Trumbo v. Metropolitan St. Louis Sewer District

877 S.W.2d 198, 1994 Mo. App. LEXIS 857, 1994 WL 226814
CourtMissouri Court of Appeals
DecidedMay 31, 1994
DocketNo. 64337
StatusPublished
Cited by1 cases

This text of 877 S.W.2d 198 (Trumbo v. Metropolitan St. Louis Sewer District) 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
Trumbo v. Metropolitan St. Louis Sewer District, 877 S.W.2d 198, 1994 Mo. App. LEXIS 857, 1994 WL 226814 (Mo. Ct. App. 1994).

Opinion

SIMON, Presiding Judge.

Rose Trumbo, appellant, appeals the granting, of summary judgment in favor of the City of University City and the Metropolitan Sewer District (MSD), respondents, in her wrongful death action against respondents for the death of her son, James Anthony (“Tony”) Jackson Trumbo, decedent.

In her point on appeal, appellant asserts that the trial court erred in granting respondents’ motion for summary judgment based upon a claim that appellant failed to state a cause of action upon which relief could be granted because she pled facts which bring her wrongful death action within the coverage of § 537.600 R.S.Mo 1986 (all statutory references hereafter shall be to R.S.Mo 1986), thus waiving the defendants’ sovereign immunity and providing a means of relief in the case at bar.

On the afternoon of August 26,1992, decedent, bom February 1,1980, decided to go to the River Des Peres in University City with K.C., E.F., L.S., and decedent’s younger brother, Gregory. The River Des Peres collects rainwater into an open channel and discharges it into tunnels directing it to the Mississippi River. The River Des Peres follows a natural drainage area which in some areas has been improved with concrete channels. They went to an area adjacent to an open, concrete channel of the River Des Peres, and when they arrived, they found a garden hose attached to a tree near the channel. While holding onto the garden hose, decedent, K.C., E.F., and L.S. waded into the River Des Peres, which came up to their knees and had a strong current. The river was rising, and decedent tripped over a crack in the concrete channel, lost his grip on the hose, and grabbed E.F.’s waist, who subsequently lost his grip on the hose. Decedent, screaming “Help, help me,” and E.F. were carried away by the current into a tunnel. At some point, K.C. and L.S. got out of the river. E.F. was later rescued from the River Des Peres, but on September 2, 1992, decedent was found dead there.

On October 1, 1992, appellant filed her petition for wrongful death against the respondents, alleging that decedent tripped and fell on a crack located near the River Des Peres, causing him to drown, and that respondents negligently and carelessly failed to have proper barricades, fencing, and warnings to prevent decedent from going into the area near the River Des Peres. In her first amended petition, appellant also alleged that respondents knew or should have known that the concrete near the tunnel was cracked, but negligently and carelessly failed to repair the same. In her second amended petition, appellant additionally alleged that respondents knew or should have known that the concrete along the riverbed was cracked and in a defective condition and that they negligently and carelessly failed to repair and warn of the same. On March 31, 1993, respondent MSD filed an affidavit by James Keating stating:

2. I am the Director of Maintenance for The Metropolitan St. Louis Sewer District (M.S.D.) and have been employed by M.S.D. for approximately 30 years.
3. I am familiar with the River des [sic] Peres and the areas from which it collects stormwater.
[200]*2004.The purpose for which the River des Peres was designed was to prevent localized flooding by collecting stormwater and directing it to its eventual discharge into the Mississippi River and not to provide a play area for children.
* H* * * *
10. At the time of the alleged accident (on or about August 26, 1992) there were no physical defects in the River des Peres, including that portion where Plaintiffs son entered the River des Peres, which impaired the intended use of the channel for stormwater drainage or could have caused the alleged accident.
11. The cracks [appellant] refers to in ... her petition are expansion joints designed to allow weather related expansion and contraction and do not constitute a defective condition of the River des Peres.
12. The River des Peres drainage channels are on private property and are not open to the public. There are no walkways allowing access to the area for the public.

In her third amended petition filed on April 9, 1993, she stated in her first count in pertinent part:

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4. That on or about August 26, 1992, [decedent] slipped and fell on a crack located near River Des Peres and fell into said River Des Peres, causing him to drown.
5. That [respondents] were negligent in the following respects:
a) [Respondents] negligently and carelessly failed to have warning signs posted to warn the [decedent] and others like him, from going into said area.
b) [Respondents] knew or should have known that the concrete near the tunnel was cracked, but negligently and carelessly failed to repair same.
e) [Respondents] knew or should have known that concrete along the riverbed was cracked and in a defective condition and negligently and carelessly failed to repair same.
d) [Respondents] knew or should have known that the concrete at the location where the [decedent] fell, was cracked and [respondents] negligently and carelessly failed to repair same and to warn of same.
6.That there were aggravated circumstances attending the death, in that [respondents] knew that children played in the area and that [respondents] knew that other children had drowned and/or were injured in the same area, but negligently and carelessly failed to make any repairs or modifications at all to insure safety for the children in the area.

In her second count of her third amended petition, she stated in pertinent part:

2. ... [respondents] knew or had information from which [respondents] knew or should have known in the exercise of ordinary care, that children would be exposed to the river.
3. [Respondents] knew or should have known that the river presented an unreasonable risk of harm to children exposed to it.
4. That children such as [decedent] ... because of their youth, did not appreciate the risk of harm associated with the river.
6. That [respondents] failed to prevent children such as [decedent], from being exposed to such harm.
6. That the [respondents] were thereby negligent, causing [decedent] to die.

On June 9, 1993, MSD filed its motion for summary judgment, which stated:

1. Plaintiff fails to state a cause of action upon which relief can be granted.
2. MSD is not subject to suit upon such cause of action as may be determined to be so stated in Plaintiff’s petition because:
(a) It is a political subdivision of the State of Missouri exercising governmental functions only and is not subject to suit upon any tort action; and
(b) There are no facts bringing any such cause of action within the exceptions to or waiver of sovereign immunity as set forth in R.S.Mo Section 537.600.

On June 21, 1993, University City joined MSD’s summary judgment motion.

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Bluebook (online)
877 S.W.2d 198, 1994 Mo. App. LEXIS 857, 1994 WL 226814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trumbo-v-metropolitan-st-louis-sewer-district-moctapp-1994.