Winston v. Reorganized School Dist. R-2, Lawrence County, Miller, R-2

• Court: Missouri Supreme Court
• Writing for the Court: Susan Appelquist; RENDLEN
• Citation: 636 S.W.2d 324
• Parties: 5 Ed. Law Rep. 1287 Charles P. WINSTON, Appellant, v. REORGANIZED SCHOOL DISTRICTCOUNTY, MILLER, Missouri, Respondent.
• Decision Date: 02 August 1982
• Docket Number: No. 62671,R-2,LAWRENCE

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636 S.W.2d 324 5 Ed. Law Rep. 1287 Charles P. WINSTON, Appellant,
v.
REORGANIZED SCHOOL DISTRICT R-2, LAWRENCE COUNTY, MILLER,
Missouri, Respondent. No. 62671. Supreme Court of Missouri, En Banc. Aug. 2, 1982.

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Susan Appelquist, J. A. Appelquist, Springfield, for appellant.

Glenn A. Burkart, Springfield, for respondent.

RENDLEN, Judge.

In plaintiff's suit for personal injuries alleging defendant School District's negligence, the trial court entered summary judgment holding that the governmental tort immunity provided by § 537.600, et seq., RSMo 1978, ¹ barred relief. Plaintiff (appellant) contends the statute runs contrary to equal protection doctrine rendering it invalid under the Fourteenth Amendment to the United States Constitution, and Art. I, § 2, of the Missouri Constitution, and it is this constitutional challenge which brings the appeal within this Court's exclusive jurisdiction. Art. V, § 3, Mo.Const.

In our review of this summary judgment, we accept as true all of plaintiff's factual allegations which in pertinent part are these: On November 2, 1979, Miller High School hosted a football game at the athletic field owned and maintained by defendant school district. At defendant's request, plaintiff, a professional photographer, attended the game to take live action photographs for the Miller High School Yearbook. While photographing the game from the sidelines plaintiff sustained injuries to his left leg when struck by players who

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apparently ran out of bounds during play. He brought this action contending defendant negligently failed to warn of the impending danger or provide plaintiff a reasonably safe place to work. As above noted, the trial court entered summary judgment holding plaintiff's action was barred by sovereign immunity afforded public entities under § 537.600 et seq.

Plaintiff maintains the statute is violative of the equal protection provisions of the federal and state constitutions, in that its classifications permitting tort claims only for those whose injuries arise from a public employee's operation of a motor vehicle or the conditions of a public entity's property are: (1) arbitrary and unreasonable, (2) bear no rational relationship to the purpose for which the statute was announced, and (3) are both under and overinclusive.

At the outset, we address defendant's challenge to this Court's jurisdiction stemming from plaintiff's alleged failure to preserve his claims of constitutional invalidity. Defendant asserts that plaintiff's pleading filed in response to defendant's motion for summary judgment, failed to apprise the trial court of the applicable constitutional provisions or the facts on which the claims of invalidity were predicated. Such failure, defendant urges, deprives this Court of jurisdiction and mandates dismissal of the appeal. State v. Griffin, 339 S.W.2d 803, 806 (Mo.1960), cert. denied, 366 U.S. 938, 81 S.Ct. 1666, 6 L.Ed.2d 849 (1961); State v. Merritt, 542 S.W.2d 14, 17 (Mo.App.1976).

While it is true that plaintiff's "Reply to Defendant's Answer and Motion for Summary Judgment" alleged the unconstitutionality of § 537.600 in general terms ("violative of Plaintiff's rights to due process and equal protection"), plaintiff's "Reply Memorandum", filed sometime after the reply, but well in advance of entry of judgment, referenced the specific constitutional sections and in narrative form supplied the underlying facts with sufficient particularity to inform defendant and the trial court of plaintiff's contentions. Accordingly, because the purpose of the rule requiring that constitutional issues be raised at the earliest opportunity, to prevent surprise to the opposing party and permit the trial court an opportunity to fairly identify and rule on the issue, was served here, defendant's jurisdictional challenge is denied. Weir v. State, 589 S.W.2d 256 (Mo. banc 1979).

Turning to plaintiff's contentions, several familiar principles bear iteration. A statute is presumed constitutional and must not be held otherwise unless "clearly and undoubtedly" contravening the Constitution, Prokopf v. Whaley, 592 S.W.2d 819, 824 (Mo. banc 1980), and should be enforced by our courts as an expression of the people's will unless it plainly and palpably affronts the fundamental law embodied in the Constitution. Americans United v. Rogers, 538 S.W.2d 711 (Mo. banc 1976), cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632. When a challenger asserts a statutory classification is violative of equal protection doctrine he must prove abuse of legislative discretion beyond a reasonable doubt, and short of that, the issue must settle on the side of validity. Sambs v. City of Brookfield, 97 Wis.2d 356, 293 N.W.2d 504, 511 (1980), cert. denied, 449 U.S. 1035, 101 S.Ct. 611, 66 L.Ed.2d 497; Stanhope v. Brown County, 90 Wis.2d 823, 280 N.W.2d 711, 716 (1979). It is not our province to question the wisdom, social desirability or economic policy underlying a statute as these are matters for the legislature's determination. Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015, 1025 (1976), appeal dismissed, 429 U.S. 806, 97 S.Ct. 41, 50 L.Ed.2d 67.

A statute, as here, which neither touches a fundamental civil right nor involves suspect classifications will withstand an equal protection challenge if a rational basis for the legislative classification can be found. Maran-Cooke, Inc. v. Purler Excavating, Inc., 585 S.W.2d 38, 41 (Mo. banc 1979); Christophel v. Parkway School District, 600 S.W.2d 61, 62 (Mo.App.1980). As the general purpose of the equal protection guarantees is to safeguard against invidious discrimination, differentiations between

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classes, not suspect or specially protected, are permissible, unless the classification rests on grounds irrelevant to achievement of the State's objectives. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Crane v. Riehn, 568 S.W.2d 525, 528 (Mo. banc 1978); Kansas City v. Webb, 484 S.W.2d 817, 824 (Mo. banc...