Erin Thompson and Clarence Bell, Xavior Dydell, A Minor, by and Through His Mother and Next Friend, Amber Dydell, Carissa Wilson and Karlo Ginn, Sr. vs. City of St. Joseph, Missouri

ERIN THOMPSON AND CLARENCE BELL, XAVIOR DYDELL, A MINOR, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, AMBER DYDELL, CARISSA WILSON AND KARLO GINN, SR.,

Appellants,

v.

CITY OF ST. JOSEPH, MISSOURI,

Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

WD82589 Consolidated with WD82590, WD82591 and WD82592

OPINION FILED: December 17, 2019

Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Daniel F. Kellogg, Judge

Before Division Three: Alok Ahuja, Presiding Judge, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge

Erin Thompson; Clarence Bell; Xavior Dydell, by and through his mother and next friend, Amber Dydell; Carissa Wilson; and Karlo Ginn, Sr. 1 (collectively "Appellants")

1 This case arises from an automobile collision where three passengers in the vehicle were killed and one passenger (Dydell) was injured. All of the Appellants, except Dydell, brought actions for wrongful death based on the loss of their loved ones. Dydell was a minor, and his mother brought this action as next friend for the injuries to her son. For ease of reference, we will refer to the victims by their last names rather than the named plaintiffs in the underlying lawsuits who are acting in their representative capacities. No familiarity or disrespect is intended.

2

appeal from the Circuit Court of Buchanan County's summary judgment finding in favor of the City of St. Joseph ("City"). The Appellants raise one point on appeal and request this Court reverse the grant of summary judgment and remand for trial. We reverse and remand. Factual Background 2

The City owns and maintains Riverside Road, which consists of one northbound lane and one southbound lane located within the City. On April 14, 2017, Skylar Lucas- Cox ("Lucas-Cox") drove a stolen Toyota Tundra in the northbound lane of Riverside Road, traveling at 62 miles per hour in a 40 miles per hour zone. The Tundra's passenger- side wheels left the lane of travel onto the roadside. The edge of the roadway did not have a line marking its location and there was an approximate nine inch drop-off from the edge of the pavement onto the roadside. When Lucas-Cox attempted to remount the roadway, the vehicle veered sharply to the left and collided with a car in the southbound lane driven by Jacob Stallworth ("Stallworth"). The Tundra had five passengers in addition to Lucas- Cox, and three of the passengers: Ginn, Jr., Crockett, and Thompson died in the collision. Dydell was seriously injured. On September 25, 2017, Lucas-Cox pled guilty to the criminal charges of two counts of involuntary manslaughter and one count of second degree assault and as part of the factual basis for the plea admitted that he was impaired by drugs and/or alcohol at the time of the accident.

2 In reviewing a challenge to a trial court's grant of summary judgment, "we review the record in the light most favorable to the party against whom judgment was entered." Bram v. AT&T Mobility Servs., LLC, 564 S.W.3d 787, 794 (Mo. App. W.D. 2018).

3

On July 28, 2017, Dydell petitioned to recover damages against the City for the injuries he sustained in the accident and alleged that Riverside Road was in a dangerous and defective condition because the road had an "unreasonable and treacherous roadway drop-off on the east edge . . . which was unmarked and not maintained for the safe operation of motor vehicles." On August 23, the remaining Appellants filed petitions for damages in wrongful death raising the same allegations regarding the dangerous condition of Riverside Road. In its answer, the City denied the allegations and raised sovereign immunity as an affirmative defense. After a period of discovery, the City moved for summary judgment. The circuit court conducted a hearing, and the court entered its order granting summary judgment in favor of the City on February 22, 2019. This appeal followed. 3

Standard of Review The Missouri Supreme Court has outlined our applicable standard of review for summary judgment: The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court's determination and reviews the grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Id. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. Id. The facts contained in affidavits or otherwise in support of a party's motion are accepted "as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. Only genuine disputes as to material facts preclude summary

3 Because the parties to each action filed nearly identical Motions for Summary Judgment and Suggestions in Opposition, the circuit court consolidated the Appellants' separate causes of action for the purposes of the hearing on summary judgment. Each Appellant filed separate notices of appeal. On Appellants' motion, we consolidated the appeals as the legal issues presented are identical.

4

judgment. Id. at 378. A material fact in the context of summary judgment is one from which the right to judgment flows. Id.

A defending party . . . may establish a right to summary judgment by demonstrating: (1) facts negating any one of the elements of the non- movant's claim; (2) "that the non-movant, after an adequate period for discovery, has not been able and will not be able to produce sufficient evidence to allow the trier of fact to find the existence of any one" of the elements of the non-movant's claim; or (3) "that there is no genuine dispute as to the existence of the facts necessary to support movant's properly pleaded affirmative defense." Id. at 381. Each of these three methods individually "establishes the right to judgment as a matter of law." Id.

Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011). Analysis Appellants raise one point on appeal assigning error to the circuit court's grant of the City's Motion for Summary Judgment arguing that the City waived its sovereign immunity based on the dangerous condition of public property exception. 4 In its motion for Summary Judgment the City argued that it was entitled to the protections of sovereign immunity pursuant to section 537.600 5 . Sovereign immunity is expressly and absolutely waived for: Injuries caused by the condition of a public entity's property if the plaintiff establishes [(1)] that the property was in dangerous condition at the time of the injury, [(2)] that the injury directly resulted from the dangerous condition, [(3)] that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, [(4)] and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in

4 Although, the circuit court's judgment did not expressly state its rationale for granting City's motion, we presume the judgment is grounded in the reasoning set forth in City's motion, which argued that the City had not waived its sovereign immunity under these facts. Stewart v. Liberty Mut. Fire Ins. Co., 349 S.W.3d 381, 385 (Mo. App. W.D. 2011). 5 All statutory citations are to RSMo 2016 as currently updated, unless otherwise noted.

5

sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Section 537.600.1(2). City's Motion for Summary Judgment was based on its argument that: The City's Sovereign Immunity is not waived because as a matter of law the alleged [(1)] injuries did not directly result from any alleged condition of Riverside Road. [(2)] Even if there was a potentially dangerous condition on Riverside Road (an allegation which is denied), the direct cause of the alleged damages is the admitted criminal acts of Skylar Lucas-Cox. Those criminal acts are intervening or superseding causes of plaintiffs' alleged injuries. Thus, those criminal acts preclude a finding of direct cause by any condition of the City's property, and thus there is no waiver of immunity.

Appellants argue the circuit court erred because there is a genuine issue of material fact as to whether Appellants' injuries were the direct result of the defects on Riverside Road, namely its lack of an edge line marking and the existence of the excessive drop-off, and that the actions of Lucas-Cox did not constitute an intervening or superseding cause so as to relieve the City from liability. Therefore, the sole issue on appeal is the application of these facts to the second element of causation, i.e. that the injury directly resulted from the dangerous condition of the roadway. "The phrase 'directly resulted from' in section 537.600.1(2) is synonymous with 'proximate cause.'" State ex rel. Mo. Highway & Transp. Comm'n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998). "The negligence of the [City] 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." Hensley v. Jackson Cty., 227 S.W.3d 491, 496 (Mo. banc 2007) (quoting Oldaker v. Peters, 869 S.W.2d 94, 100 (Mo. App. W.D. 1993)); Britton v. City of St. Louis, 552 S.W.3d 139, 142 (Mo. App. E.D. 2018)

6

The City argues that it has not waived its immunity as a matter of law because the conditions of Riverside Road were not the direct or proximate cause of the accident for two reasons. First, the City argues that the conditions on Riverside Road, namely the absence of an edge line, lack of signage, and the drop-off, did not cause Lucas-Cox to leave the roadway. Second, the City argues that Lucas-Cox's criminal acts were intervening, superseding causes which preclude a finding of direct cause as a matter of law. We disagree. A. City's argument that the conditions of the road did not cause Lucas-Cox to leave the roadway

In arguing that the deficiencies on Riverside Road did not cause Lucas-Cox to leave the roadway, the City misapplies the test to determine whether proximate cause exists. The issue is not whether the deficiencies caused the vehicle to leave the roadway. Rather, the issue is whether the deficiencies are an efficient cause of Appellants' injuries. Britton, 552 S.W.3d at 142. Appellants' expert witness James Loumiet ("Loumiet") testified in his deposition that the lack of edge lines "would make it more difficult for a driver to maintain position on the roadway" "because you're losing that informational guidance for the driver." The lack of edge line made it more difficult for Lucas-Cox to remain on the roadway. Loumiet further testified that the nine-inch edge drop at the side of the roadway was severe, 6 and

6 The Missouri Engineering Policy Guide recommends limiting edge drops