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09/28/93 TERRI L. BANKS v. CITY KANSAS CITY

September 28, 1993

TERRI L. BANKS, APPELLANT,
v.
CITY OF KANSAS CITY, MO., RESPONDENT.



APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI. The Honorable Gene R. Martin, Judge

Before Spinden, P.j., Fenner and Hanna, JJ.

The opinion of the court was delivered by: Fenner

Appellant, Terri Banks, appeals the order of the Circuit Court of Jackson County, Missouri, at Kansas City dismissing appellant's petition for damages. The trial court dismissed appellant's action for failure to give the required notice pursuant to section 82.210, RSMo 1986. *fn1

On December 11, 1987, appellant was allegedly struck and injured by a motor vehicle while crossing 39th Street near 5111 E. 39th Street. Appellant alleges that she was crossing at a crosswalk which was darkened and dangerous.

Appellant filed her petition for damages on December 8, 1992 against respondent, The City of Kansas City, Missouri (the City). In her petition, appellant alleged that the City owned, controlled, managed and maintained the general area of 39th Street at or near 5111 E. 39th Street and that the City maintained a pedestrian crosswalk near 5111 E. 39th Street where the alleged incident occurred. Appellant further alleged "that the lighting for said pedestrian crosswalk was negligently designed and located by [the City] in that said lighting was located a minimum distance of 175 feet from said crosswalk area and hence provided no illumination for the crosswalk." Appellant also alleged that as a direct result thereof, the persons using the crosswalk were unreasonably exposed to danger and the lighting system was, thus, in a dangerous condition within the meaning of section 537.600.1(2), RSMo Supp. 1992. *fn2

Appellant further contended that this dangerous condition is not a defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare, within the meaning of section 82.210, but rather is a dangerous design of a lighting system utilized near the pedestrian crosswalk where appellant was injured, within the meaning of section 537.600.1(2) as amended in 1985. Appellant contends that the driver of the motor vehicle that struck and injured her was unable to see her because of the "darkened condition created by defendant's negligently designed lighting system."

Appellant also alleged in her petition that her injuries were directly caused by the dangerous condition of respondent's lighting system at the time of the injury, and that the negligently designed lighting system created a reasonably foreseeable risk of harm to persons using the crosswalk. Finally, appellant alleged that respondent had actual or constructive notice of the lighting system, and that appellant sustained serious personal injuries as a direct result of the dangerous condition of respondent's lighting system.

On December 23, 1992, the City filed a Motion to Dismiss appellant's petition for failure to comply with the mandatory provisions of section 82.210, specifically, the notice requirement. On January 19, 1993, the City filed an Amended Motion to Dismiss reasserting its original Motion to Dismiss and further raising the defenses of sovereign immunity and the public duty rule. The trial court entered its Order of Dismissal on January 21, 1993, stating:

In the court's opinion plaintiff pleads a cause of action for injuries growing out of a defect or deficiency in the design of the lighting system which is a condition of the street or thoroughfare causing plaintiff's injuries. As such the notice to the city required by Section 82.210 R.S.Mo. was required as a precondition to maintain her action. Since the required notice admittedly was not given, plaintiff's petition must be dismissed.

This appeal followed. *fn3

As noted in the trial court's order, appellant admits that she did not give notice in accordance with the terms of section 82.210. Appellant further admits that if the inadequately designed lighting system in truth is a "defect in the condition of any . . . street, sidewalk or thoroughfare in said city," she must lose. In her brief, appellant states that she "does not contend that the lighting system was functioning other than as intended by the City. . . . [and she] does not allege that the lights were burned out or that the fixtures themselves were in any fashion defective." Rather, appellant "quite simply contends that positioning a streetlight one hundred seventy-five (175) feet from the crosswalk area 'provided no illumination for the crosswalk.'"

In her sole point on appeal, appellant argues that the trial court erred in dismissing her petition. Appellant contends that she does not seek to recover by reason of a defect in a bridge, boulevard, street, sidewalk or thoroughfare, but rather seeks to recover by reason of a negligently designed lighting system that rendered the crosswalk unreasonably dangerous.

We find that appellant was required to give notice as required under section 82.210. Because appellant failed to provide such notice, it is not necessary for us to determine whether appellant's action is within the sovereign immunity exception of section 537.600.1(2). Having failed to provide ...


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