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August 23, 1983


From the Circuit Court of Johnson County; Civil Appeal; Judge Robert G. Russell.

Before Nugent, P.j., Turnage, Lowenstein, JJ.

The opinion of the court was delivered by: Lowenstein

On December 29, 1980, maintenance employees of the Missouri Highway and Transportation Commission (Commission) dug a ditch across an access road between state Route 58 and a service station. The workers put up no signs or barricades to warn motorists of the existence of this ditch.

On December 30, 1980, between 6:30 p.m. and 7:00 p.m., plaintiffs Robert Talley, Eve Smith and Lynn Dempsey exited Route 58 onto the access road. Each drove his or her automobile into the newly excavated ditch. The three vehicles were damaged. In addition, Karen Talley, wife of Robert Talley, and Irene Dempsey, wife of Lynn Dempsey, passengers in the cars driven by their husbands, sustained injuries.

At approximately 7:00 p.m., the service station manager called the Commission's maintenance supervisor to inform him of what was happening. The supervisor came to the site and installed two reflector signs in the ditch.

After a bench trial, the trial court entered total judgment for the plaintiffs of $2,675.61, which included amounts for personal injuries and property damage.

In their petition, the plaintiffs sought relief from the Commission under exception (2), of Section 537.600, *fn1 alleging "hat said unmarked, unlighted, unbarricaded ditch and excavation constitute a dangerous condition and an unreasonable risk of harm to the traveling public about which plaintiff had no notice or knowledge."

Since oral argument the Supreme Court has decided Bartley v. Special School District of St. Louis County, 649 S.W.2d 864 (Mo. banc No. 63901), decided April 26, 1983, Motion for Rehearing denied May 31, 1983.

This court is constrained by Bartley, a decision of Missouri's high court which holds the procurement of liability insurance by the public entity is a requirement for the waiver by it of sovereign immunity.

Although Best v. Schoemel, et al., No. 46026, decided by the Missouri Court of Appeals, Eastern District on May 24, 1983 applies to subsection one (motor vehicles) of Section 537.600, the assessment and application of Bartley to this case is well stated by Judge Reinhard. On page 4 of the slip opinion the Best court says Bartley holds sovereign immunity is waived only as provided by subsections (1) and (2) of Section 537.600, "and then only to the extent Section 537.610, *fn2 RSMo. 1978, applies":

"The liability of a public entity for torts is the exception to the general rule of immunity for tort and it is incumbent upon a plaintiff who seeks to state a claim for relief to specifically allege facts establishing that an exception applies. Burke v. City of St. Louis, 349 S.W.2d 930 (Mo. 1961). See Davis v. City of St. Louis, 612 S.W.2d 812, 814 (Mo. App. 1981). Plaintiff has pleaded facts bringing herself within the exception contained in Section 537.600(1), but has failed to plead facts establishing that the condition stated in Section 537.610 applies."

Best slip opinion, page 4.

In Newson v. City of Kansas City, 606 S.W.2d 487 (Mo. App. 1980), the plaintiff brought a negligence action against the city, the fire department and a municipal employee. The petition, however, failed to plead the effect of Section 71.185 RSMo. 1978. Under Section 71.185, the acquisition of liability insurance by a municipality against injury from the tortious exercise of governmental function operates to waive sovereign immunity to the extent of the coverage. The city's motion to dismiss the petition was sustained. On appeal, the plaintiff argued this court was bound to accord judicial notice to Section 71.185 as an element of the claim whether or not formally pleaded. The court disagreed, noting that the exercise of the doctrine of judicial notice does not formulate a theory of recovery for a pleader. The opinion specifically noted, the petition, " . . . without other averment of waiver of non-liability as by the purchase of liability insurance was not actionable." Id. at 490.

The coup de grace on this point is delivered at page 8 of the slip opinion of Bartley, " . . . a finding that the two exceptions to immunity in Section 537.600 exist regardless of insurance would repeal ...

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