Martin v. Missouri Highway and Transp. Dept., WD

• Decision Date: 29 September 1998
• Docket Number: No. WD,WD
• Citation: 981 S.W.2d 577
• Parties: Marlene V. MARTIN, Appellant, v. MISSOURI HIGHWAY AND TRANSPORTATION DEPARTMENT, Respondent. 54311.
• Court: Missouri Court of Appeals

Page 577

981 S.W.2d 577

Marlene V. MARTIN, Appellant, v. MISSOURI HIGHWAY AND TRANSPORTATION DEPARTMENT, Respondent.

No. WD 54311.

Missouri Court of Appeals Western District.

Sept. 29, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 24, 1998.

Application for Transfer Denied Jan. 19, 1999.

Mark Roberts, Rebecca L. Leonard, Tyree, Eskew & Roberts, Blue Springs, for appellant.

Judy L. Curran, Kansas City, for respondent.

Before ELLIS, P.J., and LOWENSTEIN and RIEDERER, JJ.

ELLIS, Presiding Judge.

Marlene V. Martin appeals from an order entered by the Circuit Court of Jackson County granting a Judgment Notwithstanding the Verdict to the Missouri Highway and Transportation Commission (MHTC) ¹ in Martin's action to recover damages for the wrongful death of her daughter, Christina Kelly.

About 9:45 p.m. on October 18, 1993, Kelly was travelling home to Blue Springs from a restaurant in Lee's Summit, Missouri. The road was wet due to rain. As Kelly traveled down the ramp leading from northbound Highway 291 to eastbound Interstate 70 (I-70), her car skidded nine feet and left the outside curve of the ramp. Her car then spun around and slid backwards down a slope and into a tree 24 1/2 feet off the roadway. A branch from the tree broke through the passenger side window and struck Kelly in the back of her skull. As a result of the head injuries she sustained, Kelly died the following day.

On March 16, 1995, Martin filed a wrongful death action against MHTC in the Circuit Court of Jackson County. Martin's petition claimed that MHTC was responsible for the design, condition, maintenance, and repair of the ramp and that MHTC was negligent for (1) placing trees too close to the traveled portion of the roadway, (2) allowing the trees to remain in a position too close to the roadway, (3) failing to give motorists adequate warning of the existence of the trees, and (4) failing to erect guardrails or other barriers along the outside curve of the ramp. Martin contended that Kelly's death was a direct and proximate result of one or all of these negligent acts.

Trial began on October 21, 1996. On October 25, the jury returned a verdict in favor of Martin setting damages at $150,000 and assessing fifty percent of the fault to MHTC. In accordance with this verdict, on November 5, 1996, the trial court entered judgment in favor of Martin for $75,000.

On December 2, 1996, MHTC filed a Motion for Judgment Notwithstanding the Verdict. On February 27, 1997, the trial court entered an order granting MHTC's motion and entering judgment in favor of MHTC. In granting judgment notwithstanding the verdict (JNOV), the trial court ruled that Martin failed to allege or offer evidence of a defect in the traveled portion of the roadway and that MHTC owed no duty to any motorist leaving the traveled portion of the roadway.

On appeal, Martin claims the trial court erred in entering JNOV. JNOV in favor of a defendant is appropriate only if the plaintiff fails to make a submissible case. Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996). "In reviewing for a submissible case, we view the evidence in the light most favorable to the plaintiff, giving him or her the benefit of all reasonable inferences that can be drawn from the evidence, while disregarding all unfavorable evidence and inferences." Faust v. Ryder Commercial Leasing & Serv., 954 S.W.2d 383, 388 (Mo.App. W.D.1997). "A motion for JNOV should only be granted when all the evidence and reasonable inferences to be drawn therefrom are so strong against the prevailing party that there is no room for reasonable minds to differ." Cole v. Missouri Highway & Transp., 770 S.W.2d 296 (Mo.App. W.D.1989) Comm'n v. Kansas City Cold Storage, Inc., 948 S.W.2d 679, 685 (Mo.App. W.D.1997). "Where JNOV is based on an issue of law, the trial court's conclusions are reviewed de novo." Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996).

As a governmental entity, MHTC is generally immune from tort liability and suit for compensatory damages for negligent acts or omissions. § 537.600 ; Williams v. City of Independence, 931 S.W.2d 894, 895 (Mo.App. W.D.1996). However, sovereign immunity is expressly waived for injuries resulting from the negligent operation of a motor vehicle by a public employee within the course of employment or injuries caused by the dangerous condition of the public entity's property. Kilventon v. United Missouri Bank, 865 S.W.2d 741, 745 (Mo.App. W.D.1993).

Martin based her claim for damages on a theory that the tree which was struck by Kelly was a dangerous condition of MHTC's property. In order to state a claim under the dangerous condition exception to sovereign immunity, a plaintiff must establish: (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. Alexander v. State, 756 S.W.2d 539, 541 (Mo. banc 1988).

The trial court rested its decision to grant JNOV on a determination that MHTC owed no duty to anyone leaving the "traveled way." The trial court relied on Williams v. City of Independence, 931 S.W.2d 894 (Mo.App. W.D.1996), in which this court held that the City of Independence had a duty only to protect drivers from injuries which were reasonably foreseeable and that "an injury is reasonably foreseeable if a 'driver and vehicle normally using the roadway or deviating slightly in the normal use of the roadway will potentially encounter injury from the placement and maintenance of the [condition].' " Id. at 896 (quoting Rothwell v. West Cent. Elec. Co-op., 845 S.W.2d 42, 44 (Mo.App. W.D.1992)). Williams held that a car crossing the center line of the road, traveling through the opposite lane of traffic, and driving across several private lawns before hitting a headwall eight feet off the road did not qualify as a "slight deviation" from the road. Id. at 897. Indeed, Williams also contains dicta to the effect that driving directly off of the roadway eight feet, down the sloped shoulder, and into the headwall would likewise not constitute a "slight deviation." Id. Williams follows a line of cases which have held that municipalities and utility companies were not liable to drivers who deviated more than slightly from traveled portion of city roadways in Missouri. See, Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W.2d 54 (1928); Lavinge v. City of Jefferson, 262 S.W.2d 60 (Mo.App. W.D.1953); Scaife v. Kansas City Power & Light Co., 637 S.W.2d 731 (Mo.App. W.D.1982). ²

Even were we to find that the principles on which these cases were decided are applicable to the state highway department, none of those cases involved a situation where the public entity assumed a duty to maintain the area adjacent to the traveled way and protect against the dangerous condition which resulted in the injury. "Missouri courts have recognized that a duty may be assumed or undertaken, and when so assumed, a defendant must exercise reasonable care in carrying out the duty." Bowman v. McDonald's Corp., 916 S.W.2d 270, 287 (Mo.App. W.D.1995); See also, Kilventon v. United Missouri Bank, 865 S.W.2d 741, 745 (Mo.App. W.D.1993) ("If MHTC assumed an affirmative duty to implement safety precautions, by contract or conduct, it was liable for injuries caused by unsafe performance of the work ...").

Unlike the cases involving cities and utility companies, the facts of the case at bar establish that MHTC assumed a duty to create safe "clear zones" for motorists. See Schlueter v. City of Maryland Heights, 946 S.W.2d 273, 274 n. 2 (Mo.App. E.D.1997). Section 227.030.1 provides that construction and maintenance of the highway system, and all work incidental to that system, is under the general supervision and control of the MHTC. Summitt by Boyd v. Roberts, 903 S.W.2d 631, 635 (Mo.App. W.D.1995). Section 227.210.1 provides that "[t]he state highways ... shall be under the jurisdiction and control of the commission ... and shall be maintained by the commission and kept in a good state of repair at whatever cost may be required." § 227.210.1. Section 227.060 states that the MHTC is responsible for establishing the width of the right-of-way and the surface roadway of state highways and for determining the type and character of construction. § 227.060. Section 227.220 authorizes the MHTC "to remove any ... obstruction to the lawful use of a state highway, including the right to remove or trim trees located within or overhanging the right-of-way of a state highway." § 227.220. Accordingly, MHTC has control over the surface of the entire right-of-way to the extent necessary for highway purposes to the exclusion of any owner of the fee and is responsible for any cutting or mowing of vegetation growing in the right-of-way necessary for the safety of drivers. Mispagel v. Missouri Highway & Transp. Comm'n, 785 S.W.2d 279, 282 (Mo. banc 1990).

MHTC was and is a member of the American Association of State Highway and Transportation Officials (AASHTO), formerly the American Association of State Highway Officials (AASHO). AASHTO is a national body made up of the highway departments of all fifty states. AASHTO develops standards and guidelines for the design and maintenance of state highways. Martin submitted several AASHTO documents into evidence.

In 1967, AASHO published guidelines entitled "Highway Design and Operational Practices Related to Highway Safety" ("the Yellow Book"). Recognizing that accidents involving cars leaving the roadway accounted for approximately 65% of all freeway fatalities, the AASHO recommended slopes of 6:1 or flatter ³ when possible and proposed that, to increase safety when vehicles leave the...