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J.M. v. Lee's Summit School Dist.

Court of Appeals of Missouri, Western District, Third Division

March 6, 2018

J.M., MINOR CHILD, THROUGH HIS NEXT FRIEND, SARA GRANT, Appellant,
v.
LEE'S SUMMIT SCHOOL DIST. AND DOUGLAS DEMARCO, Respondents.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Jack R. Grate, Judge.

          Before Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Judge

          GARY D. WITT, JUDGE.

         J.M., through his next friend, appeals from the trial court's entry of summary judgment in favor of Lee's Summit School District R-VII ("District") and Douglas DeMarco ("DeMarco"). J.M. argues that the trial court erred in granting summary judgment in favor of the District because sovereign immunity is inapplicable because the injury was caused by a dangerous condition of property under section 537.600.1(2)[1]. Further, J.M. argues that the trial court erred in granting summary judgment in favor of DeMarco because he was not entitled to protection under the official immunity doctrine as his actions were ministerial rather than discretionary. We affirm in part and reverse and remand in part.

         Facts and Procedural History[2]

         J.M. attended Boy's Club for the academic year of 2014-2015. Boy's Club is an afterschool program for 5th and 6th grade boys at Prairie View Elementary, a school within the District. Boy's Club is sponsored and led by Prairie View Elementary gym teacher, Felton Bishop ("Bishop"). Bishop is assisted by DeMarco, a volunteer for the District. DeMarco was under the supervision of Bishop.

         On the last day of Boy's Club for the academic year, the boys were going to play softball. Prior to playing, Bishop and DeMarco gathered the boys into the gym, and Bishop explained how to play the game and the safety rules the boys were to follow. This included a mandate that any person playing the catcher position was required to wear the facemask and chest protector provided by the District. The boys were also instructed to drop the bat after a hit instead of throwing it, as the flying bats were a danger to others.

         After the instruction, the boys were split into two groups, half with Bishop and half with DeMarco on an adjacent field. J.M. was playing on the field supervised by DeMarco. When it was J.M.'s turn to play catcher, he first tried on one facemask, which was too small for his face. J.M. then tried on another facemask, which was too big for his face. J.M. attempted unsuccessfully to tighten the larger facemask so that he could use it. J.M. took the facemask to DeMarco to have it tightened. DeMarco was also unable to adjust the facemask to make it fit J.M. DeMarco instructed J.M. to play catcher without the facemask but stand further back, closer to the fence behind the plate.

         During the first play after J.M. began playing catcher, the batter hit the ball and threw the bat behind him which struck J.M. in the face. The force of the bat broke J.M.'s nose in two places, requiring surgical intervention.

         J.M. brought negligence claims against the District and DeMarco. The District and DeMarco filed a joint answer. The District and DeMarco then filed separate motions for summary judgment. The District argued that J.M.'s negligence claim against it was barred by the doctrine of sovereign immunity. DeMarco argued J.M.'s negligence claim against him was barred by the doctrines of official immunity and the public duty doctrine. The trial court granted summary judgment for both Defendants. This appeal followed.

         Standard of Review

The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court's determination and reviews the grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04[3]. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Id. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. Id. The facts contained in affidavits or otherwise in support of a party's motion are accepted "as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. Only genuine disputes as to material facts preclude summary judgment. Id. at 378. A material fact in the context of summary judgment is one from which the right to judgment flows. Id.
A defending party … may establish a right to summary judgment by demonstrating: (1) facts negating any one of the elements of the non-movant's claim; (2) "that the non-movant, after adequate period for discovery, has not been able and will not be able to produce sufficient evidence to allow the trier of fact to find the existence of any one" of the elements of the non-movant's claim; or (3) "that there is no genuine dispute as to the existence of the facts necessary to support movant's properly pleaded affirmative defense." Id. at 381. Each of these three methods individually "establishes the right to judgment as a matter of law." Id.

Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011). "If, as a matter of law, the [trial] court's judgment is sustainable on any theory, it should be affirmed on appeal." Id. at 453.

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).

Elias v. Davis, 2017 WL 5196077, *1 (Mo. App. W.D. August 8, ...


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