Court of Appeals of Missouri, Western District, Writ Division
STATE OF MISSOURI EX REL CITY OF LEE'S SUMMIT, MISSOURI, Relator,
HONORABLE KENNETH R. GARRETT, III, JUDGE FOR THE 16TH JUDICIAL CIRCUIT OF MISSOURI, Respondent.
Original Proceeding on Petition for Writ of Prohibition
Before: Alok Ahuja, P.J., Gary D. Witt, and Thomas N.
N. CHAPMAN JUDGE.
City of Lee's Summit ("the City") seeks a writ
of prohibition directing the Circuit Court of Jackson County
to grant the City's motion to dismiss claims against it.
In the underlying suit Kurt Pycior ("Plaintiff")
claims that he was injured, in part, due to the City's
failure to properly inspect property and enforce its
ordinances. The City claims it is entitled to sovereign
immunity against Plaintiff's claims. We issued a
preliminary writ of prohibition and now make that writ
and Procedural Background
filed the underlying suit in the Circuit Court of Jackson
County on May 4, 2018. According to facts alleged in the
petition,  on April 18, 2017, Plaintiff suffered
serious injuries when he fell from an unguarded retaining
wall. The wall was situated between two differently elevated
tracts of a parking lot located at the Summit Fair shopping
district within the City. Various corporations, also named in
the petition ("Corporate Defendants"), either
designed and built the retaining wall and parking lot (which
were constructed between 2009 and 2010), or owned or operated
the real estate where the accident occurred. The City did not
own or operate the property where the retaining wall was
City adopted portions of the International Building Code
("IBC") as its regulation governing, among other
things, the design and construction of retaining walls (the
"Building Code). In particular Sec. 7-224 of the Building
Code provided: "Guards are required at retaining walls
over thirty (30) inches above grade when walking surfaces are
within ten (10) feet of the high side of the retaining
wall." In order to construct the retaining wall and
parking lot, the Corporate Defendants were required to obtain
building permits from the City, and the City issued building
permits after its agents inspected (or failed to inspect)
site or design plans.
City collected the applicable fees and issued the permits
which allowed the Corporate Defendants to construct the
retaining wall. Plaintiff alleged that the retaining wall was
not in conformity with the Building Code, as it did not
include a guard, fence, or barrier.
petition, Plaintiff claimed that the City's negligent
inspection (or lack of inspection) contributed to his
injuries and that aggravating circumstances warranted an
award of punitive damages. In its Motion to Dismiss the City
claimed sovereign immunity. The trial court denied the motion
and the City sought a writ of prohibition in this Court.
review de novo whether a defendant claiming
sovereign immunity is entitled to dismissal from suit for
failure to state a cause of action. Thomas v. City of
Kansas City, 92 S.W.3d 92, 96 (Mo. App. W.D. 2002).
"The pleadings are liberally construed, and all alleged
facts are accepted as true and construed in a light most
favorable to the pleader." Id.; see also State ex
rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 82 (Mo.
banc 2008). However, "Missouri courts have routinely
held that sovereign immunity is not an affirmative defense
and that the plaintiff bears the burden of pleading with
specificity facts giving rise to an exception to sovereign
immunity when suing a public entity." Richardson v.
City of St. Louis, 293 S.W.3d 133, 137 (Mo. App. E.D.
of a prohibition is an extraordinary remedy. State ex
rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d
41, 45 (Mo. banc 2017). It is available:
(1) to prevent the usurpation of judicial power when the
trial court lacks authority or jurisdiction; (2) to remedy an
excess of authority, jurisdiction or abuse of discretion
where the lower court lacks the power to act as intended; or
(3) where a party may suffer irreparable harm if relief is
Id. (quoting State ex rel. Missouri Pub. Def.
Comm'n v. Waters, 370 S.W.3d 592, 603 (Mo. Banc
2012)). This Court is typically reluctant to exercise our
authority to issue a writ of prohibition to correct
interlocutory error. State ex rel. O'Blennis v.
Adolf, 691 S.W.2d 498, 500 (Mo. App. E.D. 1985).
However, "[i]f a party cannot state facts sufficient to
justify court action or relief, it is fundamentally unjust to
force another to suffer the considerable expense and
inconvenience of litigation. It is also a waste of judicial
resources and taxpayer money." State ex rel. Henley
v.Bickel, 285 S.W.3d 327, 330 (Mo. banc 2009).
"A writ of prohibition is appropriate to correct