:
a. Vision and visibility were obstructed so that traffic southbound on Main Street was unable to observe eastbound traffic on 57th Street, and conversely so that traffic eastbound on 57th Street was unable to observe southbound traffic on Main Street.
b. The normal speeds traveled by vehicular traffic on 57th Street were such that the signal faces of the traffic signal system used at the intersection were not continuously visible to eastbound traffic for the distance required by the laws of the state of Missouri for traffic at such speeds.
c. Existing traffic control devices, particularly those provided for eastbound 57th Street traffic, were obscured and obstructed by trees, shrubs and limbs, as well as other components of the traffic signal system, and were therefore not an effective means of eliminating the hazard and danger.
d. Lack of advance warning and marking of upcoming and obstructed traffic signals at the intersection, for the benefit of eastbound 57th Street traffic.
e. Due to the grade, normal speeds, visual obstructions, surrounding usage and lack of advance warning of the traffic signal system, vehicles eastbound on 57th Street approaching the intersection were induced to enter the intersection in violation of the traffic signal indication to stop.
f. Failure to devise, locate, construct, maintain and keep unobscured signs or traffic control devices as were necessary and reasonable to give eastbound motorists reasonable notice, warning or indication of the danger at the intersection.

This Court has jurisdiction over this case because the parties are residents of different states. "Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state." Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). In this case the parties agree that Missouri law governs.

Plaintiff recognizes that regulation of traffic by a city is a governmental function to which sovereign immunity applies. See Auslander, supra, Blackburn v. City of St. Louis, 343 Mo. 301, 121 S.W.2d 727, 730 (Mo.1938); Hiltner v. Kansas City, 293 S.W.2d 422 (Mo.1956); Prewitt v. City of St. Joseph, 334 Mo. 1228, 70 S.W.2d 916 (1934); and Gillen v. City of St. Louis, 345 S.W.2d 69 (Mo.1961). Plaintiff seeks to avoid these authorities by attempting to identify with the Missouri rule that a city may be held liable if it does not exercise ordinary care to keep its streets in reasonably safe condition for travel. See, Henson v. Kansas City, Mo., 277 Mo. 443, 210 S.W. 13 (Mo.1919); Glasgow v. City of St. Joseph, 353 Mo. 740, 184 S.W.2d 412 (Mo.1945); and German v. Kansas City, 512 S.W.2d 135 (Mo.1974). According to plaintiff, a combination of factors — serious obstructions to visibility of the traffic lights, lack of advance warning on 57th Street of the light at Main Street, and the city's failure to properly install and maintain the traffic lights — rendered the intersection of 57th and Main Streets unsafe for travel.

The fatal flaw in plaintiff's liability theory is that Missouri courts have restricted a city's common law liability for failing to keep the roadway safe to situations where the physical condition of the roadway caused injury. Regardless of how plaintiff presents the facts of her case, liability is premised on the failure of the traffic lights at this intersection to perform as intended. Neither plaintiff's arguments nor authorities convince the Court that a Missouri court would find Kansas City liable under these circumstances.

Auslander v. City of St. Louis, 332 Mo. 145, 56 S.W.2d 778 (Mo.1932) is the leading Missouri case establishing that a city's...

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1 cases
  • Davies v. City of Kansas City Mo.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 3, 1983
    ...907 716 F.2d 907 Davies v. City of Kansas City, Mo. 83-1427 UNITED STATES COURT OF APPEALS Eighth Circuit 5/3/83 W.D.Mo., 557 F.Supp. 1321 ...

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