United Missouri Bank v. City of Grandview

• Decision Date: 30 May 2003
• Docket Number: No. WD 61111.,WD 61111.
• Citation: 105 S.W.3d 890
• Parties: UNITED MISSOURI BANK, N.A., Conservator of the Estate of Dennis Gallagher, Appellant, v. CITY OF GRANDVIEW, et al., Respondent.
• Court: Missouri Court of Appeals

105 S.W.3d 890

UNITED MISSOURI BANK, N.A., Conservator of the Estate of Dennis Gallagher, Appellant, v. CITY OF GRANDVIEW, et al., Respondent.

No. WD 61111.

Missouri Court of Appeals, Western District.

May 30, 2003.

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Ronald M. Sokol, St. Joseph, for appellant.

Randall D. Thompson, Dana M. Harris, Kansas City, for respondent.

Before BRECKENRIDGE, P.J., HOLLIGER and LOWENSTEIN, JJ.

PATRICIA BRECKENRIDGE, Judge.

United Missouri Bank, N.A., (UMB) acting in its capacity as conservator of the estate of Dennis Gallagher, appeals from a judgment entered in the Circuit Court of Jackson County granting summary judgment for the City of Grandview, Missouri, and J & D Enterprises. UMB raises five points on appeal challenging the propriety of summary judgment. This court finds that summary judgment is not appropriate in this case because genuine issues of material fact exist on the issue of causation. Moreover, the trial court erred in granting summary judgment to the City to the extent that it based its judgment on a finding that the dangerous condition of the road was the result of zoning decisions for which sovereign immunity was not waived. Accordingly, the judgment of the trial court is reversed and the cause is remanded.

Factual and Procedural Background

When reviewing summary judgments, this court reviews the record, and any reasonable inferences from the record, "in the light most favorable to the party against whom judgment was entered." ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). On October 9, 1996, at approximately 5:28 P.M., Walter Klammer drove from the center exit of The Farm Center, a shopping center, in Grandview, Missouri, heading across Blue Ridge Boulevard. As he crossed the second eastbound lane, his car was struck on the lower part of the driver's side door by a motorcycle driven by Dennis Gallagher that was heading east on Blue Ridge Boulevard. As a result of the accident, Mr. Gallagher was taken to the hospital and treated for brain stem injuries.

Subsequently, UMB, acting in its capacity as conservator of the estate of Mr. Gallagher, filed suit against Respondents, the City of Grandview, Missouri ("the City"), and J & D Enterprises, the owners of The Farm Center.¹ UMB alleged that the dangerous condition of the intersection caused the accident between Mr. Gallagher and Mr. Klammer's vehicles. UMB's petition alleged that the City was negligent in approving, and both the City and J & D Enterprises were negligent in allowing or causing, the center exit from the parking lot to be constructed and maintained in a location that provided traffic on Blue Ridge Boulevard with limited visibility of vehicles exiting the parking lot at that location and provided inadequate visibility to the exiting vehicles. The petition further alleged that the City and J & D Enterprises negligently allowed a fence to be built and trees to be planted along the roadway which blocked or reduced the sight distance for drivers and allowed cars to park in the parking lot near the exit which blocked or reduced drivers' visibility. The petition also contended that the City and J & D Enterprises were negligent for failing to properly warn approaching traffic of this dangerous intersection, failing to post reduced speed limit signs for traffic on Blue Ridge Boulevard due to the hazardous nature of the intersection, and allowing the exit to be constructed without a stop sign for drivers exiting the parking lot and without a stop line telling drivers where to stop due to the limited sight distance.

After some discovery had been completed in the case, the City and J & D Enterprises filed separate motions for summary judgment. In both summary judgment motions, the parties argued that the uncontroverted facts established that Mr. Klammer's actions were responsible for the accident and there were no witnesses that could establish that visibility at the intersection played a part in the accident. In its motion, the City also argued that the actions forming the basis for UMB's claims of negligence against it were all related to governmental functions and that the City should be shielded from liability under the public duty doctrine. The City further argued that allegations related to the failure to properly warn and failure to post reduced speed limit signs were not dangerous conditions and that UMB failed to allege any condition that made Blue Ridge Boulevard dangerous.

After taking the motions under advisement, the trial court granted summary judgment in favor of the City and J & D Enterprises on February 25, 2002. The trial court found that the direct cause of the accident was the conduct of Mr. Klammer and that no evidence in the record established that the trees or fence contributed to Mr. Klammer's decision to pull out in front of traffic. The trial court also found that the actions of the City in approving the plans for the exit and related landscaping were zoning and zoning is a governmental function for which sovereign immunity was not waived. UMB filed this appeal.

Standard of Review

Appellate review of a summary judgment is essentially de novo. ITT, 854 S.W.2d at 376. This court's criteria for ascertaining the propriety of summary judgment are the same as those which a trial court uses initially. Id. This court does not defer to the trial court's order granting summary judgment because the trial court's initial judgment is based on the record submitted and amounts to a decision on a question of law. Id. Summary judgment is appropriate where the moving party establishes a right to judgment as a matter of law and that no genuine issue of material fact exists. Id. at 378.

For movants who are the defending parties in a lawsuit, the prima facie showing required by Rule 74.04 is "necessarily different." Id. at 381. A defending party may establish a right to judgment as a matter of law by showing:

(1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.

Id.

Failure to Raise Procedural Errors in Trial Court Precludes Appellate Review

Before addressing UMB's allegations of substantive error, this court will address UMB's claim in its third point that J & D Enterprises violated Rule 74.04(c)(1) by incorporating by reference the summary judgment motion and suggestions in support thereof filed by its predecessor in interest, the previous owner of the property, The Farm Center, L.L.C. UMB concedes in its reply brief that it did not properly raise this issue in the trial court. This court's review of the grant of summary judgment is limited to those issues raised in the trial court, and this court "will not review or convict a trial court of error on an issue that was not put before the trial court to decide." Barney v. The Mo. Gaming Co., 48 S.W.3d 46, 50 (Mo.App.2001). Accordingly, UMB's third point was not properly preserved for appeal and will not be considered.

Disputed Issues of Material Fact on Causation

In its first, fourth, and fifth points, UMB contends that the trial court erred in entering summary judgment in favor of the City and J & D Enterprises based upon its conclusion that UMB would not be able to establish that a dangerous condition of the property "directly caused" the accident. Public entities, such as the City, are generally immune from tort liability under the doctrine of sovereign immunity. Larison v. Pub. Water Supply Dist. No. 1 of Andrew County, 998 S.W.2d 192, 195 (Mo.App.1999). This immunity is waived under section 537.600.1(2), however, "for conditions of property when the property is in a dangerous condition due to a negligent or wrongful omission, a reasonably foreseeable injury directly results, and the public entity had actual or constructive knowledge of the problem and could have corrected it." Linton v. Mo. Highway & Transp. Comm'n, 980 S.W.2d 4, 6 (Mo.App.1998). Thus, to establish that the City was not entitled to invoke sovereign immunity as a defense to this action based upon the dangerous condition exception, UMB was required to prove:

"(1) [A] dangerous condition of a public entity's property at the time of injury; (2) that the injury directly resulted from the dangerous condition; (3) that the dangerous condition created a reasonbly foreseeable risk of harm of the kind that the plaintiff incurred; and (4) that either (a) a public employee's negligence or wrongful act or omission within the course of his employment created the dangerous condition, or (b) the public entity had actual or constructive knowledge of the dangerous condition." Larison, 998 S.W.2d at 195.

"The phrase `directly resulted from' in section 537.600.1(2) is synonymous with `proximate cause.'" State ex rel. Mo. Highway & Transp. Comm'n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998). Proximate cause is the standard required to hold J & D Enterprises liable. Oldaker v. Peters, 869 S.W.2d 94, 100 (Mo.App.1993). Accordingly, this court will apply the same principles and rules in examining issues related to proximate cause for the purpose of establishing J & D Enterprises' general tort liability for negligence as it will in examining whether the plaintiff's injury was a direct result of a dangerous condition of the City's property for sovereign immunity purposes. Smith v. Coffey, 37 S.W.3d 797, 801 (Mo. banc 2001).

"The practical test of proximate cause is generally considered to be whether the negligence of the defendant is that cause or act of which the injury was the natural and probable consequence."² Hale ex rel. Hale v....