Court of Appeals of Missouri, Western District, First Division
Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Patrick W. Campbell, Judge.
For Appellants: Richard Fisk and Mark Beam-Ward, Kansas City, MO.
For Respondent: Tara M. Kelly and Kelly L. Mills, Assistant City Attorneys, Kansas City, MO.
Before: Joseph M. Ellis, Presiding Judge, and Karen King Mitchell and Anthony Rex Gabbert, Judges. Joseph M. Ellis, Presiding Judge, and Anthony Rex Gabbert, Judge, concur.
Karen King Mitchell, Judge
Appellants, Diana and Dennis Crouch, appeal from the circuit court's grant of summary judgment in favor of Respondent, the City of Kansas City (City), on their claim for wrongful death of their mother, Dorothea Crouch. Appellants allege that Dorothea died as the result of a head injury suffered from a fall that occurred when employees of the Kansas City Fire Department were attempting to carry her up the stairs in her home. The circuit court found that the City was entitled to sovereign immunity, and it granted summary judgment in the City's favor. We affirm.
Factual and Procedural Background
On April 16, 2012, Diana Crouch called the Kansas City Fire Department (KCFD), seeking help for her mother, Dorothea Crouch, in getting up the stairs to Dorothea's living quarters in the home they shared. The situation was a non-emergency situation, and apart from an inability to climb the stairs that particular day, Dorothea was otherwise fine.
The KCFD responds to approximately 25,000 non-emergency calls per year. In 2012, the KCFD responded to 2,671 " lift assist" calls like the one made by Diana. The " lift assist" service was authorized by the fire chief and made available to anyone in the community.
In response to Diana's call, the KCFD sent four firemen (a standard number for call response) to the Crouch residence. When they arrived, Diana greeted them at the door and led them to the stairwell where Dorothea was seated in a wheelchair at the bottom of the stairs. The firemen discussed how best to move Dorothea and ultimately decided to put her in a wooden dining room chair and have two firemen carry her up the stairs, with one holding the back of the chair and the other holding the front two legs of the chair.
On the way up the stairs, the chair broke and Dorothea fell, hitting her head on the broken chair and the floor. Diana contacted Dorothea's doctor, who advised Diana to ice the injury, monitor Dorothea for signs of a concussion, and wake Dorothea every hour during the night to check her for signs of concussion. Dorothea appeared fine that evening and overnight, but complained of a severe headache when she awoke the next morning. Diana called 911, and an ambulance took Dorothea to the hospital, where she was diagnosed with intracranial hemorrhaging, which led to her death two days later.
Diana and Dennis, Dorothea's two children, sued the City for wrongful death, alleging that the KCFD firemen acted negligently in the manner in which they chose to move Dorothea up the stairs. In their petition, the Crouch children alleged that the firemen were acting as agents, servants, or employees of the City and that they were not performing a governmental function, but a proprietary one, in that their act of assisting Dorothea to the second floor was for the convenience of but one of the City's citizens and not for the common good of all.
After a period of discovery, the City moved for summary judgment, asserting that it was entitled to sovereign immunity insofar as the firemen were engaged in a governmental function during the actions leading to Dorothea's death. Alternatively, the City argued that it was protected by the public duty doctrine to the extent that its employees (the firemen) were protected. The City supported its argument by referring to the duties and powers of the KCFD and its fire chief as laid out in the City's charter and ordinances and arguing that the activities of the fire department generally, and lift assists specifically, are for the benefit of the general public.
In response, the Crouches argued that the City, as a municipal corporation, performed dual functions and that, even though the establishment and operation of a fire department are typically governmental functions, the non-emergency, lift-assist response was not. The Crouches argued that the KCFD's response to non-emergency lift-assist calls was merely for the benefit and convenience of the City's own citizens and, therefore, was a proprietary function not entitled to sovereign immunity. The Crouches further argued that the public duty doctrine was inapplicable ...