Leathers v. Missouri Highway & Transportation Commission

961 S.W.2d 83, 1997 WL 753999
CourtMissouri Court of Appeals
DecidedDecember 9, 1997
DocketNo. WD 53242
StatusPublished
Cited by1 cases

This text of 961 S.W.2d 83 (Leathers v. Missouri Highway & Transportation Commission) 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
Leathers v. Missouri Highway & Transportation Commission, 961 S.W.2d 83, 1997 WL 753999 (Mo. Ct. App. 1997).

Opinion

ELLIS, Judge.

On July 25, 1987, an eastbound train struck Richard L. Leathers’ truck as he drove south over a railroad crossing located at the intersection of the Norfolk and Western Railroad and a road leading to Hager’s Liberty Bend Auto Parts, Inc., a salvage yard. The railroad crossing was just east of two bridges forming the overpass of Missouri 291 Highway (“M-291”) over the Norfolk and Western railroad tracks. On December 1, 1993, Leathers and his wife1 filed suit in the Circuit Court of Clay County against the Missouri Highway and Transportation Commission (“MHTC”), which had designed the bridges and the railroad crossing, alleging that the highway bridges were a dangerous condition which obstructed the view of both car and train operators and that the dangerous condition caused the collision at the railroad crossing.2

On November 6, 1995, MHTC filed a Motion for Summary Judgment which was subsequently amended on February 29, 1996. In its amended motion, MHTC claimed it was entitled to judgment as a matter of law because: (1) it had sufficiently established the “state of the art” defense,3 (2) appellants could not prove direct causation, and (3) the Public Service Commission (“PSC”) had exclusive jurisdiction over the placement and design of railroad crossings. On July 17, 1996, following a hearing on the matter, the trial court granted MHTC’s Amended Motion for Summary Judgment without issuing Findings of Fact and Conclusions of Law.4 Appellants challenge that ruling on appeal.

Our review of the propriety of a summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). If the judgment of the trial court is sustainable under any theory, the judgment will be affirmed. McKim v. Sears Rodeo Ass’n, Inc., 789 S.W.2d 217, 219 (Mo.App. W.D.1990). In reviewing the trial court’s ruling, we must view the record in the light most favorable to the party against whom judgment was entered and afford that party all reasonable inferences that may be drawn from the evidence. Williams v. City of Independence, 931 S.W.2d 894, 895 (Mo.App. W.D.1996). A summary judgment will be affirmed if no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Id.

Appellants contend that they have established MHTC’s liability under § 537.600.1(2)5 and that no exceptions beyond the state of the art defense are provided for by that statute. Section 537.600.1 sets forth those instances in which sovereign immunity is waived by the State. § 537.600.1. That section does not create a cause of action but merely provides a remedy for causes of action already existing for which redress could not be had because of sovereign immunity. Benton v. City of Rolla, 872 S.W.2d 882, 886 (Mo.App. S.D.1994) (citing Wilkes v. [85]*85Missouri Highway and Transportation Comm’n, 762 S.W.2d 27, 28 (Mo. banc 1988)). A waiver of sovereign immunity does not act to bar a governmental entity from raising other defenses available to it under statute or the common law. See Claxton v. City of Rolla, 900 S.W.2d 635, 636 (Mo.App. S.D. 1995); McGuckin v. City of St. Louis, 910 S.W.2d 842, 844-45 (Mo.App. E.D.1995).

In stating a claim against a governmental entity, immunity is waived pursuant to § 537.600.2, RSMo, if the plaintiff alleges: (1) that the property was in a dangerous condition; (2) that the plaintiffs injuries directly resulted from the dangerous condition; (3) that the dangerous condition created a reasonably foreseeable risk of harm of the kind of injury the plaintiff incurred; and (4) that a public employee negligently or wrongly created the condition within the course of his or her employment, or that the public entity had actual or constructive notice of the dangerous condition.

Martin v. City of Washington, 848 S.W.2d 487, 490-91 (Mo. banc 1993).

Both Appellants and MHTC focus on the issue of whether the PSC approval of the projects acts to shield MHTC from liability. Prior to 1969, M-291 had a single bridge over the railroad tracks, and the railroad crossing to enter the salvage yard was located just to the west of the bridge. In the late 1960s, MHTC determined that two bridges would be necessary to handle the traffic flow on M-291. The piers and the spill fill of the proposed bridges would block the road that went under the bridge to the existing railroad crossing, therefore, the MHTC proposed that the crossing be moved to its present location on the east side of the then existing highway in order to allow for the construction of the bridges. On June 5, 1969, the MHTC applied to the PSC for approval of its plan. A hearing on MHTC’s application was held on September 15, 1969. On November 4, 1969, the PSC issued a report and order approving MHTC’s plans for the bridges and the new crossing, designating the specific sites for the bridges and crossing, and distributing the costs between MHTC and Norfolk & Western.

Protecting the public at intersections of railroads and streets or roads is a proper exercise of police power, and pursuant to that power, the legislature, under § 389.640, conferred upon the PSC the exclusive right to determine whether to permit such intersections and, if authorized, to specify where, when, and in what manner the intersection should be constructed. State ex rel. Kansas City v. Public Serv. Comm’n, 524 S.W.2d 855, 859 (Mo. banc 1975). From 1913 through 1985, the Public Service Commission had exclusive jurisdiction over the establishment, installation, operation, maintenance and apportionment of expense and protection of such crossings. Throckmorton v. Wabash R.R., 409 S.W.2d 260, 262-63 (Mo.App. W.D. 1966) (citing Liddle v. Thompson, 236 Mo.App. 1071, 162 S.W.2d 614, 621 (1942)).6

At the time the PSC’s report relating to the bridges and crossing was issued, Section 389.640.1 stated that no public road, highway or street could be constructed across the track of any railroad corporation at grade without having first secured the permission of the PSC. § 389.640.1, RSMo 1969.

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Bluebook (online)
961 S.W.2d 83, 1997 WL 753999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leathers-v-missouri-highway-transportation-commission-moctapp-1997.