Martin v. City of Washington

Citation848 S.W.2d 487
Decision Date23 February 1993
Docket NumberNo. 74852,74852
Parties81 Ed. Law Rep. 1152 Irene MARTIN and Walter Martin, Jr., Plaintiffs/Appellants, v. CITY OF WASHINGTON, Missouri, and John L. May, Archbishop of St. Louis, d/b/a St. Francis Borgia High School, Defendants/Respondents.
CourtUnited States State Supreme Court of Missouri

Timothy J. Melenbrink, Union, for plaintiffs, appellants.

Michael G. Berry, Douglas L. Van Camp, Mary Doerhoff Winter, Jefferson City, Ralph V. Hart, St. Louis, for defendants, respondents.

PRICE, Judge.

Irene Martin and Walter Martin, Jr., appeal the dismissal of their petition for damages against the City of Washington and the grant of summary judgment in favor of John L. May, Archbishop of St. Louis, doing business as St. Francis Borgia High School. We reverse the dismissal and remand for further proceedings against the City, and we affirm the granting of summary judgment.


In reviewing the circuit court's dismissal of a petition, this Court determines if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. We treat the facts averred as true and construe the averments liberally and favorably to the plaintiff. Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 834 (Mo. banc 1985). A petition is not to be dismissed for failure to state a claim if any set of facts is asserted which, if proved, would entitle the plaintiff to relief. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 61 (Mo. banc 1988).

On review of a defendant's motion for summary judgment, we view the record in the light most favorable to the plaintiffs, according to plaintiffs all reasonable inferences that may be drawn from the evidence. Id. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits filed in support of the motion, demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Rule 74.04(c); Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 709 (Mo. banc 1990).


Viewed in the light most favorable to plaintiffs, the record discloses the following facts. On the evening of November 3, 1978, Irene and Walter attended a football game between St. Francis Borgia High School and another school. They sat in the crowded bleachers at the municipal park where the game was held. About an hour into the game, Irene rose to watch an important play. The board on which she was standing cracked without warning and dropped her to the ground below. The resulting broken ankle required two surgeries and a lengthy convalescence.

On October 31, 1983, Irene and Walter filed a petition for damages (including a loss of consortium claim on Walter's behalf) against the City, which owns the park and the bleachers, and the School, which contracted with the City to use the facilities for intermural athletic events. The petition avers that the park facilities were maintained by defendants for public use and that defendants had a duty to provide safe facilities for the use of spectators at public sporting events. It further alleges that defendants negligently failed to repair the bleachers or maintain them in a safe condition, allowed the bleachers to remain in a cracked and weakened condition, and failed to warn spectators of the dangerous and defective condition of the bleachers, although they knew or ought to have known that such condition was likely to result in injury to spectators such as Irene. The petition also pleads negligence by means of res ipsa loquitur, and avers that plaintiffs' damages were caused by defendants' negligence.

The City filed a motion for summary judgment on December 7, 1988. This was treated as a motion to dismiss and sustained by the trial court. The court ruled that plaintiffs' failure to plead that the City had liability insurance coverage precluded application of the sovereign immunity exception under the statutes in effect when the accident occurred. The trial court also sustained the School's motion for summary judgment, filed on June 21, 1990. The court found that the School had no knowledge of any defect and no duty to inspect the bleachers for defects and warn. Plaintiffs' subsequent motion to set aside this judgment was overruled. This appeal seeks to reverse the dismissal and summary judgment in favor of defendants.


Plaintiffs' first point on appeal is that the trial court erred in granting the City's "motion to dismiss," actually a motion for summary judgment, as noted above. The motion claimed that under the law in effect at the time of Irene's accident, the City could be sued only if it had waived its sovereign immunity by purchasing tort liability insurance to cover such an accident. Sections 537.600 and 537.610, RSMo 1978. The motion further alleged (without the benefit of supporting affidavits) that the City's insurer on the relevant date had been declared insolvent; thus, the City must be deemed to be uninsured for the purpose of waiving sovereign immunity. Orlando v. St. Louis Cty., 740 S.W.2d 393, 395 (Mo.App.1987). Noting that a motion for summary judgment may be treated as a motion to dismiss, the trial court ruled that the petition failed to state a cause of action because plaintiffs did not plead that the City had waived its sovereign immunity by purchasing liability insurance.

Sovereign immunity as it existed prior to September 12, 1977, remains in effect except to the extent waived, abrogated, or modified by statute. Section 537.600.1, RSMo Supp.1992. Immunity is waived as to torts arising from (1) the governmental operation of motor vehicles, and (2) dangerous conditions on government property. Id. The trial court predicated its dismissal on what it deemed to be the applicable law on the date this cause of action accrued. At that time, this Court had held that the statutory waiver of immunity was operative only to the extent of the public entity's liability insurance coverage. Bartley v. Special School Dist. of St. Louis Cty., 649 S.W.2d 864, 870 (Mo. banc 1983).

In response to Bartley, however, the General Assembly amended the statute in 1985 to waive immunity in the two specified circumstances whether or not the public entity is functioning in its governmental or in its proprietary capacity, and whether or not it is covered by tort liability insurance. Section 537.600.2, RSMo Supp.1992; Oldaker v. Peters, 817 S.W.2d 245, 249 (Mo. banc 1991).

This Court has had occasion to examine the reach of the 1985 amendments three times since Orlando was decided. Each time, the Court concluded that these amendments apply retroactively, and that the sovereign has waived immunity in all such cases, past and future. 1 Oldaker, 817 S.W.2d at 250; Mispagel v. Missouri Highway & Transp. Com'n, 785 S.W.2d 279, 281 (Mo. banc 1990); Wilkes v. Missouri Highway & Transp. Com'n, 762 S.W.2d 27, 28 (Mo. banc 1988).

In accordance with the decisions cited, we conclude that plaintiffs need not plead or prove the existence of insurance coverage in order to avail themselves of the immunity waiver. Likewise, plaintiffs' argument that operating the municipal park and bleachers is a proprietary function is irrelevant under the statute as amended, in view of the fact that the condition alleged clearly falls within the "dangerous condition" exception to § 537.600.2. See Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992). In stating a claim against a governmental entity, immunity is waived pursuant to § 537.600.2, RSMo, if the plaintiff alleges:

(1) that the property was in a dangerous condition;

(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 of injury plaintiff incurred; and

(4) that a public employee negligently or wrongly created the condition within the course of his or her employment, or that the public entity had actual or constructive notice of the dangerous condition.

Kanagawa, 685 S.W.2d at 835.

The judgment dismissing plaintiffs' claims against the City is reversed and that cause is remanded to the trial court for further proceedings. This determination makes it unnecessary to consider plaintiffs' contention that the trial court should have allowed them the opportunity to amend their petition, rather than taking the "drastic measure" of dismissal.


Plaintiffs' second point claims that the trial court erred in granting the School's motion for summary judgment. The purpose of summary judgment is to move the parties beyond the bare allegations in their pleadings and to determine if a dispute in fact exists for trial. Our Rule 74.04, like the nearly identical federal Rule 56, allows the parties and the court to avoid the unnecessary expense, burden, and delay of a trial upon a showing:

(1) that there is no genuine issue as to

(2) any material fact, and

(3) that the moving party is entitled to judgment as a matter of law.

Three recent United States Supreme Court decisions have set out, with a degree of clarity theretofore absent, the framework within which a summary judgment determination should be made under the federal rule. 2 See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Most pertinent here are the Celotex and Anderson decisions. Specifically, Celotex states that a properly supported motion for summary judgment may be made "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." 3 477 U.S. at 322, 106 S.Ct. at 2552.

Anderson focuses more directly upon the test for determining...

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