Southers v. City of Farmington, No. SC 88612.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtMary R. Russell
Citation263 S.W.3d 603
Decision Date10 June 2008
Docket NumberNo. SC 88612.
PartiesDebra SOUTHERS, et al., Appellants, v. CITY OF FARMINGTON, Missouri, et al., Respondents.
263 S.W.3d 603
Debra SOUTHERS, et al., Appellants,
v.
CITY OF FARMINGTON, Missouri, et al., Respondents.
No. SC 88612.
Supreme Court of Missouri, En Banc.
June 10, 2008.
As Modified on Denial of Rehearing September 30, 2008.

[263 S.W.3d 607]

Matthew J. Devoti, Thomas J. Casey, St. Louis, MO, for Appellants.

Mark H. Zoole, St. Louis, MO, for Respondents.

MARY R. RUSSELL, Judge.


Plaintiffs appeal after judgment was entered against them on their claims for their decedents' wrongful deaths and survivors' personal injuries resulting from a traffic collision with a speeding police vehicle.1 Defendants in this case are the City of Farmington and three of its police officers.2 This Court has jurisdiction pursuant to Missouri Constitution article V, section 10, as the case was taken on transfer after disposition by the court of appeals. This Court affirms in part and reverses in part. The case is remanded.

A. Background

The Super 8 Motel in Farmington was robbed at gunpoint. The Farmington Police Department ("the Department") was alerted to the robbery and given a description of the suspect and the vehicle in which he fled. Police Officer Lindell Barton saw the suspect traveling south on Maple Valley Drive. He activated his lights and siren and pursued the suspect in a high-speed chase, reporting over the police radio that he was in pursuit.

Officers Ratliff and Lacey heard Barton's radio transmission, activated their vehicles' lights and sirens, and followed Barton's pursuit of the suspect. Officer Ratliff saw the suspect's vehicle, being followed by Officer Barton's vehicle, traveling south on Maple Valley Drive. In front of him, Officer Ratliff saw his field supervisor,

263 S.W.3d 608

Officer Lacey, join the pursuit. Officer Ratliff continued to follow Officer Barton's pursuit as the third police vehicle following the suspect.3 At the time, the Department's "vehicular pursuit policy" stated that police pursuits should normally be limited to no more than one primary vehicle and one backup vehicle, unless specifically instructed otherwise by a field supervisor.

Maple Valley Drive is a two-lane asphalt road with a speed limit of 35 miles per hour. Drivers traveling both north and south on Maple Valley Drive pulled to the side of the road after hearing the pursuing officers' emergency sirens. Among those drivers who had pulled over was Plaintiffs' decedent, Monica Clark, who was driving her grandmother and her two children. After the suspect and Officers Barton and Lacey passed, Clark pulled her vehicle from the roadside and into the southbound lane, where it was struck by Officer Ratliff's vehicle. Officer Ratliff was traveling at speeds between 67 and 71 miles per hour at the time of impact.

Clark and her grandmother died from injuries sustained in the collision. Her two children, ages 5 and 1 at the time, sustained serious personal injuries, but survived. Plaintiffs brought suit alleging negligence by Officers Ratliff and Lacey and by their police chief, Chief Baker. Plaintiffs also alleged that the City of Farmington was liable for the three officers' negligence via the doctrine of respondeat superior.

Defendants moved for summary judgment. They asserted that there was no negligent conduct and that the immunity protections of sovereign immunity, official immunity, and the public duty doctrine insulated them from liability. The trial court granted the motion and entered judgment. Plaintiffs' appeal follows.

B. Standard of Review

Appellate review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Id. A "genuine issue" that will prevent summary judgment exists where the record shows two plausible, but contradictory, accounts of the essential facts and the "genuine issue" is real, not merely argumentative, imaginary, or frivolous. Id. at 382. This Court reviews the record in the light most favorable to the party against whom judgment was entered. Id. at 376. The movant bears the burden of establishing a legal right to judgment and the absence of any genuine issue of material fact required to support the claimed right to judgment. Id. at 376-81.

C. The Government Tort Immunity Doctrines

Before addressing whether summary judgment was properly entered in this case, however, this Court must consider the applicability of and interplay between the doctrines of sovereign immunity, official immunity, and the public duty doctrine. The applications of these doctrines have been muddied in Missouri case law, especially in cases involving police conduct. Consequently, trial courts have been left with murky precedent that offers as much confusion as it does guidance as to application

263 S.W.3d 609

of these immunity doctrines. In light of recent decisions by this Court, shifting immunity trends in other jurisdictions, and evolving legislative enactments, a discussion of these doctrines may clarify Missouri's positions on these frequently-raised immunity defenses.

I. Sovereign Immunity Under Missouri Law

The common law rule of sovereign immunity has been recognized by Missouri courts since 1821, and a modified form of sovereign immunity is now codified in Missouri's statutes at sections 537.600 to 537.650, RSMo 2000, and, where amended, RSMo Supp.2007.4 Since 1978,5 subsection 537.600.1 has outlined that Missouri public entities are not provided sovereign immunity for injuries (1) "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" and (2) resulting from the dangerous condition of public property. Section 537.600.2 clarifies that the section 537.600.1 waivers of immunity are "absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity" and regardless of whether the entity is covered by liability insurance for torts.

Full common law sovereign immunity belongs only to state entities. Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. banc 1996). Missouri municipalities are not provided immunity for proprietary functions-those performed for the benefit or profit of the municipality as a corporate entity — but are immune for governmental functions-those performed for the common good. Id. Municipalities and other public entities, however, can waive their sovereign immunity for governmental functions to the extent that they are covered by liability insurance. Section 71.185 (pertaining to municipalities); section 537.610 (pertaining to "each political subdivision of this state").6

Because public entities act through their employees, actions against these entities to recover damages pursuant to the motor vehicle sovereign immunity waiver in section 537.600.1(1) must necessarily be brought under the doctrine of respondeat superior. Davis-Bey v. Mo. Dept. of Corr., 944 S.W.2d 294, 298 n. 5 (Mo.App.1997). The legislature's waivers of immunity applicable to defendant municipalities and political subdivisions do not abrogate the immunity protections afforded to public employees. See id. at 298 n. 4.

263 S.W.3d 610

Although sovereign immunity is a tort protection for government entities, not their employees, public employees are covered by two different government immunity doctrines: the official immunity and public duty doctrines. The official immunity and public duty doctrines have similar policies behind their protections and, in many cases, both doctrines can be applied to protect the defendant government employee. Because both doctrines are often applicable to a defendant public employee's conduct, they are often confusingly applied together in cases. These doctrines are addressed separately below to clarify their distinctions and similarities.

II. Official Immunity

As with the doctrine of sovereign immunity, Missouri has long-applied the doctrine of official immunity. See, e.g., Reed v. Conway, 20 Mo. 22 (1854).7 This judicially-created doctrine protects public employees from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts. Davis v. Lambert-St. Louis Int'l Airport, 193 S.W.3d 760, 763 (Mo. banc 2006). The official immunity doctrine, however, does not provide public employees immunity for torts committed when acting in a ministerial capacity. Kanagawa v. State, 685 S.W.2d 831, 835 (Mo. banc 1985), overruled on other grounds by Alexander v. State, 756 S.W.2d 539 (Mo. banc 1988).

Whether an act can be characterized as discretionary depends on the degree of reason and judgment required. Kanagawa, 685 S.W.2d at 836. A discretionary act requires the exercise of reason in the adaptation of means to an end and discretion in determining how or whether an act should be done or course pursued. Id. A ministerial function, in contrast, is one "of a clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed." Id. (internal citations omitted). The determination of whether an act is discretionary or ministerial is made on a case-by-case basis, considering: (1) the nature of the public employee's duties; (2) the extent to which the act involves policymaking or exercise of professional judgment; and (3) the consequences of not applying official immunity. Id. Even a discretionary act, however, will not be protected by official immunity if the conduct is willfully wrong or done with malice or corruption.8 Schooler v. Arrington,

263 S.W.3d 611

106 Mo.App....

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164 practice notes
  • Montgomery v. Saleh, Nos. 117,518
    • United States
    • Court of Appeals of Kansas
    • March 30, 2018
    ...duty doctrine because his "police pursuit conduct arose from his duties owed to the public generally." Southers v. City of Farmington , 263 S.W.3d 603, 620 (Mo. 2008) ; Throneberry v. Missouri State Highway Patrol , 526 S.W.3d 198, 205-06 (Mo. Ct. App. 2017) (finding the public duty doctrin......
  • Schreyer v. Chaplain, No. 121, Sept. Term, 2008.
    • United States
    • Court of Appeals of Maryland
    • October 6, 2010
    ...the immediate authority of the police officer and calls on the officer to give immediate chase."); Southers v. City of Farmington, 263 S.W.3d 603, 608 (Mo.2008) ("The Farmington Police Department5 A.3d 1066... was alerted to the robbery and given a description of the suspect and the vehicle......
  • Coleman v. E. Joliet Fire Prot. Dist., No. 117952.
    • United States
    • Supreme Court of Illinois
    • January 22, 2016
    ...1010 (Fla.1979) ; Jean W. v. Commonwealth, 414 Mass. 496, 610 N.E.2d 305 (1993) (abrogated by statute); Southers v. City of Farmington, 263 S.W.3d 603 (Mo.2008) ; Wilson v. Nepstad, 282 N.W.2d 664 (Iowa 1979) ; Maple v. City of Omaha, 222 Neb. 293, 384 N.W.2d 254 (1986) ; Schear v. Board of......
  • Gonzales v. City of Bozeman, No. DA 08-0566.
    • United States
    • Montana United States State Supreme Court of Montana
    • August 24, 2009
    ...of a sovereign's immunity beyond that intended by statute, nor be contrary to the legislature's intent. Southers v. City of Farmington, 263 S.W.3d 603, 613 (Mo.2008) (citations and footnote ¶ 73 Yet, this Court inexplicably persists in applying its public duty doctrine—and at an ever-increa......
  • Request a trial to view additional results
163 cases
  • Montgomery v. Saleh, Nos. 117,518
    • United States
    • Court of Appeals of Kansas
    • March 30, 2018
    ...duty doctrine because his "police pursuit conduct arose from his duties owed to the public generally." Southers v. City of Farmington , 263 S.W.3d 603, 620 (Mo. 2008) ; Throneberry v. Missouri State Highway Patrol , 526 S.W.3d 198, 205-06 (Mo. Ct. App. 2017) (finding the public duty doctrin......
  • Schreyer v. Chaplain, No. 121, Sept. Term, 2008.
    • United States
    • Court of Appeals of Maryland
    • October 6, 2010
    ...the immediate authority of the police officer and calls on the officer to give immediate chase."); Southers v. City of Farmington, 263 S.W.3d 603, 608 (Mo.2008) ("The Farmington Police Department5 A.3d 1066... was alerted to the robbery and given a description of the suspect and the vehicle......
  • Coleman v. E. Joliet Fire Prot. Dist., No. 117952.
    • United States
    • Supreme Court of Illinois
    • January 22, 2016
    ...1010 (Fla.1979) ; Jean W. v. Commonwealth, 414 Mass. 496, 610 N.E.2d 305 (1993) (abrogated by statute); Southers v. City of Farmington, 263 S.W.3d 603 (Mo.2008) ; Wilson v. Nepstad, 282 N.W.2d 664 (Iowa 1979) ; Maple v. City of Omaha, 222 Neb. 293, 384 N.W.2d 254 (1986) ; Schear v. Board of......
  • Gonzales v. City of Bozeman, No. DA 08-0566.
    • United States
    • Montana United States State Supreme Court of Montana
    • August 24, 2009
    ...of a sovereign's immunity beyond that intended by statute, nor be contrary to the legislature's intent. Southers v. City of Farmington, 263 S.W.3d 603, 613 (Mo.2008) (citations and footnote ¶ 73 Yet, this Court inexplicably persists in applying its public duty doctrine—and at an ever-increa......
  • Request a trial to view additional results

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