Tragically, a ten year old boy died on a rainy day in 2007 while walking along NE 52nd Street to Maplewood Elementary School in Clay County, Missouri. Only a sharply sloping ditch separated the street from his school’s field; there was no sidewalk or curb. The boy slipped into the ditch flooded with rainwater flowing towards a storm sewer drain where he was sucked to the single bar across the opening of the drain and drowned despite the efforts of volunteers and emergency responders.
The boy’s family sued the North Kansas City School District and the City of Kansas City, Missouri. The school district settled. The City prevailed on a motion to dismiss the case against it on the basis of sovereign immunity. Family then appealed to the Court of Appeals for the Western District of Missouri, which reversed in favor of the family, holding that the Clay County trial judge erred in granting the City’s motion to dismiss. The case is styled Angela Phelps, et. al., v. City of Kansas City, Missouri, Opinion WD74287 filed May 29, 2012.
A major issue in the case dealt with the fact that the school district owned the land on which the City’s storm sewer was built. The City contended that it did not own the land and therefore could not be held liable for the boy’s death on school property. Citing previous cases, the court rejected this argument by the City, finding that the City need only have possession or control over the premises to be held liable. Here the City possessed rights to construct and maintain the storm sewer system and therefore had sufficient possession or control over the premises involved in the boy’s death. The City also sufficiently controlled and possessed the adjoining street which lacked sidewalk or curb to provide a safe path to school for walking students.
Turning to the immunity of the sovereign body–the City–the court repeated the ages old rule that sovereign immunity protects such public entities from being sued unless there is some express waiver by state lawmakers. Basically, citizens can’t sue the government as a general rule. A concept that dates back to Henry the VIII or so.
But you can sue a city for negligence and such under these four areas of exception carved out over time by courts and by Missouri statute 537.600: (1) for a public employee’s negligent operation of motor vehicle; (2) dangerous condition of city property; (3) the city is performing a proprietary function (one that generates revenue for the city) as opposed to a governmental function for the public benefit; or, (4) the city has liability insurance which actually covers the acts involved as this constitutes a waiver of its sovereign immunity by the city.
In this case, two exceptions applied to enable the family to continue its case against the City. First, the City charged residents and the school district a fee for storm sewer services and Missouri law already holds that so providing storm sewers is a proprietary function. Second, the storm sewer in which this young boy drowned was in dangerous condition according to the allegations by the family in their amended petition against the City. Note here the court’s determination that the City need not own full title to the land in order to be liable for dangerous conditions on the premises. Control and possession of the property for purposes of constructing and maintaining the storm sewer suffices.
Since the above exceptions are sufficiently stated in the family’s petition, the court of appeals reversed the trial judge’s dismissal of the case due to incorrect application of the doctrine of sovereign immunity. This case, now 5 years after the death of the young student, may again proceed. Of course, if this case against only the City now does not settle but rather proceeds to trial, the family must present proof of all the necessary elements of these exceptions in order to win. I would think, though, that the proof is there and a jury would award a substantial amount to the family.
Admire the tenacity of the family in taking this case up on appeal (twice now) to reverse the trial judge’s decisions.
Kurt H. King
Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068
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