STATE ex rel. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, Relator, v. Honorable Robert H. DIERKER, Jr., Judge, Circuit Court, St. Louis City, Respondent.
No. 79965
Supreme Court of Missouri, En Banc.
Jan. 27, 1998.
As Modified on Denial of Rehearing Feb. 24, 1998.
The award of the Commission is affirmed in part and reversed in part, and the cause is remanded to the Commission for proceedings not inconsistent with this opinion.
All concur.
1. Substituted as the party respondent in accordance with
Gerald M. Dunne, Clayton, Tyrone A. Taborn, City Counselor, Stephen J. Kovac, Assoc. City Counselor, St. Louis, for Respondent.
BENTON, Chief Justice.
Plaintiffs below sued the relator Missouri Highway and Transportation Commission for negligently constructing and maintaining an overpass. The respondent circuit court ruled that the Commission was subject to suit under thе dangerous-condition-of-property exception in
I.
Olga Maxiaeva was driving home in the early hours of February 20, 1995, in St. Louis. As she drove under the Clayton Avenue overpass, fifteen-year-old Shawn Twine dropped a twenty-pound chunk of concrete onto Maxiaeva‘s car, killing her. Shawn Twine later pleaded guilty to the charge of involuntary manslaughter.
Maxiaeva‘s husband and their daughter brought а wrongful death action against several defendants, including the Commission. In Count I, plaintiffs alleged that the Commission was negligent by constructing an
The Commission filed a motion for summary judgment, invoking sovereign immunity. Plaintiffs countered that sovereign immunity was waived under
II.
The Commission, as an executive department of state government, is a public entity that sovereign immunity shields from suit.
Where the pleadings show that a defendant is immune from suit as a matter of law, and the trial court refuses to grant summary judgment, a writ of mandamus is appropriate. State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 444 (Mo. banc 1986); State ex rel. Missouri Dep‘t of Agric. v. McHenry, 687 S.W.2d 178, 181 (Mo. banc 1985). A defendant who is clearly entitled to immunity should not be required to proceed through trial and appeal in order to enforce that protection. State ex rel. Board of Trustees v. Russell, 843 S.W.2d 353, 355 (Mo. banc 1992).
After a trial court denies a motion for summary judgment based on sovereign immunity, this Court applies the same standard of review as for a final order granting summary judgment. This Court reviews the record de novo in the light most favorable to the party against whom judgment is sought. See ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Facts set forth by affidavit or otherwise in support of the motion are taken as true unless contradicted by thе non-movant‘s response to the summary judgment motion. Id. The non-movant receives the benefit of all reasonable inferences from the record. Id. A defendant may establish a right to judgment by showing facts that negate any one element of the plaintiff‘s claim. Id. at 381; Tresner v. State Farm Ins. Co., 913 S.W.2d 7, 9 (Mo. banc 1995).
To state a claim under the dangerous-condition exception, a plaintiff must allege facts that show 1) a dangerous condition of public property, 2) that the injury directly resulted from the dangerous condition, 3) that the dangerous condition сreated a reasonably foreseeable risk of the kind of harm incurred, and 4) that a public employee negligently created the condition, or the public entity had actual or constructive notice of the condition. Kanagawa v. State by and through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985), citing
At issue in this case is the second requirement: “that the injury directly resulted from the dangerous condition.”
Proximate cause requires something in addition to a “but for” causation test because the “but for” causation test serves only to exclude items that are not causal in fact; it will include items that are causal in fact but that would be unreasonable to base liability upon because they are too far removed from the ultimate injury or damage. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 865 (Mo. banc 1993).
The practical test of proximate cause is generally considered to be whether the negligence of the defendant is that cause or act of which the injury was the natural and probable consequence. Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 710 (Mo. banc 1990).
Although the conditions of the overpass “had some connection” to her death, Twine intervened to break the chain of causation. “To the extent the damages are surprising, unexpected, or freakish, they may not be the natural and probable consequences of a defendant‘s actions.” Callahan, 863 S.W.2d at 865. In this case, the Commission has established that Maxiaeva‘s death was the direct result of Twine‘s conduct. Her death was not the direct result of the condition of the overpass, which only “in some remote way presaged the commission” of the crime. Kanagawa, 685 S.W.2d at 835. The sovereign immunity statute must be strictly construed. Richardson v. State Highway and Transp. Comm‘n, 863 S.W.2d 876, 882 (Mo. banc 1993); Bartley v. Special Sch. Dist. of St. Louis County, 649 S.W.2d 864, 868 (Mo. banc 1983). It would be unreasonable to subject the Cоmmission to suit for the damages caused by this manslaughter.
The facts of this case parallel those in Dale by and Through Dale v. Edmonds, 819 S.W.2d 388 (Mo.App.1991), where sovereign immunity protected a school board from suit for a student‘s injuries. Another student picked up a piece of broken glass littering the schoolyard and threw it at him. The court held that the injury directly resulted from the child‘s throwing a piece of glass, not from a defect in public property. Id. at 390; semble, Patterson v. Meramec Valley R-III Sch. Dist., 864 S.W.2d 14, 16 (Mo.App.1993).
Here, even assuming that the overpass was in dangerous condition, that condition did not directly cause Maxiaeva‘s death. Her death was not the naturаl and probable consequence of the alleged condition of the overpass.
III.
The Commission is immune from suit as a matter of law and entitled to summary judgment because it negated one element of the plaintiff‘s claim, causation. The alternative writ of mandamus is made peremptory.
PRICE, LIMBAUGH, ROBERTSON, COVINGTON and HOLSTEIN, JJ., concur.
WHITE, J., dissents in separate opinion filed.
WHITE, Judge, dissenting.
I respectfully dissent. The majority concludes that the condition of the overpass was too remote to Shawn Twine‘s crime to be a direct cause of Olga Maxiaeva‘s death. That issue should have been decided by a jury, after both sides had an opportunity to present evidence on causation.
In Oldaker v. Peters, 815 S.W.2d 94, 100 (Mo.App.1991)1 a
Proximate cause, аnd hence, a causal connection, are present if the evidence shows the negligence to have been the efficient cause which set in motion the chain of circumstances leading up to the injury.... The negligence of the defendant need not be the sole cause of the injury, as long as it is one of the efficient causes thereof, without which injury would not have resulted.
A public entity can, therefore, on sufficient pleadings, be sued under
In Beyerbach v. Girardeau Contractors, 868 S.W.2d 163 (Mo.App.1994), plaintiff, in her vehicle, approached a bridge that was closed to one lane due to construction. She made a complete stop to allow the oncoming traffic to cross and was hit by a car behind her. Notwithstanding evidence of negligence by the other driver, the court of apрeals reversed summary judgment in favor of the Commission because the pleadings sufficiently alleged negligence on the part of the Commission for failing to keep both lanes of traffic open and for inadequate and unsafe warning signs. Under the analysis of the majority opinion, the court of appeals erred in reversing summary judgment as even the most generous reading of the plaintiff‘s allegations would demonstrate that it was not the construction and inadequate warning signs that crashed into the plаintiff‘s car. While I believe that
The pleadings in the underlying case alleged that the Commission, concurrently with Shawn Twine, directly caused the death of the deceased. In response tо the Commission‘s motion for summary judgment, plaintiffs offered the affidavit of an expert stating that “the condition of the overpass contributed to the incident which resulted in the death of the decedent.” Plaintiffs also offered documentation on the insufficiency of the fence used by the Commission in preventing objects being thrown from overhead structures. This was sufficient to survive summary judgment on the causation element.5
This case does differ from the above cases in that Twine‘s eventual guilty plea injects a сriminal reckless act into the equation,6 as opposed to concurrent negligent acts in the traditional sense.7 It still remains that the test for direct cause is whether the Commission‘s alleged negligence set into motion the chain of events that caused the injury. The pleadings presented a genuine dispute as to that issue. Since the other three statutory elements were sufficiently pleaded, a jury — and not this Court — should have made the initial determination as to whether Twine‘s actions were “surprising, unеxpected, or freakish”8 in light of the alleged dangerous condition.