CLESLIE DAVID ALLEN, )
)
Plaintiff-Appellant, )
)
vs. ) No. SD33843
)
M.W. TRADER and IVIE A. WARREN, ) Filed: July 28, 2015
)
Defendants-Respondents. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable J. Dan Conklin, Circuit Judge
AFFIRMED
Cleslie David Allen ("Plaintiff") appeals from the trial court's entry of
summary judgment in favor of Missouri State Highway Patrol Troopers Mark W.
Trader ("Trooper Trader") and Ivie Warren ("Trooper Warren") (collectively
"Defendants") on Plaintiff's petition for damages arising out of an automobile
accident. We disagree with Plaintiff's arguments and affirm the trial court's
judgment.
Standard of Review
"Appellate review of summary judgment is de novo." Southers v. City
of Farmington, 263 S.W.3d 603, 608 (Mo. banc 2008). "Summary judgment
is appropriate where the moving party has demonstrated, on the basis of facts as
to which there is no genuine dispute, a right to judgment as a matter of law." Id.
In conducting this review, the appellate court must view "the record in the light
most favorable to the party against whom judgment was entered." Id.
Factual and Procedural Background
The following recitation of facts is drawn from the parties' statements of
uncontroverted material facts, viewed in the light most favorable to the non-
moving party. See id. In 1996, Plaintiff worked as a tow truck driver for Brines
Tow Truck Service. On September 2 of that year, there was a two-car accident
near the intersection of Highway 13 and Farm Road 94 in Greene County.
Defendants responded to the scene of the accident. One of the vehicles
involved in the accident was partially in the roadway blocking traffic. By the time
Plaintiff arrived at the accident scene, there were traffic cones in the roadway to
direct traffic away from the obstruction.
Upon arriving, Plaintiff spoke with Trooper Trader, asked which vehicle he
should take, and then proceeded to load up the vehicle. Then Plaintiff again
spoke with Trooper Trader and asked where the accident debris was. Trooper
Trader responded that it was near the intersection. Plaintiff told Trooper Trader
that he was going to drive up to the next intersection to turn around and then
park his truck on the other side of the road. Plaintiff never spoke to Trooper
Warren that evening.
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Trooper Warren did not believe there was any debris in the roadway that
would impede traffic or that needed to be cleaned up. When Trooper Warren saw
the tow truck pull away, she ordered some personnel from the fire department to
remove the orange traffic cones to get traffic moving.
Plaintiff drove his tow truck around to the other side of the highway as he
had explained to Trooper Trader. Plaintiff then got out of his truck and began to
sweep debris from the roadway. While he was sweeping up debris, an oncoming
car struck Plaintiff.
Plaintiff sued the driver of the oncoming car, Trooper Trader, Trooper
Warren, and the State of Missouri, seeking damages for injuries he sustained in
the accident. As relevant to this appeal, Plaintiff claimed Defendants were
negligent in reopening the roadway while Plaintiff was still working.
On September 23, 2004, the claim against the State of Missouri was
dismissed in accordance with a writ issued from this Court. State ex rel.
Nixon v. Westbrooke, 143 S.W.3d 737 (Mo. App. S.D. 2004). Later,
Defendants moved for summary judgment, arguing they were protected by the
doctrine of official immunity and by the public duty doctrine.
The trial court granted the motion. In that judgment, the trial court stated
as follows:
The Court grants summary judgment in favor of Defendants . . .
because they have official immunity and are protected by the public
duty rule, as more fully set forth in the legal memorandum of
Defendants filed in support of their Motion. The State of Missouri
has sovereign immunity from suit. The claims do not fall within
any exception to sovereign immunity under § 537.600, RSMo.
These claims do not arise from the operation of a motor vehicle by
[Defendants], and does not arise from the dangerous condition of
any property of the State of Missouri.
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Plaintiff thereafter voluntarily dismissed his claim against the driver of the
oncoming vehicle, and this appeal followed.
Point I: Sovereign Immunity
In his first point, Plaintiff argues the trial court erred in granting summary
judgment in favor of Defendants because Defendants are not entitled to sovereign
immunity. This argument is without merit because it misinterprets the trial
court's order.
"We will not convict a trial court of an error it did not commit." Hunt v.
Hunt, 65 S.W.3d 572, 577 (Mo. App. S.D. 2002). In the present case, the trial
court's analysis of sovereign immunity referred to the State of Missouri only. Its
discussion of sovereign immunity simply referred back to the prior dismissal of
the claims against the State of Missouri pursuant to this Court's writ in State ex
rel. Nixon v. Westbrooke, 143 S.W.3d 737 (Mo. App. S.D. 2004). That is, the
trial court did not make the conclusion Plaintiff challenges in this point—that
Defendants were protected from suit under the doctrine of sovereign immunity.
The judge said they had official immunity. The trial court did not commit the
error Plaintiff challenges in his first point so we will not convict the trial court of
that error.
Plaintiff's first point is denied.
Point II: Official Immunity
In his second point, Plaintiff claims the trial court erred in granting
summary judgment to Defendants because they were not entitled to official
immunity as the challenged actions involved ministerial duties. Plaintiff is
incorrect.
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Official immunity "protects public employees from liability for alleged acts
of negligence committed during the course of their official duties for the
performance of discretionary acts." Southers, 263 S.W.3d at 610. The rationale
for this rule is that "society's compelling interest in vigorous and effective
administration of public affairs requires that the law protect those individuals
who, in the face of imperfect information and limited resources, must daily
exercise their best judgment in conducting the public's business." State ex rel.
Hill v. Baldridge, 186 S.W.3d 258, 260 (Mo. banc 2006).
To determine whether a public employee is entitled to official immunity
for an alleged act of negligence, Missouri courts look at whether the act was
committed in furtherance of a discretionary duty or a ministerial duty.
Southers, 263 S.W.3d at 610. This determination is governed by the amount of
reason and judgment necessary in performing the act. Davis v. Lambert-St.
Louis Intern. Airport, 193 S.W.3d 760, 763 (Mo. banc 2006) "A discretionary
act requires the exercise of reason in the adaptation of means to an end and
discretion in determining how or whether an act should be done or course
pursued." Southers, 263 S.W.3d at 610. A ministerial act is an act which is
clerical in nature and which the officer must complete in a prescribed way when
certain prescribed facts occur, without reference to his or her own judgment.
Id. "To discern whether an act is ministerial or discretionary, the court looks to
three factors: (1) the nature of the duties; (2) how much policymaking or
professional expertise and judgment the act involves; and (3) the consequences of
withholding immunity." Davis, 193 S.W.3d at 763.
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Based on these general principles, Missouri courts have frequently held
that public safety officers are entitled to official immunity with respect to acts
undertaken in response to emergencies or accidents. See, e.g., Southers, 263
S.W.3d at 619; Davis, 193 S.W.3d at 763; Hill, 186 S.W.3d at 260; Green v.
Denison, 738 S.W.2d 861, 865-66 (Mo. banc 1987) (overruled on other grounds
by Davis, 193 S.W.3d at 763); Rhea v. Sapp, No. WD77301, 2015 WL 965918,
*5 (Mo. App. W.D. March 3, 2015); Deuser v. King, 24 S.W.3d 251, 254 (Mo.
App. E.D. 2000); Costello v. City of Ellisville, 921 S.W.2d 134, 136-37 (Mo.
App. E.D. 1996) (overruled on other grounds by Davis, 193 S.W.3d at 763);
Fonseca v. Collins, 884 S.W.2d 63, 67 (Mo. App. W.D. 1994). Here,
determining when it was safe to open the road to traffic after completing the
investigation of the first accident was part of Defendants' response to the first
accident, so it was a discretionary act for which Defendants are entitled to official
immunity.
Plaintiff's argument to the contrary rests primarily on analogies to
Jungerman v. City of Raytown, 925 S.W.2d 202 (Mo. banc 1996)
(abrogated on other grounds by Southers, 263 S.W.3d at 610), and
Richardson v. Burrow, 366 S.W.3d 552 (Mo. App. E.D. 2012). Plaintiff's
reliance on those cases is misplaced because neither of those cases involved
official responses to traffic accidents. Jungerman involved an official's failure
to follow a booking procedure in a jail, while Richardson involved a
paramedic's failure to follow the prescribed procedure for intubating a patient.
Jungerman, 925 S.W.3d at 206; Richardson, 336 S.W.3d at 553-54. Those
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situations are not sufficiently similar to traffic accidents to provide useful
guidance in this case.
The trial court did not err in determining that Defendants were entitled to
official immunity under the facts of this case. Plaintiff's second point is denied.
Point III: Public Duty Doctrine
In his third and final point, Plaintiff claims the trial court erred in granting
Defendants summary judgment based on the public duty doctrine. However,
because Defendants are entitled to summary judgment on the basis of official
immunity, we need not consider whether the public duty doctrine applies in this
case. See Conway v. St. Louis County, 254 S.W.3d 159, 166 (Mo. App. E.D.
2008).
Decision
The trial court's judgment is affirmed.
MARY W. SHEFFIELD, C.J. – OPINION AUTHOR
DANIEL E. SCOTT, P.J. – CONCURS
JEFFREY W. BATES, J. – CONCURS
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