Woods v. Kelley

948 S.W.2d 634, 1997 Mo. App. LEXIS 543, 1997 WL 144156
CourtMissouri Court of Appeals
DecidedApril 1, 1997
DocketNo. WD 52928
StatusPublished
Cited by4 cases

This text of 948 S.W.2d 634 (Woods v. Kelley) 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
Woods v. Kelley, 948 S.W.2d 634, 1997 Mo. App. LEXIS 543, 1997 WL 144156 (Mo. Ct. App. 1997).

Opinion

SMART, Judge.

On September 11, 1993, Max R. Woods was killed and his wife, Margie Nadine Woods, was injured in an automobile collision on Highway 150, within the city limits of Grandview, Missouri. The driver of the other vehicle involved in the collision, Catherine Kelley, was a member of the Grandview Board of Aldermen. Kelley also was a volunteer at Shelton House, a historic home owned by the city of Grandview. Margie Nadine Woods, the surviving spouse of Max Woods, and Kimberly and Derek Woods, the surviving children of Max Woods, filed a wrongful death suit against Catherine Kelley. Mrs. Woods also filed a personal injury claim. Plaintiffs amended their petition to join Grandview as a defendant, alleging that Kelley was a “public employee” of Grandview. Kelley was subsequently dismissed from the action, pursuant to settlement. The allegation that Kelley was a “public employee” was made in order to invoke § 537.600, RSMo 1994, the statute that provides, in some instances, for a waiver of sovereign immunity. Section 537.600.1(1) waives the city’s immunity for injuries resulting from a public employee’s negligent operation of a motor vehicle. Grandview filed a motion for summary judgment. The plaintiffs filed a response, and a motion for partial summary judgment. The trial court granted Grandview’s motion. The Woodses appeal, claiming: (1) the trial court erred in concluding that Kelley was not a public employee under § 537.600.1, RSMo 1994 because the undisputed facts establish that Grandview exercised control over Kelley’s activities; and (2) the trial court erred in concluding that § 537.600 was the exclusive means by which plaintiff could attempt to state a claim against the city. Because we hold that Ms. Kelley was not a “public employee” of Grandview, we affirm.

[636]*636Catherine Kelley was a member of the Grandview Board of Alderman at the time of the collision described herein. Ms. Kelley also often volunteered her time at a historic home owned by the City of Grandview called Shelton House. Although Grandview’s Parks and Recreation Department is ultimately responsible for maintenance on the house, Kelley volunteered to do things around the house, including some maintenance and landscaping. Kelley was not paid for her work at Shelton House. Such work was not an expected part of her duties as alderman. The city did not set any schedule of dates and times for Kelley’s work, nor did it monitor the work. No instructions as to what was to be done were given Kelley. Although the city was aware that Kelley was providing volunteer services at the house, Kelley frequently operated on her own initiative, generally without informing the city in advance of the nature of those services. Sometimes Kelley was reimbursed her expenses and at other times she did not submit the expenses for reimbursement. Kelley had her own key to Shelton House, and often worked independently of any Parks and Recreation personnel.

On the morning of September 11, 1998, Kelley went to a nursery to pick up some trees to plant at Shelton House. She did not pick up the trees because the nursery was not open when she arrived. Carl Stadler, the Director of Parks and Recreation in Grandview, stated in deposition testimony that, although he knew that Kelley was planning to engage in landscaping, he did not know what Kelley was doing on the day in question.

The trial court found that Kelley was not a “public employee” within the meaning of § 537.600, because there was no evidence presented that Grandview controlled Kelley’s method of work. The court also found that § 537.600 provided the exclusive remedy, and that the plaintiffs could not pursue a common law negligence claim independent of the statute. The Woodses appeal.

SUMMARY JUDGMENT

Appellate review of a summary judgment is essentially a de novo review. Rice v. Hodapp, 919 S.W.2d 240, 243 (Mo. banc 1996). Review of the record is done in the light most favorable to the party against whom the judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The burden is on the moving party to establish that it is entitled to judgment as a matter of law. Id. at 382. Evidence in the record presenting a genuine issue of material fact will defeat a movant’s right to summary judgment. Id. For an issue to be genuine “implies that the issue, or dispute, must be a real and substantial one — one consisting not merely of conjecture, theory and possibilities.” Id. at 378. Therefore, the dispute must be more than simply argumentative, frivolous or imaginary. Id. at 382. If the trial court’s grant of summary judgment is sustainable on any theory as a matter of law, then the judgment must be sustained. City of Washington v. Warren County, 899 S.W.2d 863, 868 (Mo. banc 1995). Once the criteria established by Rule 74.04 have been met, establishing a right to judgment as a matter of law, the non-movant must show in some way that any one or more of the material facts presented by the movant is open to genuine dispute. ITT Commercial Fin. Corp., 854 S.W.2d at 381-82.

SOVEREIGN IMMUNITY

The Woodses claim that the trial court erred in concluding that Kelley was not a public employee because the undisputed facts in the case show that Grandview exercised control over Kelley’s activities, and had the right to control Kelley’s activities in maintaining Shelton House. Because Kelley was not acting in her capacity as alderman when the collision occurred, for the Woodses to recover, they must prove that Kelley’s activities as a volunteer at Shelton House made her a public employee, and that she was acting in that capacity at the time of the collision.

In Jones v. State Highway Comm’n, 557 S.W.2d 225 (Mo. banc 1977), the Missouri Supreme Court abrogated the common law doctrine of sovereign immunity. The doctrine was reinstated, in a modified form, by legislative action. See Kanagawa v. State By [637]*637and Through Freeman, 685 S.W.2d 831, 834 (Mo. banc 1985). In order to soften the sometimes severe effects of the doctrine, the legislature provided for waiver of sovereign immunity in certain instances. Id. Section 537.600, RSMo 1994, provides:

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 statutes 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:
(1) Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment;

Provisions in the statute waiving sovereign immunity are to be narrowly construed. Fantasma v. Kansas City Bd. of Police Comm’rs,

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948 S.W.2d 634, 1997 Mo. App. LEXIS 543, 1997 WL 144156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woods-v-kelley-moctapp-1997.