Court of Appeals of Missouri, Western District, Second Division
APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY, MISSOURI. The Honorable Janet L. Sutton, Judge.
Stephen K. Nordyke, for Appellant.
George S. Diegel, for Respondent.
Before: Joseph M. Ellis, Presiding, Judge, Victor C. Howard, Judge and Mark D. Pfeiffer, Judge. All concur.
Joseph M. Ellis, Judge
Paula Robinson appeals from a judgment entered in the Circuit Court of Clay County granting the City of Kansas City, Missouri's motion for summary judgment in a negligence action filed by Robinson against the City. For the following reasons, the judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.
At 5:55 p.m. on January 27, 2007, Appellant was driving north on North Brighton Road in Clay County, Missouri when a southbound vehicle driven by Joseph Nixon skidded on ice, crossed the center line, and struck Appellant's vehicle. Salle Sochunta, the owner of the vehicle driven by Nixon, was a passenger in that vehicle at the time of the accident. Appellant suffered physical injuries and property damage as a result of that accident.
On September 16, 2008, Appellant filed suit against Nixon, Sochunta, and the City of Kansas City, Missouri. Appellant alleged that Nixon had negligently operated his vehicle by failing to keep a careful lookout, driving at excessive speed, failing to timely apply his brakes, and failing to properly maintain his vehicle. Appellant claimed that Sochunta was liable for Nixon's acts because she was involved in a joint venture with him. With regard to the City, Appellant claimed that a water line operated by the City had broken due to the negligence of the City and had caused water to flow onto the roadway and freeze at the location where the accident had occurred. Appellant averred that the City was negligent in failing to properly install and maintain the water line in a manner that prevented freezing and breaking, failing to properly inspect and repair the water line when the break occurred, and failing to warn motorists of the water pooling in the roadway. Appellant claimed that the City's negligence in this regard had caused or contributed to cause the accident. The three defendants timely answered Appellant's petition. Appellant filed an amended petition on March 30, 2009, which was also timely answered by the defendants.
Appellant filed a second amended petition on December 27, 2010. Nixon and Sochunta were no longer included as parties in that petition. Appellant averred that the broken water line and resultant water leak had been reported to the City the day before the accident and that City employees had inspected the break. Appellant asserted additional claims of negligence against the City, averring that the City had negligently failed to take action to prevent ice from forming in the roadway when it knew of the water line leak, failed to remove the ice after it formed on the roadway, failed to warn drivers of the ice, and failed to barricade the portion of the road where the ice was located. The City timely answered that petition.
Almost three years later, on October 15, 2013, the City filed a motion for leave to file an amended answer to Appellant's second amended petition, allowing it to add as an additional affirmative defense an assertion that Appellant had failed to comply
with the notice requirement of § 82.210. Section ...