Nagy v. Missouri Highway and Transp. Com'n

• Decision Date: 14 April 1992
• Docket Number: No. 60216,60216
• Citation: Nagy v. Missouri Highway and Transp. Com'n, 829 S.W.2d 648 (Mo. App. 1992)
• Parties: Dennis R. NAGY, Plaintiff/Respondent, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Defendant/Appellant.
• Court: Missouri Court of Appeals

Page 648

829 S.W.2d 648

Dennis R. NAGY, Plaintiff/Respondent, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Defendant/Appellant.

No. 60216.

Missouri Court of Appeals,

Eastern District,

Division Two.

April 14, 1992.

John D. Warner, Jr., St. Louis, for defendant/appellant.

Cordell P. Schulten, Clayton, for plaintiff/respondent.

GRIMM, Presiding Judge.

Plaintiff Dennis Nagy was struck and injured as he drove across the newly opened southbound lanes of Highway 141. The lanes had been constructed under the direction of the Missouri Highway and Transportation Commission (MHTC).

Plaintiff sued MHTC under the sovereign immunity waiver statute for dangerous condition of a government entity's property. He alleged MHTC's failure to warn the new lanes were opened created the dangerous condition. The jury agreed and assessed 25% fault to MHTC.

On appeal, MHTC contends (1) the trial court lacked subject matter jurisdiction; (2) plaintiff failed to present evidence of the three elements required by the sovereign immunity waiver statute; (3) it had no duty to warn of the lane openings; (4) matters relating to highway design are beyond the knowledge of lay jurors and no expert testimony was presented; (5) the verdict director (a) included extraneous material, (b) did not include all the elements necessary for recovery, and (c) erroneously implied a duty to warn of the lane openings; and (6) the verdict form based on MAI 37.07 erroneously states the law. We affirm.

I. Background

In July of 1984, MHTC entered into a contract with Bangert Brothers Construction Company for the construction of new lanes for Highway 141 at its intersection with Interstate 44. The contract set forth the terms, conditions, and specifications for the construction. Design drawings for each stage of the project also had been prepared at this time.

A mistake in the design plans for the traffic signal control configuration was discovered in June of 1987. A change order was then entered providing for temporary traffic control signals. These signals were placed on span wires between wooden poles at each corner of the intersection.

For a week or so prior to the opening of the new lanes, construction barrels were placed along the Interstate 44 exit ramp and across the unopened lanes of 141 to the far lanes where there was a stoplight. The far lanes handled both the north and south traffic for Highway 141.

On August 13, 1986, prior to 11:30 p.m., MHTC placed permanent striping on the highway. The construction barrels were removed from the southbound lanes but not from along the ramp. The temporary tape was picked up from either side of the exit ramp and across the new southbound lanes. A 24-inch bar was painted at the end of the eastbound exit ramp and across both lanes.

Temporary signals for the 44 East exit ramp, which had been there for at least the preceding week, were left in place. Two blinking signals for southbound Highway 141 traffic were moved over the new lanes. The stopping point for traffic travelling down the 44 East exit ramp was moved back to the western-most edge of the new southbound lanes. At 4:00 p.m. that day, Bangert Brothers and MHTC agreed to open the southbound lanes.

Plaintiff had travelled to and from work through the Highway 141 and Interstate 44 interchange regularly that summer. On August 13, 1986, at 11:30 p.m., he drove down the exit ramp as he had previously that week. The construction barrels still lined the ramp, and the red traffic control signals were in the same place as in prior weeks. Plaintiff continued across the new southbound 141 lanes toward the middle of the intersection which was the old stopping point for eastbound traffic. His car was struck by a vehicle heading south across the new lanes.

The distance from the new stopping point to the temporary signals was at least 124 feet. This distance exceeded that recommended by the Uniform Manual for Traffic Control Devices. The design standard required the use of a near-side signal for a distance exceeding 120 feet. In addition, span wires extended across the western edge of the southbound lanes, but no signals had been placed there at the time of the accident.

The jury assessed plaintiff's damages at $30,000. It assessed 25% fault to MHTC, 25% fault to Bangert Brothers, and 50% fault to plaintiff.

II. Jurisdiction

In its first point, MHTC asserts the trial court erred in failing to grant its motion for directed verdict because the trial court lacked subject matter jurisdiction over the claim. MHTC contends that Missouri Constitution article IV, § 29, "vests all questions concerning the design of highways solely with the Missouri Highway and Transportation Commission, thereby depriving [the trial court] of jurisdiction over the subject matter of this suit."

Article IV, § 29 reads:

The department of highways and transportation shall be in charge of a highways and transportation commission.... The highways and transportation commission shall have authority over all state transportation programs and facilities as provided by law, including, but not limited to, bridges, highways, aviation, railroads, mass transportation, ports, and waterborne commerce, and shall have authority to limit access to, from and across state highways where the public interest and safety may require.

Mo. Const. art. IV, § 29.

The state has specifically waived sovereign immunity for injuries caused by the dangerous condition of a public entity's property. § 537.600.1(2). ¹ MHTC asserts that article IV, § 29 "places a limit on the degree to which the statute waives sovereign immunity and places the design of highways, at issue in this case, within the discretion of MHTC."

In Brown v. Missouri Highway and Transp. Comm'n, 805 S.W.2d 274 (Mo.App.W.D.1991), plaintiff appealed the dismissal of his petition against MHTC which he brought under § 537.600.1(2). He alleged injuries resulting from a dangerous property condition due to a defective highway design. Id. at 275-76. MHTC contended that article IV, § 29 of the Missouri Constitution abrogates the applicability of § 537.600. The Western District said MHTC's argument was without merit. Id. at 278. "Plaintiff's allegations in his petition fall within those instances where sovereign immunity is waived as set out by § 537.600." Id.

MHTC's argument in this case is indistinguishable from its argument in Brown. Point denied.

III. Sovereign Immunity Exception

In its second point, MHTC asserts the trial court erred in failing to grant its motion for a directed verdict because plaintiff failed to present evidence of three of the elements required by § 537.600.1(2). MHTC asserts plaintiff failed to prove (1) the public entity owned the property, (2) the property was in a dangerous condition, and (3) the dangerous condition caused the injury.

In our review, we consider the evidence in a "light favorable to the plaintiff and take his evidence as true, giving him the benefit of all reasonable inferences arising from the evidence, rejecting all unfavorable inferences and disregarding the defendants' evidence unless it aids the plaintiff's case." Todd v. Watson, 501 S.W.2d 48, 50 (Mo.Div. 2 1973).

A. Public entity owned the property.

During trial, the court took judicial notice of § 226.010, et seq., RSMo 1986, which provides for the creation and operation of MHTC. Section 226.130, RSMo 1986, gives MHTC the power to "[p]repare plans, specifications and estimates for all state highways; [and] [l]et all contracts for the construction or improvement of state highways." (emphasis added).

In discussing MHTC's motion for a directed verdict, the trial judge said, "the mere fact the State Highway Commission was overseeing and supervising and entered into a contract with Bangert Brothers would show they had the authority. And I suppose the statutes would tell us they wouldn't be doing that unless it was a state highway."

We agree with the trial judge. Plaintiff's exhibit 23, the contract between MHTC and Bangert Brothers, was entered into evidence. The contract was for the construction of the intersection at which the plaintiff was injured. This evidence is sufficient for a jury to find that the State of Missouri owned the property and that MHTC, through its authority vested by the State, owned the property within the meaning of § 537.600.1(2).

MHTC relies on Claspill v. State of Missouri, Div. of Economic Dev., 809 S.W.2d 87 (Mo.App.W.D.1991) to support its contention that the ownership element is not met. That case involved an allegedly defective road at a railroad crossing. "The trial court dismissed the petition because the land upon which the traffic control devices were located was not owned by the State of Missouri but by other public entities." Id. at 88. The appellant in Claspill argued that "it is not necessary that the dangerous condition of land created by a public entity's employees be owned or occupied by the same public entity as that for which the negligent employees are employed ... [but rather] may be occupied by any public entity." Id. The western district held that

the legislature did not so broadly expand the waiver of sovereign immunity so as to make all public entities liable for conditions on other public entities' lands over which they have some control. It surely cannot be the intent of the legislature to make the state liable for conditions on property which is not owned by the state.

Id. at 89.

Claspill is inapplicable. It involved a suit against a public entity which did not own the property which was the subject of the appellant's allegations. Here, the evidence was sufficient to show that MHTC owned the highway under the meaning of the statute.

B. Dangerous Condition

MHTC also asserts that "as a matter of law, Plaintiff failed to prove a 'dangerous condition' of the property." It states that the failure to warn that a road is not functioning properly does not constitute a dangerous condition. Rather, it...