Shade-Schaefer v. City of Eureka
| Decision Date | 09 May 2023 |
| Docket Number | ED110581 |
| Parties | VICKI SHADE-SCHAEFER, INDIVIDUALLY, AND VICKI SHADE-SCHAEFER ON BEHALF OF THE ESTATE OF WAYNE SCHAEFER, CHRISTOPHER SCHAEFER, AND STEPHANIE SCHAEFER, Appellants, v. CITY OF EUREKA, ROBERT WADE, AND RICHARD GREEN, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of St. Louis County 16SL-CC01615 Honorable William M. Corrigan, Jr.
OPINION
In the civil action underlying this appeal, Appellants Vicki Shade-Schaefer, Christopher Schaefer, and Stephanie Schaefer claim they suffered serious inhalation injuries arising from the painting of large water tanks owned by the City of Eureka which occurred on property adjacent to Appellants' home. The trial court entered summary judgment in favor of defendants City of Eureka on sovereign immunity, Robert Wade a Eureka employee, on official immunity, and Richard Green the painter, on statute of limitations, and denied Appellants leave to add to their lawsuit a wrongful death claim against the original defendants and against two new defendants Casey Thompson Enterprises, Inc., and Structural Contractors Inc., after one of the original plaintiffs died, allegedly from the inhalation injuries claimed in the lawsuit.
Appellants now appeal. We reverse and remand in part and affirm in part. We reverse the judgment in favor of Eureka because Eureka's painting and maintenance of the water tanks was done in its proprietary function and therefore it is not entitled to sovereign immunity. We affirm as to Wade because since Wade's supervision of the project was discretionary as opposed to ministerial, he is entitled to official immunity. As to Green, the painter, we also affirm because he was not notified that he was a target of the lawsuit until after the statute of limitations had run. The trial court's denial of leave to file the third amended petition is reversed as to Eureka, Green, Casey Thompson, and Structural Contractors because the statute of limitations on the wrongful death claim had not yet run. Finally, we affirm the court's ruling denying leave to file the third amended petition as to the claim against Wade because Wade is entitled to official immunity for his discretionary acts including those that allegedly gave rise to the wrongful death.
On May 3, 2011, Eureka contracted with Pittsburg Tank &Tower Maintenance Co. (PTT) to perform maintenance, including the re-painting of two city-owned water tanks located adjacent to Appellants' property. The painting work at issue occurred between May 28 and June 9, 2011. This included sand blasting the water tanks to remove all foreign matter including old paint, corrosion, salt, mildew and mold, and priming and painting the exterior and interior of the tanks. PTT contracted with Casey Thompson to perform the work. Casey Thompson employed Structural Contractors who, in turn, hired Green to do the painting. Wade was Eureka's public works supervisor and was tasked with supervising and inspecting the work on the tanks.
Green used a spray nozzle to paint the tanks. Appellants allege that Green "negligently and carelessly sprayed paint and paint mist into the atmosphere and onto adjacent properties including [Appellants'] property and on and in [Appellants'] person." Appellants further allege that paint was found "on several houses in that area and specks of paint were spread all over Plaintiff's property including the house, roof, gutters, trees, barbecue pit, cars, deck and [Appellants]." As a result of the overspray, Appellants allege they inhaled and ingested the paint which they claim "contained toxic substances of [] various nature[s] including but not limited to, hexamethylene diisocyanate (HDI)" and that "HDI is a toxic substance known to cause respiratory issues if inhaled or ingested." Appellants claim they were injured by ingesting and inhaling HDI.
Summarizing the procedural history of this case, while arduous, is necessary to our disposition. Appellants filed their initial petition on May 2, 2016, against PTT, Eureka, Wade, and the painter, "John Doe," whose identity at the time was unknown to Appellants. On November 15, 2016, Appellants filed their first amended petition adding a claim for negligence per se. At the March 13, 2017, deposition of Green, Appellants learned that Green was the painter. So, on May 23, 2017, Appellants moved to substitute Green for "John Doe." After the trial court granted Appellants' motion to substitute on July 13, 2017, Green was served with the amended petition on August 8, 2017. Appellants' second amended petition, filed on December 14, 2017, alleged additional facts supporting their liability and punitive damages' claims.
On March 20, 2019, Eureka and Wade filed a motion for summary judgment. Eureka alleged they were entitled to sovereign immunity, and Wade alleged he was entitled to official immunity and was also protected by the public duty doctrine. Appellants responded to this motion on May 24, 2019, alleging there were disputed material facts such that neither Eureka nor Wade was entitled to judgment as a matter of law. On July 10, 2019, after a hearing, the trial court granted this summary judgment motion which left PTT and Green as the only remaining defendants.
On July 23, 2019, Green filed his own summary judgment motion. Green alleged the claims against him were time-barred because the July 13, 2017, substitution of parties occurred after the statute of limitations had run and did not relate back to the timely filing of the original petition because Green did not receive notice of his liability exposure until after the statute of limitations had already run. In their October 1, 2019, response, Appellants argued that Green had timely notice of his exposure such that the substitution should relate back to the timely filing of the original petition. After a hearing, the court entered its November 5, 2019, order granting Green's motion which left PTT as the only remaining defendant.
On March 26, 2021, plaintiff Wayne Schaefer died. The immediate cause was "asphyxia from obstructive airway aspiration of gastric emesis or ingestion" and the underlying cause was "organizing aspiration pneumonitis indicative of prior similar event." Appellants allege the toxic inhalation from the paint overspray caused his death. Appellants rely on the death certificate which states the underlying cause of death was inflammatory lung disease caused by prior inhalation of harmful substances.[1]
On June 1, 2021, Appellants sought leave to file their third amended petition to add a count for wrongful death against Eureka, Wade, Green, and PTT (the original defendants), along with two new defendants, Structural Contractors and Casey Thompson. On June 9, 2021, the trial court, without explanation, denied Appellants leave as to all defendants except PTT. In their motion for reconsideration, Appellants addressed the trial court's erroneous notion that a wrongful death claim is merely an additional damage claim, not a new and separate cause of action. The trial court denied Appellants' motion for reconsideration on June 21, 2021.
On December 17, 2021, however, the trial court revisited its ruling and acknowledged that wrongful death is a cause of action separate from negligence, but that the "statute of limitations.. .is [not] revived because of the death of Wayne Schaefer." The trial court wrote "[u]nder [Appellants'] theory, [Appellants'] would have until March 26, 2024 to file their wrongful death action, or nearly 13 years after the painting work was performed." Therefore, the trial court ruled that the wrongful death claims against Structural Contractors and Casey Thompson were time-barred. The trial court also noted that granting Appellants' motion to add two new defendants would have required a continuance of the December 6, 2021, trial date. The trial court also seems to have found that the wrongful death actions against Green, Wade, and Eureka were moot because they "had already obtained Summary Judgment in 2019[.]" In sum, the court denied Appellants' motion to reconsider, finding the motion to amend untimely "[b]ased on the age of this case, and [the trial court's] inherent responsibility to manage its docket."
Finally, on February 18, 2022, Appellants voluntarily dismissed with prejudice their wrongful death claim against PTT. Therefore, we consider on this appeal the summary judgments granted to Respondents Eureka (sovereign immunity), Wade (official immunity and public duty doctrine), and Green (statute of limitations), and the trial court's refusal to allow Appellants to file a third amended petition to add a wrongful death claim against all defendants.
Standard of Review: Points I - III.
We review summary judgment de novo. ITT Com. Fin Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law." Green v. Fotoohighiam, 606 S.W.3d 113, 115 (Mo. banc 2020) (quoting Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011)). Questions of immunity, contractual interpretation, and statutory interpretation present legal issues, which we also review de novo. Poke v. Independence Sch. Dist., 647 S.W.3d 18, 20 (Mo. banc 2022); Griffitts v. Old Repub. Ins. Co., 550 S.W.3d 474, 478 (Mo. banc 2018).
Point I: City of Eureka - Sovereign Immunity.
Appellants argue that the proprietary function, insurance waiver, and dangerous condition exceptions to sovereign immunity apply to defeat Eureka's...
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