Missouri Highway and Transp. Com'n v. Kansas City Cold Storage, Inc., WD

• Decision Date: 22 April 1997
• Docket Number: No. WD,WD
• Citation: 948 S.W.2d 679
• Parties: MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant, v. KANSAS CITY COLD STORAGE, INC., Respondent. 52474.
• Court: Missouri Court of Appeals

Page 679

948 S.W.2d 679

MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Appellant, v. KANSAS CITY COLD STORAGE, INC., Respondent.

No. WD 52474.

Missouri Court of Appeals,

Western District.

April 22, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 27, 1997.

Application to Transfer Denied

Aug. 19, 1997.

John M. Cave, II, Kansas City, for Appellant.

Paul L. Wickens, Kansas City, for Respondent.

Before LOWENSTEIN, P.J., and BERREY and EDWIN H. SMITH, JJ.

LOWENSTEIN, Judge.

The issue presented here is: Can a party sued in negligence for damages obtain a comparative fault instruction, and can a jury reduce the damages to the extent of state's fault?

The facts underlying this action for damages involve a March 1990 fire which was started by vagrants and caused property damage to the Kansas City Cold Storage (Cold Storage) facility and the Missouri Highway and Transportation Commission's, (the Commission's), newly constructed 3rd Street southbound off-ramp of the Heart of America Bridge in Kansas City. The Commission filed suit against Cold Storage for damages, and Cold Storage answered alleging contributory negligence and filed a counterclaim for property damage. According to Richard "Smoky" Dyer, a cause and origin expert testifying on behalf of Cold Storage, the fire started on the Commission's property and spread to the Cold Storage loading dock igniting wooden pallets and spreaders stored beneath the ramp. The fire reached a temperature exceeding 1000 degrees. The intense heat damaged the ramp's steel support girders and it was immediately closed to traffic.

At the jury trial, the Commission alleged that Cold Storage was negligent in stacking its pallets and spreaders directly beneath the off-ramp, and Cold Storage alleged that the Commission was negligent in failing to remove vagrants and combustible materials from its property beneath the bridge where Cold Storage's evidence showed the fire actually started. The case was submitted under a comparative fault theory, and the jury assessed damages of $100,000.00 to the Commission and $4,700.00 to Cold Storage with each party sharing fifty percent of the fault on both claims. Only the Commission has appealed.

The Commission raises three points on appeal: (1) that the trial court erred in giving comparative fault instructions because there was no pleading or evidence to support the submission, and since the Commission has sovereign immunity except as provided in § 537.600, RSMo 1994, it cannot be charged with negligence; (2) that the trial court erred in failing to grant the Commission's motion for judgment notwithstanding the verdict because the evidence of damages presented by Cold Storage's expert was merely speculative; (3) that the trial court erred in permitting Cold Storage's expert to testify regarding the cost of repairs to the highway because he was not properly qualified as an expert.

In order to construct the off-ramp, the Commission purchased a right of way from Cold Storage for the space over its property including the loading dock. The deed to the right of way contained a reservation of rights allowing Cold Storage use of the dock subject to a covenant not to store combustible, flammable or explosive materials under the ramp.

Testimony at trial indicated that both Cold Storage and the Commission were aware that vagrants frequently congregated beneath the overpass and steps were taken to keep vagrants away from the area. Before the 1990 fire, the Commission replaced, at a cost of $4,700.00, a fence around the Cold Storage loading dock which was needed to prevent vagrants and others from trespassing. Both parties were aware of a 1989 fire, also started by vagrants, a mere 150 feet from the loading dock. After that fire, Cold Storage hired North Kansas City Bureau of Investigation to patrol the area. The Commission also testified to patrolling the area periodically, but testimony was inconsistent as to whether it was the Commission's policy to remove vagrants or allow them to remain.

Testimony as to both parties' damages can be summarized as follows: (1) the Commission seeks compensation of $268,827.65 for damage to the bridge, but Cold Storage's expert opined the bridge could have been repaired for as little as $75,000.00; (2) the fence around the Cold Storage loading dock, valued at $4,700.00, was destroyed; (3) 1500 of Cold Storage's pallets and spreaders were destroyed at a cost of $6.00--$8.00 per pallet and $3.50--$4.00 per spreader.

Comparative fault instructions were given to the jury on the Commission's claim and Cold Storage's counterclaim. The Commission only appeals the comparative fault modification to its claim and to the counterclaim. The Commission does not appeal Cold Storage's right to bring or pursue its counterclaim. Cold Storage requested and received a comparative fault modification on the Commission's claim on the theory that the Commission was negligent in failing to control the vagrants or remove debris used to set the initial fire. Cold Storage's counterclaim for damages was also modified for comparative fault on the theory that Cold Storage was negligent in stacking flammable materials beneath the dock. In summary, instructions 5, 7, 8, 11, 12, and Verdict Forms A and B were modified and instructed the jury to "assess a percentage of fault" under the comparative fault theory. Ultimately, the jury assessed 50% fault to each side on Verdict Form A (the Commission's claim) and Verdict Form B (Cold Storage's counterclaim). The jury determined the Commission's total damages were $100,000.00 to be reduced by 50%. Cold Storage was assessed total damages of $4,700.00 to be reduced by 50% as well.

I

In their first point on appeal, the Commission argues that the trial court erred in submitting its claim and the Cold Storage counterclaim with comparative fault instructions because the Commission was entitled to sovereign immunity and could not be charged with negligence except as allowed by statute. ¹ Again, the Commission only appeals the comparative fault modification of each claim, not the propriety of Cold Storage's counterclaim.

The Commission is a department of the executive branch of Missouri government and is entitled to sovereign immunity. Hohimer v. Missouri Highway and Transp. Com'n, 659 S.W.2d 521, 521-22 (Mo.App.1983). The state's immunity from negligence liability is a general rule and exceptions to the rule are to be strictly construed. Bates v. State, 664 S.W.2d 563, 565 (Mo.App.1983). The two exceptions listed in the statute (motor vehicles and dangerous conditions) constitute "absolute" waivers of immunity.

The court notes that the Commission did not object to the addition of comparative fault modifications to the jury instructions even when asked by the judge how sovereign immunity would effect the comparative fault submission. Rule 70.03 requires specific objections to jury instructions be made prior to submission of the case to the jury. The Commission did not raise the issue of sovereign immunity precluding comparative fault until its Motion for a New Trial. Where specific objections to jury instructions were not made prior to submission of the case, the matter is not preserved for review except for plain error under Rule 84.13, which states that "plain error review affecting substantial rights may be considered by the court, though not raised or preserved, when the court finds that manifest injustice or a miscarriage of justice has resulted therefrom." French v. Missouri Highway and Transp. Com'n, 908 S.W.2d 146, 150 (Mo.App.1995). The point will be reviewed for plain error.

Although, the Commission did not distinguish in its point or argument the differing effect of comparative fault on the Commission's claim and the Cold Storage counterclaim, it is necessary for this court's analysis. The Commission maintains that the sovereign immunity statute prohibits the affirmative use of comparative fault by defendants when sued by the state. The Commission argues that comparative fault can only be used against the government where the defendant claims the government was negligent in a manner expressly excepted from the statute. Specifically, the Commission asserts the government's negligence must involve the operation of a motor vehicle or a dangerous condition on public property. Under this logic, the Commission argues neither its failure to control vagrants or remove flammable material from its property would constitute an exception to sovereign immunity, and could not reduce its recovery.

For its part, Cold Storage argues the sovereign immunity statute has no application to the situation at hand; i.e., where the state has sued a private entity. The statute expressly provides for "immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions." (Emphasis added). Cold Storage posits that its use of comparative fault is not a suit, does not assign liability against the public entity, and is merely used as a defense. In the case at bar, the Commission, a government entity, has brought suit against a private company for compensatory damages for an alleged negligent act of the private company. The company, in requesting a comparative fault instruction on the Commission's claim, seeks to reduce the amount of money damages it will owe to the Commission to the extent that the Commission shares fault. The question presented is whether sovereign immunity precludes the use of comparative fault theory against a governmental entity when the government has initiated suit against a private party. This court does not locate and counsel does not cite any case in this jurisdiction which controls the issue of defensive use of the state's fault or negligence to reduce damages in a suit brought by the state.

In Missouri v. Homesteaders Life Ass'n, 16 F.Supp. 69, 74 (W.D.Mo.1936), the federal district court, while not deciding the issue directly,...