State ex rel. Missouri Highway and Transp. Com'n v. Dierker, 79965

• Decision Date: 27 January 1998
• Docket Number: No. 79965,79965
• Citation: 961 S.W.2d 58
• Parties: STATE ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Relator, v. Honorable Robert H. DIERKER, Jr., Judge, Circuit Court, St. Louis City, 1 Respondent.
• Court: Missouri Supreme Court

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961 S.W.2d 58 STATE ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Relator,
v.
Honorable Robert H. DIERKER, Jr., Judge, Circuit Court, St.
Louis City, ¹ Respondent. No. 79965.
Supreme Court of Missouri,
En Banc. Jan. 27, 1998.
As Modified on Denial of Rehearing Feb. 24, 1998.

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Zachary T. Cartwright, Rich Tiemeyer, Mo. Highway & Transp. Comm'n, Jefferson City, for Relator.

Gerald M. Dunne, Clayton, Tyrone A. Taborn, City Counselor, Stephen J. Kovac, Assoc. City Counselor, St. Louis, for Respondent.

BENTON, Chief Justice.

Plaintiffs below sued the relator Missouri Highway and Transportation Commission for negligently constructing and maintaining an overpass. The respondent circuit court ruled that the Commission was subject to suit under the dangerous-condition-of-property exception in section 537.600.1(2). ² Because sovereign immunity bars this wrongful death action, the alternative writ in mandamus is made peremptory. Mo. Const. art. V, sec. 4(1).

I.

Olga Maxiaeva was driving home in the early hours of February 20, 1995, in St. Louis. As she drove under the Clayton Avenue overpass, fifteen-year-old Shawn Twine dropped a twenty-pound chunk of concrete onto Maxiaeva's car, killing her. Shawn Twine later pleaded guilty to the charge of involuntary manslaughter.

Maxiaeva's husband and their daughter brought a wrongful death action against several defendants, including the Commission. In Count I, plaintiffs alleged that the Commission was negligent by constructing an

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inadequate fence, leaving loose pieces of concrete on the overpass, and failing to light it adequately.

The Commission filed a motion for summary judgment, invoking sovereign immunity. Plaintiffs countered that sovereign immunity was waived under section 537.600.1(2), because a dangerous condition of public property caused Maxiaeva's death. The trial court overruled the motion, stating that it could not find as a matter of law that the condition of the overpass "had no connection" to Maxiaeva's death. The trial court ruled that the Commission was not entitled to judgment because "the incident leading to the death of Ms. Maxiaeva would not have been possible absent the physical conditions of the overpass."

II.

The Commission, as an executive department of state government, is a public entity that sovereign immunity shields from suit. Mo. Const. art. IV, sec. 29; Section 537.600.1; Wilkes v. Missouri Highway and Transp. Comm'n, 762 S.W.2d 27, 28 (Mo. banc 1988). Sovereign immunity is waived, however, for cases involving injuries caused by a dangerous condition of public property. Sec. 537.600.1(2).

Where the pleadings show that a defendant is immune from suit as a matter of law, and the trial court refuses to grant summary judgment, a writ of mandamus is appropriate. State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 444 (Mo. banc 1986); State ex rel. Missouri Dep't of Agric. v. McHenry, 687 S.W.2d 178, 181 (Mo. banc 1985). A defendant who is clearly entitled to immunity should not be required to proceed through trial and appeal in order to enforce that protection. State ex rel. Board of Trustees v. Russell, 843 S.W.2d 353, 355 (Mo. banc 1992).

After a trial court denies a motion for summary judgment based on sovereign immunity, this Court applies the same standard of review as for a final order...