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October 22, 1993



Appellant's Motion for Rehearing or Transfer Filed November 11, 1993. Appellant's Motion for Rehearing Overruled. Motion for Transfer Denied November 15, 1993.

Montgomery, Parrish, Shrum

The opinion of the court was delivered by: Montgomery

Plaintiff and his wife filed suit against the City of Rolla for his personal injuries and her loss of consortium. Plaintiff's fourth amended petition alternatively alleged claims against the City for injuries due to an explosion of an air compressor tank on premises reserved for common use by the City and employees of Plaintiff's employer (Count I), for negligently supplying Plaintiff a dangerous instrumentality (Count II), and for injuries provided under § 537.600.1(2) *fn1 (Count III). Count IV embodied the loss of consortium claim.

The trial court dismissed Counts I and II after ruling that Plaintiff's only cause of action was pursuant to § 537.600.1(2). The court also ordered Plaintiff to make more definite and certain Count III, which Plaintiff later designated as Count I of his fifth amended petition.

After a trial on Plaintiff's claim under § 537.600.1(2) and for loss of consortium, the jury returned a verdict in favor of the City. Following denial of Plaintiff's motion for new trial, this appeal was perfected.

Plaintiff's single point urges that the trial court erred in dismissing Counts I and II because (a) the City was acting in a proprietary capacity when it furnished an air compressor and tank to its lessee, Plaintiff's employer; (b) on the date of Plaintiff's injuries, the 1985 amendment to § 537.600 was not in effect, and prior to the amendment the law permitted an action against a municipality for negligence caused while the municipality was performing a proprietary function; (c) at the time of Plaintiff's injuries he had two possible claims against the City, namely, negligently maintaining a dangerous condition on premises reserved for common use (MAI 22.05) and negligently furnishing a dangerous instrumentality (MAI 25.06 -- now 25.10(B)) which were vested substantive rights; and (d) the retroactive application of § 537.600.2, as amended in 1985, deprived Plaintiff of those rights, in violation of Article I, Section 13, of the Missouri Constitution.

The City does not dispute Plaintiff's statement of the facts which follow. Plaintiff commenced his employment as a truck mechanic with Hubbard Cartage, Inc., on the day before his injuries. At that time Hubbard was a tenant of the City, leasing space at the City's airport maintenance facility. Hubbard's leased space was in the same building and adjacent to premises used by the City as a maintenance facility for the airport. The lease provided for Hubbard's use of an air compressor and air storage tank located in the City's portion of the building. A wall separated Hubbard's leased space from the area occupied by the City. The compressor and tank were owned and maintained by the City. Compressed air for use by Hubbard's mechanics was fed to Hubbard's premises via a pipe through a hole in the wall.

The City had control of the area where the air compressor and tank were located, but Hubbard's employees were allowed access to that equipment. On July 9, 1985, a City employee allowed Plaintiff access to the air compressor and Plaintiff adjusted the pressure of the air storage tank. A short time after doing so, and while still on the City's premises, Plaintiff was injured when the tank exploded.

In ruling Defendant's motion to dismiss Counts I and II, the trial court determined that "Plaintiff's action lies only within the statutory provisions of Section 537.600 R.S.Mo" and "the common law action as plead herein by Plaintiff was foreclosed by the enactment of the various changes and amendments in said Section 537." *fn2 The trial court concluded the 1985 amendment was procedural in nature and applied retroactively to Plaintiff's cause of action, relying on Wilkes v. Missouri Highway & Transp. Comm'n, 762 S.W.2d 27 (Mo. banc 1988), and Mispagel v. Missouri Highway & Transp. Comm'n, 785 S.W.2d 279 (Mo. banc 1990).

As noted, Plaintiff's injury occurred July 9, 1985, which was prior to the effective date of the 1985 amendment. It is this circumstance which causes the parties to strongly disagree. The City does not dispute it was acting in a proprietary capacity by leasing space to Hubbard and furnishing the air compressor and tank for use by Hubbard's employees. There is no dispute that the City, a municipal corporation, is a public entity within the meaning of §§ 537.600 and 537.610. The City seeks to uphold the trial court's ruling on the basis that (1) § 537.600, RSMo 1978, brought all actions against a public entity for a dangerous condition of its property within the scope of that statute, and (2) the 1985 amendment applied retroactively because the amendment did not destroy any of Plaintiff's substantive rights but simply clarified the legislature's previous intent for the effect of the statute.

In contrast, Plaintiff urges that on July 9, 1985, the City was not protected by sovereign immunity from claims arising out of its proprietary functions, and he was entitled to plead claims based on common law theories of negligence in addition to his claim under § 537.600.1(2), RSMo 1978.

Resolving Plaintiff's point requires an understanding of the history of the doctrine of sovereign immunity in Missouri. Prior to 1977, "the state and its political subdivisions were immune from suit for tort under the common law doctrine of sovereign immunity." Wollard v. City of Kansas City, 831 S.W.2d 200, 202 (Mo. banc 1992). "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." Id.

In Jones v. State Highway Comm'n, 557 S.W.2d 225 (Mo. banc 1977), the Missouri Supreme Court abrogated the common law doctrine of sovereign immunity. The legislature responded with the enactment of §§ 537.600 to 537.650, RSMo 1978, which reinstated the doctrine as it existed prior to Jones. However, § 537.600 expressly waived immunity for (1) torts arising out of governmental operation of motor vehicles, and (2) dangerous conditions of a public entity's property. Section 537.610 allowed the State and its political subdivisions to purchase liability insurance for tort claims made against either entity.

Thereafter, in Bartley v. Special Sch. Dist. of St. Louis City, 649 S.W.2d 864 (Mo. banc 1983), the Supreme Court held sovereign immunity was waived only in circumstances (1) and (2) enumerated in the statute and only to the extent the public entity was covered by liability insurance. The Bartley court also concluded the ...

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