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Kraus v. Hy-Vee11/9/2004
s unless the General Assembly has expressly waived such immunity. Section 537.600.1. The General Assembly has expressly waived such immunity in two circumstances:
(1) Injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles or motorized vehicles within the course of their employment;
(2) Injuries 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.
Section 537.600.1 (1) and (2).
In shorthand, these exceptions are known respectively as the "motor vehicle exception" and the "dangerous condition exception." Hale ex rel. Hale v. City of Jefferson, 6 S.W.3d 187, 192-93 (Mo. App. W.D. 1999). This case concerns the dangerous condition exception. Appellants contend that MHTC created such a dangerous condition by failing to install traffic lights at the intersection and by failing to properly re-stripe the intersection.
To state a claim under the dangerous condition exception, a claimant must allege facts showing "1) a dangerous condition of public property, 2) that the injury directly resulted from the dangerous condition, 3) that the dangerous condition created a reasonably foreseeable risk of the kind of harm incurred, and 4) that a public employee negligently created the condition, or the public entity had actual or constructive notice of the condition." State ex rel. Mo. Highway and Transp. Comm'n v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998). Appellants and MHTC dispute whether appellants alleged facts to support the first and second elements under the dangerous condition exception.
We conclude that appellants have alleged facts sufficient to invoke this exception.
a. Appellants Alleged Facts Showing a Dangerous Condition of Public Property
The first question is "whether the highway conditions and circumstances described in the petition were as a matter of law not a 'dangerous condition of (the Missouri Highway and Transportation Commission's) property.'" Cole v. Mo. Highway & Transp. Comm'n, 770 S.W.2d 296, 297 (Mo. App. W.D. 1989). Generally, a condition is dangerous where "its existence, without intervention by third parties, posed a physical threat to plaintiff." Alexander v. State, 756 S.W.2d 539, 542 (Mo. banc 1988).
What constitutes a dangerous condition of public property has evolved. See Uptergrove v. Housing Auth. of Lawson, 935 S.W.2d 649, 653-54 (Mo. App. W.D. 1996). A dangerous condition of public property originally existed as a matter of law only when there was a " defect in the physical condition of public property." See Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 835 (Mo. banc 1985). A dangerous condition now exists as a matter of law when there is a "physical deficiency" in such property, apart from any inherent defect in the physical condition of the property itself. Alexander, 756 S.W.2d at 542 (placement of folding room partition against ladder created physical deficiency in State's property that constituted a dangerous condition of public property). See also State ex rel.
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