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Kraus v. Hy-Vee11/9/2004
that Mildred Kraus' death "directly resulted from" this dangerous condition. In its motion to dismiss appellants' third amended petition, MHTC argued that appellants failed to do so.
"The phrase 'directly resulted from' in section 537.600.1(2) is synonymous with 'proximate cause.'" Dierker, 961 S.W.2d at 60. "Proximate cause requires something in addition to a 'but for' causation test because the 'but for' causation test serves only to exclude items that are not causal in fact; it will include items that are causal in fact but that would be unreasonable to base liability upon because they are too far removed from the ultimate injury or damage." Id. (quoting Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 865 (Mo. banc 1993)).
"The practical test of proximate cause is generally considered to be whether the negligence of the defendant is that cause or act of which the injury was the natural and probable consequence." Id. (quoting Krause v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. banc 1990)). "'To the extent the damages are surprising, unexpected, or freakish, they may not be the natural and probable consequences of a defendant's actions.'" Id. at 61 (quoting Callahan, 863 S.W.2d at 865)). "The trier of fact normally decides causation, especially where reasonable minds could differ as to causation on the facts of the case." Williams v. Mo. Highway & Transp. Comm'n, 16 S.W.3d 605, 611 (Mo. App. W.D. 2000) (internal citation omitted).
The petition in this case alleges that MHTC's negligence directly and proximately caused the "motor vehicle driven by Jeremiah Holt . . . to collide with Mildred Kraus, causing severe and extensive trauma to Mildred Kraus, eventually resulting in her death." Although MHTC's argument is not very clear, MHTC seems to contend that Ms. Kraus' death directly resulted from her own negligence, rather than any dangerous condition at the intersection. MHTC points to Ms. Kraus' supposedly-poor eyesight as evidence that her own negligence was the proximate cause of the accident.
There are two problems with MHTC's argument. First, evidence about Ms. Kraus' eyesight is beyond the scope of the pleadings and, therefore, cannot be considered in determining whether appellants have stated a claim upon which relief can be granted. Second, the existence of concurring negligence on Ms. Kraus' part would not bar recovery in any event; it would merely require the fact-finder to apportion fault between or among the responsible parties. Linton, 980 S.W.2d at 7 (no error in overruling MHTC's motion to dismiss on ground that motorists' deaths did not directly result from dangerous condition of property where evidence at trial showed that motorists had elevated blood alcohol levels).
Accordingly, we also conclude that appellants have alleged facts showing that Ms. Kraus' death directly resulted from the dangerous condition of public property. The trial court, therefore, erred in dismissing appellants' claim against MHTC. The case against MHTC is remanded for further proceedings.
B. JUDGMENT ON THE PLEADINGS FOR HY-VEE, HY-VEE WEITZ, AND TRANSYSTEMS
To resolve appellants' remaining points against Hy-Vee, Hy-Vee Weitz, and Transystems, we must consider the element of duty. In each instance, appellants allege -- and the three respondents deny -- the existence of this element of negligence. Duty is the only element of negligence that we determine as a matter of law. Bowan v. Express Med. Transporters, Inc., 135 S.W.3d 452, 457 (Mo. App. E.D. 2004). "A duty to exercise care can be imposed by a controlling statute or ordinance, assumed by contract, or imposed by common law under the circumstances of a given case." Id. This co
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