Miller v. Smith
| Decision Date | 27 February 1996 |
| Docket Number | No. WD,WD |
| Citation | 921 S.W.2d 39 |
| Parties | Bonnie J. MILLER and Francis H. Miller, Appellants, v. Robert E. SMITH, Respondent. 50521. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Clay County; David W. Russell, Judge.
David T. Greis, William H. Pickett, Kansas City, for appellants.
Steven W. White, Rebecca L. Rolf, White, Allinder & Graham, Independence, for respondent.
Before SPINDEN, P.J., and BRECKENRIDGE and SMART, JJ.
The plaintiffs, Bonnie J. Miller and Francis H. Miller, filed a two-count wrongful death petition against Robert E. Smith, a sergeant with the Smithville, Missouri Police Department. The Millers appeal the trial court's order entering summary judgment in favor of Sergeant Smith.
The Millers present five points on appeal, contending the trial court erred in granting Sergeant Smith's motion for summary judgment because: a) the motion failed to comply with the particularity requirements of Rule 74.04(c)(1); b) the public duty doctrine and official immunity doctrine are unconstitutional as applied to the wrongful death statute; and c) there are genuine issues of material fact as to whether the public duty, official immunity and qualified immunity doctrines are applicable. The judgment of the trial court is affirmed.
Summary judgment should be granted only if the movant is undisputedly entitled to judgment as a matter of law and no genuine factual disputes exist. ITT Commercial Finance v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993). In reviewing the entry of summary judgment, this court views the record in the light most favorable to the Millers and affords them the benefit of all reasonable inferences drawn therefrom. Id. at 382.
On the night of May 5, 1992, Sergeant Smith was on patrol duty for the Smithville, Missouri Police Department. He observed the vehicle driven by Rodney Miller cross the center line of a highway several times. Sergeant Smith pulled Mr. Miller over to the shoulder of the road, but before Sergeant Smith could get out of his car, Mr. Miller pulled back onto the highway. Sergeant Smith then stopped Mr. Miller a second time, this time successfully.
After requesting and receiving Mr. Miller's driver's license, Sergeant Smith asked him to submit to a field sobriety test. Mr. Miller agreed to do so and fully cooperated in the performance of the test. After completion of the test, Sergeant Smith determined that Mr. Miller was intoxicated and informed him that he was under arrest for driving while intoxicated.
Sergeant Smith told Mr. Miller that he could either secure his truck on the side of the road or have it towed. Mr. Miller's truck had been left running while he took the sobriety test. With Sergeant Smith following behind him, Mr. Miller got back into his truck and made a movement which Sergeant Smith interpreted as an effort to put the truck in gear. Sergeant Smith then reached through the window of the truck and turned off the ignition. He advised Mr. Miller a second time that he was under arrest.
Mr. Miller stepped out of the truck, removed a gun case from behind the front seat, threw the gun case into the cab of the truck, and got back inside. Sergeant Smith again advised Mr. Miller that he was under arrest. Mr. Miller then opened the gun case, revealing a pistol. Sergeant Smith drew his gun, pointed it at Mr. Miller, and told him to leave the pistol and get out of the truck. Mr. Miller then grabbed the pistol, inserted a magazine into the pistol, placed it to his head and pulled the trigger, fatally wounding himself.
Mr. Miller's parents filed a two-count wrongful death petition against Sergeant Smith in the Circuit Court of Clay County, Missouri. The first count alleged Sergeant Smith negligently failed to restrain and protect Mr. Miller after placing him under arrest. The second count was brought under 42 U.S.C. § 1983, asserting that the "deliberate indifference of Defendant Smith deprived Rodney J. Miller of his right to be protected while in the custody of a law enforcement officer in violation of the Fifth, Eighth and Fourteenth Amendments of the United States Constitution."
Sergeant Smith filed a motion for summary judgment. He sought immunity on the first count under the public duty doctrine and the official immunity doctrine. For the § 1983 claim, Sergeant Smith alleged that he did not act with the requisite deliberate indifference to the risk that Mr. Miller would commit suicide. Sergeant Smith also alleged that he was entitled to qualified immunity. After a hearing, the trial court entered an order sustaining Sergeant Smith's motion for summary judgment.
The Millers' first point on appeal contends the trial court erred in granting Sergeant Smith's motion for summary judgment, because the motion failed to comply with the particularity requirements of Rule 74.04(c)(1). This rule, in pertinent part, requires a movant to:
state with particularity in separately numbered paragraphs each material fact as to which the movant claims there is no genuine issue, with specific references to the pleadings, discovery or affidavits that demonstrate the lack of a genuine issue as to such facts.
Rule 74.04(c)(1). The purpose of the rule is to "apprise the opposing party, the trial court, and in turn the appellate court of the specific basis on which the movant claims he is entitled to summary judgment." Moss v. City of St. Louis, 883 S.W.2d 568, 569 (Mo.App.1994).
Sergeant Smith's motion for summary judgment states that The suggestions in support of the motion include a statement of uncontroverted facts, with separately numbered paragraphs and references to supporting documentation. The Millers concede that the suggestions in support of the motion satisfy the requirements of Rule 74.04(c)(1). However, the Millers argue that the motion itself does not comply with the rule, because it fails to "incorporate" those suggestions.
Assuming arguendo that the motion does not incorporate the suggestions, this court is authorized to review the motion on the merits where the basis for the motion is obvious to counsel, to the trial court and to the appellate court. Mathes By and Through Mathes v. Nolan, 904 S.W.2d 353, 355 (Mo.App.1995). The basis for the motion was certainly obvious to the Millers, whose motion in opposition specifically responds to each paragraph in the suggestions' statement of uncontroverted facts. The failure of the motion, if any, to technically comply with the requirements of Rule 74.04(c)(1) does not prevent this court from exercising its discretion to review the motion on the merits. Id. The Millers' first point is denied.
The Millers' second point reads:
The trial court erred in granting Sgt. Smith's motion for summary judgment as to Count I, on the basis of the public duty doctrine and/or the official immunity doctrine, because both doctrines violate the Fourteenth Amendment of the United States Constitution (); Article I, §§ 2 and 10 of the Missouri Constitution (); Article I, § 14 (open courts) and Article I, § 22(A) (trial by jury) of the Missouri Constitution, since the public policy of Missouri, as stated by the General Assembly in § 537.080, R.S.Mo.1986, contains no exemptions, exceptions or limitations based on employment status, on the right of a wrongful death statutory beneficiary to file suit against a tortfeasor.
The point challenges the constitutionality of the public duty doctrine and the official immunity doctrine as applied to the Missouri wrongful death statute, § 537.080 RSMo 1994. 1 The official immunity doctrine holds that public officials are not personally liable for negligent acts strictly related to discretionary functions. Green v. Denison, 738 S.W.2d 861, 865 (Mo. banc 1987). The public duty doctrine provides immunity to public employees for duties owed to the general public. State ex rel. Barthelette v. Sanders, 756 S.W.2d 536, 538 (Mo. banc 1988).
Missouri's wrongful death statute creates a statutory cause of action unrecognized at common law. Sullivan v. Carlisle, 851 S.W.2d 510, 516 (Mo. banc 1993). A claim for wrongful death "is neither a transmitted right nor a survival right, but is created and vests in the survivors at the moment of death." Id. at 515. The Millers argue that the wrongful death statute is "self-contained," dictating who may file suit and what types of damages are recoverable. According to the Millers, the statute fails to provide any express limitations on the right to sue, thus the "public policy of Missouri is that anyone whose negligence leads to the death of another person may be held accountable for that death to the statutory beneficiaries."
Based on this assumption, the Millers contend that application of the public duty and official immunity doctrines, in contravention of the legislatively expressed public policy of the wrongful death statute, is unconstitutional. The Millers argue that by providing certain defendants in wrongful death actions with immunity, these judicially-created doctrines attempt to supersede the wrongful death statute's intent that there be no limitations on the right to sue under the statute. Specifically, the Millers allege that application of the doctrines violates "the Fourteenth Amendment of the United States Constitution (Equal Protection and Due Process); Article I, §§ 2 and 10 of the Missouri Constitution (Equal Protection and Due Process); Article I, § 14 (Open Courts) and Article I, § 22(A) (Trial by Jury) of the Missouri Constitution."
This court need not address those constitutional issues because...
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Smith v. Brown & Williamson Tobacco Corporation, No. WD 65542 (Mo. App. 7/31/2007)
...immunity doctrine would have precluded the child's suit against her mother. Id. The dismissal was affirmed. Id. In Miller v. Smith, 921 S.W.2d 39 (Mo. App. W.D. 1996), parents filed a wrongful death action against a police officer. Id. at 42. The parents' son committed suicide by fatally sh......
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Smith v. Brown & Williamson Tobacco Corp.
...immunity doctrine would have precluded the child's suit against her mother. Id. The dismissal was affirmed. Id. In Miller v. Smith, 921 S.W.2d 39 (Mo. App. W.D.1996), parents filed a wrongful death action against a police officer. Id. at 42. The parents' son committed suicide by fatally sho......
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Smith v. Brown & Williamson Tobacco Corporation, No. WD65542 (Mo. App. 9/2/2008), WD65542.
...immunity doctrine would have precluded the child's suit against her mother. Id. The dismissal was affirmed. Id. In Miller v. Smith, 921 S.W.2d 39 (Mo. App. W.D. 1996), parents filed a wrongful death action against a police officer. Id. at 42. The parents' son committed suicide by fatally sh......
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State v. Lee
...be governmental conduct in 42 U.S.C. section 1983 jurisprudence. Brewer v. Trimble, 902 S.W.2d 342 (Mo.App. S.D.1995), Miller v. Smith, 921 S.W.2d 39 (Mo.App. W.D.1996). In the context of the Fourth Amendment and search and seizure law, police conduct is considered to be governmental conduc......