Schneider by Schneider v. State, Div. of Water Safety, 69537

• Decision Date: 19 April 1988
• Docket Number: No. 69537,69537
• Citation: 748 S.W.2d 677
• Parties: Kendra SCHNEIDER, By n/f Linda K. SCHNEIDER, Plaintiff-Appellant, v. STATE of Missouri, DIVISION OF WATER SAFETY, A Division of the Department of Public Safety, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 677

748 S.W.2d 677

Kendra SCHNEIDER, By n/f Linda K. SCHNEIDER, Plaintiff-Appellant, v. STATE of Missouri, DIVISION OF WATER SAFETY, A Division of the Department of Public Safety, Defendant-Respondent.

No. 69537.

Supreme Court of Missouri En Banc.

April 19, 1988.

James E. Spain, John R. Hopkins, Jr., Poplar Bluff, for plaintiff-appellant.

William L. Webster, Atty. Gen., Bruce Farmer, Asst. Atty. Gen., Jefferson City, for defendant-respondent.

WELLIVER, Judge.

Appellant, Kendra Schneider appeals from the Circuit Court of Wayne County's order sustaining respondent State of Missouri's Motion to Dismiss. The Court of Appeals, Southern District, affirmed the circuit court's order. We transferred this case by authority of Mo. Const. art. V. § 10. We reverse and remand the cause to the circuit court for further proceedings.

Appellant Kendra Schneider, a minor, through her mother and next friend Linda K. Schneider, brought this action against respondent, State of Missouri, for the alleged wrongful death of her father James L. Schneider, who died on May 16, 1986 by drowning. The petition alleged: Harold E. Crafton, Jr., was a water safety officer employed by the Division of Water Safety; Crafton, at the time of the fatal incident, was operating a motor boat for the benefit of, and within the scope of his employment by the state. The decedent was riding as a passenger in the motor boat. The accident occurred on the Black River Arm of Clearwater Lake in Reynolds County. It was alleged that Crafton operated the motor boat in such a negligent manner as to cause himself and decedent to be thrown from the boat and that the negligence of Crafton in the operation of the boat caused decedent's death. The petition also contained assignments of specific negligence on the part of Crafton and pleaded that by reason of decedent's death, appellant was deprived of his support, services and society.

Respondent filed a motion to dismiss on the ground that the action was barred by sovereign immunity. Section 537.600.1(1), RSMo 1986, the sovereign immunity statute, provides in pertinent part:

Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:

(1) Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment....

Respondent argues that statutes waiving sovereign immunity should be strictly construed and that a motor boat is not a "motor vehicle or motorized vehicle" based on its analysis of other Missouri statutes that define those terms or similar terms. Respondent claims "motor vehicle" means automobiles or vehicles with wheels, and "motorized vehicles" includes motorized bicycles, tractors, construction equipment or all-terrain vehicles. See e.g.: §§ 300.010(14), (15), (16), (40), RSMo 1986; 301.010(48), RSMo Supp.1987; 301.010(1), (16), (25), (36), RSMo 1986; 301.250-.257, RSMo 1986; 302.010(9), RSMo 1986; 303.020(5), RSMo 1986; 306.010, RSMo 1986; 307.020(8), RSMo 1986; 307.180(1), RSMo 1986. Respondent concludes that the word "vehicle" means a device with wheels.

The...