Payne v. City of St. Joseph
| Decision Date | 23 March 2004 |
| Docket Number | No. WD 61769.,No. WD 61793.,WD 61769.,WD 61793. |
| Citation | 135 S.W.3d 444 |
| Parties | Dennis PAYNE, Appellant-Respondent, v. CITY OF ST. JOSEPH, Missouri, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Mark E. Parrish, Lee's Summit, Richard L. Rollings, Jr., Ozark, MO, for appellant-respondent.
R. Todd Ehlert and Sharon Kennedy, St. Joseph, MO, for respondent-appellant.
Before EDWIN H. SMITH, P.J., and HOLLIGER and HARDWICK, JJ.
Dennis Payne appeals1 from the judgment notwithstanding the verdict (JNOV) of the Circuit Court of Buchanan County for the respondent, City of St. Joseph, Missouri, on his petition in tort for damages for personal injuries he suffered from a fall at a landfill operated by the respondent. In his petition, the appellant alleged that the respondent was negligent in failing to erect a barricade around the transfer station at the landfill to prevent his fall, and that the lack of a barricade constituted a dangerous condition of the property such that the respondent was not entitled to sovereign immunity, in accordance with § 537.600.1(2).2 The jury returned a verdict finding the appellant 75% at fault and the respondent 25% at fault, and assessing total damages of $200,000.
The appellant raises two points on appeal. In both points, he claims that the trial court erred in granting the respondent JNOV on the basis that it was entitled to sovereign immunity. In Point I, he claims that the respondent was not entitled to sovereign immunity on his claim because the lack of a barricade around the transfer station dumpsters, into which he fell, constituted a dangerous condition of the property, waiving the respondent's sovereign immunity, as provided in § 537.600.1(2). In Point II, he claims that the respondent was not entitled to sovereign immunity because the operation of the landfill by the respondent was a proprietary, not a governmental function, which was not protected by sovereign immunity.
Because we are to affirm the trial court's grant of a JNOV on any basis alleged in the motion that is supported by the record, Faust v. Ryder Commercial Leasing & Services, 954 S.W.2d 383, 388 (Mo.App.1997), and because we find that even if the respondent was not entitled to sovereign immunity, the appellant failed to make a submissible case on his claim by failing to present evidence establishing an essential proof element of his claim, causation, we affirm.
On January 28, 1999, the appellant, who was employed by Boston House and Window, located in St. Joseph, Missouri, was dropping off, in the course of his employment, a load of debris at the City of St. Joseph Landfill, a facility that was owned and operated by the respondent. When members of the public use the landfill, they dispose of their trash at a "transfer station," which is designed for people to back their trucks or other vehicles onto a concrete pad, and then, while standing either on the pad or in the back of the truck, to manually throw their trash into dumpsters located below the pad.
Upon arriving at the transfer station and backing his truck to the edge of the pad on January 28, 1999, the appellant began throwing trash into the dumpsters from the cargo area of his truck. While attempting to throw a carpet cleaning machine out of the back of the truck, the appellant lost his balance and fell at least ten feet into the dumpsters below, breaking his left leg. As a result, he underwent surgery to repair his knee, as well as extensive rehabilitation. At the time of his fall, there was no barricade or handrail around the transfer station.
On March 1, 2000, the appellant filed a petition for damages in the Circuit Court of Buchanan County, naming the respondent, the mayor, and the director of public works, as defendants. The petition alleged that the lack of a barricade around the transfer station at the landfill was a dangerous condition, and that the defendants were negligent in that they had actual or constructive notice of the dangerous condition and failed to remedy or warn of the unsafe condition. On March 22, 2000, the defendants filed an answer to the appellant's petition. On November 14, 2001, the appellant voluntarily dismissed his claims against the mayor and the director of public works, leaving the respondent as the sole defendant.
The case was tried to a jury on May 13-14, 2002. William Blacketer, the superintendent of solid waste and recycling for the City of St. Joseph, was called as a witness by the appellant. He testified that there were two ways in which people using the transfer station unloaded their trucks. Some stood on the ground and reached into the truck for the trash to be dumped, while others stood inside the truck itself, while throwing trash into the dumpsters below. He also was allowed to testify, over the respondent's objection, that prior to the appellant's fall, the respondent had made plans to install a handrail at the transfer station and that the handrail was installed after the appellant's accident. He stated that the handrail was built for two purposes: (1) to "minimize the chance of somebody standing on the ground falling into the dumpster," and, (2) to give users of the transfer station "something to back up to to judge how far the back of their vehicle is." The parties stipulated that the top of the handrail was 4'2" above the concrete pad of the transfer station.
On direct examination, the appellant testified concerning the lack of a barricade or handrail around the transfer station:
Q. And what in the way of any sort of, of device or post was there to provide any sort of handhold?
A. Nothing.
Q. Would it have made a difference?
A. Well, I think if a person, if a person had a chance to grasp at something, he might, he might be able to save some of the fall. I mean, you know, he, he might bruise hisself up a little bit, but maybe he might not break a leg or a neck or a back.
On cross-examination, when questioned about the lack of a barrier or barricade, the appellant testified:
Q. And you are suggesting to this jury that there should have been some sort of barricade in place to keep you from falling in, is that correct?
A. Well, I don't think that's initially what I meant, you know, on that particular thing, but—
Q. Tell me what you did mean.
A. Well, I've—just, uh, what, what I've always, what I've always thought, you know, that if, you know—if there might've been something there, you know, it would save somebody a little bit of fall or whatever, then it might've, it might've prevented something.
Q. What kind of thing? What are you, what are you, what are you—
A. I have no idea.
Q. I don't either. Can you tell the jury anything?
A. I think what they came up with [the handrail installed by the respondent after the accident] is a little bit ridiculous, but, I mean, you know—
Q. You think it's ridiculous?
A. That—what, what they, what they, what they have designed since then I don't think would've—I don't, you know I just don't—I don't know if that would've helped or not. So therefore I'm, I'm not trying insinuate anything.
Q. Okay. You would agree that when you were five to five and a half feet above ground level in the box of your truck that that would've put you above the, above the 4.16 feet that that barricade extended? Would you agree with that?
A. Yes, sir.
Q. So that even if that barricade had been there that day, it would not have prevented you from falling, because you were above it, correct?
A. There again, maybe, you know, I might've had the chance to reach out and grab the lower part of it or something, who knows.
Q. Haven't you said, though, before that you didn't have time to grab onto anything because it happened so fast?
A. But, but if, if the—if the possibility is there, you know, things happen.
Q. Things happen. Isn't it true that previously you stated that you did not have time to grab onto anything because it happened so fast?
A. There was nothing in the truck to grab onto. There wasn't nothing, period, you know, except maybe the concrete curb.
Q. And you're, and you're suggesting to this jury that if something had been there that you might have been able to grab onto it and not fall in?
A. Pure speculation. I don't know.
Q. Exactly. Now, if something had been in place, are you suggesting that it would've had to have been tall enough to prevent you from falling out of the box of your truck that was five to five and a half feet tall?
A. If something would've been higher than that? Is that what you're—
Q. Are you suggesting that a barricade or railing or fall prevention device should have been high enough to keep you from falling out of the back of your truck?
A. No. There, there—you know, I'm not saying that either, but, you know, that's, that's neither here nor there, as far as I'm concerned, because I, you know—I just don't know. I don't know one way or the other. I'm not a, I'm not a architect. I don't know how to design things like that.
Q. Okay, if we did have something in place that was tall enough to prevent you from falling out of the back of the truck, that would've made it very difficult for anybody to throw their debris over into the dumpsters, correct?
A. Yes, it would.
Q. You put an eight-foot, ten-foot tall wall around those dumpsters, it's not going to be useful for people to throw their trash into, is it?
A. No, it's not.
The testimony of Blacketer and the appellant was the only evidence which the appellant presented at trial relating to the question of whether a barricade would have prevented his injuries.
The jury returned a verdict finding the appellant 75% at fault and the respondent 25% at fault, and assessing the appellant's damages at $200,000. On June 20, 2002, the respondent filed a motion for a JNOV, alleging, inter alia, that a failure to erect a...
To continue reading
Request your trial
-
Scott v. Blue Springs Ford Sales, Inc.
...case, the plaintiff must present substantial evidence establishing each and every element of his claim. Payne v. City of St. Joseph, 135 S.W.3d 444, 450 (Mo. App.2004). Substantial evidence is competent evidence from which the trier of fact can reasonably decide the case. Id. Under the MMWA......
-
Wagner v. Bondex Int'l, Inc.
...causation in fact is a question for the jury, “[p]roximate cause is a question of law for the trial court.” Payne v. City of St. Joseph, 135 S.W.3d 444, 451 (Mo.App. W.D.2004). [T]he practical test of proximate cause is whether the negligence is an efficient cause which sets in motion the c......
-
Poage v. Crane Co.
...the jury, ‘[p]roximate cause is a question of law for the trial court.’ " Wagner , 368 S.W.3d at 354 (quoting Payne v. City of St. Joseph , 135 S.W.3d 444, 451 (Mo. App. W.D. 2004) (emphasis added)). Accordingly, whether there was "sufficient evidence from which a reasonable juror could con......
-
Townsend v. Eastern Chemical Waste Systems
...must present substantial evidence from which the jury can reasonably find each and every element of his claim. Payne v. City of St. Joseph, 135 S.W.3d 444, 450 (Mo.App.2004). In determining whether the plaintiff has made a submissible case, we view the evidence in a light most favorable to ......