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Kraus v. Hy-Vee11/9/2004
ommission, 805 S.W.2d 274 (Mo. App. W.D. 1991]. Argument notwithstanding, we do not find in the petition factual allegations that the portion of East Avenue in question suffered from the "negligent, defective, or dangerous design" ; as pled in Wilkes, Cole, and Brown. Borrowing from Alexander, we believe the very existence of the road conditions alleged in Wilkes, Cole, and Brown, if true, posed a physical threat to the plaintiffs in those cases. We do not believe the alleged conditions of East Avenue, standing alone, posed a physical threat to the injured plaintiff in the case before us.
Id. at 615.
Hedayati may have painted with too broad a brush to the extent that it suggested that an allegation of negligent, defective or dangerous road design never can arise out of traffic flow and volume. As the Missouri Supreme Court specifically recognized in Donahue, "the primary purposes in the design of roads and highways are (1) expediting the flow of traffic, and (2) safety. Traffic control and control devices are an integral part of expediting traffic flow and attaining safety, and design, of necessity, is a continuing process which encompasses such things as widening, changing of grades, resurfacing, and installation of lights and traffic controls." 758 S.W.2d at 52.
In any event, we also believe that the facts alleged in Hedayati and Johnson differ from the facts alleged in this case. The petition in Johnson alleged that the dangerous condition was caused not just by the volume of traffic but also by motorists who parked their cars along the street, thereby blocking the view of other motorists and pedestrians. 817 S.W.2d at 612. The dangerous condition in Johnson, therefore, was not one whose "existence, without intervention by third parties, posed a physical threat to plaintiff." Id. at 614 (quoting Alexander, 756 S.W.2d at 542). To the contrary, the dangerous condition in Johnson was one whose existence depended upon the intervention of third parties -- motorists parking their cars -- to make it dangerous. See id. at 615 ("We do not believe the alleged conditions of East Avenue, standing alone, posed a physical threat to the injured plaintiff in the case before us.").
Unlike the petitions in both Hedayati and Johnson, the petition in this case also alleges that MHTC disregarded its own standards and design manual by failing to install an electric traffic light at the intersection. Cf. Linton, 980 S.W.2d at 7 ("In the instant case, there was sufficient evidence to find a dangerous condition under Donahue and its progeny. Respondents' expert testified the signs and directions placed on the highway were inadequate because they did not follow the directives of the Manual on Uniform Traffic Control Devices.").
Moreover, the petition in this case alleges not only that the dangerous condition of public property arose from MHTC's failure to post adequate traffic controls, but that the dangerous condition also arose from a physical deficiency in the road: the confusing striping. The petition alleges that the striping on the road at the intersection confused motorists and that MHTC had actual notice of the condition. This allegation is distinct from appellants' traffic flow allegations and was not present in either Hedayati or Johnson.
Construing all of the allegations liberally and in the light most favorable to appellants, we therefore conclude that appellants have alleged facts showing a dangerous condition of public property.
b. Appellants Alleged Facts Showing that the Decedent's Death Directly Resulted from the Dangerous Condition of Public Property
The second question here is whether appellants alleged facts showing
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