State Ex Rel. Missouri Highway & Transportation Commission v. Dierker

BENTON, Chief Justice.

Plaintiffs below sued the relator Missouri Highway and Transportation Commission for negligently constructing and maintaining an overpass. The respondent circuit court ruled that the Commission was subject to suit under the dangerous-eondition-of-property exception in section 537.600.1(2).2 Because sovereign immunity bars this wrongful death action, the alternative writ in mandamus is made peremptory. Mo. Const. art. V, sec. 4(1).

I.

Olga Maxiaeva was driving home in the early hours of February 20, 1995, in St. Louis. As she drove under the Clayton Avenue overpass, fifteen-year-old Shawn Twine dropped a twenty-pound chunk of concrete onto Maxiaeva’s car, killing her. Shawn Twine later pleaded guilty to the charge of involuntary manslaughter.

Maxiaeva’s husband and their daughter brought a wrongful death action against several defendants, including the Commission. In Count I, plaintiffs alleged that the Commission was negligent by constructing an *60inadequate fence, leaving loose pieces of concrete on the overpass, and failing to light it adequately.

The Commission filed a motion for summary judgment, invoking sovereign immunity. Plaintiffs countered that sovereign immunity was waived under section 637.600.1(2), because a dangerous condition of public property caused Maxiaeva’s death. The trial court overruled the motion, stating that it could not find as a matter of law that the condition of the overpass “had no connection” to Maxiaeva’s death. The trial court ruled that the Commission was not entitled to judgment because “the incident leading to the death of Ms. Maxiaeva would not have been possible absent the physical conditions of the overpass.”

II.

The Commission, as an executive department of state government, is a public entity that sovereign immunity shields from suit. Mo. Const. art. IV, sec. 29; Section 537.600.1; Wilkes v. Missouri Highway and Transp. Comm’n, 762 S.W.2d 27, 28 (Mo. banc 1988). Sovereign immunity is waived, however, for cases involving injuries caused by a dangerous condition of public property. Sec. 537.600.1(2).

Where the pleadings show that a defendant is immune from suit as a matter of law, and the trial court refuses to grant summary judgment, a writ of mandamus is appropriate. State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 444 (Mo. banC 1986); State ex rel. Missouri Dep’t of Agric. v. McHenry, 687 S.W.2d 178, 181 (Mo. banc 1985). A defendant who is clearly entitled to immunity should not be required to proceed through trial and appeal in order to enforce that protection. State ex rel. Board of Trustees v. Russell, 843 S.W.2d 353, 355 (Mo. banc 1992).

After a trial court denies a motion for summary judgment based on sovereign immunity, this Court applies the same standard of review as for a final order granting summary judgment. This Court reviews the record de novo in the light most favorable to the party against whom judgment is sought. See ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Facts set forth by affidavit or otherwise in support of the motion are taken as true unless contradicted by the non-movant’s response to the summary judgment motion. Id. The non-movant receives the benefit of all reasonable inferences from the record. Id. A defendant may establish a right to judgment by showing facts that negate any one element of the plaintiff’s claim. Id. at 381; Tresner v. State Farm Ins. Co., 913 S.W.2d 7, 9 (Mo. banc 1995).

To state a claim under the dangerous-condition exception, a plaintiff must allege facts that show 1) a dangerous condition of public property, 2) that the injury directly resulted from the dangerous condition, 3) that the dangerous condition created a reasonably foreseeable risk of the kind of harm incurred, and 4) that a public employee negligently created the condition, or the public entity had actual or constructive notice of the condition. Kanagawa v. State by and through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985), citing section 537.600.1(2).

At issue in this case is the second requirement: “that the 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.” Dale v. Edmonds, 819 S.W.2d 388, 390 (Mo.App.1991), citing Applebee v. Ross, 48 S.W.2d 900, 902 (Mo.1932).

Proximate cause requires something in addition to a “but for” causation test because the “but for” causation test serves only to exclude items that are not causal in fact; it will include 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.

Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 865 (Mo. banc 1993).

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.

Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 710 (Mo. banc 1990).

*61The circuit court ruled, in essence, that the condition of the overpass was a “but for” cause of Maxiaeva’s death. According to the plaintiffs, the Commission by its negligence armed Twine with a piece of concrete, permitted him to hide in the darkness, and built a fence so low that he could hurl the concrete over it. As the circuit court found, these conditions “had some connection to the incident leading to Ms. Maxiaeva’s death.”

Although the conditions of the overpass “had some connection” to her death, Twine intervened to break the chain of causation. “To the extent the damages are surprising, unexpected, or freakish, they may not be the natural and probable consequences of a defendant’s actions.” Callahan, 863 S.W.2d at 865. In this case, the Commission has established that Maxiaeva’s death was the direct result of Twine’s conduct. Her death was not the direct result of the condition of the overpass, which only “in some remote way presaged the commission” of the crime. Kanagawa, 685 S.W.2d at 835. The sovereign immunity statute must be strictly construed. Richardson v. State Highway and Transp. Comm’n, 863 S.W.2d 876, 882 (Mo. banc 1993); Bartley v. Special Sch. Dist. of St. Louis County, 649 S.W.2d 864, 868 (Mo. banc 1983). It would be unreasonable to subject the Commission to suit for the damages caused by this manslaughter.

The facts of this case parallel those in Dale by and Through Dale v. Edmonds, 819 S.W.2d 388 (Mo.App.1991), where sovereign immunity protected a school board from suit for a student’s injuries. Another student picked up a piece of broken glass littering the schoolyard and threw it at him. The court held that the injury directly resulted from the child’s throwing a piece of glass, not from a defect in public property. Id. at 390; semble, Patterson v. Meramec Valley R-III Sch. Dist, 864 S.W.2d 14, 16 (Mo.App.1993).

Here, even assuming that the overpass was in dangerous condition, that condition did not directly cause Maxiaeva’s death. Her death was not the natural and probable consequence of the alleged condition of the overpass.

III.

The Commission is immune from suit as a matter of law and entitled to summary judgment because it negated one element of the plaintiffs claim, causation. The alternative writ of mandamus is made peremptory.

PRICE, LIMBAUGH, ROBERTSON, COVINGTON and HOLSTEIN, JJ., concur. WHITE, J., dissents in separate opinion filed.

. All statutory references are to RSMo 1994.