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Britton v. City of St. Louis

Court of Appeals of Missouri, Eastern District, Second Division

May 22, 2018

JUDITH BRITTON, Appellant,
v.
CITY OF ST. LOUIS, Respondent.

          Appeal from the Circuit Court of the City of St. Louis 1622-CC09593 Honorable Joan L. Moriarty

          OPINION

          LISA P. PAGE, PRESIDING JUDGE

         Judith Britton ("Plaintiff") appeals the dismissal of her wrongful death petition against the City of St. Louis ("the City") for failure to state a claim. We reverse and remand.

         BACKGROUND

         Plaintiff's petition alleges the following: On January 21, 2011, at approximately 8:00 p.m., Lazarus Britton ("Decedent") was standing at or near a bus stop at the intersection of Natural Bridge Road and Goodfellow Boulevard in the City of St. Louis ("the bus stop"). A vehicle driven by Emanuel Smith ("Smith") was traveling south on Goodfellow in excess of the speed limit. Smith ran a red light, driving into the intersection. He lost control of the vehicle. The vehicle flipped, left the road, and struck and killed Decedent. Plaintiff, Decedent's wife, filed suit against the City and Smith for wrongful death. The City filed a motion to dismiss for failure to state a claim arguing that Plaintiff could not show a dangerous condition of the City's property. The City also asserted Plaintiff could not show the dangerous condition of the City's property caused Decedent's death. The court granted the City's motion to dismiss. The remaining claim against Smith was ultimately dismissed for failure to prosecute. This appeal follows.

         DISCUSSION

         In her sole point on appeal, Plaintiff claims the court erred in granting the City's motion to dismiss for failure to state a claim because the court erroneously concluded Smith's conduct was the sole cause of Decedent's death. Plaintiff contends she sufficiently pleaded a claim against the City under the dangerous condition exception to sovereign immunity.

         Standard of Review

         We review a dismissal for failure to state a claim de novo. Vaughn v. Genasci, 323 S.W.3d 454, 456 (Mo. App. E.D. 2010) (citing Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 768 (Mo. banc 2007)). We review the facts alleged in the petition in an almost academic manner. Wyman v. Mo. Dept. of Mental Health, 376 S.W.3d 16, 18 (Mo. App. W.D. 2012). We determine only whether the allegations meet the elements of any cause of action, without weighing the credibility or persuasiveness of the allegations. Vaughn, 323 S.W.3d at 456 (citing Hendricks v. Curators of Univ. of Mo., 308 S.W.3d 740, 742-43 (Mo. App. W.D. 2010)). We treat all facts alleged as true, and we give the nonmoving party the benefit of all reasonable inferences. Warren v. State, 939 S.W.2d 950, 953 (Mo. App. W.D. 1997) (internal citations omitted).

         Analysis

         Generally, the City would be immune from liability under the doctrine of sovereign immunity. However, pursuant to Section 537.600 RSMo (2016), sovereign immunity can be waived in certain circumstances. Specifically, under section 537.600.1(2), the City can be liable for injuries caused by a dangerous condition of its property. To state a claim under this exception to sovereign immunity, Plaintiff must allege facts to show: 1) a dangerous condition of the City's property; 2) the injury directly resulted from the dangerous condition; 3) the dangerous condition created a reasonably foreseeable risk of the harm incurred; and 4) the City had actual or constructive notice of the condition. State ex rel. Mo. Highway and Transp. Com'n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998).

         At issue here is the second element, causation. The phrase "directly resulted from" is synonymous with "proximate cause." Dierker, 961 S.W.2d at 60. (internal citations omitted). The test for proximate cause is generally whether the negligence of the defendant is the conduct of which the injury was the natural and probable consequence. Id. The trial court in the present case found the petition was "merely conclusory" regarding allegations that Decedent's death resulted from the condition of the property. The court found the direct cause of Decedent's death was "solely" Smith's negligence and dismissed the cause for failure to state a claim.

         The trial court cites Dierker in support of its finding that Decedent's death was solely the result of Smith's negligence; however, Dierker is distinguishable. In Dierker, a woman was killed when a teenager dropped a chunk of concrete off an overpass onto her vehicle. 961 S.W.2d at 59. Her family filed a wrongful death suit against several defendants, including the Missouri Highway and Transportation Commission ("the Commission"). Id. The Missouri Supreme Court concluded the death was the direct result of the teenager's conduct, not the condition of the overpass. Id. at 61. Thus, the Court held the Commission was immune from suit as a matter of law and entitled to summary judgment because the Commission negated the element of causation. Id.

         As the Court in Dierker noted, "[t]o the extent the damages are surprising, unexpected, or freakish, they may not be the natural and probable consequences of a defendant's actions." Id. at 61 (quoting Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 865 (Mo. banc 1993)). Unlike the "surprising, unexpected, or freakish" intervening cause where an individual decided to drop a twenty-pound chunk of concrete off an overpass into the traffic below as in Dierker, here it is not unexpected or freakish that a driver might disregard traffic laws and strike a pedestrian where there is insufficient area to sit or stand, and no shelter or protective structure on the property close to oncoming traffic. To the contrary, it is a ...


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