Hungate v. United States

477 F. Supp. 993, 1979 U.S. Dist. LEXIS 10301

• Court: District Court, E.D. Missouri
• Decided: August 20, 1979
• Docket: No. 79-195C(B)
• Status: Published

Opinion

ORDER

REGAN, District Judge.

On June 22, 1979 we sustained defendant’s motion to dismiss this Tort Claims action for failure to state a claim. Subsequently, on July 24, 1979, we denied plaintiff leave to file an amended complaint, without prejudice, for the reason that the proposed amended complaint failed to cure the defect in the original complaint. Plaintiff now seeks leave to file a third amended complaint, stating the alleged facts with more specificity.

It is clear from the facts alleged in the third amended complaint that defendant, as an abutting property owner, is not liable for the condition of the sidewalk on which plaintiff allegedly fell. In our order of July 24, 1979, we cited and quoted from the pertinent Missouri authorities. Plaintiff’s conclusion that defendant “made a special use of its sidewalk area adjacent to the premises” it owned, on the theory that the only means of access to defendant’s building entrance was by crossing said sidewalk, is wholly unsupported by the facts or the law.

Under the facts on which plaintiff is relying, she has no right of action against defendant. Accordingly, IT IS HEREBY ORDERED that leave to file the third amended complaint be and same is hereby denied. The action will be dismissed.