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Kraus v. Hy-Vee11/9/2004
urt's eastern district recently surveyed the broad principles for considering duty and said:
When considering if a duty exists in a particular case, we look at several policy factors, including the following: (1) whether society finds the interest is worthy of protection; (2) the foreseeability of harm and degree of certainty that the protected person suffered injury ; (3) the moral blame society places on the conduct; (4) the prevention of future harm; (5) the costs and ability to spread the risk of loss; and (6) the economic burden on the actor and community. When considering if a duty is owed, we look for a relationship between the plaintiff and the defendant that the law recognizes as the basis of the duty of care. We look to the body of statutes, rules, principles and precedents which make up the law when determining whether this relationship exists.
Id. (internal quotation marks and citations omitted).
A party can assume a duty. Id. "If a defendant assumes a duty, by contract or by conduct, he can be held liable for injuries caused by the unsafe performance of that assumed duty." Id. However, a defendant's liability is no broader than the duty assumed. Teichman v. Potashnick Constr., Inc., 446 S.W.2d 393, 400 (Mo. banc 1969). Against the backdrop of these principles, we now consider the claims against the remaining parties.
1. Standard of Review for Judgment on the Pleadings
When we review a grant of judgment on the pleadings, we examine the allegations of the petition to determine whether the pleaded facts are insufficient as a matter of law. State ex rel. Nixon v. Am. Tobacco Co., 34 S.W.3d 122, 134 (Mo. banc 2000). "The party moving for judgment on the pleadings admits, for purposes of the motion, the truth of all well pleaded facts in the opposing party's pleadings." Id. (internal quotation marks and citation omitted). "The position of a party moving for judgment on the pleadings is similar to that of a movant on a motion to dismiss; i.e., assuming the facts pleaded by the opposite party to be true, these facts are, nevertheless, insufficient as a matter of law." Id. (internal quotation marks and citation omitted). If the pleadings from their face demonstrate that the moving party is entitled to judgment as a matter of law, then the trial court is justified in granting a motion for judgment on the pleadings. Id.
2. Analysis of Judgment on the Pleadings for Hy-Vee
a. General Rule
Appellants allege that Hy-Vee was negligent in failing to install electric traffic lights at the intersection and in failing to properly re-stripe the road. As an abutting property owner, Hy-Vee generally has no duty to install traffic lights or to stripe the road because those duties fall to government, not to adjacent property owners. See, e.g., Caldwell v. McGahan, 894 S.W.2d 237, 238 (Mo. App. E.D. 1995) (" his duty rests with the municipality, not adjacent property owners, and it is non-delegable.").
b. Exceptions to General Rule
1.) Special Use of the Road
Two exceptions to the general rule exist, however. The first exception is the "special use" exception. Under this exception, Hy-Vee could have a duty if it used the road for some purpose other than merely using it as a road or if it put an obstruction in the road that was not a part of the original construction in order to serve its own purposes. Id. at 238-39. The petition does not allege that Hy-Vee used the road for any reason other than its intended purpose or that it put any obstruction in the road. Cf. Cohen v. W. County Motor Co., 877 S.W.2d 143, 144-46 (Mo. App. E.D. 1994) (where street separated two parts of car dealer
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