Defending Against the Dangerous Condition Exception to a Public Entity s Sovereign Immunity

Transcription

1 Defending Against the Dangerous Condition Exception to a Public Entity s Sovereign Immunity Edward W. Zeidler II Brown & James, P.C. St. Louis, MO (314)

2 Origins of the DCE DCE comes from This statute reinstated sovereign immunity for public entities, responding to the Missouri Supreme Court s abolition of same. Although sovereign immunity is reinstated, includes two express exceptions: (1) negligent acts of public employees arising from operation of motor vehicles; and (2) injuries caused by dangerous condition of a public entity s property

3 Plaintiff s Burden To make a submissible case, Plaintiff must show: 1. The alleged dangerous condition exists on the public entity s property; 2. The alleged injury directly resulted from the alleged dangerous condition; 3. The alleged dangerous condition created a reasonably forseeable risk of harm of the kind sustained by Plaintiff; and 4. A public employee negligently created the condition or had actual or constructive notice of the condition. State ex. rel Missouri Highway and Transportation Commission v. Dierker, 961 S.W.2d 58 (Mo.banc 1988).

4 POTENTIAL DEFENSE #1: The alleged dangerous condition does not exist on my property This argument is a direct rebuttal of the first element of Plaintiff s claim. Property is deemed to be the property of a public entity if the public entity has exclusive possession and control over the property. State ex. rel Division of Motor Carrier and Railroad Safety v. Russell, 91 S.W.3d 471 (Mo.banc 2002). To determine whether public entity has exclusive possession and control, courts look to the ability of the public entity to monitor the property, exclude unauthorized persons and generally exercise control.

5 Examples of Exclusive Possession and Control Analysis Temporary step at polling place rented by public entity was public entity s property. James v. Farrington, 844 S.W.2d 517 (Mo.App.W.D. 1992). Sidewalk in which public entity had reversionary property interest was not public entity s property. Dorlon v. City of Springfield, 843 S.W.2d 934 (Mo.App.S.D. 1992).

6 How to Win Necessarily a fact-intensive inquiry. Two circumstances under which courts are likely to find that property is not the public entity s property for purposes of the DCE: 1) Find a statute vesting ownership and control in another party; and/or 2) Establish that the alleged dangerous condition, even if it impacts your property and even if you are aware of it, is located on neighboring property.

7 POTENTIAL DEFENSE #2: The alleged dangerous condition is not the contemplated type of condition. Often this is a hotly contested issue. This is due in part to divergent and inconsistent caselaw. To try to make sense of the caselaw, do two things: 1. Start at the top (Missouri Supreme Court) 2. Divide the world in half (alleged dangerous conditions not involving public roadways vs. alleged dangerous conditions that do involve public roadways)

8 STARTING AT THE TOP For alleged dangerous conditions not related to public roadways, the Missouri Supreme Court has spoken three times: 1. Kanagawa v. State ex rel Freeman, 685 S.W.2d 831 (Mo.banc 1985) 2. Alexander v. State, 756 S.W.2d 539 (Mo.banc 1988) 3. Cain v. Missouri Highway and Transportation Commission, 239 S.W.2d 590 (Mo.banc 2007)

9 WHAT ARE WE LEFT WITH? Kanagawa says dangerous conditions must involve defect in physical condition of property. Alexander says condition is dangerous if, by its very existence and without intervention by third parties, it poses a physical threat. Cain does not expand Alexander, it just applies it. SO two types of conditions fall within the DCE.

10 Failure to Perform Intangible Acts - 1 Plaintiffs argue that the negligent positioning of objects language in Alexander dramatically expands the types of conditions that qualify under DCE, such that alleged failure to perform intangible acts (ie: failure to warn, failure to barricade, failure to secure) would qualify. We argue that it does not: Alexander and Kane involve affirmative actions by public employees, changing property from safe to not safe, not intangible acts. The DCE is to be narrowly construed.

11 Failure to Perform Intangible Acts - 2 Several post-alexander cases hold that failure to perform an intangible act does not constitute a dangerous condition for purposes of the DCE. No DCE for alleged failure to secure or barricade balance beam or place it in safer location. Necker v. Bridgeton, 938 S.W.2d 198 (Mo.App.E.D. 1997) No DCE for alleged failure to guard or barricade bannister. Stevenson v. City of St. Louis School District, 820 S.W.2d 609 (Mo.App.E.D. 1991) No DCE for failure to barricade or warn of dangerous associated with concrete river channel. Trumbo v. Metropolitan St. Louis Sewer District, 877 S.W.2d 198 (Mo.App.E.D. 1994).

12 Negligent Design of Roadway Claims -1 Traditionally, these claims are treated as a separate category of purported dangerous conditions. That began with Donahue v. City of St. Louis, 758 S.W.2d 50 (Mo.banc 1988) Court examined 1985 amendment to This amendment created new category of dangerous condition negligent, defective or dangerous design of a highway or road

13 Negligent Design of Roadway Claims -2 Negligent design of roadway claims proper after Donahue. Failure to warn of bridge around sharp curve fell within DCE. Wilkes v. Missouri Highway and Transportation Commission, 762 S.W.2d 27 (Mo.banc 1989). Failure to warn of intersection which had obscured traffic signals fell within DCE. Cole v. Missouri Highway and Transportation Commission, 770 S.W.2d 296 (Mo.App.W.D. 1989). Failure to install shoulders and guardrails fell within DCE. Brown v. Missouri Highway and Transportation Commission, 805 S.W.2d 274 (Mo.App.W.D. 1991)

14 Negligent Design of Roadway Claims -3 Donahue was good law for 9 years along comes Hensley v. Jackson County, 227 S.W.3d 491 (Mo.banc 2007) Donahue got it wrong Negligent design of roadway cases were already within the DCE before the 1985 amendment. Down stops sign cases are negligent maintenance cases and not negligent design cases. Negligent maintenance cases are also within the DCE.

15 Negligent Design of Roadway Claims -4 How to respond to these claims? If a negligent design of roadway claim, the claim will most likely be permitted. However, the statutory state of the art defense is available. If a negligent maintenance of roadway claim, Hensley now appears to allow this claim.

16 POTENTIAL DEFENSE #3: The injury did not directly result from the alleged dangerous condition. Directly resulted from = proximate cause. Test for proximate cause is whether the injury is the natural and probable consequence of the defendant s negligence. Concurrent negligence of third party does not cut off responsibility of public entity for dangerous condition. This includes negligence of drivers in intersectional accident cases

17 Definition of Sufficient Intervening Act For an intervening act to cut off the liability of the public entity, it must be a new and independent force that so interrupts the chain of events that it becomes the responsible, direct, proximate and intermediate cause of the injury, but it may not consist of merely an act of concurring or contributing negligence. United Missouri Bank v. City of Grandview, 105 S.W.3d 890 (Mo.App. 2003).

18 Examples of Sufficient Intervening Acts Death of motorist struck by concrete thrown from highway overpass did not directly result from alleged inadequate fencing on overpass or alleged negligent failure to remove loose concrete from overpass. State ex rel Missouri Highway and Transportation Commission v. Dierker, 961 S.W.2d 58. Even where overpasses on both sides of overpass at issue were enclosed and public entity had knowledge that incidents could occur, condition of overpass still not proximate cause of injury to motorist. Tucker v. Missouri Highway and Transportation Commission, 250 S.W.3d 373 (Mo.App.W.D. 2008). Injury to student struck by piece of glass thrown by another student on public entity s property did not directly result from condition of property. Dale v. Edmonds, 819 S.W.2d 388 (Mo.App.1991).

19 CONCLUSION There are fertile avenues of defense to DCE claims. The alleged dangerous condition is not on my property Even if it is my property, the alleged dangerous condition is not the type of dangerous condition contemplated by the statute. Even if it is my property, and even if it is the type of dangerous condition contemplated by the statute, the injury was not the direct result of the alleged dangerous condition.

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