Phelps v. City of Kan. City

• Decision Date: 26 June 2012
• Docket Number: No. WD 74287.,WD 74287.
• Citation: 371 S.W.3d 909
• Parties: Angela PHELPS, et al., Appellants, v. CITY OF KANSAS CITY, Missouri, Respondent.
• Court: Missouri Court of Appeals

371 S.W.3d 909

Angela PHELPS, et al., Appellants,
v.
CITY OF KANSAS CITY, Missouri, Respondent.

No. WD 74287.

Missouri Court of Appeals,
Western District.

May 29, 2012.
Motion for Rehearing and/or Transfer to
Supreme Court Denied June 26, 2012.

Application for Transfer Denied Aug. 14, 2012.

[371 S.W.3d 911]

Charles R. Dickman, Kansas City, MO, for appellants.

Douglas McMillan, Kansas City, MO, for respondent.

Before Division Three: THOMAS H. NEWTON, Presiding Judge, JAMES M. SMART, JR., Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.

Angela Phelps and Lynn Dill appeal the judgment of the circuit court that granted the City of Kansas City, Missouri's motion to dismiss the cause of action on the pleadings. For the reasons explained below, we reverse and remand.

Factual Background

Christopher Dill, ten years old, tragically died while walking in a field adjacent to a street near his school on a rainy day on May 30, 2007. He fell into a ditch filled with running water and was sucked into a drainage pipe, where he drowned despite the efforts of volunteers and emergency responders. His parents, Angela Phelps and Lynn Dill,¹ brought suit against the City of Kansas City (the “City”) and the North Kansas City School District (the “District”) on August 8, 2007 in Clay County Circuit Court, alleging negligence in the maintenance or operation of the drainage system and that the condition of the property constituted a dangerous condition.

The City moved to dismiss for failure to state a claim under Rule 55.27 ², contending that Phelps had failed to plead the necessary elements to support waiver of the City's sovereign immunity. Specifically, the motion stated that the drainage ditch was owned by the District and not the City, and claimed that ownership of the property is essential to implicate any waiver of sovereign immunity. The trial court granted the City's motion to dismiss on February 8, 2008.

Phelps appealed and this Court reversed and remanded the trial court's judgment on the basis that the City was not entitled to sovereign immunity. Phelps v. City of Kansas City, 272 S.W.3d 918 (Mo.App. W.D.2009).

On remand, Phelps filed their Third Amended Petition, which, inter alia, did not name the District as a defendant in light of the fact that Phelps and the District had entered into a settlement. Subsequently,

[371 S.W.3d 912]

on September 23, 2010, the City once again filed a motion to dismiss Phelps' lawsuit on the basis of sovereign immunity. On July 27, 2011, the trial court again granted the City's motion to dismiss under Rule 55.27.

Once again, Phelps appeals the judgment of the trial court; once again, we reverse and remand.

Further facts regarding this lawsuit are outlined as necessary in the analysis section below.

Standard of Review

“We review de novo the grant of a motion to dismiss, examining the pleadings to determine whether they invoke principles of substantive law.” Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo.App. W.D.2004). “The pleadings are liberally construed and all alleged facts are accepted as true and construed in a light most favorable to the pleader.” Id. (internal quotation marks omitted). “In making our determination, we may not address the merits of the case or consider evidence outside the pleadings.” Id. (internal quotation marks omitted). “If the petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim.” Adams v. One Park Place Investors, LLC, 315 S.W.3d 742, 753 (Mo.App. W.D.2010).

Analysis

On appeal, Phelps argues in each of her three Points Relied On that the “trial court erred in granting the City's Motion to Dismiss for failure to state a claim upon which relief may be granted on sovereign immunity grounds.” ³

We begin our analysis with Phelps' second Point on appeal. Here, the trial court dismissed Phelps' Third Amended Petition on the basis that plaintiffs' claims “are barred by the doctrine of Sovereign Immunity, and the Court further finds there has been no waiver of that doctrine, pursuant to Section 537.610.” ⁴

“Under the doctrine of sovereign immunity, public entities are immune from suit for their negligent acts unless the General Assembly has expressly waived such immunity.” Kraus v. Hy–Vee, Inc., 147 S.W.3d 907, 914 (Mo.App. W.D.2004) (citing Section 537.600.1). “ ‘A municipality has sovereign immunity from actions at common law tort in all but four cases: (1) where a plaintiff's injury arises from a public employee's negligent operation of a motor vehicle in the course of his employment (section 537.600.1(1)); (2) where the injury is caused by the dangerous condition of the municipality's property (section 537.600.1(2)); (3) where the injury is caused by the municipality performing a proprietary function as opposed to a governmental function; and (4) to the extent the municipality has procured insurance, thereby waiving sovereign immunity up to but not beyond the policy limit and only for acts covered by the policy (section 537.610).’ ” Brooks v. City of Sugar Creek, 340 S.W.3d 201, 206 (Mo.App. W.D.2011) (quoting Bennartz v. City of Columbia, 300 S.W.3d 251, 259 (Mo.App. W.D.2009)).

[371 S.W.3d 913]

On appeal, Phelps contends that two such exceptions apply herein, and that therefore the City is not immune from the instant lawsuit. “A party pleading an exception to a general rule of non-liability must plead the facts giving rise to the exception.” Thomas v. City of Kansas City, 92 S.W.3d 92, 101 (Mo.App. W.D.2002). “Accordingly, to state a cause of action sufficient to survive a motion to dismiss on the pleadings, the petition, when viewed in its most favorable light, must plead facts, which if taken as true, establish an exception to the rule of sovereign immunity.” Id.

Phelps asserts that the “trial court erred in granting the City's Motion to Dismiss for failure to state a claim upon which relief may be granted on sovereign immunity grounds because under well-established Missouri common law, sovereign immunity shall not shield the municipality in the performance of a proprietary act in that (1) the City's operation and maintenance of a fee-for-use storm water drainage system benefits the City in its corporate capacity; and (2) Christopher drowned as a result of the design and maintenance of the City's fee-for-use storm water drainage system.”

The City does not dispute that, pursuant to Missouri law, the City does not enjoy sovereign immunity if its conduct in question constituted a “proprietary function” rather than a “governmental function.” “A municipality has sovereign immunity from actions at common law tort ‘for those actions they undertake as a part of the municipality's governmental functions-actions benefiting the general public.’ ” Brooks v. City of Sugar Creek, 340 S.W.3d 201, 205 (Mo.App. W.D.2011) (quoting Kunzie v. City of Olivette, 184 S.W.3d 570, 574 (Mo. banc 2006)). “However, ‘[m]unicipalities have no immunity for torts while performing proprietary functions-actions benefiting or profiting the municipality in its corporate capacity.’ ” Id.

Here, Phelps, in her Third Amended Petition, pleads facts that “the City's negligent operation of its storm water drainage system” caused the child to drown, and that “the City operated the storm water drainage system for a fee and as a proprietary function.” Id. at 3; 6. Missouri law is clear that “by pleading that the injuries were caused by city-constructed drainage systems, [plaintiff] pleaded facts showing an exception to sovereign immunity because the operation of municipal drainage systems is, as a matter of law, a proprietary function.” Thomas v. City of Kansas City, 92 S.W.3d 92, 101 (Mo.App. W.D.2002); see also St. Joseph Light & Power Co. v. Kaw Valley Tunneling, Inc., 589 S.W.2d 260, 266–67 (Mo. banc 1979) (concluding that tort liability applies to municipalities “in the case of construction of storm sewers” and in “sanitary sewers” because “this court has never recognized a distinction between construction of the two types of sewers” ... “The type of activity is the same in both cases, and the same rule should apply .... den [ying] immunity to municipal corporations for acts performed in the construction of sewers on the basis that in so acting they are performing a proprietary rather than a governmental function.”).

Here, Phelps' Third Amended Petition alleged in detail how the City “operates the storm water drainage system, which includes the Ditch, Inlet Pipe and Outlet Pipes, for a fee as a proprietary function.” Id. at 7. Phelps also alleged that on the day in question that the child was walking down the City's street (NE 52nd Street), and that the child was then, due to the street's improper design required to walk onto the Maplewood Elementary School's field “[b]ecause NE 52nd Street has no sidewalk, shoulder, curb, or any other pedestrian

[371 S.W.3d 914]

feature on either side of the street and has sharply sloping edges.” Id. at 2. The Petition further alleged the following:

While crossing the field, Christopher slipped into a flooded storm drainage ditch ... At the time Christopher was crossing the School's field, the Ditch and the area surrounding the Inlet Pipe were flooded with storm water and runoff and after slipping into the Ditch, Christopher's leg was sucked into the Inlet Pipe. Because of the water current and resulting suction around the Inlet Pipe, as well as the single bar located across the Inlet Pipe and despite the efforts of several people, Christopher's body became submerged in the water. After several minutes of fighting for his life, Christopher drowned.

Third Amended Petition, pg. 2–3.

The Petition went on to allege in detail the Kansas City Municipal Ordinances that required the City to plan and construct storm sewers, and further how the ordinances provided that the “owner of each parcel of land within the city shall be responsible for payment of the stormwater fee.” Id. at 7–8 (quoting Kansas City...