Thomas v. Clay County Election Board

• Decision Date: 03 June 2008
• Docket Number: No. WD 68514.,WD 68514.
• Citation: 261 S.W.3d 574
• Parties: Evelyn THOMAS, et al, Appellant, v. CLAY COUNTY ELECTION BOARD, et al, Respondent.
• Court: Missouri Court of Appeals

261 S.W.3d 574

Evelyn THOMAS, et al, Appellant, v.CLAY COUNTY ELECTION BOARD, et al, Respondent.

No. WD 68514.

Missouri Court of Appeals, Western District.

June 3, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 29, 2008.

Application for Transfer Denied September 30, 2008.

Joseph M. Ellis, Kansas City, MO, for appellant.

Samuel McRoberts, Kansas City, MO, for respondent.

Before JOSEPH M. ELLIS, P.J., LISA W. HARDWICK and JOSEPH P. DANDURAND.

JOSEPH P. DANDURAND, Judge.

William R. and Evelyn Thomas appeal the grant of summary judgment in favor of the Clay County Election Board and its members.On appeal, the Thomases claim the trial court erred in finding the Board was protected by sovereign immunity.The point is granted, and the judgment of the trial court is reversed and remanded.

Facts

This appeal pertains to an action brought by William R. and Evelyn Thomas¹ against the Clay County Election Board and its members (the Board) and the North Side Church of Christ (the Church).The action pertains to injuries Ms. Thomas sustained when she fell on ice while attempting to vote in a presidential primary at the Church.Following substantial discovery, the Board filed a motion for summary judgment and suggestions in support.The Thomases filed a response.Additional replies and briefs were filed by the parties, and the matter was heard by the trial court, which granted the motion for summary judgment.

In its judgment granting the Clay County Election Board's Motion for Summary Judgment, the trial court made the following findings of fact:

1.On February 3, 2004, PlaintiffEvelyn Thomas("Thomas") drove to the North Side Church of Christ ("Church") to vote in the Presidential Primary.

2.Just prior to the election, an ice storm hit the area.

3.While walking from the Church's parking lot to the polling site located within the Church, Plaintiff Thomas slipped on a patch of ice, fell, and broke her arm.

4.The location of the fall is marked by an "x" on Vasquez depositions Exhibit 2 and has been described as occurring on the Church's concrete "driveway."

5.Plaintiff Thomas agrees the Vasquez deposition Exhibit 2 is a "very accurate" visual representation of the incident.

6.The driveway led from the parking lot to what is marked on the exhibit as "double doors."

7.The Church's "double doors" marked the entrance to the polling location as indicated by signage and testimony.

8.The Church's office administrator estimates the distance between the "x" and the double doors as between 50 and 75 feet.

9.Even the Plaintiff admits the distance between the "x" and the double doors is more than 25 feet.

10.Subsequent to the accident, the definitive distance between the "x" and the double doors is approximately 63 feet.

11.The Board is a public entity and is protected by sovereign immunity unless waived by statute.

The trial court made the following conclusions of law:

Summary Judgment is appropriate in this case because no genuine issue as to the material facts exists.As a matter of law, this Court concludes that sovereign immunity precludes bringing suit against a public entity without its consent.State ex rel Div. of Motor Carrier & R.R. Safety v. Russell,91 S.W.3d 612, 615(Mo.2002)and§ 537.600 RSMo.Immunity is waived to the extent an injury is caused by a dangerous condition of a public entity's property.§ 537.600.1(2) RSMo.DefendantClay County Election Board is considered a public entity for the purposes of sovereign immunity.James v. Farrington,844 S.W.2d 517(Mo.App. W.D.1992).Therefore, the question necessarily turns on whether Plaintiff's injury occurred on the Defendant Board's "property."

In the context of a waiver of sovereign immunity, an Election Board's "property" includes the exclusive control and possession of a polling place.Farrington,844 S.W.2d at 520.An Election Board's exclusive control and possession extends 25 feet from the outer door closest to the polling place.Farrington,at 519-20.

The Board's control extended to the entrance of the polling place because in the conduct of the election it must supervise and control activities within 25 feet of the outer door closest to the polling places.§ 115.637(18).Not only statutorily but by necessity the Board must have the ability to control the voting area and the entrance and exit to the actual point of voting.Therefore, the Board had both the statutory authority and the actual ability to monitor the polling place, exclude unauthorized persons and generally, exercise control over the Fellowship Hall and the entrance, during the election proceedings.

Therefore, if Plaintiff Thomas fell outside the 25-foot perimeter from the outer door of the polling place, which is admitted by Plaintiff and confirmed by witnesses in the Findings of Fact, Plaintiff Thomas then did not suffer injury as a result of dangerous condition on the Defendant Board's "property" on the election day.The accident occurred in the church parking lot in an area which the public entity did not exercise possession and control and was therefore not the public entity's "property" as required by the Missouri Statute(§ 537.600.1(2) RSMo.)

A Missouri appellate court recently re-affirmed in Maune v. City of Rolla,203 S.W.3d 802, 805(Mo.App. S.D.2006) that:

We must strictly construe the statutory provisions that waive a public entity's sovereign immunity.O'Dell v. Department of Corrections,21 S.W.3d 54, 57(Mo.App.2000).A "dangerous condition" under Section 537.600 requires some defect, physical in nature, in the sovereign's property.State ex rel Div. of Motor Carrier and R.R. Safety v. Russell,91 S.W.3d 612, 616(Mo. banc 2002);Sisk v. Union Pacific R.R.,138 S.W.3d 799, 808(Mo.App.2005);Tillison v. Boyer,939 S.W.2d 471, 473(Mo.App.1996).

The phrase "injuries caused by the condition of a public entity's property clearly refers to ... a property interest which allows a public entity to control the property."[emphasis added].Dorlon v. City of Springfield,843 S.W.2d 934, 938(Mo.App. S.D.1992).It is this Court's conclusion that the accident and injuries sustained by the Plaintiff in this claim against the Clay County Election Board occurred outside of property owned or controlled by defendantClay County Election Board and is therefore barred by sovereign immunity.

After the trial court entered judgment granting summary judgment in favor of the Board, the Thomases filed a motion to make the judgment final for appeal.The trial court made the grant of summary judgment final for appeal, and notice of appeal was timely filed.

Standard of Review

"ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp.,854 S.W.2d 371, 376(Mo. banc 1993), sets forth the applicable standard of review: When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered."Donaldson v. Crawford,230 S.W.3d 340, 342(Mo. banc 2007)."Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion."Id."The non-movant is accorded the benefit of all reasonable inferences from the record."Id.

"The Court's review is essentially de novo."Id."The criteria on appeal for testing the propriety of summary judgment are no different from those that should be employed by the trial court to determine the propriety of sustaining the motion initially."Id."The propriety of summary judgment is purely an issue of law."Id."As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment."Id.

"Summary judgment will be upheld on appeal if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law."Foster v. St. Louis County,239 S.W.3d 599, 601(Mo. banc 2007).

Analysis

On appeal, the Thomases claim the trial court erred in entering summary judgment in favor of the Board.They assert the trial court erred in finding that Ms. Thomas did not fall on the Board's property for purposes of waiving sovereign immunity.Mr. and Ms. Thomas state the Board was in possession and control of the property by virtue of a written lease to use the property as a polling site.They further state the Board exercised possession and control through its actions and assumption of duty to make the property safe to voters.The point is granted.

Section 537.600 states, in relevant part:

1.Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:

(1) Injuries 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;

(2) Injuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition....

2.The express waiver of...