Kraus v. Hy-Vee, Inc.

• Decision Date: 09 November 2004
• Docket Number: No. WD 63596.,WD 63596.
• Citation: 147 S.W.3d 907
• Parties: Edgar KRAUS, et al., Appellants, v. HY-VEE, INC., et al., Respondents.
• Court: Missouri Court of Appeals

147 S.W.3d 907

Edgar KRAUS, et al., Appellants, v. HY-VEE, INC., et al., Respondents.

No. WD 63596.

Missouri Court of Appeals, Western District.

November 9, 2004.

John W. Rourke, Nicholas B. Carter, St. Louis, MO, for appellant.

Terry M. Evans, Smithville, MO, for respondent, Hy-Vee, Inc.

Jeffrey O. Parshall, Susan F. Robertson, Columbia, MO, for respondent, Hy-Vee Construction.

Zachary T. Cartwright, Jr., Jefferson City, MO, for respondent, Missouri Highyway & Transportation Commission.

Derrick A. Pearce, Overland Park, KS, for respondent, Transystems Corporation.

Before: THOMAS H. NEWTON, P.J., HAROLD L. LOWENSTEIN and RONALD R. HOLLIGER, JJ.

THOMAS H. NEWTON, Presiding Judge.

This appeal stems from an automobile collision at an intersection in Columbia, Missouri. The survivors of a woman killed in that collision have asserted claims against multiple parties for wrongful death and professional negligence. They contend that the state highway and transportation commission, the owner of a nearby grocery store, the company that built the grocery store, and the company that conducted a traffic impact study of the intersection are liable for failing to install electric traffic lights at the intersection and for failing to properly re-stripe the road at the intersection. The survivors also contend that the company that conducted the traffic impact study is liable for professional negligence in producing a faulty study that the other defendants relied upon in deciding not to install electric traffic lights.

Broadly speaking, this appeal involves two questions. First, have the survivors alleged facts sufficient to show that the state waived its sovereign immunity? And second, have the survivors' alleged facts sufficient to show that the remaining defendants had a duty as a matter of law, such that they could be liable for negligence in this case?

We conclude that the survivors have alleged sufficient facts to show that the state waived its sovereign immunity under the so-called "dangerous condition exception." We further conclude that the survivors have alleged facts sufficient to show that the company that conducted the traffic impact study had a duty in this case. However, the survivors have not alleged facts sufficient to show that the grocery store owner or the company that constructed the store have any potential liability.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ms. Mildred Kraus died on August 24, 2001, when the car that she was driving along Broadfield Drive in Columbia collided with another car at the intersection of Broadway Street. Hy-Vee Weitz Construction, L.C. (Hy-Vee Weitz) had recently built a new grocery store for Hy-Vee, Inc. (Hy-Vee) at the intersection. Before the collision, Transystems Corporation (Transystems) had prepared a traffic impact study to determine whether an upgraded traffic control device should be installed at the intersection in place of the existing stop sign in Ms. Kraus' lane of travel. At the time of the collision, the device had not been installed.

After Ms. Kraus died, her survivors brought an action against the state of Missouri, the Missouri Department of Transportation (MODOT), Hy-Vee, Hy-Vee Weitz, and Transystems. Count one of the petition alleged that all of the defendants were liable for the wrongful death of Ms. Kraus. Count two alleged that defendant Transystems was liable for professional negligence in carrying out the traffic impact study. The petition specifically alleged that Hy-Vee, Hy-Vee Weitz, and the State had "conducted studies to determine whether a traffic light was needed to control the intersection" and that these defendants "knew or should have known that the intersection, due to the volume of traffic, was dangerous in that it had no electric traffic signals for the control of traffic, due to the high volume of traffic generated by the opening of a Hy-Vee Store." The petition further alleged that these defendants "negligently decided not to install or require the installation of an electric traffic control device."

In the professional negligence count, the petition alleged that Transystems "owed to Plaintiffs a duty to exercise a reasonable standard of care, whereby [Transystems] knew or should have known that the intersection ... due to the high volume of traffic generated by the construction and opening of the Hy-Vee store ... required electric traffic signals for the controls of traffic." The petition further alleged that Transystems breached its duty of care by "negligently providing an incorrect Traffic Impact Study, which it knew Defendants would rely upon."

The survivors later filed a first amended petition, dismissing the State of Missouri and MODOT as parties and substituting the Missouri Highways and Transportation Commission (MHTC) as a proper party. The survivors also filed a motion requesting leave of the court to file a second amended petition. Aside from correcting an error in the name of one of the intersecting streets, the second amended petition made no substantive changes. The record does not indicate whether the trial court granted leave to file the second amended petition.

In the meantime, however, MHTC had filed a motion to dismiss the first amended petition. MHTC argued that the survivors had failed to allege all of the elements necessary for waiver of sovereign immunity, including facts constituting a dangerous condition in public property or that Ms. Kraus' death resulted from such a condition. Transystems likewise had filed a motion for judgment on the pleadings, arguing that Transystems had no duty to plaintiffs as a matter of law because any duty in the case rested exclusively with the government. The trial court sustained both motions and gave the survivors ten days to file an amended petition.

The survivors subsequently filed a motion for leave to file their third amended petition as to all of the defendants, including MHTC and Transystems. The trial court granted the motion "as to and against all of the Defendants named in the lawsuit," including MHTC and Transystems.

The allegations contained in the third amended petition were more detailed than those contained in the preceding ones. By way of general allegations, the third amended petition now alleged that MHTC, Hy-Vee, and Hy-Vee Weitz "conducted studies through Transystems Corporation to determine whether a traffic light was needed to control the intersection ... whether the speed limit was appropriate, and whether other changes needed to be made to ensure the safety of motorist [sic]." And it alleged that all of the defendants "knew or should have known that the intersection, due to the volume of traffic, was dangerous in that it had no electric traffic signals for the control of traffic, due to the high volume of traffic generated by the opening of the Hy-Vee Store."

It also alleged that MHTC, Hy-Vee, and Hy-Vee Weitz "negligently decided not to install or require the installation of an electric traffic control device" at the intersection "based in part on the findings and recommendations of Transystems." The petition also alleged that Transystems should have informed the other defendants that a traffic control device was needed at the intersection.

In the wrongful death count, the third amended petition alleged that all of the defendants "had a duty to protect members of the public and more particularly Plaintiffs' decedent from the dangers of the intersection." The petition further alleged that all of the defendants breached that duty "by failing to install a traffic control device at the intersection, ... by failing to properly restripe the road and intersection or to reduce the speed of traffic at said intersection all of which created a dangerous condition." And the petition alleged that MHTC, Hy-Vee, and Hy-Vee Weitz had actual notice of a dangerous condition in the intersection because they had received numerous complaints from the public about the lack of electric signals, confusing road striping at the intersection, and the high rate of speed at which cars passed through the intersection, "all of which said citizens felt made the intersection dangerous and that they feared for their safety and well being at said intersection."

The petition further alleged that car crashes at or near the intersection increased six-hundred percent "from the year prior to the construction of the Hy-Vee Store." The petition further alleged that all of the defendants knew or should have known that the traffic impact study was "incorrect and vague in that due to the volume of traffic at [the intersection] it warranted immediate placement of an electric traffic signal according to [MHTC's] own standards and design manual existing at that time." The petition further alleged that "based upon the volume and flow of traffic the speed limit at said intersection should have been reduced."

As to MHTC specifically, the petition also alleged that MHTC had disregarded its own standards and design manual when it did not immediately place an electric signal at the intersection based upon traffic volume cited in the traffic impact study of Transystems, "thereby breaching a duty to the public and more particularly plaintiffs' decedent."

In the revised professional negligence count, the third amended petition alleged that Transystems normally used certain manuals in preparing traffic impact studies and that Transystems failed to follow the manuals that it normally used when it prepared the traffic impact study in this case. The petition further alleged that Transystems "failed to recommend the immediate installation of an electric signal at the intersection ... when [MHTC's] design manual mandated it due to the volume of traffic." The petition alleged that Transystems "owed to Plaintiffs a duty to exercise a reasonable standard of care, such as following the guidelines in said manuals, whereby [Transystems] knew or should have known that the intersection... due to the...