Uptergrove v. Housing Authority of City of Lawson

• Decision Date: 15 October 1996
• Docket Number: No. WD,WD
• Citation: 935 S.W.2d 649
• Parties: James UPTERGROVE, Representative for GEORGIA UPTERGROVE, Deceased, Respondent, v. HOUSING AUTHORITY OF THE CITY OF LAWSON, Mo., Appellant. 52098.
• Court: Missouri Court of Appeals

Page 649

935 S.W.2d 649

James UPTERGROVE, Representative for GEORGIA UPTERGROVE Deceased, Respondent, v. HOUSING AUTHORITY OF THE CITY OF LAWSON, Mo., Appellant.

No. WD 52098.

Missouri Court of Appeals Western District.

Oct. 15, 1996.

As Modified Nov. 26, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 26, 1996.

Application to Transfer Denied

Jan. 21, 1997.

Timothy H. Bosler, Kansas City, for respondent.

J. Patrick Chassaing, Clayton, for appellant.

Before ULRICH, C.J., P.J., SPINDEN and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

This is an appeal from a judgment awarding damages to respondent for the tort claim he brought on behalf of the deceased plaintiff, Georgia Uptergrove, as a result of the injuries she suffered from a fall on the ice and snow. Mrs. Uptergrove died during the

trial. Appellant, the Housing Authority of the City of Lawson, asserts three points on appeal: 1) the trial court erred in failing to grant appellant's motion for directed verdict and motion for a judgment notwithstanding the verdict or in the alternative for a new trial on the issue of negligence, as sovereign immunity should have applied; 2) the trial court erred in allowing respondent to introduce inadmissible hearsay evidence under the "present sense impression" and "statements pursuant to treatment exceptions"; and, 3) the trial court erred by allowing appellant to ask the "insurance question" on voir dire.

FACTS

Georgia Uptergrove, hereinafter Mrs. Uptergrove, was a resident of public housing provided by the appellant, a municipal corporation, through the city of Lawson, Missouri. Her lease agreement did not specifically mention snow removal, although it did recognize a general obligation to maintain the premises in a safe condition. On February 4, 1990, Mrs. Uptergrove fell on the ice and snow that had accumulated on the sidewalk near the front of her apartment. After paramedics treated her, Mrs. Uptergrove told her son, respondent, that she had slipped and fallen, a statement that respondent testified to at trial over the appellant's objection. The trial court admitted the statement under the "present tense" [sic] exception to hearsay. The court also admitted a statement to the same effect, which Mrs. Uptergrove gave to her doctor, as a statement pursuant to medical treatment. The appellant objected to the admission of this statement as well.

Following hip and leg surgery and a period of convalescence, Mrs. Uptergrove lived in her apartment briefly before moving to a nursing home. She filed suit for tort and contract claims against the respondent on October 15, 1991, and died on December 26, 1992. Respondent, her personal representative, filed a motion for substitution and substituted himself as the plaintiff. In voir dire, respondent's counsel questioned whether panel members or their families were employed by or had a financial interest in appellant's insurer, Missouri Housing Authority Property and Casualty Insurance, Inc. The appellant objected to this inquiry as being prejudicial and irrelevant. At the close of respondent's case, the trial court sustained the appellant's motion for directed verdict concerning respondent's contract claim, but overruled the appellant's motions as to the tort claim. The jury found for appellant and assessed fault to both parties. The respondent then filed a motion for judgment notwithstanding the verdict and motion for new trial in the alternative, which the trial court denied. The respondent now appeals the trial court's judgment on those motions.

I.

In Point I, the appellant contends that the trial court erred by denying its motion for directed verdict on the issue of its liability, and argues that respondent failed to make a submissible case, because sovereign immunity attaches and is not waived under any exception to the sovereign immunity statute, § 537.600. Specifically, the appellant denies the application of the "dangerous condition" exception to sovereign immunity, as the appellant contends that the exception will only arise if there is an "intrinsic" defect in the property. It argues that the accumulation of snow and ice is not the equivalent of a defect in the property, so sovereign immunity is not waived under the exception. We disagree.

In reviewing the failure to grant a motion for directed verdict at the close of plaintiff's evidence, an appellate court will examine the evidence "... to determine whether or not the plaintiff introduced substantial evidence that tends to prove the facts essential to plaintiff's recovery." Schaffer v. Bess, 822 S.W.2d 871, 876 (Mo.App.1991), citing Eichelberger v. Barnes Hosp., 655 S.W.2d 699, 704 (Mo.App.1983). The appellate court will not find reversible error if the plaintiff has submitted such substantial evidence. The reviewing court's determination is made by disregarding the evidence submitted by the defendant and viewing the remaining evidence in the light most favorable to the plaintiff. Id. The standard for review of a judgment NOV is essentially the same as we use in reviewing the denial of a motion for directed verdict. For both, the ultimate issue Logically, we must first address respondent's argument that sovereign immunity does not apply here because it did not apply to housing authorities prior to September 12, 1977, and that § 537.600 by its terms only reinstated sovereign immunity protection as it existed prior to September 12, 1977. The legislature reinstated sovereign immunity in 1987 by enacting § 537.600, ¹ after the Missouri Supreme Court abrogated the doctrine in Jones v. State Highway Comm'n, 557 S.W.2d 225 (Mo. banc 1977). Section 537.600 provides as follows:

                is the submissibility of the case, wherein " '... each and every fact essential to liability is predicated upon legal and substantial evidence.' "  Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo. banc 1995), citing Houghton v. Atchison, Topeka and Santa Fe Railroad Co., 446 S.W.2d 406 (Mo. banc 1969).  A trial court must not withdraw the case from the jury " '... unless there is no room for reasonable minds to differ.' "  Id., citing Gregory v. Robinson, 338 S.W.2d 88, 91 (Mo. banc 1960).  Again, the reviewing court must look only at the evidence presented by the prevailing party in the light most favorable to him to decide if the non-moving party made a submissible case.  Id.   Denial of motion for a new trial is reviewed for abuse of discretion.  Kansas City v. Keene Corp., 855 S.W.2d 360 (Mo. banc 1993)
                

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. In any action under this subdivision wherein a plaintiff alleges that he was damaged by the negligent, defective or dangerous design of a highway or road, which was designed and constructed prior to September 12, 1977, the public entity shall be entitled to a defense which shall be a complete bar to recovery whenever the public entity can prove by a preponderance of the evidence that the alleged negligent, defective, or dangerous design reasonably complied with highway and road design standards generally accepted at the time the road or highway was designed and constructed.

2. The express waiver of sovereign immunity in the instances specified in subdivisions (1) and (2) of subsection 1 of this section are absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity is covered by a liability insurance for tort.

§ 537.600. Thus, the extent of immunity available for governmental bodies prior to September 12, 1977, was neither expanded nor contracted by the statute. Id. Therefore, respondent is correct in his assertion that if sovereign immunity did not apply to housing authorities before September 12, 1977, it will not apply now. Thus, the first issue for us to decide is whether sovereign immunity applied to housing authorities prior to September 12, 1977.

Respondent correctly states that our courts have generally held that sovereign immunity will not shield municipalities from liability for injuries due to failure to keep sidewalks in a reasonably safe condition. However, we find that respondent's argument is misplaced as to housing authorities. The Missouri Supreme Court has held that both under § 537.600 and common law, housing authorities exercise only governmental functions and, as such, are immune from tort liability because of their designation as municipal corporations pursuant to § 99.080 RSMo 1989. ² State ex rel St. Louis Housing v. Gaertner, 695 S.W.2d 460 (Mo. banc.1985), citing Page v. Metro. St. Louis Sewer Dist., 377 S.W.2d 348 (Mo.1964); See...