James v. Farrington

844 S.W.2d 517, 1992 Mo. App. LEXIS 1734, 1992 WL 332581
CourtMissouri Court of Appeals
DecidedNovember 17, 1992
DocketNo. WD 45762
StatusPublished
Cited by9 cases

This text of 844 S.W.2d 517 (James v. Farrington) 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
James v. Farrington, 844 S.W.2d 517, 1992 Mo. App. LEXIS 1734, 1992 WL 332581 (Mo. Ct. App. 1992).

Opinion

HANNA, Judge.

Plaintiff James appeals Circuit Court’s grant of defendant’s motion for summary judgment on the issue of whether a part of a church rented to respondent election board as a polling place constituted a “public entity’s property” within the meaning of § 537.600.1(2), RSMo.1 The trial court held that the properly which was possessed and occupied by the election board, but not owned by it, was not a “public entity’s property” within the meaning of the statute.

Both parties agree the issue on appeal is whether the polling place in the church used by the Board constitutes a “public entity’s property” thereby triggering a waiver of sovereign immunity pursuant to § 537.600.1(2). Resolution of the issue depends on whether property which is possessed and occupied, but not owned by a public entity, is a “public entity’s property” within the purview of § 537.600.1(2). The Board agrees that it is a public entity as the term is used in § 537.600.1(2).

On March 8, 1988, when plaintiff, Mary James, entered the Immanuel Baptist Church (Church) to vote, she stepped down onto a temporary step and suffered a trimalleolar fracture of her right ankle. The defendant, Jackson County Board of Election Commissioners (Board), was using the [518]*518church for the 1988 Super Tuesday election, pursuant to a written agreement with the church. This written agreement, “the Poll Contract,” provided for a rental fee for the use of the premises.

The voting machines and election personnel occupied Fellowship Hall of the church. The Board had full and total control of the church used for the election while the election was being conducted. The door on the west side of the church building was the only door made available to the Board and voters on election day. This entrance opens into a hallway which leads to the doorway of the Fellowship Room Hall located approximately fifteen feet inside the building. At the outside entrance, there was a wooden step that had been placed inside the door. It was upon entering this entrance that plaintiff was injured. The Board’s employee inspected the premises before the election and noted in a written report that the step was not a standard height. The plaintiffs’ allegations of negligence was that the step was not of standard height and not adequately marked or lighted.

Section 537.600.1(2) in relevant part states as follows:

1. Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statute in effect prior to that date, shall remain in full force and effect; except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following instances:
(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 where a public entity had actual or constructive notice of the dangerous condition in sufficient time pri- or to the injury to have taken measures to protect against the dangerous condition.

In Kanagawa v. State, 685 S.W.2d 831 (Mo. banc 1985), the Missouri Supreme Court, following the dictates of the statute, established a four-prong test to determine whether the dangerous condition exception was applicable to constitute a waiver of sovereign immunity. The Court listed four elements which a plaintiff seeking to state a claim under the exception must allege with sufficient facts. Id. at 835.2 These prerequisites are as follows: (1) injury caused by the condition of a public entity’s property if established as dangerous; (2) that the plaintiff’s injury directly resulted from that dangerous condition; (3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind the plaintiff incurred; and (4) that a public employee negligently created the condition or that the public entity had actual or constructive notice of the dangerous condition. Id. (emphasis added).

The trial court granted summary judgment on the first of the Kanagawa elements because it found the property in question was not the property of the. election board within the purview of § 537.600.-1(2). The issue on appeal is whether a church that rented space to an election board as a polling place constitutes a public entity’s property.

The standard for reviewing the grant of a summary judgment is “to scrutinize the record in the light most favorable to the party against whom the motion was filed and to accord to such party the benefit of every doubt.” Hurwitz v. Kohm, 516 S.W.2d 33, 36 (Mo.App.1974). The plaintiff [519]*519has alleged facts to show that the Board exercised possession and control over the election facility. These facts include: (1) the church did not use that part of the church reserved for election purposes; (2) the Board had full and total control of that part of the church during the election; (3) the Board was given permission to inspect premises, to post any kind of warning and to make any temporary non-invasive alterations to the premises that the Board deemed necessary; and (4) that the Board exercised exclusive control over the part or the area of the church contracted for during the election process. These allegations are sufficient to state a cause of action if an interest in land less than fee simple ownership is not a requirement.

Defendants cite Tyler v. Housing Authority of Kansas City, 781 S.W.2d 110 (Mo.App.1989) and Claspill v. State Div. of Economic Dev., 809 S.W.2d 87 (Mo.App.1991) as support for § 537.600.1(2) requiring ownership of the property. In Clas-pill, the court of appeals faced a claim arising out of injuries sustained at a railroad crossing. Claspill, 809 S.W.2d at 88. The railroad crossing was not owned by the public entity being sued but by another public entity. Id. at 89. Reliance on Clas-pill is misplaced. The Claspill court addressed the issue of whether under § 537.-600.1(2) the negligent employees had to be employees of the public entity owning or occupying the property. Id. at 88. In the present case, this is clearly satisfied because the individuals in charge of the polling place during the election and those responsible for the inspection of the polling place were employees of the Board.

The Tyler case involved an injury on property owned by a third party and enrolled under a housing program administered by the defendant, Housing Authority of Kansas City. Tyler, 781 S.W.2d at 111. The defendant made monthly payments to the owners of the property to assist in the rental payments of low income persons. Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pamela Randel v. City of Kansas City, Missouri
467 S.W.3d 383 (Missouri Court of Appeals, 2015)
Phelps v. City of Kansas City
371 S.W.3d 909 (Missouri Court of Appeals, 2012)
Vonder Haar Ex Rel. Mehochko v. Six Flags Theme Parks, Inc.
261 S.W.3d 680 (Missouri Court of Appeals, 2008)
Thomas v. CLAY COUNTY ELECTION BOARD
261 S.W.3d 574 (Missouri Court of Appeals, 2008)
Tillison v. Boyer
939 S.W.2d 471 (Missouri Court of Appeals, 1996)
Summitt ex rel. Boyd v. Roberts
903 S.W.2d 631 (Missouri Court of Appeals, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
844 S.W.2d 517, 1992 Mo. App. LEXIS 1734, 1992 WL 332581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-farrington-moctapp-1992.