Johnson by Johnson v. City of Springfield, 17456

• Decision Date: 17 September 1991
• Docket Number: No. 17456,17456
• Citation: 817 S.W.2d 611
• Parties: Brenda JOHNSON, a Minor, b/n/f Marla JOHNSON, and Marla Johnson and Charles W. Johnson, Individually, Plaintiffs-Appellants, v. CITY OF SPRINGFIELD, Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 611

817 S.W.2d 611

Brenda JOHNSON, a Minor, b/n/f Marla JOHNSON, and Marla Johnson and Charles W. Johnson, Individually Plaintiffs-Appellants, v. CITY OF SPRINGFIELD, Missouri, Defendant-Respondent.

No. 17456.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 17, 1991.

Motion for Rehearing or Transfer

Denied Oct. 9, 1991.

Application to Transfer Denied Nov. 19, 1991.

John O. Newman, Ramsdell & Corbett, Springfield, for plaintiffs-appellants.

Dennis Budd, Asst. City Atty., Springfield, for defendant-respondent.

SHRUM, Presiding Judge.

The plaintiffs Brenda Johnson, a minor, and her parents Marla Johnson and Charles W. Johnson, appeal from a judgment dismissing their petition for damages arising from injuries sustained by Brenda when she was struck by a motor vehicle on a public street in the defendant City of Springfield, Missouri.

The issue is whether the plaintiffs alleged facts sufficient to plead that the City waived sovereign immunity under § 537.600.1(2), RSMo 1986. Because we conclude the petition does not allege facts that properly plead a dangerous condition of a public entity's property, we affirm.

FACTS

In their petition the plaintiffs alleged that on September 15, 1989, Brenda sustained personal injuries when she was struck by a motor vehicle driven by Kevin R. Lawmaster while she was attempting to cross East Avenue in Springfield. In paragraphs 6(a)-(h), the plaintiffs alleged that East Avenue was in an "unreasonably dangerous condition" because (a) it had a high volume of vehicle and pedestrian traffic, (b) vehicles parked along the street blocked motorists' view of children and children's view of vehicles, and when children walked from behind parked vehicles into East Avenue, motorists traveling at the posted 30 m.p.h. speed limit could not stop in time to avoid striking them, (c) many children played in the area, (d) Brenda was not warned of the dangerous condition of the street, (e) motorists were not warned to reduce speed, (f) parked vehicles prevented motorists from keeping a careful lookout, (g) motorists were not warned of children playing in the area, and (h) a safe speed limit was not posted. At the end of paragraph 6(h) of the petition, the plaintiffs added this parenthetical statement: "(The foregoing is referred to as a dangerous condition.)."

The plaintiffs also alleged that Brenda's injuries directly resulted from the dangerous condition, that the risk of harm to Brenda from the dangerous condition was reasonably foreseeable, and that the City had actual or constructive knowledge of the dangerous condition because of an earlier child-pedestrian accident and numerous complaints by East Avenue residents about the dangers to children. In short, the plaintiffs sought to plead the "dangerous condition" waiver of sovereign immunity. See § 537.600.1(2), RSMo 1986. ¹

The City moved to dismiss the petition for failure to plead waiver of statutory sovereign immunity and, therefore, failure to state a claim upon which relief could be granted. The trial court sustained the motion and the plaintiffs appealed.

SCOPE OF REVIEW

In reviewing the dismissal of a petition, we treat all alleged facts as true and construe the allegations favorably to the plaintiffs to determine whether they invoke principles of substantive law that would entitle them to relief. Lowrey v. Horvath, 689 S.W.2d 625, 626 (Mo. banc 1985). A petition must inform the defendant of what the plaintiffs will attempt to establish at trial. Matyska v. Stewart, 801 S.W.2d 697, 699-700 (Mo.App.1991). We will affirm a dismissal only if the plaintiffs could not recover on any theory pleaded. Id. at 700.

DISCUSSION AND DECISION

A plaintiff seeking to plead a waiver of sovereign immunity under § 537.600.1(2) must allege facts that demonstrate:

(1) a dangerous condition of the property; (2) that the plaintiff's injuries directly resulted from the dangerous condition; (3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind the plaintiff incurred; and (4) that a public employee negligently created the condition or that the public entity had actual or constructive notice of the dangerous condition.

Kanagawa v. State by and through Freeman, 685 S.W.2d 831, 834-35 (Mo. banc 1985). The dispositive issue in the case before us is whether the plaintiffs' allegations plead a "dangerous condition" as that term is used in the statute.

In Twente v. Ellis Fischel State Cancer Hosp., 665 S.W.2d 2 (Mo.App.1983), the plaintiff was assaulted and raped on the parking lot of the hospital where she was employed. She alleged the hospital parking lot was in a dangerous condition because hospital officials were aware other rapes and assaults had been committed there and because the security guard was not at his post when the plaintiff was assaulted. In rejecting her claim, the court pointed out, "The statute does not say that the negligent or wrongful act or omission of an employee, or the actual or constructive notice are unto themselves a 'dangerous condition.' " Id. at 11. The court concluded "the General Assembly ... limited the term 'dangerous condition' exclusively to the physical condition of the public property." Id. The court also stated the statutory language "dangerous condition" referred to "some physical defect of the property...." Id. at 12.

In Kanagawa, the plaintiff was kidnapped, assaulted, and raped by an escaped prison inmate. She alleged the prison property was maintained in a dangerous condition because its surrounding fences were inadequate to prevent escape and the gate was left unsecured. In affirming the dismissal of the plaintiff's claim, the supreme court held, "The allegations in the petition fall short of averring a defect, through either faulty construction or maintenance, in the condition of the prison's property." 685 S.W.2d at 835. The court cited the Twente opinion with approval and stated:

It is readily apparent that the legislature, by including the various elements set forth above conditioning the waiver of immunity, sought to narrowly delimit the scope of § 537.600(2). It would violate both this manifest legislative purpose and our policy of strictly construing [a] provision waiving sovereign immunity to hold that "a dangerous condition" refers to a condition other than a defect in the physical condition of public property.

685 S.W.2d at 835.

The court of appeals and the supreme court have subsequently held that plaintiffs attempting to plead the "dangerous condition" waiver of sovereign immunity, were not required under all circumstances to allege facts which, if true, would show a physical defect in the public entity's property. In Jones v. St. Louis Housing Authority, 726 S.W.2d 766 (Mo.App.1987), a mother brought a wrongful death claim against the housing authority after her son was struck by debris flung from a lawn mower being used on the premises. The court described the presence of the debris on the grounds as a "physical deficiency" which created a dangerous condition. Id. at 774.

The following year the supreme court employed the Jones court's "physical deficiency" language in Alexander v. State, 756 S.W.2d 539 (Mo. banc 1988). Plaintiff Alexander was an elevator repairman who, while descending a fixed metal ladder in a state office building, stepped onto a folding room partition which had been placed at the foot of the ladder. The partition unfolded causing Alexander to fall and be injured. The court held that the "alleged placement of the partition against the ladder created a physical deficiency in the state's property which constituted a 'dangerous condition.' " Id. at 542. Explaining its departure from the strict "physical defects" approach of Kanagawa and Twente, the court pointed out that the danger to repairman Alexander (and the danger to the decedent in Jones ) "was created not by any intrinsic defect in the property involved, but by the dangerous condition created by the positioning of various items of property." Alexander, 756 S.W.2d at 542. The court further distinguished Kanagawa and Twente, stating, "the condition [in Alexander ] was dangerous because its existence, without intervention by third parties, posed a physical threat to plaintiff." 756 S.W.2d at 542.

Despite the somewhat relaxed pleading burden set forth in Alexander and Jones, the Alexander court reiterated the principle that courts "must strictly construe statutory provisions waiving sovereign immunity." 756 S.W.2d at 542. Even under Alexander, the plaintiffs in the case before us do not allege facts that plead the existence of a dangerous condition. There is nothing in their petition that would support an inference that the East Avenue conditions they describe constituted physical deficiencies which were dangerous because their very existence, without intervention by third parties, posed a physical threat.

A dangerous condition of a public highway or road also can be pled by allegations of negligent, defective, or dangerous design. See Donahue v. City of St. Louis, 758 S.W.2d 50 (Mo. banc 1988); Wilkes v. Missouri Highway and Trans. Comm., 762 S.W.2d 27 (Mo. banc 1988); Cole v. Missouri Highway and Trans. Comm., 770...