Herzog v. City of St. Louis, 57311
| Decision Date | 29 May 1990 |
| Docket Number | No. 57311,57311 |
| Citation | 792 S.W.2d 39 |
| Parties | Mitchell HERZOG, Appellant, v. CITY OF ST. LOUIS, Respondent. |
| Court | Missouri Court of Appeals |
Donald L. Schlapprizzi, Gary A. Growe, St. Louis, for appellant.
James J. Wilson, Elkin L. Kistner, St. Louis, for respondent.
Plaintiff, Mitchell Herzog, appeals the trial court's order granting defendant's, City of St. Louis, motion to dismiss plaintiff's amended petition for failure to state a claim upon which relief could be granted. We affirm.
The facts leading up to plaintiff's petition are as follows: On October 18, 1985, Amy Ann Pike, plaintiff's wife, was driving her car in Forest Park on Washington Drive. Her car left the road and was submerged in the Post-Dispatch Lake. As a direct result of this occurrence, she died. Plaintiff, as the surviving spouse of decedent, filed a petition against City seeking compensation for wrongful death. City filed its motion to dismiss, alleging plaintiff's petition failed to state a claim upon which relief could be granted. Plaintiff alleged City negligently permitted a dangerous condition, i.e: a body of water immediately adjacent to a curb in a public way, to remain hard by Washington Drive. Thereafter, the trial court dismissed plaintiff's petition. Plaintiff's sole point on appeal is his amended petition stated a claim for relief.
In reviewing the dismissal of the petition for failure to state a claim, the facts alleged are taken as true and plaintiff is entitled to all inferences fairly deduced therefrom. Holland v. City of Fenton, 761 S.W.2d 213, 214 (Mo.App.1988). Plaintiff had to allege: (1) the existence of a duty on the part of City to protect decedent from injury; (2) the failure of City to perform that duty; and (3) decedent's death resulting from such failure. Id. at 215.
Plaintiff alleged in part:
[O]n October 18, 1985, Amy Ann Pike was driving her 1983 Toyota in a southeasterly direction on Washington near its intersection with Government when her vehicle went off the travel portion of the road, down the abutting embankment, and was thereafter submerged in the Post-Dispatch Lake. As a result, Amy Anne Pike died; Her death was a direct and proximate result of defendant's negligence in that defendant caused, allowed and permitted a dangerous condition, i.e.: a body of water immediately adjacent to a curve in a public way, to be and remain hard by Washington Drive, so that it involved an unreasonable risk to the decedent, who was travelling on said...
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