Fantasma v. Kansas City

913 S.W.2d 388, 1996 Mo. App. LEXIS 62
CourtMissouri Court of Appeals
DecidedJanuary 16, 1996
DocketNo. WD 51666
StatusPublished
Cited by18 cases

This text of 913 S.W.2d 388 (Fantasma v. Kansas City) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fantasma v. Kansas City, 913 S.W.2d 388, 1996 Mo. App. LEXIS 62 (Mo. Ct. App. 1996).

Opinion

SMITH, Judge.

Appellants, Catherine Fantasma and her two minor daughters, appeal from the trial court’s order dismissing their claim against respondents, the individual members of the Kansas City Board of Police Commissioners.1 We affirm.

In September, 1991, the Italian Festival, a celebration of Columbus Day and the Italian-American culture, was held in Kansas City. The Festival Committee (“Committee”) entered into a “Concession and Use Agreement” with the City of Kansas City (“City”). This agreement provided that the festival would be held in a city park if the Committee met certain conditions.

Among these conditions was a requirement that the Committee provide security for the festival. As part of this security, the City required the Committee to hire off-duty police officers. Additionally, the agreement required that the Committee purchase liability insurance in the amount of at least one million dollars. The Committee met those conditions.

The Committee employed Claudio Fantas-ma, Jr., the decedent, to serve as Security Director for the festival. On the night of September 27, 1991, the decedent was working with several off-duty police officers to close down the festival grounds. After hearing several gunshots, the officers decided to investigate the problem, and the decedent suggested that he accompany them. The group then left the festival grounds, heading in the direction of the gunfire. Shortly thereafter, an individual fired several gunshots at them, one fatally hitting the decedent in the chest.

Appellants filed a two-count wrongful death claim against the police officers, the Kansas City Board of Police Commissioners in that name alone, and the individual members of the Board. The first count, labeled “Negligence,” stated that the defendants had a duty, “individually and generally,” to exercise ordinary care towards the decedent and to take steps to protect him. The defendants allegedly violated this duty by failing to take any steps to prevent the decedent from accompanying them to an “active crime scene.” The second count, labeled “Negligence Per Se,” asserted that the defendants breached their duty under § 84.420, RSMo 1994, and under “police guidelines and regulations,” by allowing the decedent to enter an “active crime scene” and by failing to take steps to protect him once he had entered the area.

The Board filed a motion to dismiss on the basis that no action may lie against the Board to the extent that it is named as an individual defendant. Respondents also filed a motion to dismiss, alleging that they were protected by sovereign immunity. On January 3, 1995, the trial court sustained both motions. Appellants do not challenge the court’s ruling as to the Board named as an individual defendant.

Appellants initially filed an appeal with the Supreme Court of Missouri on the basis that the appeal involved an interpretation of the Missouri Constitution. The Court rejected appellants’ jurisdictional argument and transferred the case to this court.

In reviewing a motion to dismiss, all facts alleged in the petition are deemed true and the plaintiff is afforded the benefit of every reasonable inference. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). Mere conclusions of the pleader not supported by factual allegations are disregarded. Commercial Bank of St. Louis County v. James, 658 S.W.2d 17, 22 (Mo. banc 1983). If the facts and the reasonable inferences therefrom establish any ground for relief, the petition should not be dismissed. J.S. DeWeese Co. v. Hughes-Treitler Mfg. Corp., 881 S.W.2d 638, 642 (Mo.App.1994).

Appellants contend in their first point that the trial court erred in dismissing their claim because respondents are not protected by [391]*391sovereign immunity and the statutes purporting to provide them with such immunity are unconstitutional and conflict with § 84.420. In their second point, appellants assert that the trial court erred in dismissing their claim because § 84.420 creates an exception to sovereign immunity uniquely applicable to the Board. Because appellants present the same arguments in both points, we consider them together.

Section 587.600, RSMo 1994, provides that the doctrine of sovereign immunity remains the general rule in Missouri protecting public entities from liability for negligent acts. State ex rel. Cass Medical Center v. Mason, 796 S.W.2d 621, 622 (Mo. banc 1990). Section 587.600.1 provides an absolute waiver of this immunity for injuries resulting from the operation of motor vehicles and the condition of an entity’s property. Additionally, under § 537.610, RSMo 1994, when a public entity purchases liability insurance for tort claims, sovereign immunity is waived to the extent of and for the specific purposes of the insurance purchased. State ex rel. Board of Trustees v. Russell, 843 S.W.2d 353, 360 (Mo. banc 1992). Any waiver of sovereign immunity is to be construed narrowly. Spotts v. Kansas City, 728 S.W.2d 242, 246 (Mo.App.1987).

We need only briefly address appellants’ assertion that the statutes providing sovereign immunity are unconstitutional. A statute is presumed constitutional and must not be held otherwise unless “clearly and undoubtedly” contravening the Constitution. Winston v. Reorganized School Dist., 636 S.W.2d 324, 327 (Mo. banc 1982). Appellants provide us with no authority to overcome the presumptive validity of these statutes. Accordingly, we find that §§ 537.600 and 537.610 are constitutional.

As to the applicability of these provisions, we find that respondents are protected by sovereign immunity because the Kansas City Board of Police Commissioners governs the Kansas City police force under §§ 84.350-.860, RSMo 1994, and sovereign immunity attaches to the operation and maintenance of a police force. Best, 652 S.W.2d at 742. The only question is whether respondents’ sovereign immunity protection was waived. Neither the automobile nor the property exceptions of § 537.600.1 apply to the factual situation presented. However, appellants argue that respondents waived their immunity under § 537.610 by “purchasing” liability insurance. In their petition, appellants alleged that the Festival Committee purchased liability insurance, as required by the City in the “Concession and Use Agreement.” Nowhere did appellants allege that respondents purchased any liability insurance.

Appellants contend, without authority, that the fact that the City required the Committee to purchase the insurance is sufficient to establish that respondents purchased liability insurance within the meaning of § 537.610. However, even assuming that the City “purchased” liability insurance within the meaning of § 537.610 does not establish that respondents purchased insurance because the City and respondents are separate entities. Spotts, 728 S.W.2d at 247.

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Bluebook (online)
913 S.W.2d 388, 1996 Mo. App. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fantasma-v-kansas-city-moctapp-1996.