Kinder v. MO Dept. of Corrections

CourtCourt of Appeal of Missouri (US)
Citation43 S.W.3d 369
Decision Date13 February 2001
Parties(Mo.App. W.D. 2001) . Gloria Kinder, Appellant, v. Missouri Department of Corrections, Respondent. WD58592 Missouri Court of Appeals Western District Handdown Date: 0

43 S.W.3d 369 (Mo.App. W.D. 2001)
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Gloria Kinder, Appellant,
v.
Missouri Department of Corrections, Respondent.
WD58592
Missouri Court of Appeals Western District
Handdown Date: 02/13/2001

Appeal From: Circuit Court of Boone County, Hon. Ellen S. Roper

Counsel for Appellant: Robert B. Reesler, Jr.

Counsel for Respondent: David A. Johnston

Opinion Summary: The appellant, an inmate in the Missouri Department of Corrections, was injured when a van driven by an employee of the DOC went off the highway and overturned. The Circuit Court of Boone County, Ellen S. Roper, J., sustained the DOC's motion for summary judgment, finding that the one-year statute of limitation contained in section 516.145, RSMo 1994, applied barring Kinder's claim. The Court of Appeals, Lowenstein, J., held that section 516.145 is the applicable statute of limitation for appellant's personal injury claim, and that based on Cooper v. Minor, 16 S.W.3d 578 (Mo. banc 2000),section 516.145 is constitutional.

AFFIRMED.

Opinion Author: Harold L. Lowenstein, Judge

Opinion Vote: AFFIRMED. Holliger, P.J., and Newton, J., concur.

Opinion:

The appellant, Gloria Kinder, an inmate in the Missouri Department of Corrections (DOC) system, was injured when a van driven by an employee of the DOC went off of the highway and overturned. The trial court sustained the DOC's motion for summary judgment which stated that the one-year statute of limitation contained in section 516.145, RSMo 1994,1 applied thus barring Kinder's claim. Because this court finds that section 516.145 is the applicable statute of limitation, the judgment of the trial court is affirmed.

Factual and Procedural History

On April 21, 1993, Lillian Vaughn, a correctional officer employed by the DOC, picked up nine female inmates at the Renz Correctional Center to transport them by van to the Boonville Correctional Center. Kinder was injured when Ms. Vaughn lost control of the van. The van overturned and went off of the highway. Kinder was knocked unconscious and had to be hospitalized for several days. Kinder filed a petition for personal injuries on April 16, 1998. In her amended petition filed in July of 1998, she alleged that the DOC was a political subdivision of the state of Missouri and had waived sovereign immunity for vehicular accidents pursuant to section 537.600. The petition also claimed that the van's driver, Lillian Vaughn, an agent and employee of the Missouri Dept. of Corrections, was negligent.2 The DOC was the only defendant in the case.

The DOC filed a motion for summary judgment alleging that it was entitled to summary judgment on the ground that Kinder's petition was not filed within the one-year statute of limitation contained in section 516.145. The circuit court sustained DOC's motion for summary judgment. Kinder appeals the judgment of the circuit court.

Standard of Review

Summary judgment is proper where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The propriety of summary judgment is purely an issue of law which we review de novo. Id. The judgment will be affirmed by this court if it is sustainable as a matter of law under any theory. Judy v. Arkansas Log Homes, Inc., 923 S.W.2d 409, 414 (Mo. App. 1996).

For purposes of summary judgment, a "defending party" is one against whom recovery is sought. ITT, 854 S.W.2d at 380. Thus, in the case at bar, DOC is the defending party. "[A] 'defending party' may establish a right to judgment by showing ... that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly pleaded affirmative defense." Id. at 381. The judgment here was based on the legal determination of the applicability of the one-year statute of limitation, making this review only of a question of law.

I.

Kinder argues in her first point that the circuit court erred in granting the DOC's motion for summary judgment because the applicable statute of limitation is five years as indicated in section 516.120(4), which governs personal injury actions, rather than the one-year statute of limitation contained in section 516.145.

Kinder asserts that the legislature did not intend for section 516.145 to reduce the time limit for filing lawsuits for personal injury actions resulting from negligent driving by a DOC employee. Kinder's theory that the five-year statute of limitation for personal injuries applies is as follows: 1) In 1978 the legislature adopted section 537.600 which waived sovereign immunity for injuries resulting from negligence of public employees operating public vehicles; 2) The doctrine of official immunity shields government officials from civil liability related to their performance of discretionary duties, but does not affect their liability for ministerial duties; 3) Operating a motor vehicle in non-emergency situations, such as in the case at bar, is not a discretionary duty so, under the doctrine of official immunity it did not apply to the driver. Davis-Bey v. Missouri Department of Corrections, 944 S.W.2d 294, 297-98 (Mo. App. 1997); 4) Under the...

To continue reading

Request your trial
7 practice notes
  • Mcpherson v. U.S. Physicians Mut., No. WD 59264.
    • United States
    • Court of Appeal of Missouri (US)
    • 31 Enero 2003
    ...either expressly or implicitly, but not to breaches of Page 484 one's fiduciary duty to the court. See Kinder v. Mo. Dept. of Corrs., 43 S.W.3d 369, 369 (Mo.App.2001). As a fiduciary, Sauer had a duty to exercise reasonable care, at a minimum. See Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. ......
  • McGuire v. Kenoma, LLC, No. WD 74022.
    • United States
    • Court of Appeal of Missouri (US)
    • 31 Julio 2012
    ...Supreme Court.” Custer v. Hartford Ins. Co., 174 S.W.3d 602, 609 (Mo.App. W.D.2005) (quoting Kinder v. Missouri Dep't of Corrections, 43 S.W.3d 369, 374 (Mo.App. W.D.2001) (citing Mo. Const. art. V, § 2)). Synergy urges us to follow the precedent from nearly thirty years ago, where [375 S.W......
  • T.Q.L. ex rel. M.M.A. v. L.L., No. SD 29293.
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Junio 2009
    ...Court.'" Indep.-Nat. Educ. Ass'n v. Indep. Sch. Dist., 162 S.W.3d 18, 21 (Mo.App. 2005) (quoting Kinder v. Missouri Dep't of Corr., 43 S.W.3d 369, 374 (Mo.App.2001)). Third, Speck is also based on the application of Rule 81.06, the predecessor to current Rule 74.01(b), and that rule di......
  • Laramore v. Jacobsen, No. ED 108855
    • United States
    • Court of Appeal of Missouri (US)
    • 17 Noviembre 2020
    ...between an action performed for work purposes rather than for personal ones. Id. at 553 (quoting Kinder v. Mo. Dep't of Corrections, 43 S.W.3d 369, 373 (Mo. App. W.D. 2001) )(internal citations omitted). Here, the petition alleges that the defendants executed a search warrant and 613 S.W.3d......
  • Request a trial to view additional results
7 cases
  • Mcpherson v. U.S. Physicians Mut., No. WD 59264.
    • United States
    • Court of Appeal of Missouri (US)
    • 31 Enero 2003
    ...either expressly or implicitly, but not to breaches of Page 484 one's fiduciary duty to the court. See Kinder v. Mo. Dept. of Corrs., 43 S.W.3d 369, 369 (Mo.App.2001). As a fiduciary, Sauer had a duty to exercise reasonable care, at a minimum. See Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. ......
  • McGuire v. Kenoma, LLC, No. WD 74022.
    • United States
    • Court of Appeal of Missouri (US)
    • 31 Julio 2012
    ...Supreme Court.” Custer v. Hartford Ins. Co., 174 S.W.3d 602, 609 (Mo.App. W.D.2005) (quoting Kinder v. Missouri Dep't of Corrections, 43 S.W.3d 369, 374 (Mo.App. W.D.2001) (citing Mo. Const. art. V, § 2)). Synergy urges us to follow the precedent from nearly thirty years ago, where [375 S.W......
  • T.Q.L. ex rel. M.M.A. v. L.L., No. SD 29293.
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Junio 2009
    ...Court.'" Indep.-Nat. Educ. Ass'n v. Indep. Sch. Dist., 162 S.W.3d 18, 21 (Mo.App. 2005) (quoting Kinder v. Missouri Dep't of Corr., 43 S.W.3d 369, 374 (Mo.App.2001)). Third, Speck is also based on the application of Rule 81.06, the predecessor to current Rule 74.01(b), and that rule di......
  • Laramore v. Jacobsen, No. ED 108855
    • United States
    • Court of Appeal of Missouri (US)
    • 17 Noviembre 2020
    ...between an action performed for work purposes rather than for personal ones. Id. at 553 (quoting Kinder v. Mo. Dep't of Corrections, 43 S.W.3d 369, 373 (Mo. App. W.D. 2001) )(internal citations omitted). Here, the petition alleges that the defendants executed a search warrant and 613 S.W.3d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT