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Elias v. Davis

Court of Appeals of Missouri, Western District, Fourth Division

August 8, 2017

ZACHARY B. ELIAS, Appellant,
v.
KENNETH DAVIS and STERLING EDWARDS, Respondents.

         Appeal 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

          MARK D. PFEIFFER, CHIEF JUDGE.

         Zachary 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.

         Factual and Procedural Background

         On 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.

         Elias 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.

         Standard of Review

         Appellate 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).

         A 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).

         Negligence

         On 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.

         The 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 liability." Id.

         Official 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.

         "Whether 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 ...


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