State ex rel. Sasnett v. Moorhouse

• Decision Date: 05 August 2008
• Docket Number: No. WD 69323.,WD 69323.
• Citation: 267 S.W.3d 717
• Parties: STATE ex rel. Stephanie SASNETT, Maris Sasnett, Bryan Sasnett, and Mandy Vierthaler, Relators, v. Honorable Kelly MOORHOUSE, Judge, Div. 9, Circuit Court of Jackson County, Missouri, Respondent.
• Court: Missouri Court of Appeals

267 S.W.3d 717

STATE ex rel. Stephanie SASNETT, Maris Sasnett, Bryan Sasnett, and Mandy Vierthaler, Relators, v. Honorable Kelly MOORHOUSE, Judge, Div. 9, Circuit Court of Jackson County, Missouri, Respondent.

No. WD 69323.

Missouri Court of Appeals, Western District.

August 5, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 30, 2008.

Application for Transfer Denied November 25, 2008.

Wm. Dirk Vandever, Kansas City, MO, for Relators.

Galen Beaufort, Douglas McMillan, EChad A. Stewart, Kansas City, MO, for City of Kansas City, MO.

Before PAUL SPINDEN, P.J., THOMAS NEWTON, C.J. and JOSEPH P. DANDURAND, JJ.

JOSEPH P. DANDURAND, Judge.

This is an original proceeding upon a petition seeking a writ of mandamus. Relators seek to reverse the dismissal of their wrongful death claim against the City of Kansas City. The preliminary writ of mandamus is made absolute.

Facts

On December 21, 2005, Stephen Sasnett was killed in an automobile accident at the intersection of 18th and Charlotte in Kansas City, Missouri. The accident occurred when Tina Jons ran the red light controlling her course of travel. A vehicle driven by Ronald Brooks struck Ms. Jons's vehicle. Ms. Jons's vehicle became airborne and landed on Stephen Sasnett's vehicle, causing his death.

On June 23, 2006, the Kansas City Mayor's Office received from Counsel for Maria Sasnett, Stephanie Sasnett, Bryan Sasnett, and Mandy Vierthaler (the Sasnetts)¹ a written notice of claim for the accident in which Stephen Sasnett was killed. On March 19, 2007, the Sasnetts filed their petition in Jackson County Circuit Court, naming as defendants Tina Jons, Ronald Brooks, and the City of Kansas City (the City). The claims against Ms. Jons and Mr. Brooks were for the negligent operation of their motor vehicles that caused the death of Stephen Sasnett. The claim against the City was for a dangerous condition of public property that caused the death of Stephen Sasnett. The Sasnetts alleged that the City allowed a dangerous condition to exist at the intersection where the accident occurred by not properly designing, locating, operating, and maintaining the traffic signal at that location.

The City filed a motion to dismiss on April 27, 2007. On September 6, 2007, Circuit Court Judge Kelly Moorhouse granted the City's Motion to Dismiss based on the lack of proper notice under Section 82.210. Judgment was entered accordingly on October 22, 2007. The case continued as to defendants Ms. Jons and Mr. Brooks.

On September 12, 2007, the Sasnetts filed a Notice of Appeal regarding the grant of dismissal. The appeal was dismissed on October 22, 2007, because the order was not a final, appealable order. The plaintiffs filed a motion for Judge Moorhouse to reconsider the dismissal on October 22, 2007. The motion was denied on December 10, 2007.

The Sasnetts filed a Petition for Writ of Mandamus, or in the Alternative, for Prohibition on February 5, 2008. The petition seeks a writ directing Judge Moorhouse to reverse the dismissal and reinstate the Sasnetts' wrongful death claim against the City. On March 3, 2008, this court issued an Order of Preliminary Writ of Mandamus.

Standard of Review

A writ of mandamus compels the performance of "a ministerial duty that one charged with the duty has refused to perform." State ex rel. McKee v. Riley, 240 S.W.3d 720, 725 (Mo. banc 2007)(quote marks and citation omitted). "A litigant asking relief by mandamus must allege and prove that he has a clear, unequivocal, specific right to a thing claimed." Id. (quote marks and citation omitted). A court will only issue the writ if the "ministerial duty sought to be coerced is definite, arising under conditions admitted or proved and imposed by law." State ex rel. Mo. Dep't of Soc. Servs., Div. of Med. Servs. v. Kramer, 215 S.W.3d 739, 740 (Mo.App. E.D.2007)(quote marks and citation omitted). A writ of mandamus is issued "to prevent the exercise of powers exceeding judicial jurisdiction." Id. "The writ is used both to compel a court to do what is required by law and to undo what is prohibited by law." Id.

"A writ of prohibition does not issue as a matter of right." State ex rel. Rosenberg v. Jarrett, 233 S.W.3d 757, 760 (Mo.App. W.D.2007). "Rather, it is discretionary and will lie only to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power." Id. (quote marks and citation omitted). "A writ of prohibition is an extraordinary remedy that is to be used with great caution and forbearance and only in cases of extreme necessity." Id. (quote marks and citation omitted). Writs of prohibition are appropriate in three scenarios: "to prevent the trial court from usurping judicial power when it lacks the requisite jurisdiction, to remedy an excess of jurisdiction or abuse of discretion when the lower court lacks the power to act, and to prevent a party from suffering irreparable harm." State ex rel. Brantingham v. Grate, 205 S.W.3d 317, 319 (Mo.App. W.D.2006). "A writ of prohibition is appropriate if it is necessary to preserve `the orderly and economical administration of justice'. . . . ." State ex rel. Delmar Gardens N. Operating, LLC v. Gaertner, 239 S.W.3d 608, 610 (Mo. banc 2007) (citation omitted).

Analysis

The trial court dismissed the Sasnetts' claim against the City after finding that the Sasnetts failed to give the City notice as required by Section 82.210. That statutory provision states:

No action shall be maintained against any city of this state which now has or may hereafter attain a population of one hundred thousand inhabitants, on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and that the person so injured will claim damages therefor from such city.

§ 82.210, RSMo 2000. No party disputes that the City has a population of one hundred thousand inhabitants.

The trial court held that the Sasnetts were required to give notice pursuant to section 82.210. This holding was incorrect for three reasons.

First, section 82.210 does not apply to the Sasnetts' claim where the claim is not of a defect in the condition of a street.

In Williams v. Kansas City, 782 S.W.2d 64 (Mo. banc 1990), the plaintiff alleged that the steps at Kansas City International Airport were in a defective condition. The issue was whether the plaintiff was required to give the City notice pursuant to section 82.210. Id. at 64-65. The court held that section 82.210 applied to "all of those publicly maintained exterior improvements designed to facilitate travel for which the common law permitted liability because of their proprietary nature." Id. at 65. It concluded: "The steps are part of the sidewalk; they are in the sidewalk." Id.

In Banks v. City of Kansas City, 862 S.W.2d 485 (Mo.App. W.D.1993), the plaintiff alleged she was injured while crossing a crosswalk which was dark and dangerous because the street lights were placed a distance from the crosswalk. The issue was again whether the plaintiff was required to give the City notice pursuant to section 82.210. Id. at 487. The court, citing Williams, held that negligently designed lighting system was contemplated within the meaning of "any defect in the condition of any . . . street, sidewalk, or thoroughfare" as provided for in section 82.210. Id.

In Jones v. Kansas City, 15 S.W.3d 736 (Mo. banc 2000), the plaintiff was injured in an accident he claimed was caused by the City's failure to have a stop sign at an intersection instead of a yield sign. The issue was whether the allegedly defective sign was covered by section 82.210 as a "defect in the condition" of a street. Id. at 737. The court noted that section 82.210 "provides a list of properties owned by the city: bridge, boulevard, street, sidewalk, thoroughfare." Id. It discounted reliance on Williams, stating: "Williams, however, does not invite us to expand the list of properties to include a yield sign as an `exterior improvement designed to facilitate travel.'" Id. (citation omitted). Instead, Williams "intended merely to summarize the category of properties that consist of bridges, boulevards, streets, sidewalks, and thoroughfares." Id. It went on: "Each of this group of terms is a structure that facilitates travel and upon which travel occurs by vehicle (bridge, boulevard, street, or thoroughfare) or on foot (sidewalk)." Id. The court also noted the Banks decision and stated:

No transfer application was filed with this Court in Banks after the court of appeals decision. Banks should not be read to expand the list of properties to which the notice statute applies. To the extent there is language inconsistent with this principle in Banks, it should not be followed. Banks quite sensibly can be confined to its conclusion that an allegation of a dark and dangerous crosswalk encompasses a defect in the condition of a street and is, thus, within the meaning of section 82.210.

Id. at 738 n. 3. The court concluded that the yield sign was not part of a "bridge, boulevard, street, sidewalk, or thoroughfare" within the meaning of section 82.210. Id. at 738. It stated: "We could, of course, construe the word `street' to include everything owned by the city in and around the street having to do with the regulation of traffic on the street, but we are constrained by precedent to give a narrow reading of the statutory terms, not an expansive one." Id. Finally, the court noted there is a difference between road design, which encompasses the concept of installing lights and traffic controls, and road condition. Id. at n. 4. It noted that section 82.210...