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Mangum v. Webster County

Court of Appeals of Missouri, Southern District, Second Division

May 25, 2017

SHAINA MANGUM, Plaintiff-Appellant,
v.
WEBSTER COUNTY, MISSOURI, Defendant-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF DALLAS COUNTY Honorable Lisa Carter Henderson

          OPINION

          GARY W. LYNCH, P.J.

         Shaina Mangum appeals the trial court's grant of summary judgment in favor of Webster County, Missouri ("County"), on her claim for damages resulting from an automobile accident in which she asserts County's liability based on a waiver of sovereign immunity. In a single point, Mangum claims the trial court erred in granting County's motion for summary judgment because "there were one or more genuine disputes of material fact and [County] did not show that it was entitled to judgment as a matter of law." Because the summary judgment record does not establish that Mangum would be able to show a dangerous condition and therefore a waiver of sovereign immunity, we affirm the trial court's judgment.

         Factual and Procedural Background

         On April 27, 2001, Mangum was driving a four-wheel all-terrain vehicle eastbound on Old Hillcrest Road in Webster County. Mangum collided with a westbound car driven by Lucas Tyson. Either Mangum or Tyson was driving on the wrong side of the road. At the time and place of the collision, Old Hillcrest Road was owned and maintained by County, which is a governmental entity.

         Mangum filed a petition against County alleging that the collision occurred "just over a hillcrest on Old Hillcrest Road" and that "Old Hillcrest Road, at the site of the collision and areas adjacent to the collision, were in a dangerous condition because motorists traveling along Old Hillcrest Road did not have enough sight distant [sic] along the road to see approaching motorists." Mangum further alleged that "County knew or could have known of the dangerous condition in time prior to the collision to have remedied or warned of the dangerous condition." County answered the petition asserting, among other things, that it "is a governmental entity and is protected from suit by sovereign immunity and the provisions of R.S.Mo. § 537.600."

         Thereafter, County filed a motion for summary judgment, asserting that Mangum "is unable as a matter of law to make her case against the county" because Mangum failed "to plead or prove a physical defect in the premises which is required to prove a waiver of sovereign immunity" and "[t]he roadway sight distance is an open and obvious condition for which there is no duty to warn or remedy." In her response to this motion, Mangum admitted that she was "not claiming the negligent design or construction of the road as a dangerous condition[, ]" but rather was "claiming a negligent failure to warn of or remove a dangerous condition of [County's] property." Also in her response, Mangum alleged thirteen numbered additional material facts that remained in dispute. Only three address the sight distance, or lack thereof, on Old Hillcrest Road:

9. A westbound motorist approaching the hillcrest to the immediate east of the scene of the collision cannot see eastbound vehicles to the west of the hillcrest due to the hillcrest.
10. An eastbound motorist approaching the hillcrest to the immediate east [sic] of the scene of the collision cannot see westbound vehicles to the east of the hillcrest due to the hillcrest.
11. A westbound motorist cannot see over the hillcrest to the immediate east of the scene of the collision until the westbound motorist is "almost cresting" the hillcrest.

         The trial court sustained County's motion for summary judgment and entered judgment on Mangum's petition in favor of County and against Mangum. Mangum timely appeals.

         Standard of Review and Applicable Law

Our review essentially is de novo, using the same criteria that trial courts should employ to determine summary judgment motions initially. We view the record in the light most favorable to the [non-movant], without deferring to the trial court, since the propriety of summary judgment is purely an issue of law.

Maune ex rel. Maune v. City of Rolla, 203 S.W.3d 802, 804 (Mo.App. 2006) (citing ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)).

         As a public entity, County was entitled to sovereign immunity from tort liability except to the extent immunity was waived under section 537.600, RSMo 2000. As relevant in this case, immunity was waived for:

[i]njuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive ...

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