Huifang v. City of Kansas City
| Decision Date | 23 January 2007 |
| Docket Number | No. WD 65086.,WD 65086. |
| Citation | 229 S.W.3d 68 |
| Parties | Tan HUIFANG and Chen Zhiping, Respondents, v. CITY OF KANSAS CITY, Missouri, et al., Appellants. |
| Court | Missouri Court of Appeals |
Douglas McMillan, Kansas City, MO, for appellant.
Thomas W. Wagstaff, Kansas City, MO, for respondent.
Before THOMAS H. NEWTON, P.J., ROBERT G. ULRICH, and JAMES M. SMART, JR., JJ.
This is an appeal of a judgment entered on a jury verdict in a wrongful death case brought against the City of Kansas City. The action was brought by the parents of a young woman, Chen Pei, who was a student at the Conservatory of Music at the University of Missouri at Kansas City ("UMKC") when she was struck by a vehicle on February 3, 2003. At the time of the accident, Chen Pei was crossing Troost Avenue at its intersection with 53rd Street. She passed away eleven days later due to the injuries.
In the action against the City, the plaintiff parents, who are residents of China, alleged that the City was careless and negligent in the way the City controlled traffic and pedestrian movements at 53rd and Troost. The errant driver, Melieka Perkins, was not a party defendant, having settled before trial. Plaintiffs alleged that as a result of the failure of the City to locate and install proper warnings and traffic control devices, the intersection of Troost and 53rd was in a dangerous condition. Plaintiffs further allege that the death of their daughter occurred as a direct result of the dangerous condition of the City-controlled property at 53rd and Troost.
The City pleaded the defense of governmental immunity based on section 537.600, RSMo 2000. The City maintained throughout the proceedings that the action was barred by section 537.600, because the cause of action asserted by plaintiffs was not within any exception to the immunity provided to public entities by the statute. The City also denied that any failure by the City directly caused the death, asserting that the death was attributable to the actions of others. The trial court denied the City's motions, and the claim of negligence was submitted. The jury found that the plaintiffs suffered damages due to the death of their daughter in the amount of $1,250,000. The jury found the decedent seventeen percent at fault and the City eighty-three percent at fault. The court also applied the statutory limit of liability under section 537.610, entering judgment against the City in the amount of $328,011.
The City appeals the judgment, contending that the trial court erred in its rulings as to the issue of the City's immunity. The City also contends that the plaintiffs did not prove that any condition of the property caused the death. In addition, the City complains of certain other rulings of the trial court. The City's first three points on appeal are addressed in this opinion. The fourth point, which includes assertions of trial court error as to evidentiary rulings, is resolved by summary order pursuant to Rule 84.16(b) accompanied by a memorandum to the parties. We affirm the judgment of the trial court.
The issue of whether the City is protected by governmental immunity on the facts of this case is an issue of law, which we review de novo. See Williams v. Kimes, 996 S.W.2d 43, 44-45 (Mo. banc 1999). The contention of the City that the plaintiffs failed as a matter of law to show that the condition of the road directly resulted in the death of Chen Pei is also an issue of law, which we review de novo. See id. Any dispute in the evidence as to factual matters is resolved in favor of the plaintiffs in determining whether a submissible case was made. Seward v. Terminal R.R. Ass'n, 854 S.W.2d 426, 428 (Mo. banc 1993).
We first address in this opinion the issue of whether the plaintiffs showed that the intersection of 53rd and Troost was a "dangerous condition of property" within the meaning of section 537.600. The text of section 537.600 provides as follows:
537.600 Sovereign Immunity in effect — exceptions — waiver of
1. 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:
(1) Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment;
(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. In any action under this subdivision wherein a plaintiff alleges that he was damaged by the negligent, defective or dangerous design of a highway or road, which was designed and constructed prior to September 12, 1977, the public entity shall be entitled to a defense which shall be a complete bar to recovery whenever the public entity can prove by a preponderance of the evidence that the alleged negligent, defective, or dangerous design reasonably complied with highway and road design standards generally accepted at the time the road or highway was designed and constructed.
2. The express waiver of sovereign immunity in the instances specified in subdivisions (1) and (2) of subsection 1 of this section are absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity is covered by a liability insurance for tort. (Emphasis added.)
The statute was first adopted in 1978 in an effort by the General Assembly to restore broad governmental immunity as it existed at common law prior to the decision of the Missouri Supreme Court in Jones v. State Highway Commission, 557 S.W.2d 225, 230 (Mo. banc 1977), which abolished common law sovereign immunity in Missouri. The General Assembly, while acting to reinstate the concept of governmental immunity, specifically waived immunity in two instances: (1) negligent motor vehicle operation; and (2) the dangerous condition of a public entity's property. Section 537.600.1. The "dangerous condition" waiver was effective if:
• The property was dangerous at the time of the injury;
• The injury "directly resulted" from the dangerous condition;
• The dangerous condition created a reasonably foreseeable risk of the kind of injury incurred; and
• (1) A negligent act or omission created the dangerous condition, or (2) a public entity had actual or constructive notice of the dangerous condition in sufficient time to have taken measures to alleviate the danger.
Section 537.600.1(2); see State ex rel Mo. Highway & Transp. Comm'n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998). In 1985, the General Assembly amended the statute to add the language we have highlighted in the text above. Donahue v. City of St. Louis, 758 S.W.2d 50, 51-52 (Mo. banc 1988). Before 1985, it was not clear whether "dangerous condition of property" had anything to do with negligent design of roadways. The Missouri Supreme Court noted in 1988, however, that the 1985 amendment appeared to be a "reinstatement of the holding of Jones as it relates to roads and highways plus opening the door to some degree prior to Jones." Id. at 52. The 1985 amendment thus made clear that the statute allows claims against public entities for "negligent, defective, or dangerous design" of roadways. Section 537.600.1(2). The amendment also provided a conditional defense for claims related to roadways designed prior to September 12, 1977 (the effective date of Jones).1 Donahue, 758 S.W.2d at 52-53.
A further significant part of the amendment was the abolition as to all public entities (including municipalities) of any immunity based on the governmental/proprietary distinction that existed at common law. The statute clarifies that the waivers are "absolute." Section 537.600.2. The statute further provided that immunity is waived in the specific instances regardless of whether the entity is covered by liability insurance. Id.
On the appeal before us, the City contends that it was entitled to judgment as a matter of law under section 537.600 because the plaintiffs failed to plead and prove that the intersection of 53rd Street and Troost Avenue was "a dangerous condition." The City also argues that it has immunity under the common law because issues such as the location of traffic signals are discretionary and not ministerial. Next, the City argues that the death of Chen Pei was caused by the intervening negligence of Melieka Perkins (the driver) and Chen Pei (the deceased), and not by the City.
As we have already noted, section 537.600 provides that public entities are immune from liability for negligence except for (1) cases arising out of the entity's operation a motor vehicle; and (2) certain cases in which the injury was caused by the condition of the public entity's property. The City contends that the court erred in denying its motions for JNOV and directed verdict,...
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