Twente v. Ellis Fischel State Cancer Hosp.
| Citation | 665 S.W.2d 2 |
| Decision Date | 13 December 1983 |
| Docket Number | No. WD,WD |
| Parties | Katherine Irene TWENTE, Appellant, v. ELLIS FISCHEL STATE CANCER HOSPITAL, and Missouri Department of Social Services, and Missouri Division of Health, Respondents. 34067. |
| Court | Court of Appeal of Missouri (US) |
J. William Turley of Wesner, Turley & Kempton, Inc., Sedalia, for appellant.
John Ashcroft, Atty. Gen., Scott A. Woodruff, Asst. Atty. Gen., Jefferson City, for respondents.
Before MANFORD, P.J., and SOMERVILLE and KENNEDY, JJ.
This is an original action seeking recovery of damages for personal injuries. The trial court dismissed the petition. This appeal from that dismissal is made pursuant to § 512.020, RSMo 1978. The judgment dismissing the petition is affirmed.
Appellant's sole point charges the trial court erred in dismissing her petition for failure to state a cause of action, because her petition does state a cause of action against the defense of sovereign immunity, in that said petition pleads specific facts which bring her claim within the waiver or exception set forth in § 537.600(2), RSMo 1978.
In summary, the pertinent facts are as follows: On or about March 9, 1980, appellant Katherine Irene Twente was a nursing staff employee of respondent hospital. There is no dispute that respondent hospital is a functioning unit, and thus a part of the Missouri Division of Health, which in turn is within the Missouri Department of Social Services. The latter two are duly constituted political subdivisions of the state of Missouri. Between the hours of 11:00 and 11:30 p.m. on the above date, appellant completed her work schedule and proceeded to the south exit of respondent hospital. Her purpose was to leave the building and enter her automobile parked in the adjacent parking lot. There is no dispute that both the building and parking lot were owned and under the control of respondent hospital. For a period of time prior to the particular date, both appellant and respondents were aware of physical assaults and rapes upon employees and others on or near the parking area owned by respondent. As a result of these prior assaults and rapes, respondents had employed a security guard who was customarily stationed at the door where appellant exited. On the night in question, the security guard was not at the door and allegedly could not be located by appellant. Appellant alleges that she left the building and as she approached her automobile in the parking lot, she was assaulted and raped by two assailants. Appellant charges that she sustained both physical and psychological injuries.
Appellant initiated this action, charging that her injuries were the direct and proximate result of the dangerous condition existing on respondents' property which caused foreseeable harm to her. In her petition, she further alleged that this dangerous condition resulted from and was created by the negligence of the security guard acting within the course and scope of his employment with respondent.
Respondents filed a motion to dismiss appellant's petition upon the theory that they were entitled to the benefit of the doctrine of sovereign immunity, and that the facts alleged in appellant's petition did not fall within the exception created by § 537.600(2), RSMo 1978. On April 12, 1982, the circuit court sustained respondents' motion to dismiss. This appeal followed.
As noted, appellant charges that the trial court erred in sustaining respondents' motion to dismiss, because as offered, her petition states a cause of action as against the defense of sovereign immunity in that her petition alleges specific facts which bring her claim within the waiver or exception prescribed by § 537.600(2), RSMo 1978.
In support of her contention, appellant references § 537.600(2), which reads as follows:
"537.600. Sovereign immunity in effect--exceptions--waiver of
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: ...
(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."
Appellant notes that no court in our state has specifically addressed the question presented by this case. By stipulation of the parties, the question is: "That the issue raised by this appeal is the applicability of the waiver of sovereign immunity under section 537.600 of the Missouri Revised Statutes, as amended, to the facts as stated in the Petition filed in this cause."
The pertinent portion of appellant's petition reads as follows:
5. That on that date, Plaintiff completed her usual and customary hours of work between 11:00 p.m. and 11:30 p.m.
6. That immediately upon completion of her duties, Plaintiff went to the middle exit on the South side of the Defendants' hospital premises and attempted to locate a guard who is the servant, agent and employee of Defendants, and who is customarily stationed at that door to guard against any assault upon persons coming into or leaving Defendants' premises from the parking lot located immediately adjacent thereto, but Plaintiff was unable to locate that guard.
7. That after repeated efforts to locate the aforementioned guard, Plaintiff exited the Defendants' building and walked toward her automobile located on Defendants' parking lot and when she reached that automobile, she was over-powered by two male persons who physically forced her into a 'van' type of automobile.
8. That while this Plaintiff was so confined, against her will, in that van, she was raped by each of two men and otherwise assaulted and battered and subjected to physical and mental abuse and other moral and physical outrages.
9. That for many months prior to the physical assault suffered by this Plaintiff, the Defendants knew, or in the exercise of ordinary care, should have known, that there existed a high possibility of physical assault and rape to employees and other persons on or near the parking lots owned by this Defendant because of a previous history of such assaults on or near the parking lots of these Defendants and other institutions operated by the State of Missouri and its agencies, in and around the City of Columbia, Missouri.
10. That the aforementioned assault, batteries and rapes occurred as the direct and proximate result of the negligence of these Defendants in the following particular respects:
a. In failing to provide a sufficient number of guards to cover the entire area of the Defendants' premises so as to prevent such physical abuse as was suffered by this Plaintiff, at a time when Defendants knew, or in exercise of ordinary care, should have known of the likelihood of such physical assaults;
b. In the failure of the guard who was, in fact, stationed at that door, and who was, at all times mentioned herein, the servant, agent and employee of the Defendants, and was acting within the course and scope of his employment with and by the Defendants, to remain at his post and thus prevent the acts of physical violence which were suffered by this Plaintiff and at a time when he knew, or should have known, of the likelihood of such physical assaults;
c. In the failure of the guard who was, in fact, stationed at that door, and who was, at all times mentioned herein, the servant, agent and employee of the Defendants, and was acting within the course and scope of his employment with and by the Defendants, to remain at his post and thus prevent the acts of physical violence which were suffered by this Plaintiff and at a time when he knew that it was his specific duty to guard against exactly such physical assaults as were suffered by this Plaintiff.
11. That all of Plaintiff's injuries, both physical and psychological, were caused by, and directly resulted from, the dangerous condition of Defendants' property; and that such dangerous condition and the potential for injury, of the very type Plaintiff suffered, were reasonably foreseeable and resulted from the negligent acts and omissions of Defendants' employees, within the course of such employment, as aforementioned herein; thus bringing Plaintiff's claim within the waiver of Sovereign or governmental tort immunity as set out at Section 537.600(2) of the Revised Statutes of Missouri, as amended."
The above petition concludes with a prayer for damages.
Appellant's argument contends that her petition contains the necessary elements to state a claim under § 537.600(2), which she outlines as follows:
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DOE A v. Special Sch. Dist. of St. Louis County
...does not apply.5 The dangerous condition exception applies only to physical defects upon property. Twente v. Ellis Fischel State Cancer Hospital, 665 S.W.2d 2, 11 (Mo.Ct.App.1983); Bates v. State, 664 S.W.2d 563, 565 (Mo.Ct.App.1983). Therefore, that exception to sovereign immunity does not......
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