Dorlon v. City of Springfield, s. 17520

• Decision Date: 12 November 1992
• Docket Number: Nos. 17520,17521,s. 17520
• Citation: 843 S.W.2d 934
• Parties: 80 Ed. Law Rep. 426 Diane DORLON and Steve Dorlon, Plaintiffs-Respondents, v. CITY OF SPRINGFIELD, Defendant and Third-Party Plaintiff-Appellant, v. BOARD OF REGENTS OF SOUTHWEST MISSOURI STATE UNIVERSITY, Defendant and Third-Party Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 934

843 S.W.2d 934

80 Ed. Law Rep. 426

Diane DORLON and Steve Dorlon, Plaintiffs-Respondents, v. CITY OF SPRINGFIELD, Defendant and Third-Party Plaintiff-Appellant, v. BOARD OF REGENTS OF SOUTHWEST MISSOURI STATE UNIVERSITY,

Defendant and Third-Party Defendant-Appellant.

Nos. 17520, 17521.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 12, 1992.

Application for Rehearing or Transfer to

Supreme Court Denied

Dec. 2, 1992.

Application to Transfer Denied Jan. 26, 1993.

John R. Lightner, C. Ronald Baird, Dorr, Baird and Lightner, P.C., Springfield, for plaintiffs-respondents.

Nancy Kelley Yendes, Asst. City Atty., Springfield, for defendant and third-party plaintiff-appellant City of Springfield.

Ransom A. Ellis, Jr., John F. Black, Lester J. Boyle 3d, Ellis, Ellis & Black, Springfield, for defendant and third-party defendant-appellant Board of Regents of Southwest Missouri State University.

MONTGOMERY, Judge.

Defendants, City of Springfield (City) and Board of Regents of Southwest Missouri State University (Regents), appeal from a judgment entered after a jury verdict in favor of Plaintiffs, Diane and Steve Dorlon (Diane and Steve). The Dorlons are husband and wife. The claim arose from Diane's slip and fall on a sidewalk located on the south side of Monroe Street approximately 120 yards east of the intersection of Monroe Street and Hammons Parkway in Springfield, Missouri.

The jury assessed Diane's damages at $310,000 and Steve's damages at $30,000 for his loss of consortium claim. Fault was assessed by the jury at 70 percent to the City, 25 percent to the Regents, and 5 percent to Diane. Thereafter, judgment was entered in accordance with the jury verdict.

By a Petition filed December 29, 1988, Diane alleged her injuries resulted from catching her foot in a gaping hole in the sidewalk and falling down. Steve alleged loss of consortium resulting from his wife's injuries. The City filed a third party petition against the Regents as the abutting landowner alleging that special uses of the sidewalk caused the Regents to be solely liable for Plaintiffs' damages. Afterwards, Plaintiffs amended their Petition naming the Regents as an additional Defendant with the City. The amended petition alleged, in the alternative, that Diane tripped over a raised portion of the sidewalk.

As a sponsor of a cheerleading group from Walnut Grove, Missouri, Diane attended a cheerleading camp at Southwest Missouri State University. On August 8, 1988, Diane and her cheerleading group were enroute from their dormitory to Hammons Student Center for evening activities. Their route placed them on the sidewalk on the south side of Monroe Street adjoining the campus. Diane was walking behind her cheerleading group surrounded by other participants in the camp when she tripped on the sidewalk and fell. She testified she stubbed her toe on a raised chunk of concrete. Other witnesses described the raised portion of concrete as about an inch to inch and a half high. The extent of Diane's injuries is not in dispute.

APPEAL NO. 17521 (REGENTS)

Point I of the Regents' appeal claims the trial court erred in denying the Regents' motion for a directed verdict and judgment notwithstanding the verdict because the Regents are "sovereignly immune from suit in tort and have not waived such immunity." ¹

We review this point and those of the City mindful that a "directed verdict is a drastic action which should only be granted if reasonable and honest persons could not differ on the disposition of the case." Hawkins v. Compo, 781 S.W.2d 128, 133 (Mo.App.1989). Furthermore, we must review the denial of a motion for a directed verdict as a question of law, and evidence and inferences therefrom are viewed in the light most favorable to the non-moving party. Fricke v. Valley Prod. Credit Ass'n, 721 S.W.2d 747, 752 (Mo.App.1986).

Prior to the joinder of the Regents, the Dorlons submitted request for admissions under Rule 59.01 ² to the City. In response, the City admitted it "owns the 200 yards of sidewalk on the south side of Monroe Street East of the Monroe Street-Hammons Parkway intersection." ³ After the joinder of the Regents, the court denied the City's request to amend its response concerning ownership of the sidewalk.

Both the Regents and the Dorlons contend such admission conclusively establishes the City's ownership of the sidewalk where Diane was injured. Lack of ownership of the sidewalk is the basis for the Regents' claim of sovereign immunity. Therefore, according to the Regents, Diane was injured on the City's property, not property of the Regents.

Rule 59.01(b) provides, in part:

Any matter admitted under this Rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.

Assuming, without deciding, the City's admission conclusively established it owned the sidewalk, such admission requires our determination of the property interest owned by the City. The City and Dorlons argue the City's "ownership" of the sidewalk is ownership of an easement for public use, not a fee simple absolute. Consequently, Dorlons say the Regents, as abutting landowner, own the property to the center of Monroe Street. By this reasoning, it is said Diane was injured on the property of the Regents eliminating sovereign immunity by virtue of § 537.600.1(2). ⁴ That section provides:

Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:

....

(2) Injuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition.... (emphasis added)

The sidewalk in question lies within the area which was platted as Laclede Addition, dedicated and accepted by the City in 1903. The plat shows the dedication of 30 feet on either side of the centerline of Monroe Street. Well after 1903 the Regents acquired the real estate south of Monroe Street and where Diane was injured.

Section 445.010, et seq., and their predecessors earlier than 1903, provide an orderly method of dedication of real estate for public use. Section 445.070.2 provides:

Such maps or plats of such cities, towns, villages and additions made, acknowledged, certified and recorded, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein named, described or intended for public uses in such city, town or village, when incorporated, in trust and for the uses therein named, expressed or intended, and for no other use or purpose.

Numerous cases hold that dedication of land for public uses under our statutes conveys to the City "not a fee simple absolute but a fee in trust to use the property for public purpose, or as sometimes said, an easement for public use. Such defeasible fee is burdened by possibility of reverter to the dedicator or his successors if the property is abandoned by the City." Land Clearance for Redevelopment Auth. v. City of St. Joseph, 560 S.W.2d 285, 287 (Mo.App.1977), citing Ginter v. City of Webster Groves, 349 S.W.2d 895, 899 (Mo.1961); Marks v. Bettendorf's, Inc., 337 S.W.2d 585, 593 (Mo.App.1960); Roy F. Stamm Electric Co. v. Hamilton-Brown Shoe Co., 350 Mo. 1178, 171 S.W.2d 580, 582, 583 (banc 1943); Gaskins v. Williams, 235 Mo. 563, 139 S.W. 117 (1911); State ex rel. State Highway Comm'n v. Johns, 507 S.W.2d 75, 77 (Mo.App.1974); Hand v. City of St. Louis, 158 Mo. 204, 59 S.W. 92 (1900); Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363, 370 (1927).

Therefore, as successor in interest to the dedicator of Laclede Addition, the Regents own a possibility of reverter of 30 feet south of the centerline of Monroe Street, and the City owns a defeasible fee in trust of that property.

"The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning." City of Willow Springs v. Mo. State Librarian, 596 S.W.2d 441, 445 (Mo. banc 1980); State ex rel. Metro. St. Louis v. Sanders, 807 S.W.2d 87, 88 (Mo. banc 1991). Provisions of the entire legislative act must be construed together and harmonized, if reasonably possible. Alexander v. State, 756 S.W.2d 539, 541 (Mo. banc 1988).

We do not believe ownership of a possibility of reverter is the type of property interest which the legislature intended to exclude from sovereign immunity protection under § 537.600.1(2). The phrase in that section, "[i]njuries caused by the condition of a public entity's property ...," clearly refers to ownership of a property interest which allows a public entity to control the property. See Claspill v. State Div. of Economic Dev., 809 S.W.2d 87, 89 (Mo.App.1991). Unless that is true, other language in the statute would be superfluous. Under subsection 2 sovereign immunity is waived only if "either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual...