Linda Ford, Mike Ford, and Teresa Claypool (collectively referred to as “Plaintiffs”) appeal from the trial court’s grant of summary judgment in favor of Cedar County (“Defendant”). Plaintiffs claim that there remain genuine issues of material fact regarding whether Defendant is subject to suit under the dangerous condition exception to sovereign immunity. We affirm.
This case stems from a motorcycle accident resulting in the death of Emery Ford (“Decedent”). On August 10, 2001, Decedent was injured when he lost control of his motorcycle on County Road 1451 in Cedar County, Missouri, and left the roadway. There were no witnesses to the accident. Decedent later died as a result of his injuries.
Plaintiffs, as Decedent’s survivors, filed a wrongful death action against Defendant,
(a) In failing to warn of the dangerous condition of the bridge;
(b) In failing to warn of the unsafe road conditions;
(c) In failing to warn of the bump in the approach to the bridge;
(d) In failing to warn of the narrow bridge;
(e) In failing to post speed limit signs within the area[.]
After filing its answer to Plaintiffs’ petition, Defendant moved for summary judgment, alleging that it did not have exclusive control and possession of the portion of County Road 1451 where the accident occurred and, therefore, the sovereign immunity exception for injuries resulting from a dangerous condition on its property did not apply.
Plaintiffs filed a response to the motion which failed to admit or deny each of the factual statements of Defendant in separately numbered paragraphs. Instead, Plaintiffs stated only that Defendant’s motion for summary judgment “should be denied because there are genuine issues of material fact as to Defendant’s immunity from liabilityf.]” In a section of their response titled “Argument,” Plaintiffs set out in narrative form that “the bridge [Decedent] attempted to cross was under the exclusive control of [Defendant].” Attached to Plaintiffs’ response were five exhibits, which included the deposition testimony of two of Defendant’s employees.
The trial court granted Defendant’s motion for summary judgment, noting that Plaintiffs’ response failed to comply with Rule 74.04 in that it did not address Defendant’s statement of uncontroverted facts. However, the court found that “irrespective of the technical deficiencies in [Plaintiffs’] response, the issue[s] raised by Plaintiff[s] ... [were] not dispositivef,]” because “Section 233.190[] provides that Commissioners of a Special Road District have the sole, exclusive and entire control and jurisdiction over all public highways, bridges and culverts within the district.” (emphasis in original). The trial court concluded that “[b]y virtue of the existence of the Special Road District, Defendant ... did not control either the roadway or the bridge, nor have the duty to maintain, improve or warn of any conditions thereon.” This appeal followed.
Plaintiffs bring three points on appeal, each alleging that the trial court erred in granting Defendant’s motion for summary judgment, and in finding that Defendant did not have a duty to warn of the allegedly dangerous conditions of County Road 1451. As each point is interrelated, they will be discussed jointly.
We give no deference to the trial court’s grant of summary judgment, as the propriety of summary judgment is purely an issue of law.
ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
A movant is entitled to summary judgment if the motion for summary judgment and the response thereto “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[.]” Rule 74.04(c)(6). A defending party may establish the right to summary judgment by showing:
(1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (8) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense. Regardless of which of these three means is employed by the “defending party,” each establishes a right to judgment as a matter of law. Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper.
ITT Commercial Fin. Corp.,
In its motion for summary judgment and the attachments thereto, Defendant set out facts showing that the area where the accident occurred was within the Caplinger Mill Special Road District, which “has responsibility of all roads within the district.” By reason of Plaintiffs’ failure to deny those statements in the manner specified in Rule 74.04(c)(2), those facts were admitted. However, for Defendant to be entitled to summary judgment, such facts must establish Defendant’s right to judgment as a matter of law. See Rule 74.04(c)(6).
“Sovereign immunity is a judicial doctrine that precludes bringing suit against the government without its consent.”
State ex rel. Div. of Motor Carrier and R.R. Safety v. Russell,
In their petition, Plaintiffs contend that the dangerous condition of County Road 1451 was the direct and proximate cause of the death of Decedent. To show a dangerous condition “of the property” attributable to Defendant, Plaintiffs are required to show that Defendant had “exclusive control and possession” of County Road 1451 where the accident occurred.
See Rell v. Burlington Northern R.R. Co.,
We note that Plaintiffs’ response to Defendant’s motion for summary judgment is defective. Without identifying any disputed facts or setting out additional material facts that remain in dispute, Plaintiffs summarily set out that Defendant’s “[mjotion should be denied because there are genuine issues of material fact as to Defendant’s immunity from liability[.]” The remainder of Plaintiffs’ response consists of a legal memorandum explaining the legal and factual reasons why summary judgment should not be granted. Rule 74.04(c)(2), provides in pertinent part:
The response shall admit or deny each of movant’s factual statements in numbered paragraphs that correspond to movant’s numbered paragraphs.
A denial may not rest upon the mere allegations or denials of the party’s pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.
Attached to the response shall be a copy of all discovery, exhibits or affidavits on which the response relies.
A response that does not comply with this Rule 74.04(c)(2) with respeet to any numbered paragraph in movant’s statement is an admission of the truth of that numbered paragraph.
The response may also set forth additional material facts that remain in dispute, which shall be presented in consecutively numbered paragraphs and supported in the manner prescribed by Rule 74.04(c)(1).
The response may include a legal memorandum explaining the legal or factual reasons why summary judgment should not be granted.
The requirements of Rule 74.04(c)(2) are mandatory.
Wehmeyer v. FAG Bearings Corp.,
Defendant’s motion for summary judgment establishes a right to judgment as a matter of law, because it negates a necessary element of Plaintiffs’ claim; that Defendant had exclusive control and possession of the property where the accident occurred. 2
Defendant’s motion for summary judgment and the response thereto establish that Defendant did not have exclusive control and possession of the portion of the road where Decedent’s accident occurred. This fact entitles Defendant to judgment as a matter of law because it negates a necessary element of Plaintiffs’ case. Plaintiffs’ points are denied.
The judgment of the trial court is affirmed.
Notes
. All references to statutes are to RSMo (2000) and all references to rules are to Missouri Rules of Civil Procedure (2005), unless otherwise indicated.
. In granting summary judgment in favor of Defendant, the trial court relied on the follow