Donahue v. City of St. Louis

ROBERTSON, Judge,

dissenting.

I respectfully dissent.

The Court holds today that the City of St. Louis may be liable for failing to replace a fallen stop sign. The majority opinion states that the critical consideration upon which its decision turns is the interpretation of the 1985 amendment to Section 537.600 “which directly addresses governmental immunity as it relates to roads and highways.” (At 52). In my view, the 1985 amendment makes no difference to the resolution of this case. Yet, in the process of deciding this case on an irrelevant statutory amendment, the Court fails even to undertake a critical examination of that amendment within the context of the statute. Further, the Court ignores the timeworn imperative that statutes in abrogation of sovereign immunity must be strictly construed. Bartley v. Special School Dish of St. Louis County, 649 S.W.2d 864, 868 (Mo. banc 1983). In so doing, the Court errs.

The relevant 1985 amendment provides: “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 ...” sovereign immunity is maintained as a defense provided the road was constructed or designed prior to September 12, 1977, and the governmental entity can prove that the design “reasonably complied with highway and road design standards generally accepted at the time the road or highway was designed or constructed.” Section 537.600.1(2). In context, the careful reader immediately notes that while the original language of the statute applies to a dangerous condition of property, the amendment refers to roads and highways which are dangerously designed.

In Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985), this Court found that a dangerous condition of property within the meaning of Section 537.600.1(2) referred to “defects in the physical condition of the public entity’s property.” Thus a defect in condition exists through either “faulty construction or maintenance in the condition of ... property.” This definition is consistent with the ordinary meaning of the word “condition”, Buechner v. Bond, 650 S.W.2d 611, 613 (Mo. banc 1983), to which Webster’s Third New International Dictionary 473 (1966) ascribes the meaning “the physical status of a body as a whole”.

“Design” on the other hand means “to conceive and plan out in the mind” and “a basis for anticipating practical problems and solving them at the engineering stage.” Id. at 611-612. A highway can be built entirely in accordance with a defective design. In the event of an injury following, it is the design which is the cause, not faulty construction or maintenance.

Thus, in my view, the legislature intended two entirely different causes of action when it used the phrases “dangerous condi*54tion” and “dangerous design”. The 1985 amendment does no more than infer a cause of action for negligent, defective or dangerous design of a highway or road and provide an absolute defense to that cause of action under the specified circumstances. The majority’s conclusion that a reference to highways and roads dangerously designed operates as a waiver of sovereign immunity for highways and roads in all circumstances is erroneous.

This does not end the inquiry, however. The question remains whether a downed stop sign constitutes a dangerous condition of property within the meaning of Section 537.600. The majority opinion intimates that “property” as used in Section 537.600.-1(2) would mean only buildings and appurtenances in the absence of the 1985 amendment. I can find no support for that proposition in the plain language of the statute. Even strictly construing the statute, the term “property” necessarily includes those things “which may be owned or possessed.” Webster’s Third New International Dictionary 1818 (1966).

Once it is found that highways and roads and the control devices which there attend are property for purposes of Section 537.-600.1(2), it remains to be determined whether a cause of action is pled here under the statute. In plain language, the legislature requires that the dangerous condition directly cause the plaintiff’s damage. Strictly construing this language, I cannot conclude that a fallen stop sign is a direct cause of this accident. Direct cause contemplates that plaintff’s damage is “directly traceable” to the fallen stop sign. Pros-ser & Keeton, The Law on Torts, 5th Ed. 293 (1984). Direct cause is thus “the active, efficient cause that sets in motion a train of events which brings about a result without the intervention of any force started and working actively from a new and independent source.” Anderson v. Steinle, 289 Ill.App. 167, 6 N.E.2d 879, 881 (1937). For example, and assuming all other requirements of Section 537.600.1(2) are met, had plaintiff fallen over the fallen stop sign, a cause of action would exist here; the stop sign would be a direct cause of the damage.

In this case, factors aside from the fallen stop sign caused the accident. Here the plaintiff failed to operate his vehicle in a careful and prudent manner as required by Section 304.010, RSMo 1986, and failed to yield the right-of-way at the intersection as required by Section 304.351, RSMo 1986.1 It was plaintiff’s breach of this duty, his failure to follow the rules of traffic safety, which was the direct cause of his injury. Cf. Putt v. Daussat, 381 So.2d 955 (La.App.1980).

The majority relies on decisions of other jurisdictions for support despite the admission that no other jurisdiction relies on a statute “worded as ours is worded.” (At 52). As is the case with the 1985 amendment, the differences in statutory language render these foreign cases unpersuasive. The Colorado Governmental Immunity Act specifically defined a dangerous condition as one “which interferes with the movement of traffic.” In Stephen v. City and County of Denver, 659 P.2d 666, 667 (Colo. banc 1983), the Colorado Supreme Court held that a stop sign was a necessary traffic regulating device. The improper placement of a stop sign thus fell within the statutory definition of a “dangerous condition”, and the government was liable. Id. at 668.

In Fretwell v. Chaffin, 652 S.W.2d 755 (Tenn.1983), a Tennessee statute removed the government’s shield of immunity for “any injury caused by a defective, unsafe or dangerous condition of any street ... or highway.” The Tennessee Supreme Court found a stop sign included in the definition of road conditions for which the government was liable. The Court noted that the legislature had removed any doubt as to the treatment of traffic control devices by *55expressly providing that such devices were included within the terms “street” and “highway.” Id.

In Brown v. State Highway Commission, 202 Kan. 1, 444 P.2d 882 (Kan.1968), the Kansas Supreme Court found a stop sign obstructed from view to be a highway defect. The court detailed the numerous statutory requirements followed by the state highway commission in maintaining traffic control devices and held that the commission had an absolute duty to conform to the statutory requirements and specifically, to place and maintain a stop sign at the intersection in question. On this basis, the Court held the government liable.

Our statute waiving sovereign immunity is unique. It imposes on plaintiffs the burden of showing that a dangerous condition directly caused the injury of which plaintiff complains. This case fails to present the direct causation required. Absent the direct causation mandated as a condition of the waiver of sovereign immunity by the statute, plaintiff has not stated a cause of action. The trial court did not err in dismissing plaintiff’s petition.

. According to plaintiffs Statement of Facts, he was travelling northbound and collided at the intersection with a vehicle which was travelling westbound. Thus, the car with which plaintiff collided entered the intersection from plaintiffs right. Section 304.351.2 states: "When two vehicles enter an intersection ... at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right....”