Hortense Cain, Respondent, v. Missouri Highways and Transportation Commission, Appellant

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Hortense Cain, Respondent, v. Missouri Highways and Transportation Commission, Appellant Case Number: ED87092 Handdown Date: 12/12/2006 Appeal From: Circuit Court of Marion County, Hon. Robert M. Clayton, II Counsel for Appellant: Zachary T. Cartwright, Jr., Gary J. Holtmeyer, Jr., and Rich Tiemeyer Counsel for Respondent: Peter P. Fiore, Jr. and Murray Stone Opinion Summary: The Missouri Highway and Transportation Commission ("MHTC") appeals the judgment of the Marion County Circuit Court in favor of and awarding damages to Hortense Cain ("Cain"). REVERSED. Division Four holds: MHTC appeals the denial of their motions for directed verdict and judgment notwithstanding the verdict, the granting of a certain jury instruction, and the impropriety of a portion of Cain's closing argument. We find MHTC's arguments sufficiently persuasive, with respect to the application of sovereign immunity in the denial of their motions. We find sufficient grounds for reversal and do not address MHTC's second or third points on appeal. Citation: Opinion Author: Roy L. Richter, Presiding Judge Opinion Vote: REVERSED. Sullivan, J., and Shaw, J., concurs Opinion:

The Missouri Highway and Transportation Commission ("MHTC") appeals the judgment of the Marion County Circuit Court in favor of and awarding damages to Hortense Cain ("Cain"). MHTC appeals the denial of their motions for directed verdict and judgment notwithstanding the verdict, the granting of a certain jury instruction, and the impropriety of a portion of Cain's closing argument. We find MHTC's arguments persuasive. We reverse. Cain was incarcerated at the Women's Eastern Reception, Diagnostic and Corrections Center in Vandalia, Missouri. MHTC contracted with the Missouri Department of Corrections to utilize inmates in a work release program. On February 4, 2000, Cain was assigned to a work crew assisting in maintaining right-of-way under the control, direction, and supervision of the Missouri Department of Transportation ("MODOT"). This crew was to cut down certain trees on State right-of-way using a chainsaw to fell the trees and then cut the fallen tree into manageable pieces. Though not specifically trained in tree felling, some of the inmates had experience using chainsaws. The crew consisted of three inmates and a MODOT supervisor. Cain was not the inmate operating the chainsaw. Once the trees were felled and cut into smaller pieces, Cain would assist in stacking the wood. Inmates were instructed by the MODOT supervisor to stand at the tree's base until it was felled. Inmates were permitted to get water and use the bathroom (a "porta pot" placed on a trailer), but were not allowed to go beyond the area of the tree or the bathroom. In the process of felling the tree involved in this incident, the chain came loose from the chainsaw after various cuts had been made. While the inmate operating the chain saw was attempting to get the chain back on the saw, Cain walked towards the bathroom, turning her back to the tree in the process. While in transit, the tree fell and damaged her knee to the extent that a knee replacement was needed. The case was tried on Cain's 5th amended petition. MHTC moved for a directed verdict at the close of Cain's evidence and at the close of all evidence. These motions were overruled. The jury assessed damages at $550,000, with MHTC 75% at fault for the injury. Judgment was then entered against MHTC for $412,500. MHTC moved to reduce the amount to $305,021 under Section 537.610.2. RSMo.

(FN1) The motion was sustained, and damages were amended accordingly. Following entry of the judgment, MHTC again raised the issue of sovereign immunity and objected to Cain's claim and the denial of the motion for a directed verdict. The post-trial motion was denied, and this appeal follows.

MHTC alleges that Cain failed to prove the property was in a dangerous condition sufficient to overcome sovereign immunity claims and that the court erred in denying MHTC's motion for directed verdict and judgment notwithstanding the verdict under Section 537.600. We agree. Where failure to grant a directed verdict is asserted, we review the evidence to determine whether plaintiff presented substantial evidence that tends to prove the facts essential to recovery. Thompson v. City of West Plains, 935 S.W.2d 334, 336 (Mo. App. S.D. 1996). First, we must examine what constitutes sovereign immunity, then what constitutes a dangerous condition. Finally, we must examine whether or not Cain presented substantial evidence proving the existence of a dangerous condition. Sovereign immunity exists to prevent certain governmental entities from facing a host of suits for performing governmental functions. Yet, it is not a blanket protection. Exceptions are provided for by statute, including an exception from immunity for dangerous conditions. To claim a dangerous conditions exception to sovereign immunity, a four pronged test must be met: (1) a dangerous condition of the property; (2) that plaintiff's injuries directly resulted from the dangerous condition; (3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind plaintiff incurred; and (4) that a public employee negligently created the condition or the public entity had actual or constructive notice of the dangerous condition. Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985). The test is further codified in Section 537.600.1(2), which delineates the elements mentioned above. All four requirements must be met to abrogate sovereign immunity. Cain fails to meet the first requirement. The tree on the right-of-way did not constitute a dangerous condition. It was not until Cain and her fellow inmates began cutting the tree that it became dangerous. This court found that a plaintiff who does not properly establish the existence of a dangerous condition can not seek refuge from sovereign immunity under the auspices of Section 537.600. Farrell v. St. Louis County, 190 S.W. 3d 401, 404 (Mo. App. E.D. 2006). In that case, Farrell was an inmate in county jail, working in the kitchen stacking tables. Another inmate slid an inverted table across the top of another table. Farrell attempted to stop the sliding table and was injured. "Farrell did not allege facts that would establish that the table's condition was dangerous because its existence, without intervention by third parties, posed a physical threat to Farrell." Id. He attempted to claim, unsuccessfully, that he was an agent of the county and

that the bar of sovereign immunity was lifted as a result of the dangerous condition presented by the sliding table. Similarly, Cain has failed to prove that the tree in question posed a danger to her without the intervention of third parties, or that she was acting as an agent of the state. This contention is further supported by the case of State ex rel. St. Louis State Hospital v. Dowd, 908 S.W.2d 738 (Mo. App. E.D. 1995). This court found that a paper shredder did not constitute a dangerous condition until activated by a third party. Further, this court determined that the state was not liable under sovereign immunity, but found that an injured party could sue the third party who activated the paper shredder, not as a state agent, but in their personal capacity. Cain could pursue a cause of action against the intervening third parties, namely her fellow tree-cutting prisoners, who created the allegedly dangerous condition that caused her injury. The standard of review on a motion for judgment notwithstanding the verdict is for all evidence and inferences to be considered in a light most favorable to the verdict. Thompson v. City of West Plains, 935 S.W.2d 334, 336 (Mo. App. S.D. 1996). Even with that standard, the verdict cannot stand. Evidence was not adduced proving the tree was in a dangerous condition. Such evidence is necessary to sustain the verdict. Furthermore, inmates are prohibited from bringing suit against the state. See Section 287.090.1(3). Specifically, inmates are barred from pursuing suits against the state for injuries occurred in the line of employment. Having thus found the applicability of sovereign immunity, we find sufficient grounds for reversal. Consequently, we do not reach MHTC's second or third points on appeal. CONCLUSION MHTC's appeal of the judgment of the Marion County Circuit Court is granted. We find the denial of the motions for directed verdict and judgment notwithstanding the verdict to be reversible error. We reverse. Footnotes:

FN1.All further statutory references are to RSMo 2000. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.