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Thompson v. City of St. Joseph

Court of Appeals of Missouri, Western District, Third Division

December 17, 2019

ERIN THOMPSON AND CLARENCE BELL, XAVIOR DYDELL, A MINOR, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, AMBER DYDELL, CARISSA WILSON AND KARLO GINN, SR., Appellants,
v.
CITY OF ST. JOSEPH, MISSOURI, Respondent.

          Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Daniel F. Kellogg, Judge

          Before Alok Ahuja, Presiding Judge, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge

          Gary D. Witt, Judge

         Erin Thompson; Clarence Bell; Xavior Dydell, by and through his mother and next friend, Amber Dydell; Carissa Wilson; and Karlo Ginn, Sr.[1] (collectively "Appellants") appeal from the Circuit Court of Buchanan County's summary judgment finding in favor of the City of St. Joseph ("City"). The Appellants raise one point on appeal and request this Court reverse the grant of summary judgment and remand for trial. We reverse and remand.

         Factual Background [2]

         The City owns and maintains Riverside Road, which consists of one northbound lane and one southbound lane located within the City. On April 14, 2017, Skylar Lucas-Cox ("Lucas-Cox") drove a stolen Toyota Tundra in the northbound lane of Riverside Road, traveling at 62 miles per hour in a 40 miles per hour zone. The Tundra's passenger-side wheels left the lane of travel onto the roadside. The edge of the roadway did not have a line marking its location and there was an approximate nine inch drop-off from the edge of the pavement onto the roadside. When Lucas-Cox attempted to remount the roadway, the vehicle veered sharply to the left and collided with a car in the southbound lane driven by Jacob Stallworth ("Stallworth"). The Tundra had five passengers in addition to Lucas-Cox, and three of the passengers: Ginn, Jr., Crockett, and Thompson died in the collision. Dydell was seriously injured.

         On September 25, 2017, Lucas-Cox pled guilty to the criminal charges of two counts of involuntary manslaughter and one count of second degree assault and as part of the factual basis for the plea admitted that he was impaired by drugs and/or alcohol at the time of the accident.

         On July 28, 2017, Dydell petitioned to recover damages against the City for the injuries he sustained in the accident and alleged that Riverside Road was in a dangerous and defective condition because the road had an "unreasonable and treacherous roadway drop-off on the east edge . . . which was unmarked and not maintained for the safe operation of motor vehicles." On August 23, the remaining Appellants filed petitions for damages in wrongful death raising the same allegations regarding the dangerous condition of Riverside Road. In its answer, the City denied the allegations and raised sovereign immunity as an affirmative defense. After a period of discovery, the City moved for summary judgment. The circuit court conducted a hearing, and the court entered its order granting summary judgment in favor of the City on February 22, 2019. This appeal followed.[3]

         Standard of Review

         The Missouri Supreme Court has outlined our applicable standard of review for summary judgment:

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-Am. 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 an 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 law." Id.

Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011).

         Analysis

         Appellants raise one point on appeal assigning error to the circuit court's grant of the City's Motion for Summary Judgment arguing that the City waived its sovereign immunity based on the dangerous condition of public property exception.[4] In its motion for Summary Judgment the City argued that it was entitled to the protections of sovereign immunity pursuant to section 537.600[5]. Sovereign immunity is expressly and absolutely waived for:

Injuries caused by the condition of a public entity's property if the plaintiff establishes [(1)] that the property was in dangerous condition at the time of the injury, [(2)] that the injury directly resulted from the dangerous condition, [(3)] that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, [(4)] and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive ...

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