Tillison v. Boyer, 69821

• Decision Date: 24 December 1996
• Docket Number: No. 69821,69821
• Citation: 939 S.W.2d 471
• Parties: Theresa A. TILLISON and Raymond Tillison, Plaintiffs/Appellants, v. John L. BOYER, Nancy F. Boyer, Washington County Memorial Hospital and East Missouri Action Agency, Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 471

939 S.W.2d 471

Theresa A. TILLISON and Raymond Tillison, Plaintiffs/Appellants, v. John L. BOYER, Nancy F. Boyer, Washington County Memorial Hospital and East Missouri Action Agency Defendants/Respondents.

No. 69821.

Missouri Court of Appeals,

Eastern District,

Division Two.

Dec. 24, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Feb. 5, 1997.

Application to Transfer Denied

March 25, 1997.

Eckelkamp, Eckelkamp, Wood & Kuenzel, Louis B. "Buzz" Eckelkamp, III, Washington, for Plaintiffs/Appellants.

Kosta and Associates, George F. Kosta, St. Louis, for Defendants/Respondents.

PUDLOWSKI, Judge.

Theresa Tillison (Tillison) was paralyzed when, while walking across Washington County Memorial Hospital's (Hospital's) parking lot, a dead tree near the hospital's property line fell on top of her. The tree was located on John and Nancy Boyer's (Boyers') property. Tillison and her husband sought damages from the Boyers and the hospital, as well as from the East Missouri Action Agency (Agency). As a division of the state, the hospital claimed sovereign immunity and filed a motion to dismiss. The trial court sustained the motion, and the Tillisons appeal. Because there are no facts alleged in the Tillisons' petition to show the hospital had control over the dead tree, we affirm.

I. Background

Following the Tillisons' institution of this action the hospital filed a motion to dismiss, arguing it was a political subdivision of the state and as such was immune from liability under a theory of sovereign immunity. § 537.600.1 RSMo. The Tillisons argued the dead tree constituted a dangerous condition as defined in § 537.600.1(2) RSMo and was therefore a statutory exception to the theory of sovereign immunity. The trial court granted the motion and entered a final order and judgment. The Tillisons now appeal.

II. Standard of Review

Before addressing the merits of the Tillisons' appeal, it is important to reiterate the guidelines which govern this court when reviewing a motion to dismiss. "[W]e must determine if the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. We treat the facts averred as true and construe all averments liberally and favorably to appellant." Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 834 (Mo. banc 1985). "The appellate court will reverse the trial court's dismissal of a pleading for failure to state a claim upon which relief can be granted if after viewing the pleading in its broadest intendment ... the averments invoke principles of substantive law which may entitle plaintiff to relief." Halamicek Bros. Inc. v. St. Louis County, 883 S.W.2d 108, 109 (Mo.App.E.D.1994). With this in mind, we now turn to the Tillisons' appeal.

III. The Tillisons' Appeal

A. Whether the motion to dismiss was proper where the Tillisons failed to allege any facts which revealed the hospital controlled the property on which any part of the tree was located.

In their sole point on appeal the Tillisons argue the trial court erred in granting the hospital's motion to dismiss because the tree constituted a dangerous condition of the hospital's property. Even though the tree was not located on the hospital's property, the Tillisons argue the hospital was still liable in its failure to warn since it had prior knowledge that parts of the dead tree had previously fallen onto its property. As a result, the tree was a dangerous condition of the property and thus constituted an exception to the theory of sovereign immunity. We disagree.

It is undisputed the hospital is a political subdivision of the state. The hospital is therefore entitled to the protection of sovereign immunity as provided in § 537.600.1 RSMo. Twente v. Ellis Fischel State Cancer Hospital, 665 S.W.2d 2 (Mo.App.W.D.1983). However, § 537.600.1(2) RSMo provides that if a dangerous condition exists on the public entity's property then sovereign immunity is waived. In interpreting this statute, this court has noted the plaintiff must prove: "1) a dangerous condition of the property; 2) that the plaintiff's injuries directly resulted from the dangerous condition; 3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind the plaintiff incurred; 4) that a public employee negligently created the condition or that the public entity had actual or constructive notice of the dangerous condition." Kanagawa, 685 S.W.2d at 834-835. While this exception must be narrowly construed, it must be given its plain meaning. James v. Farrington, 844 S.W.2d 517, 520 (Mo.App.W.D.1992).

In order for something to be a dangerous condition, it must be something physical in nature on the property. Twente, 665 S.W.2d at 12; Kanagawa, 685 S.W.2d at 835; Jones v. St. Louis Housing Authority, 726 S.W.2d 766, 774 (Mo.App.1987); Alexander v. State, 756 S.W.2d 539, 542 (Mo. banc 1988). The Tillisons point to Alexander and argue the Supreme Court has held it is not necessary that the condition be an actual physical defect, but rather a non-physical condition can be dangerous because its existence poses a physical threat. We disagree.

In Alexander, the plaintiff injured his back when he stepped off a ladder and onto a folding room partition that had been placed at the foot of the ladder. In finding the partition constituted a dangerous condition, the Supreme Court first noted that the ladder created a "physical deficiency" in the state's property which in turn constituted a dangerous condition. Alexander, 756 S.W.2d at 542. The distinction made in Alexander was that the term "condition" was...