Koester v. Wait
2012 Mo. App. LEXIS 418
| Mo. Ct. App. | 2012Background
- Collision between a train and automobile at an ungated Webster County crossing on March 23, 2008.
- Plaintiff Amber Hale f/k/a Amber Koester filed suit May 21, 2009 against BNSF Railway, engineer Steve Wait, and conductor Lance Frost.
- Plaintiff alleged sixteen negligence theories against the crew and seventeen against the railroad, plus aggravated/punitive damages.
- Defendants moved for summary judgment with uncontroverted-facts statement; Plaintiff replied with a response traversing the facts.
- The trial court granted summary judgment and dismissed the petition with prejudice.
- Appellate court reverses and remands for further proceedings due to disputed material facts and multiple theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a genuine issue of material fact about an audible warning being heard by Hale? | Hale did not hear an audible warning. | Wait and Frost testified they sounded the horn; Hale heard none. | Yes; factual dispute; summary judgment improper; remand. |
| Was summary judgment proper where plaintiff pled alternative theories of recovery? | Multiple theories remain viable; must allow trier to resolve. | If one theory fails, others may still support judgment. | No; not proper; remanded for complete proceedings. |
Key Cases Cited
- Lumbermens Mut. Cas. Co. v. Thornton, 92 S.W.3d 259 (Mo.App.2002) (breach of duty issue for jury to decide when facts in conflict)
- Guffey v. Integrated Health Servs. of Kansas City at Alpine North, 1 S.W.3d 509 (Mo.App.1999) (summary judgment on multi-theory pleadings requires each theory be provable)
- Robinson v. Missouri State Hwy. and Transp. Comm'n, 24 S.W.3d 67 (Mo.App.2000) (if one theory fails, reversal may be required for multiple theories)