451 S.W.3d 315
Mo. Ct. App.2014Background
- Robinson was injured when Nixon's southbound vehicle skidded on ice on North Brighton Road and struck her car on January 27, 2007.
- Sochunta, Nixon's passenger, was involved in the accident.
- Robinson sued Nixon, Sochunta, and the City of Kansas City for negligence, alleging Nixon's driving and the City's water-line fault.
- In 2010, Robinson filed a second amended petition naming only the City and expanding water-line negligence theories.
- The City sought to amend to assert § 82.210 notice defense in October 2013; the trial court allowed the amendment.
- The trial court granted summary judgment the same day the amended answer was filed; this prompted appellate review and remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Amendment on § 82.210 and summary judgment | Amendment was prejudicial; improper to grant summary judgment without response. | 82.210 is a defense supported by amendment; response time not required for defense. | Amendment permitted; but summary judgment on same day reversible error requiring remand. |
| Applicability of § 82.210 to water-line claims | § 82.210 does not apply to water-line negligence claims tied to roadway conditions. | § 82.210 applies as a condition precedent to actions against the city for such defects. | Remand necessary to resolve applicability and related issues. |
| Waiver/laches and prejudice considerations | City waited years to raise the defense; potential prejudice to Robinson. | Amendment proper and timely; prejudice not shown. | Not decided on the merits; remand to address these arguments. |
| Proper framing of § 82.210 defense as affirmative defense | Notice defense should be pleaded by the City; the defense raised late. | Failure to plead before could be cured by amendment; defense proper to raise. | Affirmative defense; amendment permissible; summary judgment reversed for remand. |
Key Cases Cited
- Jones v. City of Kansas City, 15 S.W.3d 736 (Mo. banc 2000) (notice defense acknowledged as affirmative in some contexts)
- Sanders v. City of Kansas City, 107 S.W.2d 795 (Mo. App. W.D. 1937) (failure to give notice is an affirmative defense)
- Koontz v. City of St. Louis, 89 S.W.2d 586 (Mo. App. E.D. 1936) (plaintiff need not plead notice; defendant must plead if it wants issue raised)
- Brickell v. Kansas City, 265 S.W.2d 342 (Mo. 1954) (notice content and mayoral receipt requirements for § 82.210)