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Pinnell v. City of Union

Court of Appeals of Missouri, Eastern District, Third Division

May 14, 2019

JEFFERY PINNELL, Appellant,
v.
CITY OF UNION, MISSOURI, Respondent.

          Appeal from the Circuit Court of Franklin County 15AB-CC00291 Honorable Gael D. Wood

          OPINION

          JAMES D. DOWD, JUDGE.

         Jeffery Pinnell appeals the judgment of the Circuit Court of Franklin County that granted the City of Union, Missouri's motion for a directed verdict in this personal injury lawsuit on the grounds that Pinnell failed to make a submissible case for waiver of the City's sovereign immunity under § 537.600.1[1]. Because we find Pinnell adduced substantial evidence that at the time of his fall from the South Oak Street bridge in Union, the City's property was in a dangerous condition precluding the entry of a directed verdict, we reverse and remand.

         Background

         This action arose from the injuries Pinnell sustained on September 9, 2015 when he lost his balance while sitting on the headwall of a short bridge or culvert[2] on South Oak Street, a public roadway in Union, and fell 13 feet down into the creek below. The features of the bridge relevant to this case included north-south traffic lanes, a pedestrian sidewalk separated from the traffic lanes by a curb, and a headwall from which Pinnell fell, located immediately adjacent to the sidewalk. The term "headwall" refers to a curb-like structure approximately 18 to 20 inches high and 18 to 20 inches wide, running parallel to the road surface along the westernmost edge of the bridge.

         Pinnell filed a one-count negligence lawsuit against the City alleging that it maintained the bridge with its sidewalk and headwall in a dangerous condition that caused his fall and injuries. Specifically, he averred that where Oak Street passed over the creek, at a height of 13 feet from the creek bed to the bridge surface, the City "maintained a sidewalk for pedestrian use" on the western side of the roadway, "thereby encouraging pedestrian traffic thereupon," even though between the sidewalk and the precipitous drop down to the creek there was only a curb-like structure approximately 18 to 20 inches high-the headwall-which was substantially shorter than the average person's center of gravity. He further alleged that the City, by maintaining such a low headwall, "encourage[d], entice[d], or otherwise invite[d] the public to sit upon" it. As a result, Pinnell claimed, the City failed to "adequately protect" the public from the foreseeable risk of falling over the headwall and into the creek below, and therefore the City's premises were in a dangerous condition.

         The City, for its part, claimed that it enjoyed sovereign immunity under § 537.600.1 from Pinnell's lawsuit. During the pretrial phase of the case, the City filed a motion for judgment on the pleadings contending that Pinnell failed to adequately allege a dangerous condition required to bring his lawsuit within the statute's express waiver of sovereign immunity for injuries caused by a dangerous condition on a public entity's property. Specifically, the City argued (1) that Pinnell failed to identify a physical defect in the property at issue and (2) that Pinnell's injuries resulted solely from his misuse of the property.

         The trial court denied the City's motion and the case proceeded to trial. There, Pinnell's expert testified that "the general rule of thumb for culverts is if you have ... sidewalks within 36 inches of the potential fall area you need the railing at, . . 42 inches [in height]." The expert reasoned that the "general engineering theory about why you need a 42-inch high guardrail" is "based on an average person's center of gravity"-that "they're not going to walk up to [the headwall] and trip over it and fall" because "[i]t's going to stop them." He concluded that maintaining a sidewalk next to a 13-foot drop without a 42-inch-high barrier constituted a "dangerous and defective condition."

         The City's engineer, testifying as an expert, agreed the consensus standard to be that "42 inches is the minimum barrier necessary to provide reasonable safety for pedestrians in the proximity of fall-offs of more than 30 inches." He testified that anything less would not be "reasonably safe" and would present a "hazard." He also testified it was foreseeable that members of the public would sit on an 18-to-20 inch headwall, and that if the public were permitted to sit on such a headwall with a 13-foot drop on one side, he "would recognize that condition as a danger."

         Several other witnesses testified that they had seen people sit on the headwall before including children that had been playing in the area and adults smoking cigarettes. And both experts agreed that while the condition of the headwall and adjacent sidewalk had remained the same for more than a decade, nothing prevented the City during that time from raising the height of the headwall or introducing some other barrier to meet minimum safety standards.

         At the close of Pinnell's case-in-chief, the City filed its motion for a directed verdict asserting that Pinnell had failed to make a submissible case for waiver of sovereign immunity under § 537.600, 1 because, it claimed, he had not presented substantial evidence of a dangerous condition. The City argued again that Pinnell failed to show a physical defect in the premises, and that his injuries resulted solely from his misuse of the property.

         Based on each of those arguments, the trial court directed a verdict in favor of the City. Pinnell filed a motion for new trial, which was denied, asserting that he made a submissible case for waiver of the City's sovereign immunity because he presented substantial evidence, such as the above-noted testimony of his expert and the City's engineer, that the City maintained the public property in question in a dangerous and defective condition.

         This appeal follows.

         Standard ...


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