Fowler v. Board of Regents for Central Missouri State University, WD

• Decision Date: 20 July 1982
• Docket Number: No. WD,WD
• Citation: 637 S.W.2d 352
• Parties: 6 Ed. Law Rep. 262 Rozlynn Jo FOWLER, Appellant, v. The BOARD OF REGENTS FOR the CENTRAL MISSOURI STATE UNIVERSITY, Respondent. 32771.
• Court: Missouri Court of Appeals

Page 352

637 S.W.2d 352

6 Ed. Law Rep. 262

Rozlynn Jo FOWLER, Appellant, v. The BOARD OF REGENTS FOR the CENTRAL MISSOURI STATE UNIVERSITY, Respondent.

No. WD 32771.

Missouri Court of Appeals, Western District.

July 20, 1982.

Gayle L. Troutwine, Independence, for appellant.

Hibberd V. B. Kline, III, Warrensburg, for respondent.

Before CLARK, P. J., and MANFORD and KENNEDY, JJ.

CLARK, Presiding Judge.

Plaintiff's suit for damages against the regents of Central Missouri State University for personal injuries was dismissed on motion for failure to state a claim on which relief could be granted. The dismissal is affirmed.

Plaintiff's petition was in two counts, both alleging injury suffered when plaintiff fell because of a hole in the sidewalk. That walkway, it was alleged, was provided for pedestrians using a parking lot maintained by the university at its campus in Warrensburg. In the first count, based on tort, plaintiff contended the university had negligently failed to maintain the sidewalk in a reasonably safe condition. In her second count, based on contract, plaintiff alleged that by accepting her tuition and admission as a student, the university had contracted with her to provide safe premises on the campus and failure to maintain the sidewalk was a breach of that contract entitling her to damages.

The motion of the university to dismiss the petition was based on the doctrine of sovereign immunity. As to the first count, plaintiff contends the maintenance of a sidewalk is a proprietary function to which governmental immunity does not attach. She further argues that even if the university is immunized from tort liability, that doctrine does not apply to a suit in contract, the basis for her second count.

It is first necessary to observe that plaintiff's injury occurred October 14, 1977. Any case involving sovereign immunity arising in this time period requires mention of Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977) in which the doctrine of sovereign immunity was abrogated. Except for the Jones case itself and three other cases decided contemporaneously, the effect of the decision was announced to be prospectively operative and applicable only to claims arising on or after August 15, 1978. Plaintiff's claim is therefore to be evaluated under the law as it existed prior to Jones and the general change in the doctrine which that decision accomplished. Spearman v. University City Public School District, 617 S.W.2d 68, 69 (Mo. banc 1981). ¹

Recognizing that sovereign immunity was a viable doctrine before Jones, which generally insulated governmental and public bodies from tort liability, plaintiff here argues that the doctrine was applicable only to governmental functions. She asserts, and her petition alleges, that maintenance of sidewalks and parking lots on the campus is a proprietary function of the university to which the defense of sovereign immunity does not apply.

It is correct that some functions performed by school districts may be considered proprietary and that suits arising therefrom will not be barred by sovereign immunity. State ex rel. Allen v. Barker, 581 S.W.2d 818 (Mo. banc 1979); Allen v. Salina Broadcasting, Inc., 630 S.W.2d 225 (Mo.App.1982); Johnson v. Carthell, 631 S.W.2d 923 (Mo.App.1982). Construction, maintenance and repair of school buildings, facilities and grounds are, however, expressly held to be governmental functions to which sovereign immunity applies, absent liability otherwise imposed by statute. Rennie v. Belleview School District, 521 S.W.2d 423 (Mo. banc 1975); Todd v....