Richardson v. City of St. Louis

• Decision Date: 22 September 2009
• Docket Number: No. ED 91995.,ED 91995.
• Citation: 293 S.W.3d 133
• Parties: Lee RICHARDSON, as Wife of Stanford Richardson, Sr., Deceased, Appellant, v. CITY OF ST. LOUIS and Bryan Burrow, Respondents.
• Court: Missouri Court of Appeals

293 S.W.3d 133

Lee RICHARDSON, as Wife of Stanford Richardson, Sr., Deceased, Appellant, v. CITY OF ST. LOUIS and Bryan Burrow, Respondents.

No. ED 91995.

Missouri Court of Appeals, Eastern District, Division One.

September 22, 2009.

Mark T. McCloskey, Clayton, MO, for appellant.

Patricia A. Hageman, St. Louis, MO, for respondents.

PATRICIA L. COHEN, Judge.

Introduction

Lee Richardson ("Plaintiff"), widow of the decedent, Stanford Richardson, Sr., appeals from the judgment entered by the Circuit Court of the City of St. Louis, dismissing her wrongful death and negligence claims against the City of St. Louis and City-employed emergency medical technician ("EMT"),¹ Bryan Burrow (collectively "Defendants"). Granting Defendants' motion to dismiss, the trial court concluded that the City and Mr. Burrow were entitled to sovereign immunity and official immunity, respectively. Plaintiff contends that the trial court erred because she alleged sufficient facts in her petition to establish that Defendants were not entitled to immunity. We affirm in part, reverse in part, and remand.

Background

Plaintiff brought an action against Defendants following the sudden death of her husband, Stanford Richardson, Sr. In her petition, Plaintiff alleged that when her husband went into respiratory distress, Mr. Burrow, the responding "individual employed at The St. Louis Fire Department" who "provided emergency medical services to the consuming public", placed an endotracheal tube into her husband's esophagus instead of his trachea, causing him to suffer an "anoxic brain injury resulting in his death." She also alleged that Mr. Richardson came under the care of the Bureau of Emergency Medical Services, which is "a subdivision of The St. Louis Fire Department, operated by the City of St. Louis and was engaged in the commercial enterprise of offering services to the general public for a fee[.]"

In Count I, Plaintiff sought damages against the City for negligently training and supervising its employees and for the negligent acts and omissions of its employees in treating her husband. In Count II, she sought damages against Mr. Burrow personally for his negligence in failing to exercise the degree of skill and learning ordinarily exercised by members of his profession when placing the endotracheal tube in her husband's esophagus and failing to subsequently recognize his error. Additionally, Plaintiff sought punitive damages against Mr. Burrow, alleging that his actions were made "willfully, wantonly or in conscious disregard" of her rights.

In response, Defendants jointly moved to dismiss on the grounds of sovereign immunity, official immunity, and the public duty doctrine. The trial court dismissed Plaintiff's petition with prejudice after concluding that the City was entitled to sovereign immunity and Mr. Burrow was protected by official immunity, but not the public duty doctrine. Plaintiff appeals.

Standard of Review

We review a trial court's grant of a motion to dismiss de novo. Crocker v. Crocker, 261 S.W.3d 724, 726 (Mo.App. W.D.2008). "In reviewing the dismissal of a petition, the sole issue to be decided is whether, after allowing the pleading its broadest intendment, treating all facts alleged as true and construing all allegations favorably to the plaintiff, the plaintiff is entitled to relief." Doss v. Doss, 822 S.W.2d 427, 428 (Mo. banc 1992). "In making our determination, we may not assess the merits of the case or consider evidence outside the pleadings." Thomas v. City of Kansas City, 92 S.W.3d 92, 96 (Mo.App. W.D.2002) (quoting Brennan By and Through Brennan v. Curators of the Univ. of Mo., 942 S.W.2d 432, 434 (Mo. App. W.D.1997)).

Discussion

Plaintiff claims that neither sovereign immunity nor official immunity is a proper basis to grant Defendants' motion to dismiss. We address the applicability of these doctrines of immunity separately.²

A. Sovereign Immunity — the City's Liability

Under Mo.Rev.Stat. § 537.600, public entities enjoy sovereign immunity as it existed at common law prior to September 12, 1977, unless immunity is waived, abrogated, or modified by statute. Maune ex rel. Maune v. City of Rolla, 203 S.W.3d 802, 804 (Mo.App. S.D.2006).³ Municipal corporations, such as the City, are "public entities" entitled to sovereign immunity within the meaning of Section 537.600. Gregg v. City of Kansas City, 272 S.W.3d 353, 358 (Mo.App. W.D.2008). However, unlike state entities which receive full sovereign immunity, municipalities are entitled to sovereign immunity only when engaged in "governmental" functions, but not "proprietary" functions. Southers v. City of Farmington, 263 S.W.3d 603, 609 (Mo. banc 2008).

As an initial matter, Plaintiff contends that dismissal was inappropriate because sovereign immunity is an affirmative defense that must be pled and proved by Defendants. To the contrary, Missouri courts have routinely held that sovereign immunity is not an affirmative defense and that the plaintiff bears the burden of pleading with specificity facts giving rise to an exception to sovereign immunity when suing a public entity. Burke v. City of St. Louis, 349 S.W.2d 930, 933 (Mo. 1961); Townsend v. E. Chem. Waste Sys., 234 S.W.3d 452, 470 (Mo.App. W.D.2007); Maune, 203 S.W.3d at 804.⁴ "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." Thomas, 92 S.W.3d at 101.

Alternatively, Plaintiff claims that her petition established an exception to sovereign immunity because she pled sufficient facts demonstrating that the City's operation of its Bureau of Emergency Medical Services was a "proprietary" function. Proprietary functions are those "performed for the special benefit or profit of the municipality acting as a corporate entity" while governmental functions are those "performed for the common good of all". Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996), abrogated on other grounds by Southers, 263 S.W.3d 603. "In examining the question of whether an activity is governmental or proprietary," we look to the "generic nature of the activity" and "the motives of the legislature that conferred the power upon all municipalities." State ex rel. Bd. of Tr's. of City of N. Kansas City Mem'l Hosp. v. Russell, 843 S.W.2d 353, 359 (Mo. banc 1992).

Whether the operation of a city-owned emergency medical service is governmental or proprietary is a matter of first impression in Missouri.⁵ Missouri courts, however, have long held that "preserving public health" is one of the "duties within the province of a municipality as a governmental agency and upon which the municipality acts without liability." Parish v. Novus Equities Co., 231 S.W.3d 236, 242 (Mo.App. E.D.2007) (citing Donahew v. City of Kansas City, 136 Mo. 657, 38 S.W. 571, 572 (Mo.1897)). Thus, it is well-established that the operation of a city hospital is entitled to sovereign immunity as it is a governmental function that serves to safeguard and preserve public health. Schroeder v. City of St. Louis, 360 Mo. 293, 228 S.W.2d 677, 678-79 (1950); see also Russell, 843 S.W.2d at 359. Likewise, "[t]he creation of a municipal fire department is for the benefit of the general public, and therefore, any act or omission of the municipality associated with the performance of this service is a governmental function for which the municipality ordinarily may not be held liable." Theodoro v. City of Herculaneum, 879 S.W.2d 755, 761 (Mo. App. E.D.1994).

In her petition, Plaintiff alleges that the Bureau of Emergency Medical Services is a subdivision of the City's fire department and that it provides emergency medical services for the benefit of the "consuming public." There is no question that a city's operation of either a fire department or other entity providing medical services, namely hospitals, is a governmental function. Accordingly, whether considered a part of the services offered by the City's fire department or as a provider of medical services to the "consuming public", the City's operation of the Bureau of Emergency Medical Services is clearly a governmental function.⁶

Nevertheless, Plaintiff contends that because she alleged in her petition that the City offered emergency medical services "for a fee", she sufficiently pled facts establishing that the City was performing a proprietary function. In support, she relies on Schulz v. City of Brentwood, where the court reversed the dismissal of a plaintiff's action against a municipality because the petition alleged that the injury occurred while the plaintiff was attending a city-owned preschool and day-care center "for and in consideration of a fee paid." 725 S.W.2d 157, 160 (Mo.App. E.D.1987).

The fact that a municipality charges a fee for its services is not determinative of whether it is performing a proprietary or governmental function. See Russell, 843 S.W.2d at 359; State ex rel. New Liberty Hosp. Dist. v. Pratt, 687 S.W.2d 184, 186 (Mo. banc 1985). Even if a municipality charges a fee, the determinative issue is whether the activity is governmental or proprietary in nature. Russell, 843 S.W.2d at 359. As explained above, the City's Bureau of Emergency Medical Services provides both public healthcare services and emergency response services through the fire department. Where a city is acting within these well-established governmental functions, the governmental nature of the activity is not transformed merely because a city charges a fee. See id. (holding that, regarding a city hospital, "[e]ven if the sole motivation of the city government were profit, the hospital would still be governmental."). Additionally, we find persuasive the decisions from several other jurisdictions that have held that a city-owned ambulance service, providing a "general public benefit" and serving the...