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State ex rel. City of Lee's Summit v. Garrett

Court of Appeals of Missouri, Western District, Writ Division

February 13, 2019


          Original Proceeding on Petition for Writ of Prohibition

          Before: Alok Ahuja, P.J., Gary D. Witt, and Thomas N. Chapman, JJ.


         The 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 permanent.

         Factual and Procedural Background

         Plaintiff filed the underlying suit in the Circuit Court of Jackson County on May 4, 2018. According to facts alleged in the petition, [1] 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 located.

         The 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).[2] 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) [3] the site or design plans.

         The 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.

         In his 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.


         We 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. 2009).

         A writ 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 not granted.

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 interlocutory ...

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