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Kraus v. Hy-Vee11/9/2004
ship and customer died while crossing street from one part to the other, dealership had no general duty to maintain street in safe condition and special use exception did not apply because record contained no evidence that dealership used street for any purpose other than ingress and egress from its business); Lange v. Wehrenberg Theaters, Inc., 870 S.W.2d 880, 883 (Mo. App. E.D. 1993) (special use exception "does not apply to using the sidewalk as is, as an ingress or egress to an owner's property."). From the petition we can determine only that Hy-Vee opened a store adjacent to the road, which customers used to go to and from the store. Accordingly, we conclude that this exception does not apply here.
2.) Affirmative Creation of a Dangerous Condition
The second exception exists when the abutting property owner creates a dangerous condition on the road. Under this exception, Hy-Vee could have a duty if it artificially created -- through negligence or affirmative action -- a condition on the road that makes passage unsafe. Caldwell, 894 S.W.2d at 239. This dangerous condition would have to arise from Hy-Vee's affirmative actions and not its omissions, however. Id.
Given this exception, we disagree with Hy-Vee's broad proposition that the government's non-delegable duty to maintain the road absolutely precludes liability as to any other party. That the government has a non-delegable duty to maintain the road does not preclude liability as to others who have assumed such a duty as well. Benedict v. N. Pipeline Constr., 44 S.W.3d 410, 428 (Mo. App. W.D. 2001). "One may render himself liable for the safety of a highway or sidewalk by the voluntary construction of improvements, the performance of work, of the assumption of some duty with respect to the maintenance or repair of the way." Id. (internal quotation marks and citations omitted). Such liability is only as broad as the duty assumed, however. Teichman, 446 S.W.2d at 400.
Although we disagree with Hy-Vee's broad proposition that it never can assume a duty to maintain the road, we nonetheless agree with Hy-Vee that appellants' have not stated a claim for relief in this case. Appellants allege that Hy-Vee requested a traffic impact study to determine whether the intersection needed a traffic control device. But it does not follow that Hy-Vee assumed any duty to implement the findings from that study, whatever those findings were. Appellants do not allege any affirmative action by Hy-Vee that artificially created a condition in the road such that passage became unsafe. At most, any dangerous condition would have resulted from an omission: failing to implement the study's recommendations. Such omission cannot be the basis for liability under the second exception, however. Caldwell, 894 S.W.2d at 239. See also 40 C.J.S. Highways Section 256 (1991) ("The abutter is under an obligation to use reasonable care to keep his premises in such condition as not to create defects or obstructions in the adjacent highway endangering travelers in their lawful use of the road, and, if he fails to do so and thereby renders the highway unsafe for travel, he makes himself liable for resultant damage, and he is liable for an injury caused by a defect or obstruction created by him in the highway, including those originating on his own land.").
Appellants also allege that Hy-Vee -- among others -- "fail to properly re-stripe the road and intersection." Again, however, this allegation does not show that Hy-Vee assumed any duty to maintain the intersection. Premised as it is upon an omission, this allegation also cannot be the basis for liability under the second exception. Caldwell, 894 S.W.2d at 239.
Accordingly, w
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