Pamela S. Allen and Kelly D. Allen v. State of Missouri, 32nd Judicial Circuit, Cape Girardeau County and City of Cape Girardeau, Missouri ( 2022 )

SUPREME COURT OF MISSOURI
en banc
PAMELA S. ALLEN and ) Opinion issued January 11, 2022
KELLY D. ALLEN, )
)
Cross-Appellants, )
)
v. ) No. SC98929
)
STATE OF MISSOURI, 32nd )
JUDICIAL CIRCUIT, )
)
Cross-Appellant, )
)
and )
)
CAPE GIRARDEAU COUNTY and )
CITY OF CAPE GIRARDEAU, MISSOURI, )
)
Respondents. )
APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY
The Honorable Stephen R. Mitchell, Judge
The State of Missouri, 32nd Judicial Circuit (“State”) appeals from a judgment
entered in favor of Pamela Allen (“Allen”) and her husband (collectively the “Allens”) who
sued the State, Cape Girardeau County (“County”), and the City of Cape Girardeau
(“City”) after Allen fell down a flight of stairs in the Common Pleas Courthouse in Cape
Girardeau (“Courthouse”). On appeal, the State asserts the circuit court misapplied the law
regarding the waiver of sovereign immunity. Specifically, the State claims the circuit court
erred in: (1) overruling the State’s post-trial motion for judgment notwithstanding the
verdict (“JNOV”) because there was insufficient evidence the stairs were in a dangerous
condition; therefore, waiver of sovereign immunity was not justified; and (2) giving an
erroneous jury instruction regarding waiver of sovereign immunity. The State’s first claim
lacks merit, as the Allens presented a submissible case that the stairway was a dangerous
condition of which the State was sufficiently aware to waive sovereign immunity. The
State’s second claim, however, is meritorious. Because the submitted jury instruction
regarding waiver of sovereign immunity did not accurately state the law, this Court vacates
the circuit court’s judgment as to the State and County.
In a cross-appeal, the Allens also allege, among other claims, the circuit court
erroneously applied the law of sovereign immunity. Specifically, the Allens claim the
circuit court erred in: (1) sustaining the City’s motion for directed verdict because the City
held an undivided one-half ownership interest in the Courthouse and this ownership interest
was sufficient to subject the City to waiver of its sovereign immunity; (2) overruling the
Allens’ motion for new trial because the judgment entered in the County’s favor was
against the weight of the evidence in that the County also held an undivided one-half
interest in the Courthouse; and (3) overruling the Allens’ motion for new trial because the
judgment entered against Kelly Allen on his claim of loss of consortium was against the
weight of the evidence. The Allens’ first claim is meritorious. Because the City possessed
an ownership interest in the Courthouse, it was unnecessary for the Allens to introduce
evidence that the City exercised “exclusive control and possession” over the stairwell to
2
establish the Courthouse stairwell was the City’s property. For this reason, the Court
vacates the circuit court judgment entered in the City’s favor. The Allens’ second claim is
moot. Because the jury was improperly instructed on the law of sovereign immunity for
the reasons claimed by the State, the State is entitled to further proceedings in which the
liability of the State and the County is properly considered with the correct understanding
of the law. This Court, therefore, need not address the Allens’ claim that the judgment
entered in the County’s favor was against the weight of the evidence. Finally, this Court
will not review the Allens’ third claim regarding the judgment entered against Allen’s
husband, as this argument was never presented to the circuit court and, therefore, was not
preserved.
In summary, the circuit court’s judgment is affirmed as to Allen’s husband’s loss of
consortium claim. In all other respects, the judgment is vacated. The case is remanded for
the circuit court to consider the liability of all three defendants in a manner consistent with
this opinion.
Factual and Procedural History
The Courthouse is an historic building located in Cape Girardeau. Built in 1854,
the County and the City have held an undivided one-half ownership interest in the
Courthouse since 1959. In 1979, the City and County entered into an agreement whereby
the County may occupy the entire space and assumes all responsibility for maintenance
and repairs. The agreement is still valid and preserves for the City the right to inspect the
premises and withhold approval for any alterations. The County made the entire space
3
available for the State’s use in 1991. 1 Since then, the State has enjoyed sole occupancy of
the Courthouse and uses it for court operations. Pursuant to statute, however, the County,
not the State, bears responsibility for obtaining the Courthouse space for the State and
maintaining and repairing the Courthouse when necessary. 2
On August 26, 2013, Allen, an employee of United Land Title, visited the
Courthouse to retrieve “a couple of judgments” for a work assignment. These court records
were located in the Courthouse basement. It was not the first time Allen gathered records
from the Courthouse basement; she had done so on 50 or more occasions during her time
at the title company. The circuit court clerk had the County install a lock on the door,
making the staircase and the basement inaccessible without a key. Allen approached the
deputy clerk to request a key; the clerk advised her to “grab the key” and retrieve the
documents. Allen collected the key, unlocked the door to the basement stairway, left the
door slightly ajar to allow additional light to illuminate the dark staircase, and began to
descend, gripping the single handrail. A few steps from the bottom landing, Allen’s foot
slipped. She fell, breaking her leg. Allen crawled back up the stairs to call for help and
was eventually transported to a hospital for her injuries. 3
1
Section 478.035 requires the County to provide the State with “suitable quarters” in which
to conduct circuit court business. All statutory references are to RSMo 2000.
2
See § 478.035, supra n.1; see also § 49.310 (“[T]he county commission in each county
in this state shall erect and maintain … a good and sufficient courthouse … and necessary
fireproof buildings for the preservation of the records of the county…. In pursuance of the
authority … the county commission may … construct, reconstruct, remodel, repair,
maintain and equip the courthouse.”).
3
Shortly after she was treated for a broken leg and discharged, Allen returned to the
hospital. She was experiencing pain and breathing difficulties and was diagnosed with a
4
Allen and her husband sued the State, the County, and the City in a personal injury
action. Allen claimed each kept the Courthouse staircase in a dangerous condition and
should have either repaired the staircase or warned her it was hazardous. Allen sought
damages for her injuries, and her husband brought a claim for loss of consortium. At the
close of the Allens’ evidence, the City, State, and County moved for directed verdict. Each
argued it should not be liable for Allen’s injuries because it did not have “exclusive control
and possession” or “control” of the stairway and was unable to remedy or warn of any
alleged defect. 4 Each further contended the stairs were not a dangerous condition rendering
them liable for Allen’s injuries. The circuit court sustained the City’s motion but overruled
the State’s and County’s motions. The Allens’ claims then proceeded against the State and
the County.
During the jury instruction conference, the State objected to Instruction No. 8, which
sought a jury finding that the State “either owned or controlled” the Courthouse basement
stairway. The State argued “owned or controlled”—language supplied by Missouri
Approved Instruction (“MAI”) 31.16 (8th ed.)—misstated the law, and the proper
instruction should direct the jury to determine if the State had “exclusive control” over the
stairway. The circuit court overruled this objection.
blood clot in her left leg and a blockage in her lung artery. As a result, part of Allen’s lung
tissue died. She was hospitalized for 12 days and placed on blood thinners to prevent future
clots.
4
At the end of its typed motion for directed verdict, the State included a brief handwritten
note stating there was “[n]o evidence that the State controlled the property or specifically
the Courthouse basement stairs.” The City and the County both argued they lacked
“exclusive possession and control” over the Courthouse.
5
Using two separate verdict forms, the circuit court instructed the jury to weigh the
State, the County, and Allen’s comparative fault. 5 In response to a question from the jury,
the circuit court instructed the jurors they could find fault only for one of the defendants,
the State or County, but not both. The jury returned verdicts holding the County zero
percent at fault, the State 90 percent at fault, and Allen 10 percent at fault, assessing Allen’s
total damages at $475,000. The jury found against Allen’s husband on his loss of
consortium claim. Following the jury’s verdict, the circuit court entered judgment for
Allen against the State, for the City and County, and against the husband.
The State moved for a judgment notwithstanding the verdict (“JNOV”), mirroring
the same arguments raised in its motion for directed verdict. The Allens also conditionally
moved for a new trial, asking the circuit court to consider their motion in the event it found
the State did not own or control the stairs and sustained the State’s motion for JNOV. The
Allens argued the judgments for the City and the County must be reversed if the court were
to enter JNOV for the State because one of the three defendants must be liable. The Allens’
conditional motion for JNOV, however, did not seek to set aside the verdict rejecting the
husband’s loss of consortium claim.
The circuit court overruled both parties’ motions. The State appealed, asserting the
staircase was not a dangerous condition and the circuit court erred in submitting Instruction
No. 8. The Allens sought affirmance of the circuit court’s judgment against the State but
5
One verdict form allowed the jury to consider the comparative fault of Allen and the State;
the other verdict form allowed the jury to consider the comparative fault of Allen and the
County.
6
cross-appealed in the event this Court grants the State its requested relief. 6 After the court
of appeals issued an opinion, this Court granted the State’s application for transfer. 7
Analysis
I. The State’s Appeal
The State raises two points on appeal. Both involve the application of section
537.600.1(2), which waives sovereign immunity for injuries caused by the “dangerous
condition” of a “public entity’s property.” Sovereign immunity is a common law judicial
doctrine barring suit against a government or public entity. See Metro. St. Louis Sewer
Dist. v. City of Bellefontaine Neighbors, 476 S.W.3d 913, 921 (Mo. banc 2016).
“[S]overeign immunity applies to the government and its political subdivisions unless
waived or abrogated or the sovereign consents to suit.” Id. Section 537.600.1(2) waives a
public entity’s sovereign immunity from liability for compensatory damages for negligent
acts or omissions for
[i]njuries 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 or a public entity
had actual or constructive notice of the dangerous condition in sufficient time
prior to the injury to have taken measures to protect against the dangerous
condition.
(Emphasis added).
6
This Court consolidated these appeals into the present case.
7
Article V, section 10 of the Missouri Constitution endows this Court with jurisdiction to
grant transfer of an appeal after the court of appeals issues an opinion.
7
The State challenges the sufficiency of the evidence the Allens offered to
demonstrate the “dangerous condition” of the stairs under section 537.600. The State also
contests the validity of Instruction No. 8 with respect to how it interpreted the words
“public entity’s property” as used in section 537.600.1(2).
a. Sufficiency of Evidence Demonstrating a Dangerous Condition and Notice
In reviewing a circuit court’s overruling of a JNOV, “[t]his Court must determine
whether the plaintiff presented a submissible case by offering evidence to support every
element necessary for liability.” Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 95
(Mo. banc 2010). The State claims the circuit court erred in overruling its JNOV motion
because there was insufficient evidence to support the jury’s finding that (1) the staircase
was in a dangerous condition (2) of which the State had actual or constructive notice. 8
8
This Court reviews both arguments in its discretion because the State’s brief violating
Rule 84.04(e) in that the argument goes well beyond the single error alleged in the point
relied on. Pursuant to Rule 84.04(e), all arguments
shall substantially follow the order of “Points Relied On.” The point relied
on shall be restated at the beginning of the section of the argument discussing
that point. The argument shall be limited to those errors included in the
“Points Relied On.”
(Emphasis added). The argument section accompanying the State’s point relied on pursues
two separate and independent claims: (1) the staircase was not a dangerous condition; and
(2) even if it was a dangerous condition, the State lacked actual and constructive notice of
its existence. Either claim, if accepted, would warrant reversal. The first of these
arguments does not conform to the State’s point relied on, however, which is concerned
only with the latter argument. The point relied on states:
The trial court erred in not entering judgment notwithstanding the verdict
prejudicing the State, because there was insufficient evidence to show that
the State knew that the stairs to the basement were a dangerous condition, in
that the evidence showed that the stairs were functional and were used
regularly by State and County personnel, that no one, including Pamela, had
8
This Court reviews the evidence “in the light most favorable to the jury’s verdict,
giving the plaintiff all reasonable inferences and disregarding all conflicting evidence and
inferences.” Id. A jury verdict cannot be reversed because of insufficient evidence unless
“there is a complete absence of probative fact to support the jury’s conclusion.” Tharp v.
St. Luke’s Surgicenter-Lee’s Summit, LLC, 587 S.W.3d 647, 654 (Mo. banc 2019).
Viewing the evidence in the light most favorable to the verdict, permitting Allen all
reasonable inferences and disregarding all conflicting evidence and inferences, the
evidence was sufficient to show the stairs were in a dangerous condition of which the State
had actual or constructive notice.
Under section 537.600, a “physical defect in the sovereign’s property and injuries
directly stemming from that defect will subject the sovereign to tort liability.” State ex rel.
Div. of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612, 616 (Mo. banc 2002); see
also Maune ex rel. Maune v. City of Rolla, 203 S.W.3d 802, 805 (Mo. App. 2006). A
sovereign may also be subject to liability if the plaintiff was harmed by a “physical
deficiency in the state’s property which constituted a ‘dangerous condition.’” Alexander
complained about the condition of the stairs, and prior to Pamela no one had
fallen on the stairs.
“Rule 84.04(e) requires the argument to be limited to the errors included in the point relied
on. [A]n argument not set out in the point relied on but merely referred to in the argument
portion of the brief does not comply with the requirements of Rule 84.04(d) ... [and] is
considered abandoned in this Court.” Holmes v. Union Pac. R.R. Co., 617 S.W.3d 853,
859 n.2 (Mo. banc 2021) (alterations in original) (internal quotation omitted). When a
defective point does not impede a full consideration of the merits and gives adequate notice
to this Court and the other parties of the contested issues, this Court may exercise its
discretion to review the point. Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc
1997). Though this Court considers both of the State’s arguments, it does so pursuant to
this discretion.
9
v. State, 756 S.W.2d 539, 542 (Mo. banc 1988). The Allens introduced evidence of
multiple physical defects and deficiencies. The staircase was illuminated by a single bulb
and had limited headroom because of pipes and wires running overhead. The concrete
stairs were painted, and on some, the edges of the steps were chipped. The steps were not
level, sloped downward as much as 9 percent, and were narrower than those of modern
stairs. The steps also varied in length. None provided a sufficient surface to fit an adult
foot, causing Allen to descend with her feet at an angle, gripping the single handrail. Such
evidence was sufficient for the jury to find the existence of physical defects and
deficiencies tantamount to a dangerous condition.
The State contends the stairs did not constitute a dangerous condition because they
were an “open and obvious condition” of which Allen knew and appreciated. This Court
disagrees. True, a “landowner is entitled to expect that invitees will exercise ordinary
perception, intelligence, and judgment to discover open and obvious conditions, appreciate
the risk they present, and take the minimal steps necessary to protect themselves.” Maune,
203 S.W.3d at 805. But even if Allen was familiar with the condition of the staircase, that
awareness does not preclude a finding that the condition, nevertheless, was dangerous.
“[W]hen the dangerous condition is so open and obvious that the invitee should reasonably
be expected to discover it and realize the danger, a possessor of land does not breach the
standard of care owed to invitees ‘unless the possessor should anticipate the harm
despite such knowledge or obviousness.’” Harris v. Niehaus, 857 S.W.2d 222, 226 (Mo.
10
banc 1993) (emphasis added) (quoting Restatement (Second) of Torts, § 343A(1) (1965)); 9
see also Huxoll v. McAlister’s Body & Frame, Inc., 129 S.W.3d 33, 36-37 (Mo. App. 2004);
Holzhausen v. Bi-State Dev. Agency, 414 S.W.3d 488, 498 (Mo. App. 2013); Hellmann v.
Droege’s Super Mkt., Inc., 943 S.W.2d 655, 659 (Mo. App. 1997) (finding that, while an
icy parking lot was an open and obvious condition, the defendant supermarket should have
anticipated risk to customers and had a duty to warn or remedy the situation).
9
Comment f to § 343A recognizes:
There are … cases in which the possessor of land can and should anticipate
that the dangerous condition will cause physical harm to the invitee
notwithstanding its known or obvious danger. In such cases the possessor is
not relieved of the duty of reasonable care which he owes to the invitee for
his protection. This duty may require him to warn the invitee, or to take other
reasonable steps to protect him, against the known or obvious condition or
activity, if the possessor has reason to expect that the invitee will nevertheless
suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers
may arise, for example, where the possessor has reason to expect that the
invitee[ ] … [may] fail to protect himself against it…. In such cases the fact
that the danger is known, or is obvious, is important in determining whether
the invitee is to be charged with contributory negligence, or assumption of
risk. (See §§ 466 and 496D.) It is not, however, conclusive in determining
the duty of the possessor, or whether he has acted reasonably under the
circumstances.
The illustration following Comment f is also instructive:
5. A owns an office building, in which he rents an office for business
purposes to B. The only approach to the office is over a slippery waxed
stairway, whose condition is visible and quite obvious. C, employed by B in
the office, uses the stairway on her way to work, slips on it, and is injured.
Her only alternative to taking the risk was to forgo her employment. A is
subject to liability to C.
Restatement (Second) of Torts § 343A cmt. f, illust. 5 (1965).
11
While the condition of the stairway may have been open and obvious, the State
should have anticipated the harm that befell Allen. Neither party indicates there was a
reasonable alternative path to access the court records in the Courthouse basement. This
fact makes the present case distinguishable from others in which courts have declined to
find dangerous a condition that was open and obvious because the plaintiff’s path was not
limited to a single point of entry or exit. 10 Because there was no evidence to suggest Allen
had an alternative route to access the files, the State had reason to anticipate the defective,
deficient stairs could harm Allen despite her familiarity with them. Ultimately, whether
the condition of the stairs was open and obvious is not dispositive to liability but rather is
a factor to weigh in determining whether she exercised due care and shared comparative
fault. See Hellmann, 943 S.W.2d at 659; see also Restatement (Second) of Torts,
§ 343A(1), cmt. f (1965). For these reasons, the Allens presented sufficient evidence to
establish the stairway was a dangerous condition under section 537.600.
The evidence was also sufficient to demonstrate the State had sufficient notice of
the dangerous condition of the stairwell. Viewing the evidence in the light most favorable
to the jury’s verdict, the Allens introduced evidence of an April 2013 e-mail exchange
between a county commissioner and the secretary to the presiding judge of the 32nd circuit
10
In Huxoll, 129 S.W.3d 33, for example, the court of appeals found a pile of scrap metal
behind a locked exit door was an open and obvious danger as a matter of law and the
business owner had no duty to protect invitees like the plaintiff. The court reasoned there
was no reason the business should have anticipated the invitee would exit through a locked
door and walk over a pile of sheet metal when he could have exited through other obvious
doors or simply could have asked an employee to move cars that were blocking other exits.
Id. at 36.
12
in which the commissioner stated he believed it would be “unsafe” to allow a group to tour
the basement. Other evidence demonstrated State employees referred to the basement as
“the dungeon.” Such evidence suggests the State had actual notice that the stairs to the
basement could be hazardous.
Even assuming the State lacked actual notice of the condition of the staircase, this
Court has previously found similar facts sufficient to establish constructive notice. See
e.g., Hensley v. Jackson Cnty., 227 S.W.3d 491 (Mo. banc 2007). In Hensley, this Court
found Jackson County lacked sovereign immunity from a suit initiated by a plaintiff injured
in a car accident caused by a downed stop sign. Id. at 497. The plaintiff introduced
evidence showing the stop sign had been leaning at a 45-degree angle for the duration of
the month leading up to the accident, was down completely in the three days before the
accident, and the county’s employees frequented the area while the stop sign was in such
condition. Id.Here, the State has occupied the Courthouse since 1991. The State stored hundreds
of boxes of its own records in the basement. Presumably, the State used the staircase to
put the court records in the basement and to access the records when necessary. Aside
from its own use, the State directed some of its visitors, like Allen, to use the stairs
themselves. The State had sufficient time and opportunity to become aware of the
13
condition of the stairs, and it is reasonable to charge the State with constructive notice.
This point is denied. 11
b. Instructional Error and the Meaning of “Public Entity’s Property” Under
Section 537.600
The State further contends the circuit court erred in giving Instruction No. 8 because
that instruction—using the language from the pattern MAI instruction—misstated the law
regarding the waiver of sovereign immunity under section 537.600 for injuries caused by
dangerous conditions on a public entity’s property. The instruction as given stated:
In your verdict, you must assess a percentage of fault to defendant
State of Missouri, 32nd Judicial Circuit whether or not plaintiff was
partly at fault if you believe:
First, defendant State of Missouri, 32nd Judicial Circuit either owned
or controlled the Common Pleas Courthouse basement stairway, and
Second, the basement stairway was in a defective condition, and as a
result the stairway was not reasonably safe, and
Third, defendant State of Missouri, 32nd Judicial Circuit knew or by
using ordinary care could have known of this condition in time to bar
use or remedy or warn of such condition, and
Fourth, defendant State of Missouri, 32nd Judicial Circuit failed to
use ordinary care to bar use or remedy or warn of such condition, and
Fifth, as a direct result of such failure, plaintiff sustained damage.
11
This opinion does not decide whether the Allens presented a submissible case as to the
other elements of section 537.600.1(2), particularly whether the Allens submitted sufficient
evidence to establish the State had exclusive control or possession of the stairway. See
infra Part I.b.
14
(Emphasis added). The State avers “owned or controlled” is inadequate because the case
law suggests the proper standard was whether it owned or held “exclusive control and
possession” of the property. 12
“Whether a jury was instructed properly is a question of law that this Court reviews
de novo.” Kader v. Bd. of Regents of Harris-Stowe State Univ., 565 S.W.3d 182, 186 (Mo.
banc 2019). Instructional error does not warrant vacating the judgment unless the
challenging party also shows: “(1) the instruction as submitted misled, misdirected, or
confused the jury; and (2) prejudice resulted from the instruction.” Fleshner, 304 S.W.3d
at 90-91.
Because the validity of Instruction No. 8 hinges on whether it accurately interpreted
“public entity’s property” as used in section 537.600.1(2), principles of statutory
interpretation govern the analysis. “The primary rule of statutory interpretation is to give
effect to legislative intent as reflected in the plain language of the statute.” Kehlenbrink v.
Dir. of Revenue, 577 S.W.3d 798, 800 (Mo. banc 2019). Statutory provisions waiving
12
The Allens contend the State’s instructional error claim was not properly preserved for
appellate review. Specifically, the Allens contest the adequacy of the State’s objection to
the instruction, asserting it lacked the requisite specificity to enable the circuit court to
understand and consider the complaint it lodged. This Court disagrees. Rule 70.03
provides “[n]o party may assign as error the giving or failure to give instructions unless
that party objects thereto before the jury retires to consider its verdict, stating distinctly the
matter objected to and the grounds of the objection.” The Rule further states, “[c]ounsel
shall make specific objections to instructions considered erroneous.” Id. During the
instruction conference, the State contested the jury instruction claiming it failed to follow
the caselaw indicating the standard was “exclusive possession and control.” Such an
objection gave the circuit court a clear, distinct idea of the basis for the objection as well
as the alternate language requested. Accordingly, the objection was sufficient to preserve
the issue for review.
15
sovereign immunity are strictly construed. See Bartley v. Special Sch. Dist., 649 S.W.2d
864, 868 (Mo. banc 1983), superseded on other grounds by § 537.600. This Court,
therefore, interprets the language of section 537.600 by “presum[ing] nothing that is not
expressed.” Templemire v. W & M Welding, Inc., 433 S.W.3d 371, 381 (Mo. banc 2014).
In determining the scope of the phrase “public entity’s property” in section
537.600.1(2) when the public entity lacks actual ownership but has possession of the
property, the court of appeals has noted: “The appropriate question is whether the
[defendant] exercised possession and control rising to an ownership interest[.]” Thomas v.
Clay Cnty. Election Bd., 261 S.W.3d 574, 580 (Mo. App. 2008); see also Dorlon v. City of
Springfield, 843 S.W.2d 934, 938 (Mo. App. 1992) (stating a public entity’s property for
purposes of sovereign immunity “clearly refers to ownership of a property interest”). This
Court agrees.
When the public entity does not own the property at issue, the inquiry must focus
on whether the public entity had possession and control over the property equal to the
possession and control of a property owner. 13 The plain meaning of the phrase “public
13
In James v. Farrington, 844 S.W.2d 517 (Mo. App. 1992), the court of appeals rejected
the argument that only legal ownership would satisfy the phrase “public entity’s property”
in section 537.600.1(2). In James, a board of elections occupied a church temporarily to
conduct an election. Id. at 517-18. Pursuant to statute, board employees “actually occupied
the polling premises and were provided the authority to make this possession exclusive to
the voting public and authorized personnel” and had “exclusive control over the part or the
area of the church contracted for during the election process” including the right to inspect
and make non-invasive alterations to better suit the premises to its purposes. Id. at 519(“Section 115.409, RSMo states that only election authority personnel, election judges,
watchers and challengers or law enforcement officials at the request of election officials
who were in the line of duty, and registered voters ‘shall be admitted to the polling
16
entity’s property” in section 537.600.1(2) encompasses both actual legal ownership and a
functionally equivalent degree of possession and control. See Moore v. Bi-State Dev.
Agency, 609 S.W.3d 693, 696 (Mo. banc 2020) (“When the words are clear, there is nothing
to construe beyond applying the plain meaning of the law.”).
In the present case, the jury instruction failed to state this law accurately. Instruction
No. 8 directed the jury to determine if the State “owned or controlled the … Courthouse
basement stairway[.]” This Court is unpersuaded the use of the word “control” alone and
unmodified in the instruction was sufficient to meet the requirement of “possession and
control rising to an ownership interest[.]” Thomas, 261 S.W.3d at 580.
Of course, not every level of control over the property renders it the “public entity’s
property” for purposes of sovereign immunity waiver under section 537.600.1(2). In
Russell, for example, this Court found the defendant public entity tasked with regulating a
railroad crossing did not exercise the requisite level of control over the property to qualify
for the waiver of immunity under section 537.600.1(2). 91 S.W.3d at 616. Specifically,
this Court held property “merely regulated by a government agency or entity is not ‘public
place.’”). Observing that the definition of the word “property” includes both ownership
and possession, the court of appeals interpreted the phrase “public entity’s property” as
used in section 537.600 to include both legal ownership and, if the public entity is not the
legal owner, then exclusive possession and control. Id. at 519-20. The court of appeals
found the board of elections “had full and total control of the church used for the election
while the election was being conducted.” Id. at 518. “Under the facts of the present case,
a definition of the term ‘public entity’s property’ includes the exclusive control and
possession of a polling place.” Id. at 520. As the court of appeals found in James, even a
temporary possessor holding both exclusive possession and control over the property it
occupies can satisfy the phrase “public entity’s property” as used in section 537.600.1(2).
Id.
17
property’ and, accordingly, is not within the statutory exception to sovereign immunity.”
Id.
Instead, when the public entity does not own the property, it must have “exclusive
possession and control” over it for section 537.600.1(2) to apply. Summitt by Boyd v.
Roberts, 903 S.W.2d 631, 635 (Mo. App. 1995) (property containing an allegedly
dangerous condition was not owned or under exclusive control or possession of any public
entity; therefore, the dangerous condition waiver of sovereign immunity was not
applicable); Tillison v. Boyer, 939 S.W.2d 471, 473 (Mo. App. 1996) (“‘[T]he term of the
property’ includes having exclusive control and possession of the property.”); Sisk v. Union
Pac. R.R. Co., 138 S.W.3d 799, 807 (Mo. App. 2004) (“Jackson County … is not liable for
allegedly dangerous conditions on adjacent property that it does not own or exclusively
possess or control.”); Thomas, 261 S.W.3d at 576 (“In the context of a waiver of sovereign
immunity [under section 537.600], an Election Board’s ‘property’ includes the exclusive
control and possession of a polling place.”); Randel v. City of Kan. City, 467 S.W.3d 383,
388 (Mo. App. 2015) (“Missouri cases do indeed hold that where a public entity exercises
‘exclusive control and possession’ over property, the property will be viewed as ‘a public
entity’s property’ for purposes of section 537.600.1(2).”). This Court too adopted
“exclusive possession and control” in interpreting the phrase “public entity’s property”
under section 537.600. See Russell, 91 S.W.3d at 616. In Russell, in which the public
entity did not own the subject property, this Court held, “for property to be considered that
of the sovereign for the purpose of waiver immunity under section 537.[6]00[ ], the
sovereign must have the exclusive control and possession of that property.” Id.18
Accordingly, it was erroneous for Instruction No. 8 to refer to “ownership and control”
rather than “ownership or exclusive possession and control.”
Generally, an applicable MAI instruction must be given to the exclusion of other
instructions. Rule 70.02(b). But an MAI instruction containing an inaccurate statement of
the substantive law should not be given. Templemire, 433 S.W.3d at 376. Here, the
language in MAI 31.16—which Instruction No. 8 uses—fails to require “exclusive
possession and control” as set out in Russell; therefore, it did not comport with the plain
and ordinary meaning of “public entity’s property” as that phrase is used in section
537.600.1(2). Rather, the instruction should have directed the jury to hold the State liable
only if it owned or had “exclusive possession and control” over the Courthouse stairs at
the time of Allen’s accident. As given, Instruction No. 8 “misled, misdirected, or confused
the jury,” entitling the State to a reconsideration of the issues in the circuit court if
“prejudice resulted from the instruction.” Fleshner, 304 S.W.3d at 90-91.
Without a doubt, the State was prejudiced by Instruction No. 8. Because the
evidence clearly established the State did not legally own the Courthouse, Instruction
No. 8 permitted the jury to find the State liable if the State had mere “control—but not
“exclusive possession and control”—over the Courthouse stairs.
This prejudice was compounded by other instructions given to the jury. In addition
to Instruction No. 8, Instruction No. 7 likewise misdirected the jury to assign the County
fault if the jury found it “owned or controlled” the staircase. The jury was also orally
19
instructed it could find one defendant at fault, the State or the County, but not both. 14 These
instructions required the jury to weigh liability between the State and the County using an
incorrect standard. While this Court takes no position as to whether sufficient evidence
was presented to establish the State possessed exclusive possession and control of the
stairway, it is likely a properly instructed jury would come to different conclusions
regarding the liability and/or comparative fault of the State and the other defendants. The
State is entitled to further proceedings in which liability is fairly considered among all the
remaining parties utilizing a proper construction of the phrase “public entity’s property” as
used in section 537.600.1(2). This Court, therefore, vacates the judgment to the extent it
was entered against the State and in favor of the County and remands the case for further
proceedings consistent with this opinion.
II. The Allens’ Appeal
The Allens raise three points on cross-appeal. The Allens argue the circuit court
erred in: (1) sustaining the City’s motion for directed verdict because the City was a
co-owner of the Courthouse; (2) overruling their motion for a new trial as the verdict for
the County was against the weight of the evidence; and (3) overruling their motion for a
14
After the jury began its deliberations, it presented the circuit court with the following
question: “If we find all three at fault, the Defendants and Plaintiff, may we assign
percentage to each?” After conferring with attorneys for the County and the State, the
circuit court gave the following instruction to the jury:
THE COURT: All right. The record will show that the question is answered:
“Percentages of fault may be assigned to Plaintiff and either Defendant, but
not both Defendants.”
This Court takes no position whether the Court’s oral instruction requiring exclusive
liability was properly given.
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new trial because the verdict rejecting the husband’s loss of consortium claim was against
the weight of the evidence. The Allens’ three claims are all conditioned on this Court’s
finding for the State on either of the claims the State raised on appeal. Because this opinion
grants the State relief on its claim of instructional error, discussed supra, this Court reviews
the Allens’ first and third claims. The validity of the jury’s verdict in favor of the County,
however, need not be examined. As discussed supra, the judgment is vacated to the extent
it was entered in favor of the County; therefore, the Allens’ second claim is moot.
a. The City’s Motion for Directed Verdict
The Allens’ first point on cross-appeal asserts the circuit court erred in sustaining
the City’s motion for directed verdict because the City was a co-owner of the Courthouse.
“A case may not be submitted unless legal and substantial evidence supports each fact
essential to liability.” Tharp, 587 S.W.3d at 652. The Allens contend the circuit court’s
ruling was erroneous because the Courthouse was the City’s property under the meaning
of “public entity’s property” as used in section 537.600. The City counters it lacked
“exclusive possession and control” over the basement stairway; thus, sovereign immunity
was not waived under section 537.600.1(2) despite the City’s undivided one-half
ownership interest in the Courthouse. This Court agrees with the Allens. The phrase
“public entity’s property” as used in section 537.600.1(2) applies to public entities that
legally own the property where the accident occurred or that lack legal ownership but have
exclusive possession and control over the property.
The circuit court’s stated reason for sustaining the City’s motion for directed verdict
was that the City lacked “exclusive control and possession” over the basement stairway.
21
This finding is clearly erroneous. The Allens introduced evidence of an agreement between
the City and the County showing each held an undivided one-half interest in ownership of
the Courthouse. For purposes of establishing that a building is a “public entity’s property,”
the analysis stops upon a showing of actual or legal ownership by a public entity. A
plaintiff seeking to establish injury on a “public entity’s property” under section 537.600
need only introduce evidence the public entity had “exclusive possession and control” of
the property when the public entity does not have actual or legal ownership of the property.
Because the Allens produced evidence showing the City was a legal owner of the
Courthouse, the circuit court erroneously entered directed verdict as to the City. To the
extent the judgment was entered in the City’s favor, it is vacated. 15
b. The Husband’s Loss of Consortium Claim
The Allens last argue the circuit court erred in overruling its motion for new trial
because the jury’s adverse determination that Allen’s husband sustained no damages
15
In its appellate brief, the City cites extensively to Ford v. Cedar County, 216 S.W.3d
167, 168 (Mo. App. 2006), to support its position that the legal owner of a property still
must possess exclusive possession and control over the property to trigger the waiver of
sovereign immunity under section 537.600. In Ford, the plaintiff sued Cedar County
following an accident on County Road 1415 in Cedar County. Id. at 168-69. It is unclear
from the court of appeals opinion whether the County actually owned the road in question.
Id. The court of appeals affirmed a circuit court’s grant of summary judgment for Cedar
County, finding it lacked “exclusive possession and control” over the road. Id. at 171-72.
To the extent the court of appeals decision held a public entity legally owning property
containing a dangerous condition would be entitled to summary judgment on the basis of
sovereign immunity because the property was not a “public entity’s property” as
contemplated under section 537.600, that case and reasoning should no longer be followed.
A plaintiff need not demonstrate the public entity possesses “exclusive possession and
control” of the property to satisfy the “public entity’s property” element of section 537.600
if the public entity is the legal owner of the property. See supra Part I.b.”
22
pursuant to his loss of consortium claim was erroneous. This opinion declines to reach the
merits of this claim, as the Allens failed to include it in their motion for new trial and, as
such, it was not preserved. See Rule 78.07(a); see also State v. Walter, 479 S.W.3d 118,
123 (Mo. banc 2016) (“Including a claim of error in a motion for new trial is a requirement
of preserving an issue for review[.]”). This final point is denied.
Conclusion
The circuit court’s judgment is affirmed as to the husband’s loss of consortium
claim. In all other respects, however, the judgment is vacated because the circuit court
erred in its interpretation of the phrase “public entity's property” in section 537.600.1(2).
The case is remanded for further proceedings so the circuit court may consider the liability
of all three defendants consistent with this opinion.
___________________
W. Brent Powell, Judge
All concur.
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