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Kraus v. Hy-Vee11/9/2004
e conclude that the trial court appropriately granted judgment on the pleadings to Hy-Vee.
3. Analysis of Judgment on the Pleadings for Hy-Vee Weitz
Appellants allege that Hy-Vee Weitz built the Hy-Vee store at the intersection of Broadway and Broadfield. Appellants do not otherwise explain the nature of the relationship between Hy-Vee and Hy-Vee Weitz. Appellants further allege that Hy-Vee Weitz had a duty to protect the public from the dangers of the intersection and that Hy-Vee Weitz breached its duty by failing to install an electric traffic light at the intersection and by failing to properly re-stripe the road.
Although Hy-Vee Weitz evidently does not own the store at the intersection of Broadway and Broadfield and is, therefore, not an abutting landowner, it still could be liable for "the voluntary construction of improvements, the performance of work, or the assumption of some duty with respect to the maintenance or repair of the way." Benedict, 44 S.W.3d at 428 (internal quotation marks and citations omitted). If Hy-Vee Weitz were an independent contractor for the abutting landowner, it also could be liable "for injuries to travelers resulting from negligent performance of the work" in or near the street. 39 A M. J UR. 2D Highways, Streets, and Bridges Section 408 (1999).
Having reviewed the allegations against Hy-Vee Weitz in light of these principles, we conclude that appellants likewise have failed to state a claim against Hy-Vee Weitz. Appellants allege that Hy-Vee Weitz built the store. Although appellants also allege that Hy-Vee Weitz was among those parties that "conducted studies through Transystems" to determine the need for a traffic light at the intersection, it does not follow that Hy-Vee Weitz had any affirmative duty to implement the findings of that study. As with Hy-Vee, appellants also allege that Hy-Vee Weitz failed to properly re-stripe the road. Again, however, this allegation does not show that Hy-Vee Weitz assumed any duty to maintain the intersection. It shows only that Hy-Vee failed to do something to maintain the intersection.
Accordingly, we also conclude that the trial court appropriately granted judgment on the pleadings to Hy-Vee Weitz.
4. Analysis of Judgment on the Pleadings for Transystems
Appellants allege that Transystems prepared a traffic impact study at the request of Hy-Vee to determine the necessity of a traffic control device at the intersection. Appellants allege that Transystems knew or should have known that the intersection was dangerous due to the volume of traffic because it had no electric traffic signals to control such traffic and that Transystems should have so informed the other defendants.
In their wrongful death count, appellants further allege that Transystems had a duty to protect the public -- including Mildred Kraus-- from the dangers at the intersection and that Transystems breached that duty by failing to install a traffic control device, failing to properly restripe the road, or failing to reduce the speed of traffic at the intersection. Appellants further allege that Transystems knew or should have known that the traffic impact study was incorrect and vague "in that due to the volume of traffic at Broadway and Broadfield it warranted immediate placement of an electric traffic signal according to [MHTC's] own standards and design manual existing at that time" and that the speed limit at the intersection should have been reduced.
In their professional negligence count, appellants allege that Transystems did not follow the manuals that it normally uses in preparing a traffic impact study and that Transystems failed to recommend th
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