Maune ex rel. Maune v. City of Rolla

• Decision Date: 25 October 2006
• Docket Number: No. 27287.,27287.
• Citation: 203 S.W.3d 802
• Parties: Kody MAUNE, by and through his next friend, Ayn Maune, Appellant, v. CITY OF ROLLA, Missouri, Respondent.
• Court: Missouri Court of Appeals

203 S.W.3d 802

Kody MAUNE, by and through his next friend, Ayn Maune, Appellant, v. CITY OF ROLLA, Missouri, Respondent.

No. 27287.

Missouri Court of Appeals, Southern District, Division One.

October 25, 2006.

Shelley L. Woodward, Woodward Law Firm, L.L.C., Cuba, for appellant.

Lawrence B. Grebel and Brett A. Williams, Brown & James, P.C., St. Louis, for respondent.

DANIEL E. SCOTT, Judge.

We affirm the trial court's grant of summary judgment in favor of the City of Rolla based on sovereign immunity under section 537.600.¹

On a sunny day in August 2002, ten-year-old Kody Maune was riding his bike with friends along a path in Rolla's Green Acres Park. He turned his head to glance back at his friend and ran into a yellow barrier partially blocking the right side of a bridge. The City had erected the barrier to keep automobiles off the bridge, which was 117 inches wide. The barrier was 47 inches wide, extending from the right edge of the bridge toward, but not to, the center.

Plaintiff² sued the City to recover for his injuries. The City eventually moved for summary judgment based on sovereign immunity under section 537.600.1. The trial court granted the motion after a hearing, ruling that the City did not waive sovereign immunity "in that the property at issue was not in a dangerous condition." Plaintiff appeals. Our review essentially is de novo, using the same criteria that trial courts should employ to determine summary judgment motions initially. We view the record in the light most favorable to the Plaintiff, without deferring to the trial court, since the propriety of summary judgment is purely an issue of law. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

One way that a defendant can prove a right to summary judgment is by showing that, after an adequate period of discovery, the plaintiff is and will remain unable to produce evidence sufficient to establish any one of the plaintiff's required elements. Upon such showing, the plaintiff may not rest upon the mere allegations of his pleading, but must respond by affidavit or otherwise to set forth specific facts showing that there is a genuine issue for trial. Unless the plaintiff can do so by affidavit, depositions, interrogatory answers, or admissions on file, summary judgment is proper. ITT Commercial Finance at 381.

The City and other public entities enjoy sovereign immunity as it existed at common law in Missouri prior to September 12, 1977, except to the extent waived, abrogated or modified by statute. RSMo § 537.600.1; Martin v. City of Washington, 848 S.W.2d 487, 490 (Mo. banc 1993). Section 537.600.1(2) waives this immunity for injuries caused by dangerous conditions on the public entity's property if the plaintiff establishes:

1. The property was in a dangerous condition at the time of injury;

2. The injury directly resulted from the dangerous condition;

3. The dangerous condition created a reasonably foreseeable risk of harm of the kind of injury that was incurred; and

4. A public employee negligently or wrongly created the condition within the course of employment, or that the public entity had actual or constructive notice of the dangerous condition in time to have acted.

See also Martin at 490-91. The plaintiff must establish these elements as part of its own case, because sovereign immunity is not an affirmative defense. Burke v. City of St. Louis, 349 S.W.2d 930, 931 (Mo.1961); Talley v. Missouri Highway and Transp. Comm'n, 659 S.W.2d 290, 291 (Mo.App.1983); Best v. Schoemehl, 652 S.W.2d 740, 743 (Mo.App.1983).³

Plaintiff misapprehends this burden of proof in Point I of this appeal, which asserts the City failed in its "burden to address all viable theories raised in [Plaintiff's] pleadings, in that [the City] failed to address all such theories." It was Plaintiff's burden to establish a sovereign immunity waiver as part and parcel of any pleaded theory against the City. Krohn, supra. Plaintiff could not rest on the mere allegations of his pleadings when faced with the City's summary judgment motion. Rule 74.04(c)(2). Point I is denied.

Plaintiff's Point II is unclear, but seems to claim the trial court could not consider part of Kody Maune's deposition testimony because he was a minor. Our review of the record fails to show that the trial court considered the challenged testimony at all, or that Plaintiff raised any objection before the trial court. Moreover, Plaintiff himself cited both the trial court and this court to the same deposition. Point II warrants no further discussion and is denied.

Plaintiff's final point alleges the trial court could not properly determine as a matter of law that there was no dangerous condition given (1) the barrier's position and (2) the failure to warn of it.

We must strictly construe the statutory provisions that waive a public entity's sovereign immunity. O'Dell v. Department of Corrections, 21 S.W.3d 54, 57 (Mo.App.2000). A "dangerous condition" under Section 537.600 requires a defect in the physical condition of public property. For property to be dangerous, there must be some defect, physical in nature, in the sovereign's property. State ex rel. Div. of Motor Carrier and R.R. Safety v. Russell, 91 S.W.3d 612, 616 (Mo. banc 2002); Sisk v. Union Pacific R.R., 138 S.W.3d 799, 808 (Mo.App.2004); Tillison v. Boyer, 939 S.W.2d 471, 473 (Mo.App.1996). These cases also confirm that failure to perform an intangible act, "whether it be failure to supervise or warn" cannot constitute a dangerous condition of the property for purposes of waiving sovereign immunity. Russell, supra; Sisk

at 809; Tillison, supra (emphasis added).

A landowner is not an insurer of the well-being of invitees, and generally is not required as a matter of law to protect invitees against open and obvious conditions. The landowner is entitled to expect that invitees will exercise ordinary perception, intelligence, and judgment to discover open and obvious conditions, appreciate the risk they present, and take the minimal steps necessary to protect themselves. In other words, the landowner may reasonably rely on invitees to see and appreciate risks presented by open and obvious conditions, and may reasonably rely on an invitee's normal sensibilities to protect against same. See, e.g., Crow v. Kansas City Power & Light Co., 174 S.W.3d 523, 534 (Mo.App.2005),

citing Harris v. Niehaus, 857 S.W.2d 222, 226 (Mo. banc 1993).

The City's motion included an affidavit from its parks and recreation director identifying and attaching two photos of the barrier. The affidavit noted the barrier was not physically defective nor otherwise damaged at the time of the accident,...