Spielvogel v. City of Kansas City

• Decision Date: 27 October 2009
• Docket Number: No. WD 70548.,WD 70548.
• Citation: 302 S.W.3d 108
• Parties: Christopher SPIELVOGEL, et al., Appellants, v. CITY OF KANSAS CITY, Missouri, Respondent.
• Court: Missouri Court of Appeals

302 S.W.3d 108

Christopher SPIELVOGEL, et al., Appellants, v. CITY OF KANSAS CITY, Missouri, Respondent.

No. WD 70548.

Missouri Court of Appeals, Western District.

October 27, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 22, 2009.

Application for Transfer Denied March 2, 2010.

Richard L. Rollings, Jr., Camdenton, MO, for Appellants.

Saskia C.M. Jacobse, Theodore T. Anderson, Kansas City, MO, for Respondent.

Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and KAREN KING MITCHELL, JJ.

JAMES EDWARD WELSH, Judge.

Christopher Spielvogel and his wife, Diana Spielvogel, were riding a motorcycle on Highway 169 at the Broadway Bridge Complex in Kansas City on July 22, 2001, when their motorcycle collided with the center median. Both of them were ejected from the motorcycle. Diana Spielvogel died from her injuries, and Christopher Spielvogel was seriously injured. Christopher Spielvogel and his children, Brandon, Andrea, and Danielle Spielvogel, by and through their next friend, Catherine Spielvogel, sued the Missouri Highway and Transportation Commission (MHTC) and the City of Kansas City for personal injury and wrongful death.

The circuit court entered judgment against MHTC on the basis of an arbitration award, which found that MHTC was responsible for the property on which the accident occurred, that dangerous conditions existed on the property, and that the accident was a direct result of those dangerous conditions. The court then granted the City's motion for summary judgment, after finding that the City did not own the property at the time of the accident and that MHTC exclusively controlled the property. The Spielvogels appeal, claiming that the City failed to establish that it did not own the property at the time of the accident. We affirm.

When considering appeals from summary judgments, we review the record in the light most favorable to the party against whom judgment was entered, and we afford that party the benefit of all reasonable inferences. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record established that, in 1989, the City entered into an exchange agreement with MHTC. Pursuant to the agreement, the City agreed to give a portion of Highway 169, commonly known as the "Broadway Bridge Complex," to MHTC in exchange for a portion of Missouri State Highway AA in Platte County. The parties agreed that the exchange would not be complete until all of the agreement's terms, which included the City's making several repairs on the bridge complex, were satisfied.

On July 14, 1994, the City executed a bill of sale and a quitclaim deed deeding the bridge complex to MHTC. The City gave the deed to MHTC sometime after its execution but before January 26, 2001. MHTC took exclusive control of the Broadway Bridge Complex on August 8, 1994. MHTC has maintained exclusive control of it since that date.¹

On June 8, 1995, the parties entered into an amendment to the exchange agreement. The amendment noted that the planned exchange had "progressed to the point where the transaction may be closed" but that certain terms in the exchange agreement needed to be modified to permit the City to convey the bridge complex. The first modified term was that the City would be required to retire any bonds on the Broadway Bridge Complex before it was conveyed to MHTC. The next modified term stated that, after the City completed the repairs that were required by the exchange agreement, the City would "provide the Broadway Bridge Complex to [MHTC] for its exclusive use (exclusive use shall include any and all ownership rights to bridge and roadway except rights to transfer bridge and roadway) subject to all regulations and limitations on use that apply to other highway right of way and properties." The amendment stated that the City had the option of conveying the Broadway Bridge Complex to MHTC "at any time no later than ten years after the execution of this contract amendment." Finally, the amendment stated that MHTC agreed to "accept conveyance by the City under this agreement and maintain such property without cost to the City starting when it is provided to [MHTC] for its exclusive use."

On October 15, 1999, the bonds on the bridge complex were fully defeased. The bonds matured on October 15, 2000. Sometime between October 2000 and January 26, 2001, the City notified MHTC that the bonds had matured. On January 26, 2001, after receiving the City's notification that the bonds had matured, MHTC sent the deed to the City to be recorded by a City employee. The Spielvogels' accident occurred on July 22, 2001. The deed was recorded on July 27, 2001.

In the Spielvogels' subsequent wrongful death and personal injury suit, they alleged that, at the time of the accident, the Broadway Bridge Complex was the property of both the City and MHTC and that defective conditions on the bridge complex caused the accident. They claimed that the City and MHTC had actual or constructive notice of the defective conditions in sufficient time to take protective measures against them. They also claimed that the defective conditions were created by negligent or wrongful acts or omissions of the City's and MHTC's employees.

Upon the Spielvogels' request, the court ordered an arbitration hearing on their claims against MHTC. The arbitrators determined that MHTC was responsible for the property on which the accident occurred and that MHTC had waived its right to sovereign immunity based upon the dangerous conditions on the property. The arbitrators found that MHTC was liable for Christopher Spielvogel's injuries and Diana Spielvogel's death. The arbitrators awarded Christopher Spielvogel damages of $861,000 on his personal injury claim, subject to a thirty percent reduction for his comparative fault. The arbitrators awarded the Spielvogels $2,250,000 in damages on their claim for the wrongful death of Diana Spielvogel. The court entered judgment against MHTC based upon the arbitration award.

The City subsequently moved for summary judgment on the Spielvogels' claims against it. The circuit court granted the City's motion, after finding that the City neither owned nor had exclusive control over the Broadway Bridge Complex. The Spielvogels appeal.

Our review of summary judgment is essentially de novo. Id. "The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially." Id. Summary judgment is proper only if "the motion, the response, [and] the reply . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 74.04(c)(6).

Generally, sovereign immunity protects a public entity against lawsuits without the public entity's consent. Phelps v. City of Kansas City, 272 S.W.3d 918, 920 (Mo.App.2009). However, section 537.600.1(2), RSMo 2000, waives sovereign immunity for injuries that result from a dangerous condition on the public entity's property. Jones v. St. Charles County, 181 S.W.3d 197, 203 (Mo.App.2005). To benefit from the waiver of sovereign...