Jackson v. Wilson

Citation581 S.W.2d 39
Decision Date02 April 1979
Docket NumberNo. KCD,KCD
PartiesEugene JACKSON, Appellant, v. James WILSON, as Director of Parks and Recreation, Division of the Departmentof Natural Resources, State of Missouri, Respondent. 29588.
CourtCourt of Appeal of Missouri (US)

John J. Schlueter, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Reginald H. Turnbull, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

SOMERVILLE, Presiding Judge.

A significant issue of major import lies at the base of this appeal broadly stated, does James Wilson, as Director of Parks and Recreation, Division of the Department of Natural Resources, State of Missouri (Wilson), wear any cloak of immunity in an action for damages brought by Eugene Jackson (Jackson) for injuries allegedly sustained on or about July 7, 1973, in the St. Francois State Park while diving "into the Big River from a large boulder which was located near an area that was maintained for swimming on the Park's grounds." Jackson alleged he struck his "head and neck" on the bottom of the Big River while so diving and sustained permanent injuries and resultant damages as a direct and proximate result of certain specified negligence on Wilson's part occurring while the latter was acting in his official capacity.

Two silent hypotheses are necessarily indulged by Jackson in formulating his allegations of negligence against Wilson. The first hypothesis indulged purports to fix liability upon Wilson on the theory of respondeat superior because of certain instances of negligence on the part of subordinate employees of the state park system. In this respect Jackson alleges that Wilson's "employees and agents" on the fateful day in question (1) knew or should have known that the river was "too shallow to allow diving in the area" but failed to so warn Jackson, (2) knew or should have known that said "boulder" had been used for diving into the river but failed to warn Jackson of the danger from doing so, and (3) failed to maintain warning signs in the area and thereby failed to warn Jackson of the dangers. The second hypothesis indulged purports to fix liability upon Wilson on the theory that as titular head of the state park system he was guilty of negligently exercising his discretion and judgment regarding the formulation of policies for supervision of the St. Francois State Park. In this respect Jackson alleges (1) a failure to maintain warning signs in the area, (2) a failure to warn Jackson of the danger, (3) a failure to guard said area, (4) a failure to prohibit persons from diving in said area (5) a failure to inspect the river, and (6) a failure to barricade the area.

Wilson filed a motion to dismiss Jackson's petition on alternate, multiple grounds: (1) Jackson's cause of action, "in reality", was against the State of Missouri, which in turn was immune from liability under the then (July 7, 1973) reigning doctrine of sovereign immunity; (2) as to that portion of Jackson's cause of action against Wilson predicated upon the latter's purported negligence of a discretionary character while in the course of performing his official duties, Wilson was the beneficiary of the protective mantle of official immunity; and (3) as to that portion of Jackson's cause of action against Wilson predicated upon the purported negligence of subordinate employees of the state park system, Wilson was not vicariously liable because the doctrine of respondeat superior was inapplicable. The trial court sustained Wilson's motion to dismiss without assigning any specific ground or reason for doing so.

Jackson's efforts to rejuvenate his dismissed petition on appeal may be capsulized into three points. One, the doctrine of sovereign immunity afforded no protection to Wilson because it had been abrogated by establishment of the Tort Defense Fund, Section 105.710, RSMo Supp.1975. Two, the doctrine of official immunity afforded no protection to Wilson because it too had been abrogated by establishment of the Tort Defense Fund, Section 105.710, supra. Three, the doctrine of respondeat superior was applicable and Wilson was vicariously liable for the negligence of subordinate employees of the state park system. Wilson urges vindication of the trial court on essentially four grounds. One, the doctrine of sovereign immunity had not been abrogated as of July 7, 1973, and was applicable because the action in question, "in reality" was against the State of Missouri, rather than Wilson. Two, if the action is deemed to be against Wilson individually he stands under the protective umbrella of the official immunity doctrine. Three, Section 105.710, supra, so heavily relied upon by Jackson, abrogated neither the doctrine of sovereign immunity nor the doctrine of official immunity, and even if it had done so, its retroactive application to events occurring in 1973 would violate Article III, § 39(3), Constitution of Missouri, 1945. Four, Wilson may not be held vicariously liable for the purported negligence of subordinate employees of the state park system because the doctrine of respondeat superior is inapplicable.

An ancillary look at the Omnibus State Reorganization Act of 1974, Appendix B, RSMo Supp.1975, is in order to place Jackson's reliance upon the Tort Defense Fund (Section 105.710, supra) in proper perspective. Jackson, as hereinafter noted, professes to be suing Wilson individually in his official capacity as Director of the Division of Parks and Recreation, Department of Natural Resources, State of Missouri. However, at the time of the alleged incident which occasioned Jackson's injuries and the resultant damages claimed, to wit, July 7, 1973, the Division of Parks and Recreation and the Department of Natural Resources, State of Missouri, were nonexistent. The Department of Natural Resources was created by Section 10 of the Omnibus State Reorganization Act, supra, which did not become effective until May 2, 1974. The Division of Parks and Recreation was subsequently established by the Director of the Department of Natural Resources pursuant to an initial departmental plan submitted to and approved by the Governor in accordance with Section 1.6(2) of the Omnibus State Reorganization Act of 1974, supra, on June 28, 1974. The text of this departmental plan as submitted is to be found in Appendix C, pp. 1316-1317, RSMo Supp.1975. Prior to submission and adoption of the referred to departmental plan the State Park Board appointed and prescribed the duties of the Director of State Parks. Section 253.060, RSMo 1969. Under Section 10.3, Omnibus State Reorganization Act of 1974, supra, the State Park Board was transferred to the Department of Natural Resources by a Type I transfer. In essence, the newly created Division of Parks and Recreation succeeded to the responsibilities of the former State Park Board. Wilson, who was the Director of State Parks on both dates in question, to wit, July 7, 1973, and June 28, 1974, became Director of the Division of Parks and Recreation, Department of Natural Resources, State of Missouri, by executive implementation of the Omnibus State Reorganization Act of 1974, supra.

Wilson throughout the course of this litigation has spent an inordinate amount of time advancing the proposition that he individually was not being pursued as a defendant but that the State of Missouri, "in reality", was the sole and only party defendant to the action. Wilson's obsession for doing so has served no edifying purpose as Jackson has repeatedly disavowed the position taken by Wilson by positive assertions to the effect "that the state is not the defendant here", that he (Jackson) "is suing Mr. Wilson individually 'for acts arising out of and performed in connection with (his) official duties in behalf of the State' ", and that "the director of state parks is the named defendant". Disposition of this appeal would be alarmingly simple if the State of Missouri rather than Wilson were the true defendant as the accident complained of occurred at a time, to wit, July 7, 1973, when the doctrine of sovereign immunity was still intact since its abrogation in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo.banc 1977), operated prospectively only from August 15, 1978. 1

Both parties have clouded the issues on appeal by indiscriminately co-mingling the doctrines of sovereign immunity and official immunity. Sovereign immunity and official immunity are distinct legal concepts and, as readily suspected, rest on different premises and serve different purposes. The doctrine of sovereign immunity principally rested upon the tenuous ground that the "king could do no wrong", a rare and frankly unexplainable surviving vestige of monarchical power. It served to protect the impersonal body politic or government itself from tort liability. Generally speaking, official immunity, on the other hand, serves as a protective aegis for public officials from tort liability for damages arising from discretionary acts or functions in the performance of their official duties. Its source of sustenance is the variously expressed belief that a vigorous and effective administration of public affairs is best achieved if public officials are freed from the chilling effect of fear of retaliation by way of compensatory damages predicated upon the exercise of their discretion in the conduct of public business; obversely stated, the intimidating effect of an ever present fear of litigation, inimical to the public interest, should be avoided insofar as discretionary functions of public officials in the conduct of public affairs are concerned. Barr v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 1339, 3 L.Ed.2d 1434 (1959); Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949), cert. denied 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950); and Prosser, Law of Torts 987 (4th ed. 1971).

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