Honeywell v. Village of Lakeside, 84-4047-CV-C-5.

• Decision Date: 15 February 1985
• Docket Number: No. 84-4047-CV-C-5.,84-4047-CV-C-5.
• Parties: Bruce A. HONEYWELL, Plaintiff, v. VILLAGE OF LAKESIDE, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

604 F. Supp. 932

Bruce A. HONEYWELL, Plaintiff, v. VILLAGE OF LAKESIDE, et al., Defendants.

No. 84-4047-CV-C-5.

United States District Court, W.D. Missouri, C.D.

February 15, 1985.

Donald J. Lock, Gladstone, Mo., John H. Norton, Norton, Pollard & Norton, Inc., Kansas City, Mo., for plaintiff.

Robert J. Quigley, Eldon, Mo., for Village of Lakeside.

Alex Bartlett, John Reed, Jefferson City, Mo., for defendants Lake Ozark, McGrew and Brown.

ORDER

SCOTT O. WRIGHT, Chief Judge.

Presently before the Court is defendant City of Lake Ozark's Motion to Strike and Motion to Dismiss Count III of plaintiff's First Amended Complaint for failure to state a claim upon which relief can be granted. Plaintiff has filed written opposition to both motions. For the following reasons, defendant's motion to strike will be granted, however, defendant's motion to dismiss will be denied.

This lawsuit arises out of an incident leading to plaintiff's arrest which occurred on July 4, 1983. Plaintiff was arrested on that date in the Village of Lakeside for purportedly violating a Village of Lakeside litter ordinance. Arresting officers, defendants Roger Brown and Joe McGrew, were City of Lake Ozark policemen, on duty in and for the Village of Lakeside pursuant to a contractual arrangement between the Village and City of Lake Ozark.

Incident to the arrest, plaintiff maintains that his treatment by the officers gives rise to a cause of action, against them, and the respective municipal corporations, under 42 U.S.C. § 1983; for punitive damages; and a common law assault and battery claim. The incident occurred in the Village of Lakeside, however, plaintiff maintains the City of Lake Ozark is vicariously liable for the actions of their employees (arresting officers) while on duty in, and on behalf of, the Village of Lakeside. At all times, however, it appears the arresting officers were being paid by the City of Lake Ozark.

The question before the Court in considering a motion to dismiss for failure to state a claim upon which relief may be granted is whether, in the light most favorable to the plaintiff, the complaint states any valid claim for relief. Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir.1974). A complaint will not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Moreover, a complaint will not be dismissed merely because the Court doubts that a plaintiff will prevail on the action. Bramlet, supra, 495 F.2d at 716.

Count III of plaintiff's First Amended Complaint alleges, inter alia, that at the time of the arrest, defendants Joe McGrew and Roger Brown were acting within the course and scope of their employment with the City of Lake Ozark, thereby rendering Lake Ozark vicariously liable for plaintiff's damages. The defendant-officers were employed by the City of Lake Ozark, presumably paid by that City, yet on duty in the Village of Lakeside, as Lakeside police, pursuant to a contractual arrangement between the two municipalities. Assuming this is true, as this Court must (and defendant does not indicate otherwise), Count III of plaintiff's complaint states a cause of action against Lake Ozark on a theory of respondeat superior, alleging vicarious liability of an employer for the tortious action of his employee.

Defendant, City of Lake Ozark, maintains that a municipal corporation cannot be held liable on a theory of vicarious liability in a § 1983 case. Insofar as plaintiff's claim sounds in tort, defendant raises sovereign immunity as a bar to imposing vicarious liability on a municipal corporation for the acts of its employees. Plaintiff maintains that the contracting out of the officers to Lakeside Village represents a proprietary rather than governmental activity, thus stripping the City of Lake Ozark of any sovereign immunity it may otherwise enjoy.¹

In an action brought under 42 U.S.C. § 1983, no theory of vicarious liability can operate to hold the City of Lake Ozark liable for the tortious actions of their employees. Although a municipal corporation certainly does not enjoy complete immunity from liability under § 1983,² a municipal corporation cannot be held liable under 42 U.S.C. § 1983 solely because it employs a tortfeasor; a municipal corporation cannot be vicariously liable under 42 U.S.C. § 1983 on a respondeat superior theory. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978): Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir. 1981).

Plaintiff maintains, however, that insofar as Count III alleges a common law tort, a city (such as Lake Ozark) cannot raise sovereign immunity as a defense to the tortious actions of its employees in the execution of a proprietary rather than governmental function. Although plaintiff correctly perceives the scope of the immunity afforded a municipal corporation under Missouri law, the lynch-pin of plaintiff's position requires the conclusion that in supplying police services, for a price, to the Village of Lakeside, the City of Lake Ozark engaged in a proprietary rather than governmental function. As sovereign immunity does not insulate a municipal corporation from liability for tortious conduct in the performance of proprietary functions,³ vicarious liability may attach by reason of an employee's tortious actions in the execution of proprietary functions. Davis v. City of St. Louis, 612 S.W.2d 812, 815 (Mo.App., 1981).

A city functions as a body politic, as an organ of government, and also as a body corporate, an artificial personality or corporation. Counts v. Morrison-Knudsen, Inc., 663 S.W.2d 357, 362 (Mo.App. 1983). Whether a city, under a given set of facts, is performing a proprietary or governmental function is not always easily determined. Indeed, despite frequent reference to the distinction, it is a nebulous concept, often defying understanding and resulting in a "maze of inconsistency." State ex rel. Allen v. Barker, 581 S.W.2d 818, 825 (Mo. en banc 1979).

Given the fact that a city has these dual obligations and by its nature performs both proprietary and governmental functions, in deciding whether a city or municipal corporation can be sued in a particular instance, a court must look to the nature of the activity performed to determine in which capacity the city has acted. Counts v. Morrison-Knudsen, Inc., supra, 663 S.W.2d at 362. A governmental activity or duty is one which is performed for the common good of all, whereas a proprietary act is one performed for the special benefit or profit of the city as a corporate entity. See, e.g., Dallas v. City of St. Louis, 338 S.W.2d 39, 44 (Mo.1960).

Plaintiff's complaint asserts liability against the City of Lake Ozark for the actions of Brown and McGrew during the course of their employment with the City of Lake Ozark, yet on duty in and for the Village of Lakeside. Although the Court is inclined to characterize Lake Ozark's action as proprietary, the context of a motion to dismiss prevents the Court from actually deciding whether the contracting out of Lake Ozark policemen to Lakeside Village is a proprietary or governmental function. Plaintiff has properly pled facts showing defendant was acting in a proprietary function. Defendant's motion to dismiss and reliance on sovereign immunity, so far as it rests on the ground that Lake Ozark was acting in a governmental capacity must be denied. See, Counts v. Morrison-Knudsen, Inc., supra, 663 S.W.2d at 363. This Court cannot, without speculation, know from the face of the complaint whether the City of Lake Ozark's actions were proprietary or governmental in nature. Therefore, defendant's motion to dismiss Count III of plaintiff's First Amended Complaint will be denied.

In their second motion, defendant City of Lake Ozark moves to strike plaintiff's claim(s) for punitive damages against the City of Lake Ozark. In so requesting, defendant City of Lake Ozark maintains that both Missouri and federal law prohibit recovery of punitive damages against a municipal corporation. Plaintiff acknowledges the well-settled rule that punitive damages may not be recovered under 42 U.S.C. § 1983 against a municipal corporation. See City of Newport, et al. v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). Plaintiff maintains, however, that the facts of this case remove it from any prohibition of punitive damages against municipal corporations. Plaintiff asserts that where the municipal corporation cannot otherwise avail itself of the shield of sovereign immunity, it likewise loses its immunity from liability for punitive damages. Necessarily relying on the assumption that the City of Lake Ozark's actions are proprietary in nature (thereby depriving them of a sovereign immunity tort defense), plaintiff claims that the prohibition on punitive damages against municipal corporations is inapplicable insofar as it relates to plaintiff's common law tort claims.

Assuming without deciding that plaintiff's assertion is indeed correct, i.e., that defendant's actions were proprietary rather than governmental, the facts and circumstances of this case do not yet support relaxing the well-settled prohibition on punitive damage awards against municipal corporations. Accordingly, defendant's motion to strike will be granted.

In enacting 42 U.S.C. § 1983, Congress expressed no intention to do away with the immunities afforded state officials at common law; indeed, the Supreme Court has consistently declined to construe the general language of 42 U.S.C. § 1983 as automatically abolishing such traditional immunities by implication. City of Newport, supra, 101 S.Ct. at 2755. The 42nd Congress was well aware of common law principles of immunity and at that time the common law immunity a municipal corporation enjoyed from punitive...