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Kraus v. Hy-Vee11/9/2004
the intersection . . . due to the high volume of traffic generated by the construction and opening of the Hy-Vee store . . . required electric traffic signals for the controls of traffic." The petition further alleged that Transystems breached its duty of care by "negligently providing an incorrect Traffic Impact Study, which it knew Defendants would rely upon."
The survivors later filed a first amended petition, dismissing the State of Missouri and MODOT as parties and substituting the Missouri Highways and Transportation Commission (MHTC) as a proper party. The survivors also filed a motion requesting leave of the court to file a second amended petition. Aside from correcting an error in the name of one of the intersecting streets, the second amended petition made no substantive changes. The record does not indicate whether the trial court granted leave to file the second amended petition.
In the meantime, however, MHTC had filed a motion to dismiss the first amended petition. MHTC argued that the survivors had failed to allege all of the elements necessary for waiver of sovereign immunity, including facts constituting a dangerous condition in public property or that Ms. Kraus' death resulted from such a condition. Transystems likewise had filed a motion for judgment on the pleadings, arguing that Transystems had no duty to plaintiffs as a matter of law because any duty in the case rested exclusively with the government. The trial court sustained both motions and gave the survivors ten days to file an amended petition.
The survivors subsequently filed a motion for leave to file their third amended petition as to all of the defendants, including MHTC and Transystems. The trial court granted the motion "as to and against all of the Defendants named in the lawsuit," including MHTC and Transystems.
The allegations contained in the third amended petition were more detailed than those contained in the preceding ones. By way of general allegations, the third amended petition now alleged that MHTC, Hy-Vee, and Hy-Vee Weitz " conducted studies through Transystems Corporation to determine whether a traffic light was needed to control the intersection . . . whether the speed limit was appropriate, and whether other changes needed to be made to ensure the safety of motorist ." And it alleged that all of the defendants "knew or should have known that the intersection, due to the volume of traffic, was dangerous in that it had no electric traffic signals for the control of traffic, due to the high volume of traffic generated by the opening of the Hy-Vee Store."
It also alleged that MHTC, Hy-Vee, and Hy-Vee Weitz "negligently decided not to install or require the installation of an electric traffic control device" at the intersection "based in part on the findings and recommendations of Transystems." The petition also alleged that Transystems should have informed the other defendants that a traffic control device was needed at the intersection.
In the wrongful death count, the third amended petition alleged that all of the defendants "had a duty to protect members of the public and more particularly Plaintiffs' decedent from the dangers of the intersection." The petition further alleged that all of the defendants breached that duty "by failing to install a traffic control device at the intersection, . . . by failing to properly restripe the road and intersection or to reduce the speed of traffic at said intersection all of which created a dangerous condition." And the petition alleged that MHTC, Hy-Vee, and Hy-Vee Weitz had actual notice of a dangerous condition in the intersection because they had received numerous complaints from the public about the
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