Opinion
No. WD 56390
Date: October 12, 1999
APPEAL FROM: CIRCUIT COURT OF JACKSON COUNTY, HON. RONALD R. Holliger, JUDGE.
Douglas Horn, Independence, MO, Counsel for Appellant. Charlotte Ferns, Government Counsel, KCMO, Counsel for Respondent.
Before Stith, P.J., Lowenstein and Riederer, JJ.
Larry Jones appeals from a summary judgment granted in favor of Respondent, the city of Kansas City, Missouri. Because we find that the notice requirement of Section 82.210 does not apply, we reverse and remand.
All statutory references are to RSMo 1994, unless otherwise indicated. Section 82.210 states in pertinent part: "No action shall be maintained against any city of this state which now has or may hereafter attain a population of one hundred thousand inhabitants, on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence. . . . "
Factual and Procedural History
On July 29, 1997, an automobile travelling southbound failed to obey a yield sign at 77th Terrace and Brookside Road. The southbound automobile collided with a westbound automobile, causing the westbound automobile to strike Appellant, a pedestrian near the intersection. On May 21, 1998, Appellant filed a petition for damages against Respondent. On June 9, 1998, Respondent filed an answer. Respondent pleaded, as an affirmative defense, that Appellant was barred from bringing an action against Respondent because Appellant failed to comply with the notice requirement of Section 82.210. On June 10, 1998, Respondent filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law because there was no genuine issue as to the material fact that Appellant did not provide a written notice of his claim for damages to the mayor within ninety days of the occurrence, as required by Section 82.210. Appellant admits that he did not give written notice to the mayor within ninety days of the incident. On August 12, 1998, the trial court sustained Respondent's motion for summary judgment. This appeal ensued.
Standard of Review
Our standard of review of a summary judgment is essentially de novo. Lawrence v. Bainbridge Apartments, 957 S.W.2d 400, 403 (Mo.App. 1997) (citing, ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.banc 1993)). We review the record in the light most favorable to the party against whom judgment was entered and grant the non-moving party the benefit of all reasonable inferences from the record. Id. To be entitled to summary judgment a movant must demonstrate that there is no genuine dispute of material fact and that he or she is entitled to judgment as a matter of law. Id. Here, there is no genuine issue of fact, and, therefore, the question is whether Respondent is entitled to judgment as a matter of law.
Notice under Section 82.210
In his first point, Appellant claims that he was not required to give notice to the city "because traffic control signs are not included in the purview of Section 82.210;" and the trial court reached beyond the plain and ordinary meaning of the statute in that "traffic control signals are not listed among the areas requiring notice." Appellant argues that the notice requirement does not apply to this case ". . . because the dangerous condition allegedly causing injury to Larry Jones was the result of an improper traffic control signs [sic]. As traffic control signs are not listed among the conditions requiring notice, Appellant's claim is not barred. . . ."
Appellant correctly notes that since the statute in question is in derogation of the common law, it must be strictly construed against the municipality and in favor of the injured party, Walls v. City of Overland, 865 S.W.2d 839, 841 (Mo.App. 1993), and that several decisions of our courts have addressed allegations of dangerous conditions that fall outside of the areas listed in Section 82.210. In Walls , the court reversed summary judgment for the city in a case arising out of a fall on a parking lot. The court said, "No portion of the statute suggests that it applies to parking lots. If the legislature had intended to include parking lots within the provisions of the statute, it would have been a simple matter to do so." Id. In Lemming v. City of Salisbury, 765 S.W.2d 271 (Mo.App. 1988), the plaintiff fell into a hole or an opening in a grate for drainage of surface water, located adjacent to a city street. The court noted, "[n]o portion of the statute suggests that it applies to grates. The only fact which connects the statute with the grate is the location of the grate adjacent to a city street. . . . The terms of section [ 82.210] do not include an action for injuries arising out of any defect or unsafe condition of or on a grate." Id. at 272. In McCulley v. City of Princeton , 488 S.W.2d 277, 278 (Mo.App. 1972), the court said, "we do not believe that Section [ 82.210] can be read as embracing a sewer . . . The only fact even remotely connecting the statute with the sewer in issue is its location under a street."
Relying on these cases, Appellant argues simply that the statute does not mention traffic control signs, and ipso facto, notice is not required. However, Respondent argues for us to distinguish this case from Lemming, McCulley and Walls , because the claims in those cases were not tied into or necessarily connected to "any bridge, boulevard, street, sidewalk or thoroughfare." Rather, they were claims for injury due to a grate, sewer and parking lot, respectively. Each of these dangerous or defective conditions could have been located anywhere. By contrast, steps in a sidewalk, Williams , 782 S.W.2d 64 (Mo. 1990), or a street light, Banks , 862 S.W.2d 485 (Mo.App. 1993), are necessarily near the street or in the sidewalk. They exist only because the street or sidewalk exists. In Williams and Banks , injuries from the sidewalk and street, respectively, were held to trigger the notice provisions of Section 82.210. Likewise, a yield sign exists solely as an adjunct to a street or thoroughfare. If there were no street or thoroughfare, there would be no yield sign.
Respondent urges us to follow "a clear test when trying to determine what properties require a Section 82.210 notice of claim." Respondent claims that a clear test is set forth in the following language of Williams : "The list of defective property for which the Section 82.210 requires a notice of claim includes all of those publicly maintained exterior improvements designed to facilitate travel for which the common law permitted liability because of their proprietary nature." 782 S.W.2d at 65. Respondent argues, applying this test to the facts of the case at issue, a yield sign is a publicly maintained exterior improvement, designed and placed for the purpose of facilitating travel. Respondent further argues that following the test laid out in Williams , claims arising out of an alleged dangerous condition of a street allegedly created by the presence of one traffic sign as opposed to another, fall within the purview of the Section 82.210 notice requirements.
Respondent, however, misreads Williams , in that the quoted language does not lay down a clear test. Williams merely states " The list of defective property for which the Section 82.210 requires a notice of claim includes all of those publicly maintained exterior improvements designed to facilitate travel for which the common law permitted liability because of their proprietary nature." Id . (emphasis supplied). Williams does not invite us to decide whether a yield sign is an "exterior improvement designed to facilitate travel." On the contrary, Williams says the list in Section 82.210 is exhaustive, in that it "includes all" publicly maintained exterior improvements designed to facilitate travel for which the common law permitted liability because of their proprietary nature. Id. Williams merely requires that we inquire whether the defect complained of is in the list set forth in Section 82.210. Williams involved steps in a sidewalk, and the court noted: "The steps are part of the sidewalk; they are in the sidewalk." Id. Thus, the court found that the dangerous or defective condition complained of was in the list, because the list included "sidewalk." We conclude that Williams requires us to determine whether the alleged defect is listed in Section 82.210. Yield signs are not listed, nor are "traffic control signs."
Allegations as Complaint About Condition of the Street
The Respondent argues next that Appellant's position is that a negligently selected traffic control sign (in that it was a yield sign and not a stop sign) is a dangerous condition and does not involve the street, and that Appellant tries to separate himself from the logical connection between a traffic control device and the roadway it is intended to service, by stating it is the sign itself that is the dangerous condition, not its impact on, or interrelationship with, the roadway. Respondent claims that Appellant's argument is the same as that rejected by this court in Banks , 826 S.W.2d 485, [ 862 S.W.2d 485] where, Respondent contends, the plaintiff claimed that the inadequate lighting itself was the dangerous condition and not the impact it had on the roadway. In Banks , this court stated that "negligently designed street lights, which fail to provide adequate illumination on crosswalks, fall within 'those publicly maintained exterior improvements designed to facilitate travel' and thus are encompassed in the list of defective property for which Section 82.210 requires notice of claim." Id. at 488. As we can see, Banks was based on an erroneous interpretation of Williams, which interpretation concludes that the list in Section 82.210, declared in Williams to be exhaustive, is not. To that extent, Banks is not controlling here. Nevertheless, Banks does provide an alternate analysis which might apply here and upon which Respondent impliedly relies. The court in Banks wrote, "[A]ppellant was essentially alleging that the crosswalk on the street was dark and dangerous. The statutory phrase 'any defect in the condition of any . . . street' encompasses such an allegation. To hold otherwise would be to give the words in the statute a forced, unnatural and much too literal interpretation ." Id . at 488. In effect, the court was saying that the allegations, although couched in terms of street lighting, were really a complaint about the physical condition of the street.
In the case at bar, Appellant alleged in his petition that "the presence of a yield sign adjacent to Brookside Road, at its intersection with 77th Terrace, constituted a defective and dangerous condition, and therefore not reasonably safe for public use, and created a reasonably foreseeable risk of harm of the kind of injuries sustained by plaintiff Larry Jones." Appellant further alleged that Respondent "knew or by using ordinary care could have known of the aforementioned dangerous and defective condition in sufficient time prior to the aforesaid collision and resulting injuries to plaintiff Larry Jones to have taken measures to protect against such dangerous condition." Finally, Appellant alleged that Respondent "was negligent and careless in the selection, ownership, control management and maintenance of the aforementioned dangerous condition in that defendant Kansas City failed to select and erect the proper traffic control device, including but not limited to a stop sign adjacent to Brookside Road, at its intersection with 77th Terrace."
Under these allegations, Banks does not require notice under Section 82.210. Appellant's allegations are not necessarily simply another way of complaining about the condition of the street. Unlike Banks , this case revolves around a complaint about the yield sign. The street lighting in Banks had a direct impact on the physical conditions of the street. Here, the yield sign did not affect the physical condition of the street.
Design of the Street
Respondent argues that the cases of Donahue v. City of St. Louis, 758 S.W.2d 50 (Mo. 1988), and Cole v. Missouri Highway and Transportation Comm'n , 770 S.W.2d 296 (Mo.App. 1989), by analogy mean a traffic control sign is, in essence, a part of the road. Respondent claims that "the court, in essence construed the sign (or absence thereof) to be a part of the roadway and the accidents that occurred on them." However, these cases do not mean that a yield sign is, under Section 82.210, a part of the street. The Donahue case was decided in the context of determining whether the alleged defective condition was within the meaning of an amendment to Section 537.600, which provided:
1.(2) . . . 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.
2. The express waiver of sovereign immunity in the instances specified in subdivisions (1) and (2) of subsection 1 of this section are absolute waivers of sovereign immunity in all cases within such situations whether or not the public entity was functioning in a governmental or proprietary capacity and whether or not the public entity is covered by a liability insurance for tort.
(emphasis supplied). The court, in that context then noted:
On its face, the purpose of the amendment would appear to be reinstatement of the holding of Jones as it relates to roads and highways plus opening the door to some degree prior to Jones. The remaining question then becomes whether traffic controls such as are here involved are encompassed in the negligent, defective, or dangerous design of roads and highways. 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.
Donahue, 758 S.W.2d at 52 . Respondent argues that, applying the reasoning of these cases, the yield sign at the intersection in question is designed for expediting the flow of traffic and for safety, and under these cases, the yield sign and the purposes for which it was erected are inseparable from the road and roadways. Moreover, it correctly notes Appellant's allegation that the effect of the defective yield sign was to make the street intersection dangerous, and thus, it effectively alleges defective road design like that alleged in Donahue and Cole . However, these cases merely stand for the proposition that where there is a claim arising from the design of the roadway, it will be understood that the design of the roadway would include traffic control signs or the absence thereof. Here, the statute does not state that notice must be given if negligent design of the roadway causes injury. It states the injury must be caused by a defective condition of the street, boulevard, sidewalk etc. itself. While, liberally construed, a dangerous road design could be considered a defect in the street, notice statutes are strictly rather than narrowly construed. Frogge v. Nyquist Plumbing and Ditching Co., 453 S.W.2d 913, 915 (Mo. 1996). Our review of the cases applying them reveals they have always been applied to actual structural defects in the roadway, such as holes in the sidewalk or street, or to other conditions generally arising out of defective maintenance, not to a design flaw such as this. Even Banks is not based on a design defect, but rather it was alleged that the condition and location of the lighting actually caused the injury by making it too dark to see, so that the real cause was the darkness of the walk, not the light. Section 82.210 does not deal with "design" of the roadway, and this stands, in stark contrast to the statute under consideration in Donahue and Cole . Further, if the legislature intended to include "design" it could have done so, as it did in Section 537.600. Thus Donahue and Cole are not controlling here.
Part of the Street
Respondent also argues, as the trial court wrote in its judgment, that since the function of traffic control signs is "inextricably linked with the streets and intersections they service," the notice requirement of Section 82.210 was triggered. That is, Respondent argues the traffic control sign does not function independently of the street. Lemming, McCulley and Walls can be distinguished from this case precisely because the grate, sewer and parking lot all function independently of the street, and that "they were not linked by purpose or design." Nevertheless, while we agree that this is a distinction in the cases, the notice requirement does not extend to those defects inextricably linked to the street but to a "defect in the condition of any . . . street." We believe the fact that the yield sign is limited to the street does not mean the yield sign is part of the street as a matter of law.
Conclusion
The issue under Williams was whether the defective condition complained of was included in the list set forth in Section 82.210. Yield signs are not in the list. In deciding whether a yield sign could be considered a part of a street, we are required to interpret Section 82.210 strictly against the municipality and liberally in favor of the injured party. Walls , 865 S.W.2d at 841 . In that context, the Williams test leads inexorably to one conclusion. Under the record developed herein, we cannot say as a matter of law that this yield sign is a part of this street. Thus, the notice requirement of Section 82.210 is not triggered. Since failure to provide notice under Section 82.210 was the basis for the grant of summary judgment, the judgment of the trial court is reversed, and the case is remanded for further proceedings.
Judgment reversed and remanded.
All concur.