Court of Appeals of Missouri, Western District, Third Division
J.M., MINOR CHILD, THROUGH HIS NEXT FRIEND, SARA GRANT, Appellant,
LEE'S SUMMIT SCHOOL DIST. AND DOUGLAS DEMARCO, Respondents.
from the Circuit Court of Jackson County, Missouri The
Honorable Jack R. Grate, Judge.
Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and
Edward R. Ardini, Judge
D. WITT, JUDGE.
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). 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
and Procedural History
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.
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.
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.
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.
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.
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. 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
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.
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