Opinion
No. WD 65883
October 17, 2006
Appeal from the Circuit Court of Jackson County, Hon. Michael W. Manners.
Randell G. Collins, Counsel for Appellant.
John C. Bragg, Counsel for Respondent.
Before Ellis, P.J., Holliger, J.
Opinion
Jackson County, Missouri, appeals the judgment in favor of Douglas Hensley, Jr. awarding him damages in the amount of $150,000 for injuries he sustained in an automobile accident that occurred at an intersection in the county and resulted when a stop sign at the location was not standing. Jackson County presents two points on appeal. First, it claims that it was cloaked with sovereign immunity, section 537.600, RSMo 2000, and, thus, the trial court erred in failing to grant its motion for judgment notwithstanding the verdict. Second, it claims the trial court plainly erred by giving erroneous instructions to the jury. Jackson County's points are denied, and the judgment of the Jackson County Circuit Court is affirmed.
Facts
Viewed in the light most favorable to the jury's verdict, the facts are as follows. On Sunday evening, September 1, 2002, Douglas Hensley, Jr., was riding as a passenger in an automobile driven by Justin Strait. At approximately 9:45 P.M., Mr. Strait drove the automobile northbound on Stillhouse Road and entered the intersection of R.D. Mize Road and Stillhouse Road in Oak Grove, Jackson County, Missouri (the intersection). Upon entering the intersection, the vehicle struck an automobile being driven by Andrew Westphal. As a result of the accident, Mr. Hensley suffered a broken neck, which was successfully repaired during surgery.
Immediately following the accident, Deputy Winston Pearson, of the Jackson County Sheriff's Department, who was investigating the accident scene, observed that the stop sign on the southeast corner of the intersection, which controlled northbound traffic on Stillhouse Road, was not standing; it was lying down by the side of the road. Deputy Pearson communicated to his dispatcher and the Jackson County Department of Public Works (Public Works) that the stop sign was down. Employees from Public Works arrived at the intersection within thirty minutes of being called. The signpost was not broken and was in good condition. The sign did not appear to have been knocked down as a result of the accident. The Public Works employees attempted to place the original sign and sign post in its proper position, but were unable to do so; instead, they erected a temporary sign. Public Works had not been previously notified that the stop sign was not upright at the intersection. Public Works is charged with the responsibility of inspecting, repairing, and replacing traffic signs in Jackson County.
Public Works employees regularly patrol roads in Jackson County while on shift and report any damaged or downed signs. Public Works considers stop signs and yield signs as being signs of utmost importance and assigns highest priority to repairing or replacing them when necessary. The Jackson County policy is to repair or replace a downed or damaged stop sign within five hours after it is reported. Public Works endeavors to check all traffic signs at least twice per year. It relies upon three sources for notification regarding damaged or downed traffic signs: its employees, the Sheriff's Department, and the general public.
The accident occurred on Sunday, September 1, 2002, over Labor Day Weekend. Public Works was closed for the holiday weekend from about 4:30 P.M. on Friday, August 28 until 7:00 A.M. on Tuesday, September 3, 2002. However, a Public Works employee is on call twenty-four hours a day to respond to emergency calls and dispatches, and an employee was on call the entire holiday period.
The policy and practice of the Jackson County Sheriff's Department is for its officers to be attentive to downed or damaged traffic signs while patrolling. If such a sign is observed, the patrolling officer is to immediately notify dispatch so that Public Works can be notified.
Although the exact date and time the stop sign was downed is unknown, it was down from at least Friday, August 30, 2002, at 6:00 A.M. until the time of the accident on Sunday, September 1, 2002, at 9:45 P.M. Scott Grubb testified that he lives near the intersection in question and drives through it on his way to and from work. On Friday morning, August 30, 2002, between 6 and 7 A.M., he observed that the stop sign was not upright, he could not see the actual sign, and he saw the base of the wooden pole in a ditch alongside the road. He did not observe that the stop sign was down on Thursday, August 29, 2002. He observed that the stop sign was still down on Saturday, August 31, 2002, and Sunday, September 1, 2002. He did not call and report the downed stop sign to anyone.
Joyce Guillemot testified that she lives near the intersection and drives through it on her way to and from work. She testified that the stop sign and post were leaning at a forty-five degree angle for the entire month of August, and it appeared that the sign would fall into the roadside ditch. On the morning of Friday, August 30, 2002, at approximately 7:00 A.M., she observed that the stop sign was no longer posted at the intersection. She observed that it remained absent the entire weekend. She also did not report to anyone that the stop sign was down.
The Jackson County Sheriff's Department patrols the intersection where the accident occurred at least two times per day. Winston Pearson, deputy sheriff for Jackson County, testified that he patrolled the district encompassing the intersection in question on Friday, August 30, 2002, through Sunday, September 1, 2002. His shift was from 3:00 P.M. until 1:00 A.M. each day. He was the officer who responded to the dispatcher informing of the automobile accident. He did not observe a downed stop sign when he was patrolling. He testified that he would have reported a downed stop sign if he had observed one. He testified that, while patrolling, he generally travels through the intersection twice per shift. When he arrived at the accident scene, Deputy Pearson observed that the stop sign was not standing at the intersection.
Evidence was presented that the Maintenance Division of the Public Works Department was located in Oak Grove, Missouri, in August and September of 2002. It was approximately one and a half miles from the intersection. John Merkle, a maintenance supervisor for Public Works, testified that Public Works employees travel through the intersection in question on their way to and from work. Samuel Davis, acting superintendent of road and bridge maintenance for Public Works, testified that, if the stop sign was down, there was no reason employees travelling through the intersection could not have seen that it was down and reported it.
Mr. Hensley filed a "First Amended Petition for Damages," naming Mr. Strait, American Family Mutual Insurance Co., and Jackson County, Missouri, as Defendants. Count I alleged claims against Mr. Strait, and Count II alleged claims against American Family Mutual Insurance Co., the issuer of Mr. Strait's automobile insurance. Count III alleged claims against Jackson County. It claimed that the stop sign at the intersection had been down for at least two to three days prior to the accident and that the accident was caused, in part, by Jackson County's negligent failure to maintain the stop sign.
Mr. Hensley subsequently dismissed without prejudice his claim against Mr. Strait. He also dismissed with prejudice his cause of action against American Family Mutual Insurance Co. The claim against Jackson County was tried before a jury on June 27-29, 2005. The jury returned a verdict in favor of Mr. Hensley and awarded him $150,000 in damages. The trial court entered judgment on June 29, 2005, in accordance with the jury verdict.
Jackson County filed "Defendant's Motion for Judgment Notwithstanding the Verdict or in the alternative Motion for New Trial." Jackson County made several arguments, including that a submissible case had not been made with respect to its waiver of sovereign immunity pursuant to section 537.600. The trial court denied the motion on August 22, 2005. Jackson County's timely appeal followed.
All statutory citations are to RSMo 2000 unless otherwise stated.
Point I
In its first point, Jackson County argues the trial court erred in denying its motion for judgment notwithstanding the verdict because a submissible case had not been made with respect to its waiver of sovereign immunity pursuant to section 537.600. "The standard of review of a trial court's denial of a motion for judgment notwithstanding the verdict is whether the plaintiff made a submissible case." Benoit v. Mo. Highway Transp. Comm'n, 33 S.W.3d 663, 667 (Mo.App.S.D. 2000). In order to make a submissible case, "a plaintiff must present substantial evidence to support each element of [the] claim." Id. "Substantial evidence is that which, if true, has probative force upon the issues, and from which the trier of fact can reasonably decide the case." Blue v. Harrah's N. Kansas City, LLC, 170 S.W.3d 466, 472 (Mo.App.W.D. 2005). Evidence is viewed "in the light most favorable to the party who obtained the verdict." Benoit, 33 S.W.3d at 667. "In deciding whether a submissible case is made, a plaintiff is entitled to all reasonable favorable inferences from the evidence," and the defendant's evidence is disregarded, "except as it may aid the plaintiff's case." Id. "Finally, only the jury may judge the credibility of witnesses and the weight and value of their testimony." Id. The jury is free to "believe or disbelieve any part of a witness's testimony." Id. "Where reasonable minds can differ on the question before the jury, the court may not disturb the jury's verdict." Feely v. City of St. Louis, 898 S.W.2d 708, 709 (Mo.App.E.D. 1995).
Sovereign Immunity and Section 537.600
In Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), the Missouri Supreme Court abrogated the common law doctrine of sovereign immunity. Terry v. McIntosh, 941 S.W.2d 595, 598 (Mo.App.W.D. 1997). The doctrine of sovereign immunity was reinstated, in a somewhat modified form, by legislative action. Id. "In order to temper the sometimes severe effects of the doctrine, the legislature provided for waiver of sovereign immunity in certain situations." Id. A public entity is afforded sovereign immunity in tort actions by section 537.600. Section 536.600.1; Theodoro v. City of Herculaneum, 879 S.W.2d 755, 759 (Mo.App.E.D. 1994). Pursuant to section 537.600.1(2), sovereign immunity is waived for injuries caused by the dangerous condition of a public entity's property. Theodoro, 879 S.W.2d at 759. To fall within the dangerous condition exception to sovereign immunity, a plaintiff must establish:
(1) that the property was in dangerous condition at the time of the injury;
(2) that the plaintiff's injury directly resulted from the dangerous condition;
(3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury the plaintiff incurred; and
(4) that a public employee negligently created the condition or that the public entity had actual or constructive notice of the dangerous condition.Section 537.600.1(2). This waiver of sovereign immunity "must be strictly construed." Theodoro, 879 S.W.2d at 759. The plaintiff bears the burden of proving all four elements. Benoit, 33 S.W.3d at 670. The jury determines whether the four elements have been shown. Smith v. Mo. Highway Dep't Transp. Comm'n, 826 S.W.2d 41, 44-45 (Mo.App.W.D. 1992).
The waiver of sovereign immunity contained in section 537.600 is not limited to injury that is exclusively attributable to a public entity. Smith v. Coffey, 37 S.W.3d 797, 801 (Mo. banc 2001). To the extent that sovereign immunity is waived, normal tort rules of liability and causation are applicable. Id. Further, the government is subject to joint and several liability. Id. at 799. Thus, "a public entity may be sued, under a waiver of sovereign immunity, concurrently with another party at fault." Williams v. Mo. Highway Transp. Comm'n, 16 S.W.3d 605, 612 (Mo.App.W.D. 2000). Substantial evidence was presented to satisfy the elements of section 537.600.1(2) that Jackson County waived sovereign immunity.
In its first point, Jackson County argues that Mr. Hensley failed to produce substantial evidence that any of the four elements required for sovereign immunity were waived. Thus, it argues that its sovereign immunity was not waived, and the trial court should have entered judgment notwithstanding the verdict in its favor.
1. The condition of the intersection constituted a dangerous condition.
The first element requiring proof that Jackson County waived sovereign immunity is that the property was in a dangerous condition at the time of the injury. Section 537.600.1(2). What constitutes a dangerous condition is not without confusion in the caselaw, and review of relevant cases and applied reasoning is helpful.
In Alexander v. State, 756 S.W.2d 539 (Mo. banc 1988), a worker alleged that he was injured while working as an elevator repairman in a building owned by the State. Id. at 540. According to his petition, he climbed down a ladder from the elevator repair room. Id. A folding room partition had been laid at the foot of the ladder, and the partition caused him to fall from the ladder resulting in his claimed injury. Id. at 540-41. The trial court dismissed the worker's claim for failure to state a cause of action because the State had sovereign immunity. Id. at 540. The issue before the Missouri Supreme Court was whether the worker "alleged facts demonstrating a dangerous condition of the public entity's property." Id. at 541. Prior caselaw indicated, "'dangerous condition' refers only to defects in the physical condition of public property." Id. (citing Kanagawa v. State of Missouri, By and Through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985), and Twente v. Ellis Fischel State Cancer Hosp., 665 S.W.2d 2, 11 (Mo.App. W.D. 1983)). The court concluded "the alleged placement of the partition against the ladder created a physical deficiency in the state's property which constituted a 'dangerous condition.'" Id. at 542. The court determined that the condition was dangerous because "its existence, without intervention by third parties, posed a physical threat" to the worker. Id. Judge Welliver dissented for the reasons set forth in Donahue v. City of St. Louis, 758 S.W.2d 50 (Mo. banc 1988), which was decided contemporaneously and was written by him. Id.
In Donahue v. City of St. Louis, 758 S.W.2d 50 (Mo. banc 1988), handed down by the Court the same day as was Alexander, a driver was involved in an accident at an intersection. He sued the city of St. Louis and alleged that a city stop sign was down and not visible to motorists entering the intersection. Id. at 50. He claimed this was a dangerous condition within the meaning of section 537.600. Id. The trial court sustained the City's motion to dismiss for failure to state a claim because of sovereign immunity. Id.
The Missouri Supreme Court's analysis involved reviewing the history of section 537.600. Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), concerned the design and maintenance of a state highway. Donahue, 758 S.W.2d at 50. The Court abrogated sovereign immunity for all torts in Jones. Id. Section 537.600 was the "legislative response to the abrogation of sovereign immunity in general and to suits for damages for faulty design, construction, and maintenance of roads and highways, in particular." Id. at 50-51. Section 537.600 restored sovereign immunity with two exceptions: (1) governmental operation of motor vehicles and (2) dangerous condition of government owned property. Id. at 51; Section 537.600. "There followed a series of cases attempting to broaden property into something other than buildings and appurtenances." Donahue, 758 S.W.2d at 51. In all of these cases, Missouri's courts denied recovery. Id.
The Court in Donahue examined the following emphasized language, added by the legislature to section 537.600 in 1985:
1. Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:
. . . .
(2) Injuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, 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 sufficient time prior to the injury to have taken measures to protect against the dangerous condition. In any action under this subdivision wherein a plaintiff alleges that he was damaged by the negligent, defective or dangerous design of a highway or road, which was designed and constructed prior to September 12, 1977, the public entity shall be entitled to a defense which shall be a complete bar to recovery whenever the public entity can prove by a preponderance of the evidence that the alleged negligent, defective, or dangerous design reasonably complied with highway and road design standards generally accepted at the time the road or highway was designed and constructed.
Id. at 51. The Court stated that the question presented was not whether "prior cases interpreting the original statute had eroded or changed the dangerous condition of government property exception to the point that it included roads and highways." Id. at 52. Instead, the Court said the question entailed determining the "effect of the 1985 amendment which directly addresses governmental immunity as it relates to roads and highways." Id. It concluded that "[o]n its face, the purpose of the amendment would appear to be reinstatement of Jones as it relates to roads and highways plus opening the door to some degree prior to Jones. " Id. It determined that the remaining issue for it to resolve was whether traffic controls, such as a downed stop sign, are "encompassed in the negligent, defective, or dangerous design of roads and highways." Id. The court stated:
We believe the primary purposes in the design of roads and highways are (1) expediting the flow of traffic, and (2) safety. Traffic control and control devices are an integral part of expediting traffic flow and attaining safety, and design, of necessity is a continuing process which encompasses such things as widening, changing of grades, resurfacing, and installation of lights and traffic controls. We are compelled to hold that this traffic control device was contemplated within the clear unambiguous meaning of the words used in the amendment. Id. The Court concluded that the driver's petition stated a cause of action. Id. at 53.
1 (A). Alexander and Donahue are not inconsistent.
Since Alexander and Donahue were decided, their holdings have become obscured. Cases following Alexander and Donahue have recognized an apparent variance between the two cases. Some have attempted to resolve it while others ignored it. Scrutiny of the two cases discloses no inconsistency. Alexander pertains to the requirements of a dangerous condition generally under the first sentence of section 537.600.1(2), while Donahue pertains to the requirements of a dangerous condition as it relates to road design under the second sentence of section 537.600.1(2), added in 1985.
Johnson v. City of Springfield, 817 S.W.2d 611 (Mo.App. S.D. 1991), is instructive. In Johnson, the parents and their minor child alleged that the child was struck by a motor vehicle while attempting to cross a street. Id. at 612. They claimed the street was a dangerous condition because it had a high volume of vehicle and pedestrian traffic; vehicles parked on the street and blocked pedestrians' view of traffic until they were in the street; signs warning of traffic, children playing, or pedestrians, were inadequate; and a safe speed limit was not posted. Id. The trial court granted the City's motion to dismiss for failure to state a claim because of sovereign immunity. Id. at 613.
The Southern District noted that older cases required the plaintiff to plead a defect in the physical condition of public property. Id. (citing Kanagawa v. State of Missouri, By and Through Freeman, 685 S.W.2d 831 (Mo. banc 1985), and Twente v. Ellis Fischel State Cancer Hosp., 665 S.W.2d 2 (Mo.App. W.D. 1983)). The court further noted that the standard had been expanded to require a pleading that a physical deficiency of public property existed that created a dangerous condition. Id. at 614 (citing Jones v. St. Louis Hous. Auth., 726 S.W.2d 766 (Mo.App.E.D. 1987)). The Missouri Supreme Court in Alexander utilized this "physical deficiency" language. Id. (citing Alexander, 756 S.W.2d at 542). The Johnson court concluded that Jones and Alexander relaxed the plaintiff's pleading burden under section 537.600. Id. It further found, however, that parents and minor child failed to meet this relaxed pleading burden. Id. at 614. This is because the petition was devoid of language that would support an inference that the street conditions described "constituted physical deficiencies which were dangerous because their very existence, without intervention by third parties, posed a physical threat." Id. Johnson also acknowledged that, under Donahue, Wilkes v. Missouri Highway Transportation Commission, 762 S.W.2d 27 (Mo. banc 1988); Cole v. Missouri Highway Transportation Commission, 770 S.W.2d 296 (Mo.App. 1989); and Brown v. Missouri Highway Transportation Commission, 805 S.W.2d 274 (Mo.App. 1991), "[a] dangerous condition of a public highway or road can also be pled by allegations of negligent, defective, or dangerous design." Id. It concluded, however, "plaintiffs' reliance on these 'defective road design' cases is misplaced." Id. The court utilized Alexander and stated, "the very existence of the road conditions alleged in Wilkes, Cole, and Brown, if true, posed a physical threat to the plaintiffs in those cases." Id. at 615. It went on to state that it did not believe the alleged conditions of the street in the petition before it, standing alone, posed a physical threat to the minor child. Id.
This analysis in Johnson is deceptive. In Wilkes, the plaintiff alleged a bridge was negligently constructed because of a curve in the road just prior to the bridge. Id. at 614-15. In Cole, the plaintiff alleged a highway was dangerous because of obscured and sudden curves and intersection with another highway. Id. at 615. In Brown, the plaintiff alleged that a road was dangerous because of the absence of a shoulder and guardrails. Id. These were all cases alleging negligent, defective, or dangerous design, as contemplated by the second sentence of section 537.600.1(2) and interpreted by Donahue. Alexander did not involve road design; it involved a dangerous condition as contemplated by the first sentence of section 537.600.1(2). The test set forth in Alexander was whether the plaintiff pleaded that the condition was dangerous because "its existence, without intervention by third parties, posed a physical threat" to the plaintiff. Alexander, 756 S.W.2d at 542. The Johnson court used this test and determined that the conditions in Wilkes, Cole, and Brown posed a physical threat, without the intervention of third persons. Thus, it held that the petition before it did not meet the Donahue standard. Notably, Johnson did not address the facts of Donahue. In Donahue, there is no indication that the intersection was dangerous without the intervention of a third party. Without the third party vehicle, the plaintiff in Donahue would have gone through the intersection without incident. Only when the third party vehicle is present, and a collision occurs, is the dangerous condition revealed. See also Williams v. Mo. Highway Transp. Comm'n, 16 S.W.3d 605 (Mo.App.W.D. 2000); Nagy v. Mo. Highway Transp. Comm'n, 829 S.W.2d 648, 652 (Mo.App. E.D. 1992). Thus, the facts in Donahue do not meet the standard articulated in Alexander. Notably, the Court handed down the two cases contemporaneously.
The confusion regarding these two standards is also evident in Hedayati v. Helton, 860 S.W.2d 795 (Mo.App.W.D. 1993). In Hedayati, a child was killed after being struck by a vehicle while crossing the road at an intersection. Id. at 795. Child's father brought suit against the Missouri Highway and Transportation Commission, the University of Missouri, and the driver of the vehicle. Id. The trial court dismissed the action as to the Missouri Highway and Transportation Commission and the University of Missouri because of sovereign immunity. Id. Father alleged that the road child was crossing and the intersecting road were a dangerous condition because no signs or traffic control devices were present. Id. at 796. The question presented to the Western District was whether father pleaded facts showing that the roads were a dangerous condition and that child's death resulted from the dangerous condition. Id. The court noted that the petition did not allege a physical defect in the roads. Id. The trial court relied on Johnson in dismissing the action. Id. The Western District noted the "striking similarity" between the facts in Johnson and the facts of the case then currently before it. Id. The court concluded that the Johnson court relied on Alexander and the test of whether the pleaded conditions were physical deficiencies "which were dangerous because of their very existence without intervention of third parties." Id. This court stated that the Alexander test applied and that father's petition failed to plead facts showing that the roads child crossed were dangerous because their very existence posed a physical threat to the child. Id. Father relied upon Donahue to support his assertion that the roads were a dangerous condition. Id. at 797. The Western District stated: "The facts in this case are practically identical to those in Johnson but are completely different from the facts in Donahue. For that reason it is appropriate to follow the holding in Johnson. " Id. As in Johnson, no attempt was made to resolve the apparent inconsistency between Alexander, relied upon by Johnson, and Donahue. The Hedayati court concluded: "The test set out in Alexander is that the dangerous condition because of its existence, without intervention of third parties, poses a physical threat to the plaintiff." Id.
The Eastern District court in Linton v. Missouri Highway Transportation Commission, 980 S.W.2d 4 (Mo.App.E.D. 1998), acknowledges the conflict between Hedayati on one hand and Wilkes and Cole on the other. Id. at 7. The court stated: " Cole and Wilkes are particularly relevant in that they concern dangerous conditions that were not the result of recent negligence (i.e. failure to replace a stop sign), but general failure to post adequate signing." Id. It went on to observe that the Hedayati court dismissed a "claim based on inadequate signing because there was not a design defect in the road itself" while "increased safety from an alternate design was precisely the basis for the holdings in the Wilkes and Cole cases." Id. While acknowledging the inconsistency, the court did not endeavor to explain it.
In Beyerbach v. Girardeau Contractors, Inc., 868 S.W.2d 163 (Mo.App.E.D. 1994), the Eastern District noted the conflict among the holdings of previous cases. Id. at 166. It did not endeavor to resolve the conflict, however. It noted the holding of Donahue that "inadequate maintenance of traffic controls could be found to be a dangerous condition so that sovereign immunity would not bar suit" against a sovereign. Id. It distinguished Johnson and Hedayati on the facts, much as Hedayati did so as to not apply Donahue. It noted that Johnson and Hedayati involved situations where "the plaintiffs contended the fact traffic control signs and devices were never erected caused the accidents at issue in the cases." Id. at 167. It stated that Cole and Fox v. City of St. Louis, 823 S.W.2d 22 (Mo.App.E.D. 1991), cases relying upon Donahue, "involve claims that traffic control mechanisms and markers were in place, but were in disrepair or were inadequate under the circumstances." Id. The Eastern District determined that the case before it was similar to Cole and Fox and thus applied the Donahue standard. Id.
In State ex rel. City of Marston v. Mann, 921 S.W.2d 100 (Mo.App.S.D. 1996), the Southern District addressed the issue of whether drag racing was a dangerous condition. Id. at 102. It identified three major lines of cases defining the term "dangerous condition." Id. The three lines are the three discussed above. The first line is set forth in Kanagawa and Twente and defines dangerous condition in a narrow manner and refers to a defect in the physical condition of a public entity's property. Id. The second line, set forth in Alexander, relaxes the definition to include conditions that are dangerous because their existence, without intervention by third parties, poses a threat. Id. at 102-03. The third line, set forth in Donahue, entails conditions that are dangerous because of negligent, defective, or dangerous road design. Id. at 103. The court stated the following:
Utilizing the foregoing principles in the instant case, Plaintiffs' allegations that drag racing was a dangerous condition caused by Relator's negligence (i.e., failure to install traffic control devices such as speed bumps, failure to adopt traffic regulations and failure to enforce the law) do not amount to physical deficiencies in the roadway which, standing alone, posed physical threats to the Plaintiffs. Neither do they plead a dangerous condition of a public road through negligent, defective or dangerous design, whose very existence poses a physical threat to Plaintiffs. Moreover, the plaintiffs' alleged injuries in the instant case did not directly result from physical deficiencies in the roadway, but from two individuals drag racing.
Id. at 104. Thus, the court determined that the petition did not allege a dangerous condition. Id. Again, Donahue was cited for the proposition that negligent, defective, or dangerous road design can be a dangerous condition only if its very existence poses a threat. See also Necker by Necker v. City of Bridgeton, 938 S.W.2d 651, 655 (Mo.App.E.D. 1997) (citing Donahue for the same proposition). This is the same reasoning set forth in Johnson. Yet the condition in Donahue, a downed stop sign, would not pose a threat unless a third party vehicle or pedestrian were present with which to collide. The reading of Donahue asserted by Johnson and Marston is not supported by the facts and holding of Donahue. Kraus v. Hy-Vee, Inc., 147 S.W.3d 907 (Mo.App.W.D. 2004), notes the three lines of cases discussed in Marston. It takes the third line of cases, those stemming from road design and dangerous conditions arising from "a general failure to post adequate signing or traffic controls," and further divides them into two categories. Id. at 915 (citing Linton, 980 S.W.2d at 9). The first is dangerous conditions resulting from "failing to maintain existing traffic control devices and road designs." Id. at 916 (citing Donahue, 758 S.W.2d at 50, 53). The second is the general failure to post adequate signing." Id. (citing Linton, 980 S.W.2d at 7). This refutes the assertion in Beyerbach that Donahue is applied when traffic controls have been erected but are in disrepair or need of replacement and not applied when the traffic control signs have never been erected to begin with. The Kraus court further acknowledged that Donahue and Hedayati conflicted. Id. at 917. It stated that Hedayati "may have painted with too broad a brush to the extent that it suggested that an allegation of negligent, defective or dangerous road design never can arise out of traffic flow and volume" given the holding of Donahue. Id. Yet, the court did not resolve the conflict. The Kraus court determined that Hedayati and Johnson did not apply and that Donahue did apply because the petition alleged that the sovereign failed to follow its own standards and design manuals and because the petition alleged a physical deficiency in the road. Id. at 918.
This extensive summary of caselaw illustrates the confusion that exists with respect to what constitutes a dangerous condition. The matter is complicated further by the fact that many of the cases involve grants of summary judgment or dismissals for failure to state a claim. The standard of review, including how the facts are viewed, is different in those types of cases than the standard utilized when reviewing whether a submissible case has been presented. After reviewing relevant caselaw, however, two standards for determining what constitutes a dangerous condition under section 537.600.1(2) are recognized. Prior courts have indirectly recognized this. Ielouch v. Missouri Highway Transportation Commission, 972 S.W.2d 563 (Mo.App.W.D. 1998), acknowledges two distinct standards within section 537.600.1(2). One is for dangerous conditions generally, while the other is for negligent design. Id. at 566. Nagy v. Missouri Highway Transportation Commission, 829 S.W.2d 648 (Mo.App.E.D. 1992), also recognizes that a different standard is applicable when the issue is negligent roadway design. Id. at 652. Relying on Donahue and its progeny, the Eastern District held that a plaintiff's allegation that a new intersection about which drivers were not warned was a sufficient allegation of a dangerous condition. Id. The confusion described exists only in cases where the issue concerns roadway design. When the issue is one of a dangerous condition not involving the design of roadways, the cases have consistently applied Alexander, without mention of Donahue. See, e.g., Farrell v. St. Louis County, 190 S.W.3d 401, 403 (Mo.App.E.D. 2006); Martin v. Mo. Highway Transp. Dep't, 981 S.W.2d 577, 583 (Mo.App.W.D. 1998); Thompson v. City of West Plains, 935 S.W.2d 334, 338-39 (Mo.App.S.D. 1996); Uptergrove v. Hous. Auth. of City of Lawson, 935 S.W.2d 649, 654 (Mo.App. W.D. 1996); State v. Godfrey, 883 S.W.2d 550, 552 (Mo.App. E.D. 1994); Patterson v. Meramec Valley R-III Sch. Dist ., 864 S.W.2d 14, 16 (Mo.App.E.D. 1993); Kilventon v. United Mo. Bank, 865 S.W.2d 741, 746 (Mo.App.W.D. 1993); Goben v. Sch. Dist. of St. Joseph, 848 S.W.2d 20, 22 (Mo.App.W.D. 1992); Dale By Through Dale v. Edmonds, 819 S.W.2d 388, 390 (Mo.App.E.D. 1991); Byrom v. Little Blue Valley Sewer Dist., 825 S.W.2d 304, 306 (Mo.App.W.D. 1991).
1 (B). Donahue is the applicable law in this case.
This case, like Donahue, involves an issue of roadside design in that the question is whether the downed stop sign, encompassed by the negligent, defective, or dangerous design or roads and highways language in section 537.600, created a dangerous condition. Donahue, 758 S.W.2d at 52. '"Whether a defendant created a sufficiently dangerous condition is ordinarily a question of fact."' Jones v. St. Charles County, 181 S.W.3d 197, 203 (Mo.App.E.D. 2005) (citation omitted). Donahue explicitly held that a downed stop sign might be a dangerous condition of the roadway so as to permit suit against an entity with sovereign immunity. Donahue, 758 S.W.2d at 52. It did not establish that all downed stop signs automatically create dangerous conditions, however. Thus, the mere fact that a stop sign was down may not be sufficient to make a submissible case as to the issue of whether a dangerous condition existed.
More than the existence of a downed stop sign was presented in this case. The two roads comprising the intersection are two important roads in the Sheriff Department's district because they are utilized by heavy traffic. The stop sign was down from at least Friday, August 30, 2002. Moreover, for more than a month, the sign had been leaning at a forty-five degree angle and looked as though it would fall into the roadside ditch. Jackson County, recognizing the potential for dangerous conditions, had a policy of repairing or replacing damaged stop signs within five hours after becoming aware of their damage. Mr. Merkle, a maintenance supervisor for Public Works, testified that stop sign maintenance is of the highest priority because of public safety concerns. Mr. Davis, acting superintendent of road and bridge maintenance for Public Works, testified that Jackson County recognizes that a downed stop sign is a potentially dangerous condition. In this case, sufficient evidence was presented to support a finding that the downed stop sign constituted a dangerous condition. The jury determined from all the evidence that the downed stop sign at this intersection constituted a dangerous condition. This was its prerogative. Jones, 181 S.W.3d at 203.
Jackson County argues that a downed stop sign is not a dangerous condition because section 304.351 dictates how a driver is to proceed when coming to an intersection not governed by a traffic control device. Jackson County cites the dissent in Donahue, which made this same argument. 758 S.W.2d at 54. This statute was in existence at the time of Donahue, yet the Missouri Supreme Court found that a downed stop sign could be a dangerous condition. Id. at 52. Jackson County cites no authority and presents no argument for why the majority in Donahue was incorrect. Thus, the fact that a statute regulates intersections without traffic control devices does not prevent the downed stop sign in this case from constituting a dangerous condition. See also Fox, 823 S.W.2d at 24 (rejecting an argument that "appellant knew no stop sign existed at the intersection in question").
Section 304.351 states, in relevant part:
1. The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway, provided, however, there is no form of traffic control at such intersection.
2. When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the driver of the vehicle on the right. This subsection shall not apply to vehicles approaching each other from opposite directions when the driver of one of such vehicles is attempting to or is making a left turn.
3. The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.
Section 304.351 has been revised since Donahue, but the revisions have no impact on this analysis.
2. Plaintiff's injuries directly resulted from the dangerous condition.
The second element is that the plaintiff's injury directly resulted from the dangerous condition. Section 537.600.1(2). "The phrase 'directly resulted from' in section 537.600.1(2) is synonymous with 'proximate cause.'" United Mo. Bank, N.A. v. City of Grandview, 105 S.W.3d 890, 896 (Mo.App.W.D. 2003). Proximate cause requires something in addition to a "but for" causation test. Hale ex rel. Hale v. City of Jefferson, 6 S.W.3d 187, 194 (Mo.App.W.D. 1999). The "but for" causation test serves only to exclude items that are not causal in fact and, therefore, includes 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. Id. "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." Id. "The test is not whether a reasonably prudent person would have foreseen the particular injury but whether, after the occurrences, the injury appears to be the reasonable and probable consequence of the act or omission by the defendant." United Mo. Bank, N.A., 105 S.W.3d at 896. "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." Id. Generally, causation is an issue that should be left to the trier of fact. Id.
Jackson County argues sufficient evidence was not presented that Mr. Hensley's injuries directly resulted from the downed stop sign. He cites evidence presented at trial that Mr. Strait, the driver of the vehicle in which Mr. Hensley was a passenger, was negligent in his driving of the vehicle and that he failed to comply with state law. He also cites evidence presented at trial that Mr. Hensley failed to wear a seatbelt and was thrown from the vehicle as a result. He further asserts that the evidence demonstrated that Mr. Strait would have failed to stop at the intersection even if the stop sign had been in its proper place.
Mr. Strait testified that a stop sign was not posted at the intersection the night of the accident. He also testified that he was unaware that he was approaching an intersection, as no signs were posted that he was. The sun had set, and the evening was dark at the time of the accident, and he did not see the other vehicle until immediately before the collision occurred. This, he said, is why he did not yield to the other vehicle. Mr. Strait further stated that he could not recall any occasion where he saw a stop sign and did not stop as legally required. While contrary testimony may have been presented, the jury determines witness credibility and the value and weight of testimony. Benoit, 33 S.W.3d at 667. Further, the jury may "believe or disbelieve any part of a witness's testimony." Id. The jury was free to believe Mr. Strait's testimony as summarized, supra, and disbelieve any contrary testimony.
Sufficient evidence was presented that the downed stop sign was the proximate cause of Mr. Hensley's injuries. The evidence, in the light most favorable to the verdict, demonstrates that, had the stop sign been properly posted, Mr. Strait would have known that he was approaching an intersection and would have stopped before entering it. Upon stopping, he would have seen the other vehicle and would not have collided with the other vehicle. Without a collision, Mr. Hensley would not have been thrown from Mr. Strait's vehicle. Sufficient evidence was presented from which the jury could have determined that Mr. Hensley's injuries were the reasonable and probable consequence of the downed stop sign.
3. The downed stop sign created a reasonably foreseeable risk of harm of the kind of injury plaintiff suffered.
The third element is that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury the plaintiff incurred. Section 537.600.1(2). Jackson County reiterates its argument that the downed stop sign was not a dangerous condition. This argument fails for the reasons stated, supra. The County further asserts that because section 304.351 directs which vehicle must yield upon approaching an intersection without any traffic controls, the downed stop sign could not create a reasonably foreseeable risk of harm. The County argues that Mr. Hensley's harm resulted from the reasonably foreseeable risk of Mr. Strait's alleged negligence, not of the downed stop sign.
Contrary to Jackson County's assertions, substantial evidence was presented to satisfy the third element. In the light most favorable to the jury verdict, the following evidence was presented. Mr. Merkle testified that stop sign maintenance is an issue of highest priority because improperly maintained stop signs pose a threat to public safety. Moreover, he testified that if a stop sign is down at an intersection of two roads, the possibility of the occurrence of an automobile accident is foreseeable. He also testified that not only is the possibility of an accident foreseeable, possible injury to anyone involved in the accident as a result of a downed stop sign is also foreseeable. He stated that the people in the Public Works Department are aware of this foreseeable risk, and, because of the risk, they are trained to be alert for damaged or downed signs. Larry Van Dyke, the sign shop foreman at Public Works, testified that reporting a downed stop sign is of the highest priority because an accident could occur and people could be injured if it is not. Mr. Davis acknowledged that a downed stop sign is a very serious, potentially dangerous condition, and Jackson County recognized this.
4. Jackson County had constructive notice of the downed stop sign.
The fourth element is that a public employee negligently created the condition or that the public entity had actual or constructive notice of the dangerous condition. Section 537.600.1(2). Mr. Hensley did not argue that a Jackson County employee negligently removed the stop sign at the intersection. Neither did he argue that Jackson County had actual knowledge regarding the downed stop sign at the intersection before the accident occurred. Instead, he asserted that Jackson County had constructive knowledge of the downed stop sign at the intersection. Analysis is focused on whether Mr. Hensley presented substantial evidence that Jackson County had constructive notice of the condition.
The stop sign was down by at least Friday, August 30, 2005, at 6:00 A.M., and the automobile accident occurred Sunday evening, September 1, 2002. "There is no fixed rule as to the length of time necessary to justify a presumption of notice to a [sovereign] of a dangerous condition on a public street or sidewalk. Each case must depend upon the facts and circumstances shown therein." Dorlon v. City of Springfield, 843 S.W.2d 934, 943 (Mo.App.S.D. 1992). "A [sovereign] has constructive knowledge of a dangerous condition if the dangerous condition is of such nature that, even though not obvious and notorious, it has existed for such a length of time that the [sovereign] in the exercise of ordinary care could and should have discovered and remedied it." Lockwood v. Jackson County, Mo., 951 S.W.2d 354, 357 (Mo.App.W.D. 1997). "The question of whether a [sovereign], in the exercise of ordinary care, would have discovered the condition a sufficient length of time prior to plaintiff's injury to have removed it and thereby prevented the injury is to be determined by the jury." Dorlon, 843 S.W.2d at 943.
Substantial evidence was presented to satisfy the last element of section 537.600.1(2). In the light most favorable to the jury verdict, the following evidence was presented. The stop sign was down from at least 6:00 A.M. the morning of Friday, August 30, 2002. It was down all day Friday, Saturday, and Sunday, until the accident occurred at 9:45 P.M. Sunday evening. The Jackson County Sheriff's Department patrolled the intersection several times a day, every day, and the patrolling Deputy Sheriffs were directed to look for downed traffic control devices at intersections. Further, the Maintenance Division of the Public Works Department was located within two miles of the intersection, which resulted in Public Works employees driving through the intersection Friday while travelling to and from work. Mr. Grubb and Ms. Guillemot testified that Public Works and Sheriff's Department vehicles travel through the intersection on a daily basis, and while the question of whether the County's Public Works employees driving through the intersection on Friday was sufficient to provide notice to the County is not decided, the Deputy Sheriffs, who had been instructed to look for downed traffic control signals, drove through the intersection twice during scheduled shifts of ten hours each, for a total of approximately twenty times from 6:00 A.M. Friday until the accident on Sunday evening, and this was sufficient to provide notice.
Public Works considers maintenance of stop signs and yield signs important and assigns highest priority to them if they are in need of repair or replacement. The Jackson County policy is to repair or replace a downed or damaged stop sign within five hours if receiving notice that a sign is need of attention. While the accident occurred over a holiday weekend, someone from Public Works was on call to respond to emergency calls and dispatches, and, after the accident, the sign was repaired within one hour.
Jackson County relies upon evidence and testimony that is contrary to the evidence viewed "in the light most favorable to the party who obtained the verdict." Benoit, 33 S.W.3d at 667. "In deciding whether a submissible case is made, a plaintiff is entitled to all reasonable favorable inferences from the evidence," and the defendant's evidence is disregarded, "except as it may aid the plaintiff's case." Id. "Finally, only the jury may judge the credibility of witnesses and the weight and value of their testimony." Id. The jury is free to "believe or disbelieve any part of a witness's testimony." Id. It was entitled to believe the above evidence and disregard any contradictory evidence.
Sufficient evidence was presented to satisfy the four elements of section 537.600.1(2). Mr. Hensley presented a submissible case that Jackson County's sovereign immunity was waived pursuant to statute. Point denied.
Point II
In its second point, Jackson County seeks plain error review of a claim that the trial court erred with respect to the jury instructions. Rule 84.13(c) provides that: "Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." "Under plain error review, an appellate court should first examine whether the claim of plain error is one that, on its face, establishes substantial grounds for believing that manifest injustice or miscarriage of justice has occurred." Gill Constr., Inc. v. 18th Vine Auth., 157 S.W.3d 699, 723 (Mo.App.W.D. 2004) (citation and quote marks omitted). "Once plain error is facially established, an appellate court should then review the claim to determine whether manifest injustice or a miscarriage of justice actually occurred." Id. (citation and quote marks omitted). "If a claim of plain error does not facially establish substantial grounds for believing manifest injustice or miscarriage of justice has occurred, an appellate court should decline to review for plain error." Id. "In determining whether to exercise its discretion to provide plain error review, the appellate court looks to determine whether there facially appears substantial grounds for believing that the trial court committed error that is evident, obvious and clear, which resulted in manifest injustice or a miscarriage of justice." Id. (citation and quote marks omitted).
Plain error review is rarely granted and "may not be invoked to cure the mere failure to make proper and timely objections." Id. at 723-24 (citation and quote marks omitted). The plain error rule is not intended to allow review of every alleged error that was not properly preserved. Id. at 724. "If an instruction is not objected to with specificity prior to submission of the case to the jury, a court is limited to reviewing the giving of an instruction for manifest injustice or a miscarriage of justice." Id.
Jackson County complains on appeal that the instructions given to the jury varied from the Missouri Approved Instructions. The words "as a direct result of such failure" were changed to "such failure directly caused or directly contributed to cause." Jackson County claims this change impermissibly lessened Mr. Hensley's burden of proof. It claims it was prejudiced by the change in wording because no evidence was presented that it had actual or constructive notice that the stop sign was down or that Mr. Hensley's injuries resulted from the dangerous condition, and yet the jury returned a verdict in Mr. Hensley's favor. It relies upon Carlson v. K-Mart Corp., 979 S.W.2d 145, 147-48 (Mo. banc 1998), a case in which the claimed error was properly preserved for appeal, and plain error review was not requested. Jackson County has not demonstrated a "manifest injustice or a miscarriage of justice." Gill Constr., Inc., 157 S.W.3d at 723. As discussed in Point I, a submissible case was made regarding Jackson County receiving constructive notice of the downed stop sign and Mr. Hensley's injuries resulting from the downed sign. Plain error review is not granted.
Point denied.
All concur.