Court of Appeals of Missouri, Western District, Fourth Division
ZACHARY B. ELIAS, Appellant,
KENNETH DAVIS and STERLING EDWARDS, Respondents.
from the Circuit Court of Clay County, Missouri The Honorable
K. Elizabeth Davis, Judge
Before: Mark D. Pfeiffer, Chief Judge, and James Edward Welsh
and Edward R. Ardini, Jr., Judges
D. PFEIFFER, CHIEF JUDGE.
Elias ("Elias") appeals the summary judgment
entered by the Circuit Court of Clay County, Missouri
("trial court"), in favor of Kenneth Davis
("Davis") and Sterling Edwards
("Edwards") on Elias's claims for negligence
and assault and battery. The summary judgment is affirmed in
part and reversed in part, and the case is remanded for
further proceedings consistent with this opinion.
and Procedural Background
October 19, 2010, Elias was a sixteen-year-old high school
student at Winnetonka High School in the North Kansas City
School District and played varsity football for the school.
Edwards was the head coach, and Davis was a position coach.
On that day, apparently thinking it was an exercise of good
coaching judgment, Coaches Edwards and Davis decided to have
a full-grown adult (i.e., Davis) dress out in full
football helmet and padding to engage in live scrimmage full
contact with the teenaged members of this high school
football team. Davis had never scrimmaged with the team in
full football pads and helmet before that day. On one of the
scrimmage plays at full speed, Elias was positioned as a
middle linebacker, and Davis was positioned as a running
back. During the play, Davis received the handoff from the
quarterback and ran through the defensive line and into
Elias's zone where Elias was the next line of defense to
attempt to tackle Davis. In Elias's attempt to tackle
Davis and the ensuing bodily collision between adult and
child, Elias's ankle was broken.
brought negligence and assault and battery claims against
Edwards and Davis. The coaches filed a motion for summary
judgment. They argued that Elias's negligence claim was
barred for two separate reasons-official immunity and
assumption of risk-and that his assault and battery claim was
barred because Elias consented to the contact with Davis. The
trial court granted summary judgment for Edwards and Davis on
Elias's claims. Elias timely appealed.
review of a summary judgment is de novo. ITT
Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
854 S.W.2d 371, 376 (Mo. banc 1993). The appellate court
reviews the record in the light most favorable to the party
against whom judgment was entered and affords that party the
benefit of all reasonable inferences. Id. Summary
judgment is proper if no genuine issue of material fact
exists and the moving party is entitled to judgment as a
matter of law. Id. at 380; Rule 74.04(c)(6).
defending party may establish a right to judgment as a matter
of law by showing any one of the following: (1) facts that
negate any one of the elements of the claimant's cause of
action, (2) the non-movant, after an adequate period of
discovery, has not and will not be able to produce evidence
sufficient to allow the trier of fact to find the existence
of any one of the claimant's elements, or (3) there is no
genuine dispute as to the existence of each of the facts
necessary to support the movant's properly-pleaded
affirmative defense. ITT Commercial, 854 S.W.2d at
381. Once the movant has established a right to judgment as a
matter of law, the non-movant must demonstrate that one or
more of the material facts asserted by the movant as not in
dispute is, in fact, genuinely disputed. Id. The
non-moving party may not rely on mere allegations and denials
of the pleadings, but must use affidavits, depositions,
answers to interrogatories, or admissions on file to
demonstrate the existence of a genuine issue for trial.
Id. Where summary judgment has been granted based on
the affirmative defense of official immunity, the appellate
court must consider whether there is a genuine dispute as to
the existence of facts necessary to support the affirmative
defense. Woods v. Ware, 471 S.W.3d 385, 389 (Mo.
App. W.D. 2015); Nguyen v. Grain Valley R-5 Sch.
Dist., 353 S.W.3d 725, 729 (Mo. App. W.D. 2011).
appeal, Elias contends that the trial court erred in granting
summary judgment on his negligence claim. He argues that: (1)
there is a genuine dispute as to the existence of facts
necessary to support the defense of official immunity; and,
(2) there is a genuine dispute as to the existence of facts
necessary to support the defense of assumption of risk.
Because we conclude that the record before us does
not demonstrate the existence of a genuine dispute
as to the existence of facts supporting the defense of
official immunity, we need not and do not discuss issues
relating to the defense of consent or assumption of risk as
it relates to the negligence count. However, these topics
will be discussed later in our ruling relating to the assault
and battery claims.
judicially-created doctrine of official immunity "is
intended to provide protection for individual government
actors who, despite limited resources and imperfect
information, must exercise judgment in the performance of
their duties." Southers v. City of Farmington,
263 S.W.3d 603, 611 (Mo. banc 2008). "Its goal is also
to permit public employees to make judgments affecting public
safety and welfare without concerns about possible personal
immunity protects public officials from liability for alleged
acts of ordinary negligence committed during the course of
their official duties for the performance of discretionary
acts. Southers, 263 S.W.3d at 610; Woods,
471 S.W.3d at 391. It does not provide public employees
immunity for torts committed when acting in a ministerial
capacity. Southers, 263 S.W.3d at 610;
Woods, 471 S.W.3d at 392.
an act can be characterized as discretionary depends on the
degree of reason and judgment required."
Southers, 263 S.W.3d at 610. A discretionary act
requires the exercise of reason in adapting the means to an
end and of discretion in determining how or whether an act
should be done or course pursued. Id.;
Woods, 471 S.W.3d at 392. In contrast, a ministerial
function is one of a clerical nature that a public officer is
required to perform upon a given state of facts, in a
prescribed manner, in obedience to the mandate of legal
authority, without regard to his own judgment or opinion
concerning the propriety of the act to be performed.
Id. A public employee is only liable for a
ministerial act if the conduct violates either a duty imposed
by statute or regulation or a departmentally-mandated duty.
A.F. v. Hazelwood Sch. Dist., 491 S.W.3d 628, 631
(Mo. App. E.D. 2016); Woods, 471 S.W.3d at 392;
Nguyen, 353 S.W.3d at 730. A departmentally-mandated
duty may arise from sources other than statutes or
regulations such as departmental rules, the orders of a
superior, or the nature of the employee's position.
A.F., 491 S.W.3d at 631-32; Woods, 471
S.W.3d at 392-93; Nguyen, 353 S.W.3d at 730. Whether
an act is discretionary or ministerial is ...