Larabee v. City of Kansas City

697 S.W.2d 177
CourtMissouri Court of Appeals
DecidedOctober 22, 1985
DocketWD 35586
StatusPublished
Cited by24 cases

This text of 697 S.W.2d 177 (Larabee v. City of 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
Larabee v. City of Kansas City, 697 S.W.2d 177 (Mo. Ct. App. 1985).

Opinions

LOWENSTEIN, Presiding Judge.

The Larabees’ owned and operated a plumbing business in Kansas City, Missouri. Their three-story frame building was situated south of and adjacent to a warehouse which caught on fire in the early morning hours of April 27, 1981. A fire captain died as a result of one of the warehouse walls collapsing. However, by 3:08 a.m. the fire was listed as “under control.”

About 7:00 a.m. Fire Chief Conninghton arrived on the scene to supervise the “mop-up” or “overhaul” operation. There was no danger of the fire spreading or creating a danger to the Larabee building. Con-ninghton decided to knock down the remaining warehouse walls to facilitate the mop-up and so contacted appellant, Jack Murnan, the City’s dangerous building representative. Conninghton specifically told Murnan to knock the north wall of the warehouse building back into its basement and away from the Larabee building. The two walls not adjacent to the Larabee building were to be knocked outward. After giving Murnan these instructions the chief left. Murnan obtained bids for the demolition job. However, Murnan told the selected demolition company to knock all the remaining walls outward. Thus, the north brick wall of the warehouse was knocked directly onto the Larabees’ frame building, destroying it and damaging the contents.

The jury awarded the Larabees $102,-628.00 as against the city and Murnan. About $65,000.00 of this sum was for total damage to the building and the rest for vehicles and personal property buried by the demolition action. The trial court conditionally granted a new trial, unless the Larabees filed remittitur of $50,000.00 on the assessment of damages for the building. The Larabees complied, and the trial court entered its judgment for $52,628.00. It is from this judgment that both parties appeal. The City and Murnan allege no liability because of immunity, while the Larabees contest the remittitur.

The appellants’ first contention is that the city was protected by sovereign immunity. While it is true the legislature reinstated such sovereign or governmental tort immunity as existed at common law when it enacted § 537.600, RSMo 1978, the statute still preserves the governmental/proprietary distinction. Bartley v. Special School District of St. Louis County, 649 S.W.2d 864, 868 (Mo. banc 1983). This distinction provides that municipalities are not liable for injuries which occur in the negligent performance of a governmental function, but are liable for injuries which occur in the negligent performance of a proprietary function. Davis v. City of St. Louis, 612 S.W.2d 812, 814 (Mo.App.1981). The question here is whether the demolition of the warehouse walls was a governmental or proprietary function.

The city points to Missouri cases that hold firefighting is a governmental function. Newson v. City of Kansas City, 606 S.W.2d 487, 489 (Mo.App.1980); Heller v. Sedalia, 53 Mo. 159 (1873); McKenna v. City of St. Louis, 6 Mo.App. 320 (1878). Firefighting itself is “performed for the common good of all” and therefore a governmental duty. Davis v. City of St. Louis, supra. But another line of cases [180]*180indicate that demolition is a proprietary function. In Rothenhoefer v. City of St. Louis, 410 S.W.2d 73 (Mo.1966) the Missouri Supreme Court held that destruction of a particular property without necessity and where the property is not in fact dangerous to the public, may be “at the peril of the municipality.” Id. at 75.

Kansas City presented no evidence the Larabees’ property presented a public danger, nor was there evidence that it was necessary to destroy the Larabee building in order to tear down the warehouse walls. To the contrary, the fire chief testified he specifically ordered the north wall to be knocked inward to prevent damage to the adjacent frame building. The negligent act in question cannot be protected by labeling it part of the firefighting function. While under some circumstances, damage of this type would be unavoidable, here there was no evidence of emergency. The character of the act performed was of a special benefit to the municipality, and not in performance of a duty to the community — it was a proprietary act so the city may not escape liability. The trial court was correct in denying a judgment NOV on the basis of sovereign immunity.

The appellants’ second contention is that Jack Murnan was protected by official immunity. Although sovereign immunity immunizes government agencies from tort liability, it is not applicable to the individual public officials who act as agents of the state. Although there has been some confusion, the tests of sovereign immunity and official immunity are mutually exclusive. See Oberkramer v. City of Ellisville, 650 S.W.2d 286, 296 (fn. 14) (Mo.App.1983). Thus, the question here is not whether the function was governmental or proprietary, but whether the Murnan’s act was discretionary or ministerial. A public officer or employee who negligently performs a discretionary duty will be protected from tort liability, but the same person can be held liable for negligently performing a ministerial duty. Jackson v. Wilson, 581 S.W.2d 39, 42 (Mo.App.1979); Grant v. Fletcher, 564 S.W.2d 944, 945-46 (Mo.App.1978).

Ministerial functions are those that must be performed in a prescribed manner and without regard to personal judgment as to the propriety of that function. Discretionary functions require the exercise of reason in their performance and go to the essence of governing. Newson v. City of Kansas City, supra. Appellants argue that Murnan retained some discretion in how to best accomplish what he had been instructed to do. While not demeaning the skill required for demolition, this court cannot see any discretion involved. When an employee is told to crush a wall inward, there seems to be only one way to accomplish that task. The trial court did not err in overruling appellant’s motion for judgment NOV because of official immunity-

The appellants’ last contention is that Larabees’ instruction on damages was given in error. The instruction, following M.A.I. 4.02 (1980 Rev.), read:

If you find in favor of plaintiffs, then you must award plaintiffs such sum as you find from the evidence to be the difference between the fair market value of the building and contents located at 916 Brooklyn before they were damaged and their fair market value after they were damaged.
The phrase “fair market value” as used in this instruction means the price which the property in question would bring when offered for sale by one willing but not obliged to sell it, and when bought by one willing or desirous to purchase it but who is not compelled to do so.

Appellants’ cite Moore v. Woolbright,

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Bluebook (online)
697 S.W.2d 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larabee-v-city-of-kansas-city-moctapp-1985.