Schutte v. Sitton

• Decision Date: 14 April 1987
• Docket Number: No. 51688,51688
• Citation: 729 S.W.2d 208
• Parties: Betty SCHUTTE, et al., Plaintiffs-Appellants, v. Robert SITTON and City of Hermann, Missouri, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 208

729 S.W.2d 208

Betty SCHUTTE, et al., Plaintiffs-Appellants, v. Robert SITTON and City of Hermann, Missouri, Defendants-Respondents.

No. 51688.

Missouri Court of Appeals,

Eastern District,

Division One.

April 14, 1987.

Transfer Denied May 12, 1987.

Thomas C. Hullverson, St. Louis, Gael Davis Wood, Washington, for plaintiffs-appellants.

Sam P. Rynearson, St. Louis, for defendants-respondents.

KELLY, Judge.

Betty Schutte and Kim Ward appeal from the judgment of the trial court dismissing appellants' wrongful death action against respondents City of Hermann and Robert Sitton, a police officer for the City of Hermann, for failure to state a claim upon which relief can be granted. Rule 55.27(a)(6). The judgment of the trial court is affirmed.

In determining whether plaintiffs have stated a cause of action we assume every pleaded fact as true and take every favorable inference which may be reasonably drawn from the facts pleaded. Buller v. Pulitzer Pub. Co., 684 S.W.2d 473, 476 (Mo.App.1984). Appellants' petition alleges the following facts.

At approximately 9:00 p.m. on November 18, 1982, appellant Betty Schutte and her husband, Eugene A. Schutte, were driving their vehicle southbound on Missouri State Highway 19 in Montgomery County, Missouri. At the same time and place, James E. Hall, while in an intoxicated condition, drove his vehicle across the center line of Highway 19 and negligently struck their automobile. The accident resulted in Eugene Schutte's death.

Shortly before the accident, James E. Hall had been present at Imo's Pizza in Hermann, Missouri. Respondent Officer Sitton, a police officer employed by the City of Hermann, was summoned to Imo's Pizza because of a disturbance caused by Hall. Sitton conversed with Hall and permitted him to leave in his own vehicle knowing or having reason to know that he was intoxicated and unable to drive.

Sitton's failure to arrest Hall or prevent Hall from driving while intoxicated was alleged to be the proximate cause of the injury and death of Eugene Schutte. Appellants contend that the City of Hermann is liable under the doctrine of respondeat superior, because Sitton was acting within the scope and course of his employment by the City of Hermann when he failed to arrest or detain Hall; therefore, the City is liable for the negligence of its employee.

Respondents, in their individual motions to dismiss the wrongful death action subsequently filed against them by appellants, asserted different grounds. Respondent City alleged that the doctrine of sovereign immunity precluded its liability. Respondent Sitton's motion sought refuge from liability under the blanket of official immunity. Respondents' recourse to these common law shields were properly upheld.

We first address plaintiffs' claim that respondent Sitton was negligent in failing to prevent Hall from operating his automobile while in an intoxicated condition. In order for plaintiffs to recover under Missouri law for negligence, they must show a duty to them was breached. Parker v. Sherman, 456 S.W.2d 577, 580 (Mo.1970). See also Nelson v. Freeman, 537 F.Supp. 602, 607 (8th Cir.1983) aff'd, Nelson v. Missouri Div. of Family Serv., 706 F.2d 276 (8th Cir.1983). In failing to arrest Hall or prevent him from driving while allegedly intoxicated, Sitton was performing his duties as a police officer for the City of Hermann. Missouri cases have consistently held that under the doctrine of official immunity, public officers are not liable for injuries or damages sustained by particular individuals resulting from breach by the officers of a duty owed to the general public. Lawhon v. City of Smithville, 715 S.W.2d 300, 302 (Mo.App.1986); Cox v. Department of Natural Resources, 699 S.W.2d 443, 449 (Mo.App.1985); Jamierson v. Dale, 670 S.W.2d 195, 196 (Mo.App.1984).

Under the official immunity test, one must determine whether a particular act is discretionary, i.e., requiring the official to exercise his judgment as part of a decision-making process, or ministerial, i.e., required to be performed without the exercise of judgment. An official is immune from liability for torts arising out of a discretionary act but he is subject to liability for negligently performing ministerial acts.

Oberkramer v. City of Ellisville, 650 S.W.2d 286, 295 (Mo.App.1983).

Thus, the issue in the present case, then, is whether the conduct of Sitton sought to be redressed by plaintiffs' petition was so cloaked with official discretion that plaintiffs may not recover as a matter of law.

Respondents rely on Berger v. City of University City, 676 S.W.2d 39 (Mo.App.1984) and Christine H. v. Derby Liquor Store, 703 S.W.2d 87 (Mo.App.1985), to establish that plaintiffs' claim against Sitton is based upon his alleged failure to enforce the law, duties which a municipality and its employees owe to the general public but a breach of which is not actionable by a citizen.

In Berger v. City of University City, supra, 676 S.W.2d at 39, the court held that property owners and lessees had no cause of action against the City of University City, the city manager, police chief and police major in charge at the scene of a fire to provide police protection and hence the City and officers were not liable for any damage. The University City firefighters were engaged in an illegal strike when a fire started on a loading dock on property owned by plaintiffs. The striking firefighters prevented the neighboring firefighters from extinguishing the blaze through the use of threats of physical harm. Plaintiffs' building was completely destroyed. Plaintiffs' petition alleged that defendants failed to enforce the city ordinance and to provide police protection to the firemen from neighboring municipalities so that they could extinguish the fire. On appeal, the court stated, "Enforcement of the law and keeping of the peace are duties which a municipality and its employees owe to the general public but a breach of which is not actionable by a citizen." Berger v. City of University City, 676 S.W.2d at 41.

In Christine H. v. Derby Liquor Store, 703 S.W.2d 87, (Mo.App.1985), the plaintiff, a young woman, brought suit for damages against the City of Kirkwood, Lonnie Speer, a Kirkwood police officer and the Derby Liquor Store...