Lemming v. City of Salisbury
| Decision Date | 29 November 1988 |
| Docket Number | No. WD40525,WD40525 |
| Citation | 765 S.W.2d 271 |
| Parties | Anna LEMMING, and Warren Lemming, v. CITY OF SALISBURY. |
| Court | Missouri Court of Appeals |
James J. Wheeler, Keytesville, for appellants.
Daniel K. Atwill, Susan Ford Robertson, Knight, Ford, Wright, Atwill, Parshall & Baker, Columbia, for respondent.
Before LOWENSTEIN, J., Presiding, and TURNAGE and COVINGTON, JJ.
Plaintiffs brought suit to recover damages from defendant City of Salisbury for personal injuries alleged to have been sustained in a fall when plaintiff Anna Lemming slipped and stepped into a hole or opening in a grate located adjacent to the street at the north entrance of the Biltwell Company of Salisbury, Missouri. Plaintiffs alleged five separate acts of negligence on the part of the defendant relative to the allegedly unsafe condition of the grate.
The city filed a motion asserting the failure of the plaintiffs to comply with section 79.480, RSMo 1986, which reads in relevant part:
No action shall be maintained against any city organized under the laws of this state as a city of the fourth class on account of any injuries growing out of any defect or unsafe condition of or on any bridge, boulevard, street, sidewalk or thoroughfare, in said city until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence....
Plaintiffs concede no notice was given. The trial court sustained the city's motion.
The sole issue in this case is whether section 79.480 applies to a claim for injuries arising from negligent maintenance of a grate for the drainage of surface water located adjacent to the street.
As to content of any notice, the law is well established that the statute is to be construed liberally in favor of the injured person and strictly against municipalities. Glasgow v. City of St. Joseph, 353 Mo. 740, 747, 184 S.W.2d 412, 415 (1944). "As to plaintiffs within its provisions the statute is in derogation of the common law and is construed liberally in their favor and strictly against the municipality." Id.
It is also well established that the notice requirement cannot be extended by implication beyond its clearly expressed provisions. Gelhot v. City of Excelsior Springs, 277 S.W.2d 650, 655 (Mo.App.1955). In Gelhot, absent proof that the city had been "organized" as a city of the third class, the court held that the notice statute would not be applied to the city. Id.
This court again limited the application of the notice statute in McCulley v. City of Princeton, 488 S.W.2d 277 (Mo.App.1972). The plaintiffs pleaded that the defendant fourth-class city negligently permitted a public sewer to back up into the basement of the plaintiffs' home causing property damage. Plaintiffs gave no notice to the city. The question was whether...
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Williams v. City of Kansas City, 71887
...the court determined that a notice of claim statute does not apply to injuries arising from a defect in a sewer and Lemming v. City of Salisbury, 765 S.W.2d 271 (Mo.App.1989), in which the court holds that a notice of claim statute does not apply to an opening in a grate adjacent to a stree......
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Jones v. City of Kansas City, Mo, WD56390
...to include parking lots within the provisions of the statute, it would have been a simple matter to do so." Id. In Lemming v. City of Salisbury, 765 S.W.2d 271 (Mo. App. 1988), the plaintiff fell into a hole or an opening in a grate for drainage of surface water, located adjacent to a city ......
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Walls v. City of Overland
...of the common law and is to be liberally construed in favor of plaintiffs and strictly against the municipality. Lemming v. City of Salisbury, 765 S.W.2d 271, 272 (Mo.App.1988). Further, the notice requirement cannot be extended by implication beyond its clearly expressed provisions. Id. Se......
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Banks v. City of Kansas City, WD
...way open to the public, were within the listed municipal property to which section 82.210 applies. Id. at 66. In Lemming v. City of Salisbury, 765 S.W.2d 271 (Mo.App.1988), a pedestrian brought an action against the city for personal injuries allegedly sustained when she slipped and stepped......