This appeal arises from a wrongful death action brought against the City of Kansas City and members of the Kansas City Board of Police Commissioners. The trial court determined that the claims were barred by virtue of sovereign immunity. On appeal, the plaintiffs argue that the claims against Kansas City are not barred, because Kansas City purchased liability insurance and because the City’s actions at issue were proprietary in nature. The plaintiffs argue that the claim against the Board of Police Commissioners is not barred, because the Board is required to carry liability insurance and because the sovereign immunity was waived though its actions. The judgment is affirmed in part and reversed in part.
Facts
On March 14, 2007, Ronald Gregg and other members of the family of Rhonda Wolf, deceased, (Plaintiffs) filed a petition for wrongful death against the City of Kansas City (the City) and the members of the Kansas City Board of Police Commissioners (the Board). The petition alleged the following: The City is a municipal corporation providing armed security at the Kansas City International Airport. Donald Thurman was an employee of the City and served as an armed security officer for the airport. As part of his employment, Thurman was provided and authorized to have, and did have, a handgun, which he was allowed to retain in his possession when he was not on duty as an airport security officer. The Board provides screening, training, and licensing related to the City’s security employees.
In November 2002, Thurman used the handgun to shoot and kill Rhonda Wolf at her apartment in Kansas City.
Count I of the petition stated a claim of negligent entrustment against the City. Count II of the petition stated a claim of negligent hiring or retention against the City. Both Count I and Count II alleged that, in authorizing Thurman to possess a gun as part of his employment and in providing armed security at the airport, the City was performing acts proprietary in nature that were performed for the special benefit or profit of the City. The *357 Counts also alleged that the City carried liability insurance that insured against claims or causes of action for property damage or personal injuries, including death, caused while acting in the exercise of governmental functions. Count III of the petition stated a claim of negligent screening against the Board. It alleged that the Board carried liability insurance as to tort claims made against it, including claims involving the screening, training, and education of security personnel.
The City filed a motion to dismiss alleging that it was protected by sovereign immunity and that no insurance coverage existed that waived sovereign immunity. The Board filed a motion for summary judgment and suggestions in support, alleging that the Board carries no insurance policies that would cover the claims alleged by Plaintiffs. It asserted that it was protected by sovereign immunity. In response, Plaintiffs expressed the view that the Board did have insurance. Plaintiffs cited 17 CSR 10-2.020(6) and (7) for the proposition that the Board was required by law to maintain such insurance.
The court held a hearing on the City’s motion to dismiss and the Board’s motion for summary judgment. The court found that the claims asserted against the City were barred by sovereign immunity and that a waiver of immunity had not occurred; it entered judgment in favor of the City. The court further granted the Board’s motion for summary judgment as it found there was no genuine issue of material fact and the Board was entitled to judgment as a matter of law.
Standard of Review
The City’s motion to dismiss asserted a failure of the pleadings to state a claim upon which relief can be granted. Attached to the motion were copies of two insurance policies along with an affidavit of Sherri Gaiser, averring that the attached insurance policies maintained by the City were the only potentially pertinent insurance policies in place at the time of Rhonda Wolfs death. The City asserted that the two policies clearly did not provide coverage relevant to Plaintiffs’ claims. Rule 55.27 provides in pertinent part that if such a motion presents matters outside the pleadings and those matters are not excluded by the court, “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04.” It further states that “[a]ll parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.”
Review of the summary judgment in favor of the Board is essentially
de
novo.
ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
Review of the City’s Motion to Dismiss
Plaintiffs stated in their response to the City’s motion to dismiss that the motion was an attempt by the city to obtain, in *358 effect, a summary judgment. Plaintiffs at that time sought an opportunity to obtain and present any relevant evidence.
While the motion was pending, Plaintiffs deposed an employee of the Kansas City, Missouri, Police Department in charge of licensing private security in Kansas City. On July 9, 2007, Plaintiffs also served on the City interrogatories and requests for production of documents. On August 6, 2007, the City answered the interrogatories and requests for production of documents.
On August 10, 2007, by agreement of the parties, Plaintiffs noticed up a hearing on the pending motions. The court held a hearing on the City’s motion to dismiss in September 2007.
Plaintiffs again stated that the City’s motion to dismiss was an attempt to convert the motion into summary judgment, and plaintiffs did not express acquiescence in such conversion. The court never advised the Plaintiffs that it intended to treat the motion as one for summary judgment. Plaintiffs did not specifically seek additional time to gather evidence, but Plaintiffs also did not concede that the discovery was complete. While we suspect that the Plaintiffs knew that in fact there is no pertinent insurance, and while we thus suspect nothing meaningful would be accomplished by a remand, we are stuck with the fact that as to the City we are reviewing a ruling on a motion to dismiss, rather than on a motion for summary judgment. Thus, as to the City, we will review the judgment of dismissal to determine whether judgment could properly have been granted on the face of the petition, taking as true Plaintiffs factual assertions. With that in mind, we turn to the substantive legal issues.
Immunity
Section 537.600 affords public entities sovereign immunity from tort actions.
Necker by Necker v. City of Bridgeton,
Pursuant to section 537.610, “when a public entity purchases liability insurance for tort claims, sovereign immunity is waived to the extent of and for the specific purposes of the insurance purchased.”
Fantasma v. Kansas City, Mo., Bd. of Police Comm’rs,
The City is a municipal corporation. “A municipal corporation is a ‘public entity' within the meaning of section 537.600 and section 537.610.”
State ex rel. City of Marston v. Mann,
Claims against the City
Section 71.185 provides that
[a]ny municipality engaged in the exercise of governmental functions may carry liability insurance and pay the premiums therefor to insure such municipality and their employees against claims or causes of action for property damage or personal injuries, including death, caused while in the exercise of the governmental funetions[.]
*359
“[It] applies to claims against municipalities for personal injury or property damage while in the exercise of governmental functions and provides that municipalities ‘shall be liable as in other cases of torts.’ ”
Kunzie v. City of Olivette,
“Sections 71.185 and 537.610 both permit a public entity to purchase tort liability insurance.”
Brennan By and Through Brennan v. Curators of the Univ. of Mo.,
The City is a municipal corporation. “Traditionally, only the state and its entities have been entitled to complete sovereign immunity from all tort liability.”
Id.
at 241. Municipalities, in contrast, have not enjoyed complete sovereign immunity.
State ex rel. Bd. of Trustees of City of N. Kansas City Mem’l Hosp. v. Russell,
A municipality has no immunity from liability for its negligence in performing proprietary functions.
Id.
“[C]ourts must look to the nature of the activity performed to determine in which capacity a municipality has acted in order to determine the scope of the municipality’s immunity in a particular case.”
Id.
at 241. “The statutes and amendments enacted by the legislature have modified the governmental/proprietary distinction to a certain extent....”
Russell,
Waiver by Purchase of Insurance
We look first to the issue of waiver because in their first point, Plaintiffs argue that the City waived its sovereign immunity by procuring liability insurance covering its damages. A municipality that carries liability insurance to cover claims or causes of action for property damages or personal injuries “is liable for those damages or injuries only to the extent of the insurance so carried.”
Parish,
Plaintiffs alleged in then’ petition that the City was covered by liability insurance. In its motion to dismiss, the City asserted that insurance coverage pertinent to Plaintiffs’ claims did not exist. Thus, there was no waiver as to these claims, says the City. The City stated that there were arguably two policies to which Plaintiffs could be referring in its petition and that both policies fail to provide coverage for Plaintiffs’ claims. The City then set forth the coverage provided by both policies. Attached to the motion were copies of the insurance policies and an affidavit from the City employee who maintains the files containing the City’s insurance policies for the airport. The employee averred that the attached copies of the insurance policies were in effect as of the date of Ms. Wolfs death. We fail to understand why the City proceeded on a motion to dismiss, rather than a motion for summary judgment; but we take the case as it is presented.
While Plaintiffs have not asked for additional time to determine whether there is any other insurance, plaintiffs also were never told that the motion to dismiss would be treated as a motion for summary judgment. Therefore, the allegations of them petition must be taken as true for present purposes. Accordingly, the court erred in granting the motion to dismiss. We will need to remand for the purpose of allowing the court to determine whether there really is a factual dispute about the existence of appropriate insurance, and how to proceed if there is such a dispute.
Providing Airport Security
In their second point, Plaintiffs argue that the City waived its sovereign immunity by its proprietary actions in operating an airport, hiring trained security guards, providing the guards with weapons, and allowing the guards to carry the weapons off airport premises without restriction. Plaintiffs argue that these acts were proprietary and are not protected by sovereign immunity. In their response to the City’s motion to dismiss, Plaintiffs stated that owning and maintaining an airport are proprietary. This is a question of law, and no issue of fact appears here.
“The distinction between governmental and proprietary duties is sometimes obscure.”
Aiello v. St. Louis Cmty. Coll. Dist.,
“Generally, an act of a municipality performed for the common good of all is classified as a governmental function.”
Parish,
The mere fact that a municipality’s actions compete with private industry or result in a profit does not automatically render the actions proprietary.
Russell,
Plaintiffs argue strenuously that the City’s actions with regard to Thurman were proprietary, because the acts of owning and operating an airport are proprietary. Plaintiffs point to cases that have recognized that the maintenance of airport property can be a proprietary function.
See Atcheson v. Braniff Int'l Airways,
While owning and operating an airport may, at least in some instances, be a proprietary function, airport security seems, notwithstanding the authorities on which Plaintiffs rely, to be prototypically a governmental function. It is akin to the act of policing. “Although the operation and supervision of a police department are acts involving discretion of public officials, they constitute the exercise of a governmental function....”
St. John Bank & Trust Co. v. City of St. John,
The conclusion that providing security at an airport is a governmental function is not only based in sound logic but is also consistent with the rulings of other jurisdictions.
See, e.g. Cherry Creek Aviation, Inc. v. City of Steamboat Springs,
Plaintiffs’ Claim against the Board
Unlike the City, which does not have immunity for proprietary actions, the Board enjoys sovereign immunity as long as it is not waived by statute. Plaintiffs argue that the Board’s immunity should be considered waived, because the Board is supposed to be furnished with liability insurance as to Plaintiffs’ claims. It further asserts that failure to have such insurance should not be a defense, because allowing such a defense would reward failure to comply with the law. 1
We will affirm if the trial court reached the right result in the case, even though the court might have ruled on a basis different from the basis we apply in affirming.
Kehrs Mill Trails Assocs. v. Kingspointe Homeowner’s Ass’n,
Plaintiffs’ claim against the Board is a claim of negligent screening, although Plaintiffs do not use that label. Plaintiffs argue that the Board should not have issued a license to Thurman, because a more thorough background investigation would have shown that Thurman should not be licensed. The exercise of the Board’s duty to investigate applicants and determine whether they qualify for a license requires the use of professional expertise, training, and judgment. The duty to exercise care in that regard is obviously a duty owed to the public at large. The petition, therefore, makes allegations that seem to give rise to the question of the applicability of the public duty doctrine.
Under the public duty doctrine, “a public employee is not liable to an individual for injuries resulting from a breach of duty the employee owes only to the general public.”
Davis-Bey v. Mo. Dep’t of Corr.,
It is not clear that the Board would be able to claim the protection of the public duty doctrine if Plaintiffs show that immunity was waived pursuant to section 537.600 or 537.610. However, Plaintiffs do not argue that there is a waiver under 537.600 based on the automobile exception or the condition of property exception. Also, Plaintiffs have conceded that the Board did not purchase insurance pursuant to section 537.610. Plaintiffs ar *363 gue, however, that the Board should have been protected by such insurance, and that the City or the individual City employee should have purchased such insurance pursuant to 17 CSR 10-2.020(6) and (7). Because those regulations seem to require that licensees purchase insurance and that the insurance so purchased also cover the Board as an additional insured, Plaintiffs suggest that the regulations constitute a defacto waiver.
Plaintiffs lack authority for their interesting argument. Section 537.610 permits, but does not require, a public entity to purchase liability insurance. The statute leaves the decision to the public entity. The regulations purport to require a security company to purchase insurance for its employees, with the Board named as an additional insured. 17 CSR 10-2.020(6). The City suggests that the regulatory intent was to require insurance for private companies, and that suggestion makes sense in light of the statutes, though it is not expressed in the regulation. In any event, Plaintiffs fail to explain how the regulations could force upon the Board an involuntary waiver of sovereign immunity without the actual purchase of insurance.
In view of the fact that the express statutory language of 537.610 must trump any contrary implication that we could make from the regulation, we see no basis by which Plaintiffs can overcome the fact that the Board did not purchase such insurance. Plaintiffs make no showing that the Board was instrumental in causing the regulations to be issued for the Board’s protection such that the regulations can be said to constitute a waiver by the Board. And even if Plaintiffs had made such a showing, we could not ignore the undisputed fact that the Board in this instance did not require either the City or Donald Thurman to purchase liability insurance protecting the Board. Thus, Plaintiffs fail to show that the Board waived its immunity here. 2
Conclusion
The claims against the Board are barred. The claims against the City were not properly dismissed because Plaintiffs did not concede in the trial court that there is no pertinent insurance. The trial court, aware of the significance of the possible factual dispute in that regard, did not inform the parties it intended to approach the matter as a motion for summary judgment. Plaintiffs did not acquiesce in treating the motion as one for summary judgment. The City concedes that the matter is here on review of a motion to dismiss. Thus, though we are doubtful that, on remand, the Plaintiffs will be able to counter the City’s assertions that there is no applicable insurance, we must give the Plaintiffs that opportunity. The judgment *364 in favor of the city is reversed and the case is remanded for further proceedings consistent with this opinion.
All concur.
Notes
. During oral arguments, Plaintiffs argued that the proprietary/governmental distinction should apply to the Board. It cited no authority for this proposition and acknowledged that the distinction applies only to municipalities. Nonetheless, it argued the distinction should be extended to the Board in this case because the Board licenses City employees. Given that no legal support exists for this argument, it is not entertained.
. It is not entirely clear to this writer that 537.610is applicable to the Board, because 537.610(allowing waiver by the purchase of insurance) applies to "political subdivisions” that choose to purchase insurance. Section 537.610switches from the use of the term "public entities” (which is used in 537.600 in restoring sovereign immunity to public entities, subject to the two specified exceptions) to the use of the term "political subdivision” (in dealing with waiver by the purchase of insurance). While the Board is an arm of the State, and could be called a legal subdivision of the State, one wonders whether any court has actually decided, as opposed to assuming, that the Board is so constituted and empowered as to be held to be a "political” subdivision of the State. Counsel for the Board expressed the view that the Board has chosen to waive immunity to the extent of insurance purchased; thus the Board sees no issue, and these musings amount only to academic speculation. In any event, because of our determination that there was not shown to be a waiver by the purchase of insurance, any issue as to the applicability of 537.610 to the Board would be moot.