Wollard v. City of Kansas City

• Decision Date: 21 April 1992
• Docket Number: No. 74257,74257
• Citation: 831 S.W.2d 200
• Parties: Martha WOLLARD and Elwood H. Wollard, Appellants-Respondents, v. The CITY OF KANSAS CITY, Missouri, Respondent-Appellant, Martha WOLLARD and Elwood H. Wollard, Respondents, v. The CITY OF KANSAS CITY, Missouri, Appellant.
• Court: Missouri Supreme Court

Page 200

831 S.W.2d 200

Martha WOLLARD and Elwood H. Wollard, Appellants-Respondents, v. The CITY OF KANSAS CITY, Missouri, Respondent-Appellant, Martha WOLLARD and Elwood H. Wollard, Respondents, v. The CITY OF KANSAS CITY, Missouri, Appellant.

No. 74257.

Supreme Court of Missouri En Banc.

April 21, 1992.

Rehearing Denied July 21, 1992.

Richard E. Rice, Kansas City, for appellant.

Richard N. Ward, Jeffrey L. Hess, Patricia R. Jensen, Kansas City, for respondent.

James J. Wilson, City Counselor, Helen D. Haskins, St. Louis, Dennis Budd, Asst. City Counselor, Springfield, for amici City of St. Louis and City of Springfield.

Robert O. Jester, Daniel N. Allmayer, Kansas City, for amici Mid-Am. Regional Counsel and 24 Cities and Counties.

COVINGTON, Justice.

Plaintiffs Martha Wollard and her husband, Elwood Wollard, appeal a judgment in which the trial court applied the damage limitation contained in § 537.610.2, RSMo 1986, to the verdict returned by the jury, thereby reducing Mrs. Wollard's recovery to $100,000. The Missouri Court of Appeals, Western District, affirmed. This Court granted transfer to consider whether § 537.610.2 applies to verdicts rendered against municipal corporations sued for torts arising out of their proprietary functions. Affirmed.

Mrs. Wollard slipped and fell on property owned by the City of Kansas City as she stepped from a public street up to a city sidewalk. Apparently Mrs. Wollard slipped on mud left on the sidewalk by employees of the city's water department as a result of excavation conducted for the purpose of making repairs to the water system. Mrs. Wollard sued to recover damages for her personal injuries. Mr. Wollard sued for loss of consortium. The jury returned verdicts of $800,000 and $108,333 in favor of Martha Wollard and Elwood Wollard, respectively. The jury found Mrs. Wollard to be thirty-three percent at fault and the verdict was reduced accordingly.

After trial, the court limited Mrs. Wollard's damages to $100,000 pursuant to § 537.610.2, which provides that "the liability of the state and its public entities on claims within the scope of §§ 537.600 to 537.650, ... shall not exceed $100,000 for any one person in a single accident or occurrence...."

Mrs. Wollard appealed, alleging that her claim was not within the scope of § 537.600, RSMo 1986, thus was not subject to reduction under § 537.610.2. Kansas City cross-appealed to assert alternative contentions of error, evidentiary and otherwise, should the jury award be reinstated on appeal.

Although the immediate issue is whether the $100,000 liability limitation in § 537.610.2 applies to Mrs. Wollard's claim, resolution of the case turns upon interpretation of § 537.600, RSMo 1986, which in relevant part provides:

1. Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, ... 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 a 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.... (Enacted 1978; Reenacted 1985, see 1978 Mo.Laws 982; 1985 Mo.Laws 633).

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.... (Enacted 1985, see 1985 Mo.Laws 633).

The parties do not dispute that the Wollards' claim of negligence is of the type contemplated in § 537.600.1(2). There is no dispute that the City of Kansas City, a municipal corporation, is a "public entity" within the meaning of §§ 537.600 and 537.610. See e.g., Donahue v. City of St. Louis, 758 S.W.2d 50, 53 (Mo. banc 1988). The parties also agree that the municipal corporation's activity was undertaken in a proprietary capacity. See, e.g., Lamar v. City of St. Louis, 746 S.W.2d 160, 162 (Mo.App.1988), overruled on other grounds by Wilkes v. Missouri Highway Comm'n, 762 S.W.2d 27 (Mo. banc 1988); State ex rel. Wartick v. Teel, 737 S.W.2d 258, 260 (Mo.App.1987). Finally, there is no dispute that the legislature has authority to regulate all suits against municipal corporations under § 537.600. The focus of disagreement is § 537.600.2, upon which the City's argument rests in substantial part, and which the Wollards contend is without application in this case.

To address the issue, as well as to place in context the essential contentions of both the Wollards and the City, it is first necessary briefly to recapitulate the course of the doctrine of sovereign immunity in Missouri. The state and its political subdivisions were immune from suit for tort under the common law doctrine of sovereign immunity. Wood v. County of Jackson, 463 S.W.2d 834, 835 (Mo.1971). A municipal corporation, distinct from the state and its political subdivisions, was deemed to exercise proprietary as well as governmental functions, and so was immune only when functioning in a governmental capacity. Cullor v. Jackson Township, 249 S.W.2d 393, 395 (Mo.1952). In Jones v. State Highway Comm'n, 557 S.W.2d 225 (Mo. banc 1977), this Court abrogated the doctrine of sovereign immunity prospectively as to all claims arising on or after August 15, 1978. Id. at 231.

The legislature responded to Jones by enacting in 1978 §§ 537.600 and 537.610, which reestablished the doctrine of sovereign immunity as it existed prior to Jones with two exceptions: immunity was expressly waived as to liability for injury from the negligent operation of motor vehicles and from the dangerous condition of property. Section 537.600.1(1), (2). See Donahue v. City of St. Louis, 758 S.W.2d at 51.

This Court interpreted the express exceptions of § 537.600.1(1) and (2) in 1983 in Bartley v. Special School Dist. of St. Louis County, 649 S.W.2d 864 (Mo. banc 1983). The Bartley Court concluded that the express waivers depended upon the acquisition of insurance and also concluded that the statute preserved the governmental/proprietary distinction. Id. at 868-70.

Again in response to an opinion of this Court, Bartley, the legislature acted; it amended § 537.600, effective September 28, 1985, by adding subsection 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.

In 1991 this Court observed that the 1985 amendment "broadened the waiver of sovereign immunity provisions and allowed such waiver whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity was covered by liability insurance." Oldaker v. Peters, 817 S.W.2d 245, 249 (Mo. banc 1991).

The question now presented squarely to the Court is whether, in view of the 1985 amendment, suits against municipal corporations acting in their proprietary capacity, for torts arising from the dangerous condition of the municipality's property, fall within the scope of § 537.600.1(2).

The Wollards contend that §§ 537.600 and 537.610 are without application to their case. They argue that § 537.600 reestablishes immunity as it existed pre-Jones, then waives that reestablished immunity in the two specified instances. The exceptions apply only when, at common law, the defendant would have been immune. If the defendant was not immune to suit prior to Jones, then the express waivers contained in § 537.600 would not apply. The Wollards contend that the reinstatement of the common law prior to Jones requires that a court apply as a threshold matter the common law governmental/proprietary test. Only after it is determined that the matter involves an immune governmental function, they argue, would the express waivers contained in § 537.600.1(1) and (2) apply.

In response, the City argues that § 537.600 reinstates sovereign immunity except in cases involving motor vehicles or dangerous property as expressed in § 537.600.1(1) and (2). In those cases the common law governmental/proprietary distinction is vitiated. All torts caused by either the dangerous condition of the public entity's property or the negligent operation of a motor vehicle by the public entity's employee are within the scope of the statute. The common law governmental/proprietary test retains vitality only in suits against municipal corporations that do not involve the express waivers contained in § 537.600.

This Court agrees with the City of Kansas City's argument. The Wollards' arguments ignore the words and effect of both the 1978 reinstatement of sovereign tort immunity and the 1985 amendment.

In construing a statute, the words used in the statute are to be considered in their plain and ordinary meaning in order to ascertain the intent of the lawmakers. State ex rel. Metropolitan St. Louis Sewer District v. Sanders, 807 S.W.2d 87, 88 (Mo. banc 1991). "It is the responsibility of the Court 'to ascertain and effectuate the...