Henson v. City of Springfield, No. SD 34731.

CourtMissouri Court of Appeals
Writing for the CourtNancy Steffen Rahmeyer, J.—Opinion Author
Citation524 S.W.3d 142
Parties Annie HENSON, Plaintiff–Appellant, v. CITY OF SPRINGFIELD, Missouri, Defendant–Respondent.
Decision Date10 May 2017
Docket NumberNo. SD 34731.

524 S.W.3d 142

Annie HENSON, Plaintiff–Appellant,
v.
CITY OF SPRINGFIELD, Missouri, Defendant–Respondent.

No. SD 34731.

Missouri Court of Appeals, Southern District, Division Two.

Filed: May 10, 2017
Application for Transfer to Supreme Court Denied August 2, 2017
Application for Transfer Denied August 22, 2017


Attorney for Appellant—Tad Morlan of Springfield, MO

Attorney for Respondent—Laurel E. Stevenson of Springfield, MO

Nancy Steffen Rahmeyer, J.—Opinion Author

Annie Henson ("Plaintiff") filed suit against the City of Springfield ("Defendant

524 S.W.3d 143

City") for personal injuries she claims occurred when she fell on or near a street and sidewalk in the city. Defendant City filed a motion for summary judgment on the ground it was entitled to judgment as a matter of law because Plaintiff failed to give notice of her claimed injury to the mayor as required by section 82.2101 for "any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare" in the city. The trial court granted Defendant City's motion. Plaintiff appeals claiming in a single point that the trial court erred in granting summary judgment to Defendant City because there was a genuine issue as to a material fact—i.e., the location where Plaintiff claims her injury occurred—that prevented Defendant City from being entitled to judgment as a matter of law.

Facts and Procedural Background

Plaintiff claimed that she was "injured due to a meter hole" on May 10, 2013, in Springfield. The parties dispute the exact location of Plaintiff's claimed injury. Plaintiff claims her "fall and injury occurred on the grassy/dirt berm near or adjacent to the street," and Defendant City claims the meter hole was "in" or "on" the street. The trial court gave Plaintiff the benefit of a reasonable inference from the record that Plaintiff "fell in a water meter hole located in the ‘grassy/dirt berm’ near or adjacent to the street." Plaintiff did not send a notice of the claimed injury to the mayor of Springfield within 90 days of May 10, 2013. Plaintiff originally filed suit for the claimed injury on May 7, 2015. Defendant City asserted in its answer as an affirmative defense that Plaintiff failed to give notice to the mayor as required by section 82.210.

The trial court granted Defendant City's motion for summary judgment on the basis that the "grassy berm area" "constitute[d] a thoroughfare" under section 82.210, and that "there is no legal nor practical difference" in the written notice required under section 82.210 "whether the water meter hole was located in ... the street pavement, the sidewalk,[ ] or, on the ‘grassy area’ in between."

Analysis

In a single point, Plaintiff claims that the trial court erred in granting Defendant City's motion for summary judgment because the notice requirement under section 82.210 is "inapplicable in that the defective condition was located in the grassy/dirt berm adjacent to the street and not on or in any public ‘bridge, boulevard, street, sidewalk or thoroughfare.’ "

Standard of Review

Under Rule 74.04(c), Missouri Court Rules (2017), a moving party is entitled to summary judgment if the summary judgment record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 74.04(c)); ITT Commercial Finance Corporation v. Mid–America Marine Supply Corporation, 854 S.W.2d 371, 380–82 (Mo. banc 1993). A "genuine issue":

exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. A "genuine issue" is a dispute that is real, not merely argumentative, imaginary or frivolous. Where the "genuine issues" raised by the non-movant are merely argumentative, imaginary or frivolous, summary judgment is proper.

ITT Commercial, 854 S.W.2d at 382. Further:

524 S.W.3d 144
Where a "defending party" will not bear the burden of persuasion at trial, that party need not controvert each element of the non-movant's claim in order to establish a right to summary judgment. Rather, a "defending party" may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense. Regardless of which of these three means is employed by the "defending party," each establishes a right to judgment as a matter of law.

Id. at 381 ; see also Nail v. Husch Blackwell Sanders , LLP, 436 S.W.3d 556, 561 (Mo. banc 2014) (similar statement of the rule citing ITT Commercial ).

In reviewing whether the trial court properly granted summary judgment, we:

review the record in the light most favorable to the party against whom judgment was entered. Zafft v. Eli Lilly , 676 S.W.2d 241, 244 (Mo. banc 1984) ; Cooper v. Finke , 376 S.W.2d 225, 228 (Mo.1964). 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. Cherry v. City of Hayti Heights , 563 S.W.2d 72, 75 (Mo. banc 1978) ; Dietrich v. Pulitzer Publishing Company , 422 S.W.2d 330, 333 (Mo.1968). We accord the non-movant the benefit of all reasonable inferences from the record. Martin v. City of Washington , 848 S.W.2d 487, 489 (Mo. banc 1993) ; Madden v. C & K Barbecue Carryout, Inc. , 758 S.W.2d 59, 61 (Mo. banc 1988).

Our review is essentially de novo. 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. E.O. Dorsch Electric Co. v. Plaza Const. Co. , 413 S.W.2d 167, 169 (Mo.1967). The propriety of summary judgment is purely an issue of law. 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. Elliott v. Harris , 423 S.W.2d 831, 834 (Mo. banc 1968) ; Swink v. Swink , 367 S.W.2d 575, 578 (Mo.1963).

ITT Commercial, 854 S.W.2d at 376. And, "[b]ecause the propriety of summary judgment is an issue of law, ... the trial court's judgment may be affirmed on any basis supported by the record." Nail v. Husch Blackwell Sanders, LLP, 436 S.W.3d at 561 (citing ITT Commercial ).

Discussion

Section 82.210 provides that:

No action shall be maintained against any city of this state which now has or may hereafter attain a population of one hundred thousand inhabitants, on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and that the person so injured will claim damages therefor from such city.
524 S.W.3d 145

In Jones v. City of Kansas City, 15 S.W.3d 736, 737 (Mo. banc 2000), our Supreme Court stated that:

Notice to the city, within 90 days of the occurrence, [under section 82.210] is a condition precedent to maintaining an action against the city if the action arises from a defect in the condition of "any bridge, boulevard, street, sidewalk or thoroughfare." Dohring v. Kansas City , 228 Mo.App. 519, 71 S.W.2d 170, 171 (1934).

....

The statute provides a list of properties owned by the city: bridge, boulevard, street, sidewalk, thoroughfare. These are properties that, at common law, exposed the city to liability in its proprietary, not sovereign, capacity. Williams v. City of Kansas City , 782 S.W.2d 64, 65 (Mo. banc 1990). The notice statute, thus, is in derogation of the common law and should be narrowly construed against the city and in favor of the
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1 practice notes
  • Tracfone Wireless, Inc. v. City of Springfield, Nos. SD34937
    • United States
    • Court of Appeal of Missouri (US)
    • July 17, 2018
    ...review in accord with the directive that appellate court affirm on any basis supported by the record); Henson v. City of Springfield , 524 S.W.3d 142, 144 (Mo. App. S.D. 2017) ; Poger v. Missouri Department of Transportation , 501 S.W.3d 37, 41-42 (Mo. App. E.D. 2016) ; Lopez v. H & R Block......
1 cases
  • Tracfone Wireless, Inc. v. City of Springfield, Nos. SD34937
    • United States
    • Court of Appeal of Missouri (US)
    • July 17, 2018
    ...review in accord with the directive that appellate court affirm on any basis supported by the record); Henson v. City of Springfield , 524 S.W.3d 142, 144 (Mo. App. S.D. 2017) ; Poger v. Missouri Department of Transportation , 501 S.W.3d 37, 41-42 (Mo. App. E.D. 2016) ; Lopez v. H & R Block......

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