In the Missouri Court of Appeals Western District
CLINT PUCKETT, ET AL., ) ) Appellants, ) WD87656 ) v. ) OPINION FILED: ) SEPTEMBER 16, 2025 NODAWAY COUNTY, MO., ET AL., ) ) Respondents. )
Appeal from the Circuit Court of Nodaway County, Missouri The Honorable Corey Keith Herron, Judge
Before Division Three: Mark D. Pfeiffer, Presiding Judge, Cynthia L. Martin, Judge and Janet Sutton, Judge
Clint Puckett ("Puckett") and Kevin Bradshaw ("Bradshaw") (collectively
"Plaintiffs") appeal from the trial court's judgment dismissing their petition against
Nodaway County and Polk Township (collectively "Defendants") for failure to state a
claim upon which relief can be granted. Plaintiffs assert that their petition alleged
ultimate facts establishing the waiver of sovereign immunity for a dangerous condition of
Defendants' public roadway. Alternatively, Plaintiffs argue that the trial court abused its
discretion in refusing to allow Plaintiffs to amend their petition. Because the petition
sufficiently pleaded facts that, if true, establish that the injuries sustained by Plaintiffs were caused by the dangerous condition of Defendants' public roadway, we reverse the
trial court's judgment and remand for further proceedings.
Factual and Procedural Background
This appeal arises from the trial court's dismissal of Plaintiffs' petition asserting a
claim of negligence against Defendants because the Petition failed to allege sufficient
facts to waive sovereign immunity. Assuming all of the assertions set forth in the petition
are true, the facts surrounding Plaintiffs' claim of negligence are as follows:1
At approximately 10:45 p.m. on August 6, 2019, Puckett was driving a pickup
truck in the rural, unincorporated area of Polk Township in Nodaway County, Missouri.
Bradshaw was a passenger in the front seat. Puckett was driving westbound on 280th
Street. Westbound 280th Street ends at a perpendicular T intersection with Katydid
Road, a north-south road. Puckett did not see the T intersection in time to stop and
crossed through the intersection, hitting a ditch and embankment on the west side of
Katydid Road. Puckett suffered several fractured ribs, sternal fractures, collapsed lungs,
and a knee fracture. Bradshaw sustained a hip fracture and dislocation, several fractured
ribs, and a tuberosity fracture of his left humerus. Plaintiffs continue to suffer physical
pain and are limited in their activities as a result of their injuries.
Plaintiffs filed a petition against Defendants in the Circuit Court of Nodaway
County ("Petition"). The Petition alleged that 280th Street, Katydid Road, and the T
1 "In reviewing the trial court's dismissal of a petition for failure to state a claim, we assume that all assertions set forth in the petition are true." Duvall v. Mo. Bd. of Prob. & Parole, 708 S.W.3d 878, 881 n.1 (Mo. App. W.D. 2025) (quoting Barrett v. Cole Cnty., 687 S.W.3d 685, 692 (Mo. App. W.D. 2024)). 2 intersection at issue were under the control and care of Nodaway County and Polk
Township.2 The Petition alleged that at the time of the accident it was dark, neither
Puckett nor Bradshaw were familiar with 280th Street, and neither knew it ended at a T
intersection with Katydid Road. The Petition further alleged that the speed limit on 280th
Street at the time of the accident was 50 miles per hour, and that the pickup truck was
traveling under the speed limit at the time of the accident. The Petition alleged that the T
intersection did not have artificial lighting nearby, and there was no signage warning or
indicating that 280th Street terminated at a T intersection with Katydid Road. The
Petition alleged that the Defendants chose not to place any signage on 280th Street or on
the west side of Katydid Road warning motorists of the impending termination of 280th
Street, and described several sign options that could have been used. The Petition further
alleged as follows:
21. On the date and at the place where the wreck in this case occurred, the roadway was in a dangerous condition due to some or all of the following:
a. Failure to adequately warn and instruct motorists through signage and other markers of the road coming to an end;
b. Failure to adequately post, warn and instruct motorists of the proper speed for driving on this section of 280th Street;
2 Article VI of the Missouri Constitution concerns local government. Section 9 of Article VI allows the General Assembly to provide for "[a]lternate forms of county government for the counties of any particular class." The General Assembly has exercised such power in section 65.010, which provides that third- and fourth-class counties may adopt a "township organization" form of county government. The parties agree that Nodaway County and Polk Township are the governmental entities that control and maintain the roadways located in Polk Township. All statutory references are to RSMo 2016 as supplemented through August 6, 2019, unless otherwise indicated. 3 c. In other respects unknown to [P]laintiffs at this time but that may become known prior to trial in this case.
22. Defendants . . . knew or by using ordinary care could have known of this condition in time to remedy and/or warn of the dangerous condition.
23. Defendants . . . failed to use ordinary care to remedy and/or warn of such condition and was [sic] thereby negligent.
24. The dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred.
25. As a direct and proximate result of the dangerous condition caused by the negligence of [D]efendants . . . , [P]laintiffs suffered severe, permanent and progressive injuries including numerous fractures of bones.
26. As a further direct and proximate result of [D]efendants['] . . . negligence, [P]laintiffs experienced severe physical injury, great physical and mental pain, anguish and suffering, and medical expenses, and will incur medical expenses in the future.
The Petition sought money damages, interest on the judgment, costs and expenses
incurred, and other relief deemed just and proper.
Defendants filed a motion to dismiss the Petition for failure to state a claim upon
which relief can be granted pursuant to Rule 55.27(a)(6)3 ("Motion to Dismiss"). The
Motion to Dismiss argued that the Petition failed to plead with specificity facts
demonstrating that Defendants had waived sovereign immunity. The Motion to Dismiss
asserted that the Petition's allegations of negligence do not implicate the waiver of
sovereign immunity set forth in section 537.600.1(2) for injuries resulting from a
"dangerous condition" of public property because such a dangerous condition must be a
physical defect. The Motion to Dismiss argued that the Defendants' "alleged failure to
3 All Rule references are to Missouri Supreme Court Rules, Volume 1--State, 2024 unless otherwise indicated. 4 warn, notify, and/or instruct motorists that 280th Street ended at its intersection with
[Katydid] Road and/or . . . failure to place signage along 280th Street warning that 280th
Street ended at its intersection with [Katydid] Road" are not physical defects.4 The
Motion to Dismiss argued that the Plaintiffs' allegations of negligence were based on the
failure to perform an intangible act, which does not, as a matter of law, constitute a
dangerous condition pursuant to section 537.600.1(2).
Plaintiffs filed suggestions in opposition to the Motion to Dismiss and argued that
the Petition alleged that the T intersection at issue constituted a dangerous condition
because "280th Street comes to an end without adequate warning," thereby rendering the
roadway dangerous for drivers after dark. Defendants filed reply suggestions in support
of the Motion to Dismiss which repeated the argument that the Petition failed to allege a
physical defect, and further argued that the Petition fails to plead a "negligent, defective,
or dangerous design" of a roadway. Defendants noted that although section 537.600.1(2)
waives sovereign immunity where the failure to install or maintain road signs and traffic
devices compromises roadway safety and traffic flow design, the Petition did not meet
this standard because it did not expressly allege that Defendants' failure to install traffic
signage rendered the T intersection negligently, defectively, or dangerously designed.
4 The Motion to Dismiss refers to Katydid Road as "Katdid Road." Both parties' briefs use the spelling "Katydid" to describe the road with which 280th Street ends in a T intersection. 5 During a hearing on the Motion to Dismiss, the trial court asked Plaintiffs to
explain "where in the [P]etition [they] allege the intersection is dangerous in and of itself
without a sign." Plaintiffs' counsel responded:
[M]y petition alleges that this intersection is dangerous because it's not easy to see that the road comes to an end in the dark, and it presents an unreasonable risk that a driver will continue through the intersection, hit the ditch, hit the embankment, and be injured.
Plaintiffs' counsel orally requested leave to file an amended petition to include additional
allegations to this effect if the trial court determined that the Petition did not adequately
plead facts to demonstrate that the T intersection in and of itself was a dangerous
condition.
The trial court issued a judgment on October 15, 2024 ("Judgment") granting the
Motion to Dismiss "[f]or the reasons stated in Defendants' motion and supporting
suggestions." The trial court denied Plaintiffs' oral motion for leave to amend the
Petition.
Plaintiffs appeal.
Analysis
Plaintiffs' first point on appeal asserts that the trial court erred in dismissing the
Petition for failure to state a claim upon which relief can be granted because the Petition
alleged facts that were sufficient to establish a waiver of sovereign immunity ("Point
One"). Plaintiffs' second point on appeal alternatively argues that if the trial court did not
err in dismissing the Petition, the trial court erred in refusing to grant Plaintiffs leave to
amend the Petition ("Point Two").
6 We review the trial court's grant of a motion to dismiss for failure to state a claim
upon which relief can be granted de novo. McClendon v. Mo. Comm'n on Hum. Rts., 713
S.W.3d 686, 692 (Mo. App. W.D. 2025). Such a motion "is solely a test of the adequacy
of the petition." Id. (quoting Matthews v. Harley-Davidson, 685 S.W.3d 360, 366 (Mo.
banc 2024)). "In reviewing such a motion, the Court must accept all properly pleaded
facts as true, give the pleadings their broadest intendment, and construe all allegations in
the pleader's favor." Duvall v. Mo. Bd. of Prob. & Parole, 708 S.W.3d 878, 883 (Mo.
App. W.D. 2025) (quoting Graves v. Mo. Dep't of Corr., 630 S.W:3d 769, 772 (Mo. banc
2021)). We consider "the petition in an almost academic manner, to determine if the
facts alleged meet the elements of a recognized cause of action, or of a cause that might
be adopted in [the] case." Id. at 884 (quoting City v. Foley v. Dir., Mo. Dep't of Revenue,
654 S.W.3d 108, 115 (Mo. App. W.D. 2022)).
The Petition asserts a claim of negligence based on the Defendants' failure "to
remedy and/or warn of the dangerous condition" at the T intersection of 280th Street and
Katydid Road. Nodaway County and Polk Township are political subdivisions of the
state. As such, they are immune from suit in tort under the doctrine of sovereign
immunity, unless immunity is waived or abrogated. See Allen v. 32nd Jud. Cir., 638
S.W.3d 880, 886 (Mo. banc 2022) (observing that sovereign immunity bars suit against a
government or public entity "unless waived or abrogated or the sovereign consents to
suit." Id. (quoting Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, 476
S.W.3d 913, 921 (Mo. banc 2016)). "[S]overeign immunity is not an affirmative defense;
instead, when suing a [political subdivision], the burden is on the plaintiff to plead facts
7 with specificity that give rise to [the waiver of] sovereign immunity." Estes as Guardian
& Next Friend for Doe v. Bd. of Trustees of Mo. Pub. Entity Risk Mgmt. Fund, 623
S.W.3d 678, 709 n.26 (Mo. App. W.D. 2021) (quoting State ex rel. City of Kansas City v.
Harrell, 575 S.W.3d 489, 492 (Mo. App. W.D. 2019)).
Section 537.600.1 waives sovereign immunity "from liability and suit for
compensatory damages for negligent acts or omissions" in two instances:
(1) Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment;
(2) Injuries caused by the condition of a public entity's property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury directly resulted from the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury which was incurred, and that either a negligent or wrongful act or omission of an employee of the public entity within the course of his employment created the dangerous condition or a public entity had actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have taken measures to protect against the dangerous condition. . . .
These exceptions are known as the "motor vehicle exception" and the "dangerous
condition exception." Kraus v. Hy-Vee, Inc., 147 S.W.3d 907, 914 (Mo. App. W.D.
2004). Plaintiffs' Petition relies on the dangerous condition exception. In order to state a
claim against the Defendants for negligence under the dangerous condition exception to
sovereign immunity, Plaintiffs' Petition must include facts demonstrating the following:
1) a dangerous condition of public property, 2) the injury directly resulted from the dangerous condition, 3) the dangerous condition created a reasonably foreseeable risk of the kind of harm incurred, and 4) a public employee negligently created the condition, or the public entity had actual or constructive notice of the condition.
8 Porter v. City of St. Louis, 552 S.W.3d 166, 169 n.1 (Mo. App. E.D. 2018) (quoting State
ex rel. Mo. Hwy. & Transp. Comm'n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998)).
The Petition's sufficiency to establish the first element is challenged by the
Defendants' Motion to Dismiss. Thus, we must determine whether the "conditions and
circumstances described in the [P]etition were as a matter of law not a dangerous
condition of [the Defendants'] property." Kraus, 147 S.W.3d at 915 (quoting Cole v. Mo.
Highway & Transp. Comm'n, 770 S.W.2d 296, 297 (Mo. App. W.D. 1989)).
"In order for property to be 'dangerous' within the narrow exception provided by
section 537.600.1(2), it must exhibit a defect that is physical in nature." Boever v.
Special Sch. Dist. of St. Louis Cnty., 296 S.W.3d 487, 493 (Mo. App. E.D. 2009) (citing
State ex rel. Div. of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 616 (Mo.
banc 2002)). As such, "the dangerous condition must describe, define, explain, denote or
reference only and exclusively the physical defects in, upon and/or attending to the
property of the public entity." Id. (quoting State ex rel. Div. of Motor Carrier, 91 S.W.3d
at 616). Consistent with this requirement, qualifying dangerous conditions have been
found by our courts to include "(1) physical defects in public property or its condition,
and (2) 'physical deficiencies created by the placement of objects on the public property.'"
Lackey v. Iberia R-V Sch. Dist., 487 S.W.3d 57, 59 (Mo. App. S.D. 2016) (quoting
Boever, 296 S.W.3d at 493) (citing Alexander v. State, 756 S.W.2d 539, 541-42 (Mo.
banc 1988)). The theory of Plaintiffs' claim of negligence implicates the first category of
qualifying dangerous conditions.
9 It is long-settled jurisprudence that a physical defect in public property or its
condition includes the "negligent, defective, or dangerous design of a highway or road."
Kraus, 147 S.W.3d at 915; see also Hensley v. Jackson Cnty., 227 S.W.3d 491, 495 (Mo.
banc 2007) (holding that section 537.600.1(2) has contemplated since its enactment
"cases involving design defects in roads and other public property, in addition to other
kinds of dangerous conditions of public property"). It is also well settled that "[s]igns
and traffic controls can be a part of negligent, defective, or dangerous maintenance and
design of state roads and highways." United Mo. Bank N.A. v. City of Grandview, 105
S.W.3d 890, 902 (Mo. App. W.D. 2003) (emphasis added) (quoting Linton v. Mo.
Highway & Transp. Comm'n, 980 S.W.2d 4, 9 (Mo. App. E.D. 1998)). This is consistent
with the fact that the Missouri Supreme Court "has recognized the importance of traffic
control devices" in the context of assessing whether roadways have been negligently,
defectively, or dangerously maintained or designed. Kraus, 147 S.W.3d at 915. In
Donahue v. City of St. Louis, 758 S.W.2d 50, 52 (Mo. banc 1988), the Supreme Court
held:
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.
In Donahue, the Supreme Court thus held that it was error to dismiss a petition alleging
negligence because a downed stop sign that was not visible to motorists entering an
10 intersection resulted in a dangerous condition of public property that waived sovereign
immunity. Id. at 52-53.5
Similar results have been reached in numerous other cases involving negligent,
defective, or dangerous design of a public roadway. In Wilkes v. Missouri Highway &
Transportation Commission, 762 S.W.2d 27 (Mo. banc 1988), a petition alleged that a
"bridge was so situated that an operator of a motor vehicle had no notice of it until almost
upon it, and thus [the bridge] constituted a dangerous condition." Id. at 28. "The petition
also said that defendant was negligent in failing to erect signs warning of the danger of
the bridge being icy or warning drivers to reduce their speed when approaching the
bridge; and that the roadway and bridge were negligently constructed because they posed
a danger to motorists by reason of a curve in the road just before the bridge." Id. The
Supreme Court found section 537.600.1(2) applied retroactively to require reversal of the
trial court's dismissal of the petition based on sovereign immunity. Id.
5 In Hensley, the Supreme Court held that the right result was reached in Donahue, though technically by improper reliance on the import of language added to section 537.600.1(2) by amendment in 1985 that grandfathered design defects for public roadways constructed before 1977 if they satisfied a "state of the art" standard. Hensley, 227 S.W.3d at 495. Hensley clarified that section 537.600.1(2) has, since its inception, included within its scope the negligent, defective, or dangerous design of pubic roadways as an example of a physical defect in public property. Id. at 495-96. Hensley's partial abrogation of Donahue had no bearing, however, on the continued precedential value of Donahue's recognition that traffic controls are an inherent part of traffic design, such that inadequate signage or traffic controls plays a part in determining whether a public roadway is dangerous. In fact, Hensley also involved a downed stopped sign, and was found to be "factually indistinguishable from Donahue." Id. at 496. This led the Supreme Court in Hensley to conclude that the plaintiff made a submissible case of waiver of sovereign immunity based on the dangerous condition of a public roadway given evidence that negligent maintenance of a stop sign at an intersection caused his injuries. Id. 11 In Cole v. Missouri Highway & Transportation Commission, 770 S.W.2d 296
(Mo. App. W.D. 1989), the plaintiff was a passenger in a vehicle that failed to obey a
stop sign located at the intersection of Highway 97 with Highway 32, causing a collision
with a vehicle traveling on Highway 32. Id. at 297. The plaintiff filed a petition against
the Missouri Highway and Transportation Commission in which she alleged that
Highway 97 was in a dangerous condition because:
[The Missouri Highway and Transportation Commission] failed to warn and to properly warn through proper signing and road marking and through other appropriate steps of the obscured and sudden curvature of that roadway and its obscured and sudden intersection with said Missouri Route 32 and on-coming traffic present on said Missouri Route 32 and of the placed stop sign located at the intersection of Missouri Route 97 with Missouri Route 32.
Id. The trial court dismissed the plaintiff's petition for failure to state a claim, and the
question on appeal was "whether the highway conditions and circumstances described in
the petition were as a matter of law not a 'dangerous condition of (the Missouri Highway
and Transportation Commission's) property' within the meaning of [section]
537.600.1(2)." Id. We reversed the trial court's dismissal of the petition in reliance on
the Supreme Court's controlling holdings in Donahue and Wilkes. Id. at 298.
In Kraus, we reversed the dismissal of a petition for failure to state a claim when
the petition alleged that the dangerous condition of a public roadway arose from
confusing traffic striping on the roadway and the failure to post adequate traffic controls
and signage. 147 S.W.3d at 918. In Moore v. Missouri Highway & Transportation
Commission, 169 S.W.3d 595 (Mo. App. S.D. 2005), the Southern District reversed a
trial court's dismissal of a petition for failure to state a claim where the petition
12 enumerated several features which caused a curve on a highway to be a dangerous
condition, compounded by the absence of any warning signs, holding that the allegations
were sufficient to waive sovereign immunity based on a dangerous condition. Id. at 599.
Similarly, in Benoit v. Missouri Highway & Transportation Commission, 33 S.W.3d 663
(Mo. App. S.D. 2000), the Southern District affirmed a jury verdict in favor of a plaintiff
who alleged an unwarned curve on a public roadway was a dangerous condition that
waived sovereign immunity. Id. at 667. And, in Linton v. Missouri Highway &
Transportation Commission, the Eastern District affirmed a verdict in favor of a plaintiff
who alleged a dangerous condition on a public roadway because a left-side highway exit
had inadequate signage and was poorly designed. 980 S.W.2d at 6-7.
What all of these cases have in common are allegations that the condition of a
roadway (including its design) by its very nature created a hazard warranting adequate
signage or warnings to alert motorists to the danger. See State ex rel. City of Marston v.
Mann, 921 S.W.2d 100, 103 (Mo. App. S.D. 1996) (acknowledging the line of cases
where allegations have been deemed sufficient to waive sovereign immunity because
they "[s]how[] . . . a dangerous condition may exist due to negligent, defective or
dangerous design of public roads and highways, whose very existence poses a threat to a
plaintiff"). In this context, as previously noted, "[s]igns and traffic controls can be a part
of negligent, defective, or dangerous maintenance and design of state roads and
highways." United Mo. Bank, 105 S.W.3d at 902 (emphasis added) (quoting Linton, 980
S.W.2d at 9). That is not to say that the absence of signage or traffic controls, alone, is
sufficient to constitute a dangerous condition of a public roadway. Instead, the threat
13 posed by the very existence of a roadway's condition or design is the "dangerous
condition" that waives sovereign immunity, resulting in a corresponding duty of care
imposed on a governmental entity with control over the roadway to remedy or warn of
the foreseeable risk posed by the roadway's dangerous condition. See Benoit, 33 S.W.3d
at 667-68 (observing that "public entities have a duty to exercise ordinary care in
maintaining public roads in a reasonably safe condition for travelers using the roads in
the proper manner and with due care," and "'to protect against all possible injuries . . .
that are reasonably foreseeable'") (quoting Williams v. City of Independence, 931 S.W.2d
894, 896 (Mo. App. W.D. 1996)); see also MAI Civil 31.16 [2023 Revision] (addressing
the waiver of sovereign immunity for dangerous conditions of public property, and which
requires in paragraph second that a jury find public property to be "not reasonably safe"
based on posited conditions, and which then requires in paragraph third for the jury to
find that the public entity defendant failed to use ordinary care to, among other things,
remedy or warn of the conditions).
It is against this settled precedent involving the dangerous condition of a public
roadway due exacerbated by inadequate traffic controls or signage that we gauge the
sufficiency of Plaintiffs' Petition to waive Defendants' sovereign immunity. The Petition
included the following allegations:
7. On the evening of August 6, 2019, at approximately 10:45 p.m., [Puckett] was driving his 1995 Dodge Dakota pickup in a westbound direction on 280th Street in an unincorporated area of Polk Township, Nodaway County, Missouri. [Bradshaw] was a front-seat passenger in the vehicle being operated by [Puckett] at the time.
14 8. Westbound 280th Street ends at a "T" where it intersects at a perpendicular angle with Katydid Road.
9. On August 6, 2019, at approximately 10:45 p.m., the [Puckett] vehicle continued on its westbound path across Katydid Road and hit the ditch and embankment west of Katydid Road. The vehicle came to rest in an agricultural filed west of Katydid Road.
....
13. Neither [Puckett nor Bradshaw] was familiar with 280th Street and did not know it ended at the intersection with Katydid Road.
14. The wreck happened at night when it was dark. There was no artificial lighting near the intersection of 280th Street and Katydid Road.
15. The speed limit on 280th Street at the location and time of the wreck was 50 miles per hour. The [Puckett] vehicle was traveling under the speed limit immediately before and at the time of the wreck.
16. Neither [Polk Township nor Nodaway County] did anything to warn or notify motorists that 280th Street ends at Katydid Road.
17. The [D]efendants chose not to place any signage on 280th Street or on the west side of Katydid Road warning motorists of the impending termination of 280th Street. Numerous sign options could have been used, including but not limited to a "Stop Ahead," "T Ahead," or "Be Prepared to Stop" sign east of the intersection, a "Stop" sign at the intersection, or a "Two Direction Large Arrow" sign on the west side of Katydid Road visible to drivers approaching the intersection from the east on 280th Street.
21. On the date and at the place where the wreck in this case occurred, the roadway was in a dangerous condition due to some or all of the following:
a. Failure to adequately warn and instruct motorists through signage and other markers of the road coming to an end;
b. Failure to adequately post, warn and instruct motorists of the proper speed for driving on this section of 280th Street;
c. In other respects unknown to [P]laintiffs at this time but that may become known prior to trial in this case.
15 Read collectively, and given their broadest intendment and assumed to be true as required
by our standard of review, the factual allegations in the Petition are indistinguishable
from the circumstances described in the litany of dangerous roadway cases summarized
above. The factual allegations in the Petition and the reasonable inferences drawn
therefrom establish that, at the time of Plaintiffs' accident, 280th Street was designed to
end at a T intersection with Katydid Road, and that a motorist traveling at 280th Street's
posted speed limit of 50 miles per hour, who was otherwise unaware of the T
intersection, and who would not be able to see the impending T intersection because of
dark conditions, would not have adequate time to stop at the intersection, and would
continue through the intersection to hit a ditch and embankment on the west side of
Katydid Road. The Petition sufficiently alleged that the very existence of the T
intersection of 280th Street and Katydid Road posed a foreseeable threat to motorists that
was a dangerous condition that was not remedied by Defendants given the absence of any
signage to provide notice or warning of the impending T intersection. As such, the
factual allegations in the Petition sufficiently pleaded that the public property at issue--
the T intersection of 280th Street with Katydid Road--was in a dangerous condition
resulting in Plaintiffs' accident.
Defendants insist that Plaintiffs' Petition alleged only that the public roadway was
dangerous because of the failure to post signage warning of the impending T intersection,
and not because of any particular defect in the physical condition of the roadway itself. It
is true that the Petition does not expressly allege that the design of the T intersection at
280th Street and Katydid Road was by its very nature a dangerous condition. But, our
16 standard of review following the grant of a motion to dismiss for failure to state a claim
requires that we give pleadings their broadest intendment and does not require the use of
specific phrases or terminology. Duvall, 708 S.W.3d at 883. Though the factual
allegations in Plaintiffs' Petition do complain about the lack of signage warning of the T
intersection, those allegations follow the allegations addressing the danger posed by a
dark, unlit, T intersection in a rural area for motorists who are otherwise unaware of the
intersection's presence. This is precisely the argument Plaintiffs made during the hearing
on Defendants' Motion to Dismiss when they explained to the trial court that the Petition
alleges that the T intersection is dangerous "because it's not easy to see that the road
comes to an end in the dark, and it presents an unreasonable risk that a driver will
continue through the intersection, hit the ditch, hit the embankment, and be injured."
Despite Defendants' best efforts to do so, this case cannot be characterized,
therefore, as one where the sole and only assertion of a "dangerous condition" on public
property is the absence of signage or warnings. Plaintiffs' Petition does not implicate,
therefore, Missouri cases that stand generally for the proposition that "[a] lack of
warnings or similar preventative measures [do] not constitute a dangerous condition of
property within the meaning of section 537.600.1(2)." A.S. v. Willard Pub. Schs., 702
S.W.3d 276, 281 (Mo. App. S.D. 2024); see also State ex rel. Springfield R-XII Sch. Dist.
v. Christensen, 712 S.W.3d 1, 5 (Mo. App. S.D. 2025) (holding that absence of
surveillance cameras on a stairwell that was itself not alleged to be defective constitutes a
mere failure to supervise that is not a dangerous condition of property resulting in the
waiver of sovereign immunity); Z.S. By & Through P.S. v. Rockwood Sch. Dist., 674
17 S.W.3d 818, 821 (Mo. App. E.D. 2023) (holding that the "[f]ailure to perform an
intangible act, whether it be failure to supervise or warn, cannot constitute a dangerous
condition of the property for purposes of waiving sovereign immunity") (quoting State ex
rel. Div. of Motor Carrier, 91 S.W.3d at 616). These readily distinguishable cases are
not complicated to explain. In the absence of factual allegations explaining why the
condition of public property by its very existence poses a threat (and is thus a "dangerous
condition"), there is no waiver of sovereign immunity, and no duty of care is imposed on
a public entity to remedy or warn of risks related (tangentially or otherwise) to the
property.
This explanatory rationale applies equally to the limited number of cases involving
public roadways where courts have concluded that sovereign immunity is not waived
based solely on allegations of a failure to warn. See, e.g., Hedayati v. Helton, 860
S.W.2d 795, 796-97 (Mo. App. W.D. 1993) (holding that allegations in a petition were
insufficient to state a claim where plaintiff alleged that the volume of pedestrian and
vehicle traffic at an intersection rendered the intersection dangerous in the absence of
traffic control devices warning of the danger of crossing the road), abrogated on separate
grounds by Hensley, 227 S.W.3d at 495 n.1; Johnson By Johnson v. City of Springfield,
817 S.W.2d 611, 612, 615 (Mo. App. S.D. 1991) (holding that allegations in a petition
were insufficient to state a claim where plaintiff alleged that a high volume of vehicle and
pedestrian traffic and vehicles parked along the street created a dangerous condition that
a person would be struck in the roadway absent a warning to that effect or a warning for
motorists to reduce their speed). As we explained in Kraus, allegations about traffic
18 volume or pedestrian volume are not intrinsically related to the condition or design of a
roadway, and instead refer to conditions caused by use of the roadway, and thus by the
intervening acts of third parties. Krause, 147 S.W.3d at 917-18; see also Mann, 921
S.W.2d at 103 (distinguishing the holdings in Johnson and Hedayati on the basis that
neither involved allegations of roadway design that posed a threat by its very existence,
and instead both relied on the intervening acts of third parties in the form of traffic or
pedestrian volume to claim a dangerous condition about which warnings should have
been given).6 As was aptly observed in Kraus, "a condition is dangerous where 'its
existence, without intervention by third parties, posed a physical threat.'" 147 S.W.3d at
914 (quoting Alexander, 756 S.W.2d at 542). The alleged dangerous conditions in
Hedayati and Johnson were not a function of the existence or design of the roadway, and
were instead a direct function of the intervention of third parties. Id. at 916-17. Thus,
just as in Willard, Christensen, and Z.S. By & Through P.S., the plaintiffs in Johnson and
Hedayati failed to identity any condition about public property that by its very existence
posed a reasonably foreseeable threat sufficient to constitute a dangerous condition that
waives sovereign immunity and simultaneously impose a duty of ordinary care on the
public entity to remedy or warn of the danger.
Plaintiffs' Petition does not rely on the intervening acts of third parties to allege
that the T intersection at 280th Street and Katydid Road was a dangerous condition. And,
6 As we held in Kraus, we need not address in this case whether motor vehicle or pedestrian volume will never support a claim that a public roadway was negligently, defectively or dangerously designed as to pose, by its very existence, a threat of injury in the absence of adequate signage or traffic controls. 147 S.W.3d at 917. 19 the Petition does not allege that the absence of adequate traffic controls or signage alone
rendered the T intersection a dangerous condition. Instead, fairly read, the Petition
alleges that a T intersection in a rural area was a dangerous condition because a motorist
unaware of the intersection, driving at a 50-mile-per-hour speed limit in dark conditions,
could be foreseeably expected to drive through the intersection and into the ditch on the
opposite side of the intersection. And, fairly read, the Petition alleges that the lack of
adequate traffic controls or signage exacerbated the dangerous nature of the T
intersection, as the presence of adequate signage could have neutralized the dangerous
condition of the T intersection as to render it reasonably safe.7 See MAI Civil 31.16
[2023 Revision] (addressing the waiver of sovereign immunity based on the dangerous
condition of public property).
The trial court erred in dismissing the Petition for failure to state a claim upon
which relief can be granted.
Point One is granted. Because we conclude that the trial court erred in dismissing
the Petition for failure to state a claim, Point Two, which alternatively alleges that the
trial court committed error by refusing to grant Plaintiffs leave to amend the Petition,
need not be addressed and is denied as moot.
7 While we conclude that the Petition states a claim against Defendants by alleging facts sufficient to waive sovereign immunity pursuant to section 537.600.1(2), Plaintiffs retain the burden of proving at trial that the T intersection at 280th Street and Katydid Road was "not reasonably safe" because of conditions that rendered the roadway dangerous, and that Defendants breached the duty of ordinary care by failing to remedy or warn of the conditions. See MAI Civil 31.16 [2023 Revision] (addressing the waiver of sovereign immunity based on the dangerous condition of public property). 20 Conclusion
The Judgment is reversed and this matter is remanded for further proceedings.
__________________________________ Cynthia L. Martin, Judge
All concur